The Ongoing Storm Rule Just Got Narrower: What Gallardo v. Walmart Means for New Jersey Slip and Fall Claims

Winter slip-and-fall cases are among the most common premises liability claims in New Jersey, but they have also become some of the most difficult to litigate since the New Jersey Supreme Court adopted the “ongoing storm rule” in Pareja v. Princeton International Properties in 2021.

On July 30, 2026, the Supreme Court issued its first significant interpretation of Pareja in Gallardo v. Walmart Stores, Inc. In a closely divided 4-3 decision, the Court held that Walmart could not be held liable for injuries sustained by a customer who slipped during an active winter storm, further narrowing the circumstances under which commercial property owners may be liable while precipitation is still falling.

The decision is important not only because of its result, but because it answers one question left open by Pareja, while raising several others that will likely be litigated for years to come.

The Ongoing Storm Rule

In Pareja, the Supreme Court adopted what has become known as the ongoing storm rule.

The rule recognizes that commercial property owners generally have no duty to continuously remove snow and ice while precipitation is actively falling. Instead, absent certain exceptions, they are afforded a reasonable amount of time after the storm ends to address winter hazards.

The Court also recognized two exceptions to the rule: 1.) a commercial landowner may still owe a duty where its own conduct increases the risk to pedestrians or invitees by creating “unusual circumstances,” 2.) liability may exist where a dangerous condition predated the storm itself.

However, Pareja did not explain was what exactly constitutes “unusual circumstances.” That unanswered question brought Gallardo to the Supreme Court.

The Facts

The case arose from a slip-and-fall in a Walmart parking lot during an ongoing winter storm. The storm started around 11:30 a.m. on January 3, 2016. Walmart’s snow removal contractor arrived at the store at 12:35 p.m. and spread salt on the lots and walkways until approximately 1:15 p.m. The contractor’s co-owner testified that when he got there, snow had not accumulated enough to warrant plowing. It is undisputed that Land Pros never pretreated the lot with salt or any other de-icing compound before the precipitation began. Approximately fifteen minutes after the contractor completed salting, the plaintiff slipped and fell.

The plaintiff did not argue that Walmart failed to respond to the storm. Instead, her claim was that Walmart responded improperly. Her snow-removal expert opined that applying salt under those conditions, without pretreating or removing the accumulating snow, created an even more hazardous walking surface. In other words, the theory was not that Walmart did nothing. Rather, she asserted that Walmart’s remediation efforts actually made conditions more dangerous.

That distinction ultimately became the central issue in the case.

A Verdict and a Reversal

The procedural history of this case before the Supreme Court shows how genuinely close the the answer to this issue was.

The trial court granted summary judgment to Walmart’s snow-removal contractor but denied Walmart’s motion. While the case was pending, the Supreme Court decided Pareja in June 2021, and Walmart moved for summary judgment a second time. The trial court denied that motion too, finding the first Pareja exception governed. Notably, the court’s articulation of the exception did not mention “unusual circumstances” at all. It framed the test as whether a commercial landlord’s actions increase the risk to pedestrians and invitees.

A five-day trial followed. The trial court did not instruct the jury regarding the ongoing storm rule. Thereafter, the jury found Walmart negligent and found that negligence was the proximate cause of the fall. After the verdict was molded to account for past medical expenses and prejudgment interest was added, the trial court entered judgment for $1,328,658.59.

Walmart appealed. The Appellate Division agreed with Walmart that the trial court committed error when it declined to instruct the jury regarding the ongoing storm rule. However, while the Appellate Division vacated the judgment and remanded for a new trial, it also held that Walmart was not entitled to summary judgment, judgment at trial, or judgment notwithstanding the verdict because, in its view, there was a genuine issue of material fact as to whether Walmart’s conduct made the parking lot more dangerous on the day of the accident.

Both Gallardo and Walmart appealed. The Supreme Court denied Gallardo’s petition for certification and granted Walmart’s cross-petition.

The Supreme Court’s Decision

The Supreme Court reversed and directed that summary judgment be entered in Walmart’s favor.

The majority concluded that Walmart’s conduct of spreading salt during an active storm did not constitute the type of “unusual circumstances” contemplated by Pareja. According to the Court, interpreting the exception to include ordinary snow-removal efforts, even if those efforts increase the risk of danger, would effectively eliminate the phrase “unusual circumstances” from Pareja altogether.

