NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1537-19T1
JOSSELYN BERNIZ,
Plaintiff-Appellant,
and
JONATHAN MARI,
Plaintiff,
v.
JEFFREY ATKINS and AISHA
ATKINS,
Defendants-Respondents,
and
ENDEMOL USA HOLDINGS,
INC., 51 MINDS
ENTERTAINMENT, LLC,
and JAIME'S LANDSCAPING,
Defendants.
———————————————
Submitted September 30, 2020 – Decided October 8, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-4282-15.
Robert Douglas Kuttner, attorney for appellant.
Santo V. Artusa, Jr., attorney for respondents.
PER CURIAM
Plaintiff Josselyn Berniz worked as a housekeeper for defendants Jeffrey
and Aisha Atkins. On January 26, 2015, after cleaning defendants' home,
plaintiff fell as she departed on their snow-covered driveway. Because snow
was then still falling, the judge applied the so-called "ongoing-storm rule" in
summarily dismissing plaintiff's complaint. Adhering to Pareja v. Princeton
International Property, 463 N.J. Super. 231, 251 (App. Div. 2020), cert. granted,
__ N.J. __ (2020), which held that a commercial landowner must take reasonable
steps "even when precipitation is falling," we reverse.
In interpreting the factual record in the light most favorable to plaintiff –
the opponent of defendants' summary judgment motion – we assume the truth of
the following circumstances. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).1
1
All other named defendants either obtained summary judgment or were
voluntarily dismissed.
A-1537-19T1
2
Plaintiff arrived at defendants' Saddle River home at approximately 9:30
a.m. That day, the Governor issued an executive order in response to a National
Weather Service warning that New Jersey would experience heavy snow
accumulations, strong winds, and freezing temperatures. Snow, however, had
not begun to fall by the time plaintiff arrived at defendants' home.
According to plaintiff, she parked her vehicle close to and "in front of the
garage doors where [she] usually parked." There was "a little bit of snow and
ice" on the driveway that had accumulated from recent precipitation; she did not
recall seeing any salt or de-icing chemical on the driveway. After parking and
without incident, plaintiff entered the home to commence her housekeeping
duties.
According to defendant Aisha Atkins, at "around, like, lunchtime,
between 11 and 1:00 p.m., maybe," she asked plaintiff to move her car because
of the severe storm warning she had heard about on television. Plaintiff recalled
that she worked for "three or four hours" before Aisha Atkins asked her to move
the car out of the driveway and onto the public street. When asked why she
directed plaintiff to move her car, Aisha testified at her deposition that she
A-1537-19T1
3
wanted all vehicles off the driveway so their contractor2 could "plow everything
clear."
As instructed, plaintiff moved her car from the driveway to the street just
beyond the residence's gate. As she walked back to the residence, plaintiff
noticed snow had started accumulating – by then approximately one to one-and-
a-half inches – and it "started to get dark."
Plaintiff finished the housework around 4:30 or 5:00 p.m. As she and a
co-worker left the residence, Aisha warned her to "[b]e careful, it's snowing."
By this time, the route to plaintiff's car was covered with snow. There was no
dispute that defendants owned a shovel and a bag of salt for snow and ice
removal, but they were not put to use, nor, for that matter, did defendants do
anything else to help plaintiff down the snow-covered driveway to her car on
the street.
While walking down the driveway, plaintiff slipped, prompting her to fall
backwards and allegedly causing an injury to her right hand. At her deposition,
plaintiff testified that snow was then falling "[n]ot too hard, not too light" and
that it was also dark outside, the sun having set and defendants having failed to
2
Defendants had a snow removal contract with defendant Jamie's Landscaping
for plowing and shoveling their driveway when necessary.
A-1537-19T1
4
turn on the outside lights. After her fall, plaintiff called someone to pick her up
and drive her to the hospital.
In granting defendants' summary judgment motion, the judge relied on
Bodine v. Goerke Co., 102 N.J.L. 642, 644 (E. & A. 1926), which, it is argued,
stands for the proposition that a landowner has no duty to remove snow or ice
until a reasonable time after precipitation ends. The motion judge also somehow
viewed plaintiff's own actions as the cause of the injury, stating:
the facts construed in favor of the plaintiff [reveal] she
knew . . . the snow was coming. She elected to continue
. . . to work and I . . . don't find there's a duty here. I
find that . . . it strains . . . the case law . . . to find one.
We disagree chiefly because we find it dubious at best whether the so-called
"ongoing-storm rule" is part of our jurisprudence, as Justice Albin pointed out
in his dissent from the denial of certification in Dixon v. HC Equities Assocs.,
LP, 241 N.J. 132, 133-35 (2020), and as we explained in Pareja.
In adhering to our decision in Pareja, we conclude that the mere fact that
snow was falling when plaintiff slipped and fell did not blanket defendants with
immunity. Instead, as we observed in Pareja, the Supreme Court has already
held more recently than Bodine, that, in applying the test expressed in Hopkins
A-1537-19T1
5
v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993), 3 a landowner's "duty to
reasonably remove or reduce [a] hazard is triggered once 'a reasonably prudent
person . . . knows or should have known' about the dangerous condition." Pareja,
463 N.J. Super. at 241 (quoting Mirza v. Filmore Corp., 92 N.J. 390, 395
(1983)).
In making this value judgment, we do not hesitate to conclude, as we held
in Pareja, that the "ongoing-storm rule" has no place in our jurisprudence.
Instead, as Mirza and Pareja make clear, defendants owed this business invitee
a duty to act reasonably and within a reasonable period of time after they knew
or should have known of the hazard caused by the snowfall and the setting of
the sun; whether defendants were negligent turns on a consideration of all the
relevant circumstances, only one of which was the continuing snowfall. See
also Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 302-03 (App. Div.
2000).
In addition, in applying the Brill standard, the judge – instead of
concluding that plaintiff assumed the risk of injury by leaving home that
3
The Court held in Hopkins that the imposition of a duty requires consideration
of four factors: "the relationship of the parties, the nature of the attendant risk,
the opportunity and ability to exercise care, and the public interest in the
proposed solution." See also Estate of Narleski v. Gomes, __ N.J. __, __ (2020)
(slip op. at 32).
A-1537-19T1
6
morning to fulfill her contractual obligation – should have denied summary
judgment. The existing factual record demonstrates that Aisha was aware of the
snowstorm, aware that a significant snowfall was expected to accumulate, and
aware that plaintiff's stepping out onto the unlit, snow-covered driveway was
hazardous because she warned plaintiff to "[b]e careful, it's snowing."
Defendants had the means of addressing the problem – a shovel and bag of salt
were handy and a snow-removal entity was under contract – but they instead left
plaintiff to her own devices. Indeed, defendants imposed a greater burden on
plaintiff than existed when she arrived, because plaintiff was told at some point
in the middle of the day to move her car out of the driveway and onto the street,
thus extending her path from the residence to her car. Whether defendants'
actions were reasonable – a question that would include whether it was
reasonable for defendants to refrain from shoveling or salting the driveway
during the snow fall, Pareja, 463 N.J. Super. at 244 (quoting Lundy v. Groty,
367 N.W.2d 448, 450 (Mich. Ct. App. 1985) (also dealing with a claim by a
housekeeper who fell on a snowy driveway during a snowstorm)) – should be
determined by a jury.
Reversed and remanded. We do not retain jurisdiction.
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