Instead, the Court explained that both requirements must exist: the landowner’s conduct must increase the risk of harm, and the circumstances surrounding that conduct must themselves be unusual.

To illustrate the point, the Court relied heavily on Terry v. Central Auto Radiators, a Rhode Island case previously discussed in Pareja. There, an auto repair shop required a customer to walk approximately one hundred feet across an unfamiliar, snow-covered lot to retrieve her vehicle during a storm. The Supreme Court concluded that the unusual circumstance was not failed snow removal, but rather the business’s affirmative decision to direct the customer into a hazardous area.

Why the Court Reached That Result

The majority’s decision was driven largely by legitimate public policy concern.

The Court expressed concern that exposing commercial property owners to liability whenever they attempted to salt, shovel, or otherwise remediate snow during an active storm would discourage those efforts altogether. If every unsuccessful snow-removal effort could become the basis for liability, property owners might simply wait until the storm ended before taking any action.

The Court declined to create that incentive and instead interpreted Pareja narrowly, concluding that ordinary snow-removal efforts, even if later criticized as ineffective and/or danger increasing, are generally protected during an ongoing storm.

One procedural issue also played a significant role in the Court’s analysis.

Although the case proceeded to trial after Pareja was decided, the jury was never instructed on Pareja’s “unusual circumstances” requirement. Instead, the jury was asked only whether Walmart’s conduct increased the danger to pedestrians and invitees. The majority viewed that omission as significant because, in its view, the jury never decided the threshold question required under Pareja.

For the same reason, the Court directed the Committee on Model Civil Jury Charges to revise Model Civil Jury Charge 5.20B, which currently focuses on whether the defendant increased the risk of harm but does not expressly include the “unusual circumstances” language.

The Dissent

Justice Fasciale, joined by Justices Noriega and Hoffman, authored a comprehensive dissent that would have affirmed the jury’s verdict.

The dissent first questioned whether Pareja should have applied at all. Specifically, because the plaintiff’s accident occurred years before Pareja was decided, the dissent expressed concern with applying a newly announced common-law rule retroactively. The dissent also questioned whether the ongoing storm rule should extend beyond public sidewalks to privately owned commercial parking lots, an issue the majority ultimately declined to decide.

However, even assuming Pareja applied, the dissent concluded that the majority fundamentally misinterpreted the decision.

In the dissent’s view, the majority transformed “unusual circumstances” into an independent hurdle that Pareja never intended. Instead, the dissent reasoned that the unusual circumstance is the commercial landowner’s affirmative conduct when that conduct increases the danger beyond what the storm itself created. Under that interpretation, whether Walmart’s snow-removal efforts actually made the parking lot more dangerous was precisely the type of factual question that should have remained with the jury.

What This Means Going Forward

The decision unquestionably strengthens the ongoing storm rule for commercial property owners.

Simply presenting expert testimony that snow-removal efforts were negligent, or even made conditions worse, will likely no longer be enough to survive summary judgment. Plaintiffs must now demonstrate not only that a defendant’s conduct increased the risk of harm, but also that the conduct occurred under “unusual circumstances.”

While the decision clearly narrows the exception recognized in Pareja, it provides little guidance regarding what actually qualifies as an “unusual circumstance.” The opinion explains why Walmart’s conduct did not satisfy the exception but offers few examples of what conduct would.

That uncertainty is likely to become the next battleground in ongoing storm litigation. Future cases will almost certainly focus on defining the boundaries of the exception and determining when a commercial property owner’s affirmative conduct crosses the line from protected snow-removal efforts to conduct that “unusual.”

Final Thoughts

Gallardo represents one of the most significant New Jersey premises liability decisions in recent years. While the Court strengthened protections for commercial property owners responding to active winter storms, it also left important questions unanswered that will shape future litigation.

For anyone injured in a winter slip-and-fall, one lesson remains unchanged: act quickly. Photographs, surveillance footage, weather records, contractor logs, and witness statements often become the most important evidence in determining whether a claim exists. As Gallardo demonstrates, the timing of the storm, and the property owner’s response to it, can determine the outcome of the entire case.