Holmes v. Kimco Realty Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-4834

WALTER HOLMES; LISA HOLMES, Husband and Wife,
Appellants

v.

KIMCO REALTY CORPORATION;

and

LOWE’S HOME CENTER INCORPORATED, A
corporation of the State of North Carolina, Authorized
to do business in New Jersey;
Defendant/Third Party Plaintiff,

v.

PRICE LEGACY CORPORATION, as landlord
successor by merger to Price Enterprises, Inc.,
a Maryland Corporation,
Third Party Defendant/Forth Party Plaintiff,

v.
 DAVID FLACK, doing business as BOUNTIFUL
ACRES; GENERAL CASUALTY INSURANCE
COMPANIES,
Fourth Party Defendants.

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Number: 07-cv-00961)
District Judge: Honorable Robert B. Kugler

Argued December 16, 2009
Before: FISHER, HARDIMAN and VAN ANTWERPEN,
Circuit Judges.

(Filed: March 17, 2010)

Robert G. Devine (Argued)
White & Williams
457 Haddonfield Road
Suite 400, Liberty View
Cherry Hill, NJ 08034-0000
Attorneys for Appellees Kimco Realty Corp
and Lowe’s Home Ctr, Inc.

Benjamin Goldstein (Argued)
Stanley N. Drinkwater
Drinkwater & Goldstein

2
277 White Horse Pike
Suite 200
Atco, NJ 08004
Attorneys for Appellants Walter Holmes and Lisa
Holmes

F. Herbert Owens, III
Sweeney & Sheehan
216 Haddon Avenue
Sentry Office Plaza, Suite 701
Westmont, NJ 08108-0000
Attorneys for Third Party-Appellee Price Legacy Corp.

Mauro C. Casci
Law Offices of Mauro C. Casci
739 Leonardville Road
P.O. Box 90
Leonardo, NJ 07737-0000
Attorneys for Not Party - Appellee David Flack, DBA
Bountiful Acres

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This diversity action requires us to predict whether the
State of New Jersey would impose a common law duty on a

3
tenant in a multi-tenant shopping center to maintain the parking
lot owned by the landlord.

I.

On January 20, 2005, Walter Holmes drove to a shopping
center near Route 73 in Maple Shade, New Jersey (the Shopping
Center), consisting of a parking lot and several businesses in
stand-alone buildings, including Lowe’s Home Center, Bally’s
Total Fitness, and Mattress Giant.1 The businesses were some
distance apart, with the entrance to Bally’s located several
hundred feet from the main entrance of Lowe’s, and the
entrance to Mattress Giant even farther away. Holmes parked
in the area of the parking lot closest to Lowe’s. This area
contained shopping cart corrals displaying signs stating: “Please
keep our parking lots safe by returning your cart. Thank you for
shopping at Lowe’s.”

After making a purchase at Lowe’s, Holmes was pushing
his shopping cart to his car when he fell on “ice and/or snow” in
the parking lot. Another customer came to Holmes’s aid and
helped him return to Lowe’s to report the accident and obtain
medical assistance. Shortly after the accident, Lowe’s third
party insurance administrator, Specialty Risk Services (SRS),
contacted Holmes and his attorney, seeking information about
the accident and Holmes’s theory of Lowe’s liability. There was

1
The record suggests that Sports Authority was part of
the Shopping Center, but it is unclear whether it was in business
at the time of Holmes’s accident.

4
some additional correspondence between SRS and Holmes and
his attorney during the eighteen months following the accident.
On January 10, 2007, Holmes sued Lowe’s for negligent
maintenance of the parking lot.2 After the statute of limitations
had expired, Lowe’s informed Holmes that it was a tenant of the
Shopping Center, not the owner of the real estate where Holmes
slipped and fell.

Almost four years before Holmes slipped and fell,
Lowe’s had entered into a lease agreement (Lease) with Price
Legacy Corporation for the use of a retail facility within the
Shopping Center. Under the terms of the Lease, all tenants in
the Shopping Center were demised the interior space of their
individual buildings and enjoyed a non-exclusive right to use the
parking lot and other common areas. Under the Lease,
“Common Area” was defined as “the Primary Parking Area, the
remainder of the parking areas in the Shopping Center, service
drives, access roads . . . the entrances and exits of the Shopping
Center, and all other areas that may be provided by Landlord for
the general use in common of the tenants of the Shopping Center
and their . . . invitees.” Lease § 8(a)(iii). The Lease also
provided that “Tenant, its . . . invitees and customers shall have
the right to use, in common with all other occupants of the
Shopping Center and their respective . . . invitees and customers,
without charge, all Common Areas and Common Facilities of
the Shopping Center.” Lease § 8(f).

2
Holmes’s wife, Lisa Holmes, is also a plaintiff in the
case, alleging a claim for loss of consortium.

5
 Section 8(i) of the Lease required the landlord to
maintain the Common Areas, including snow removal. In turn,
each tenant was required to pay a pro rata share of common area
maintenance costs. Lease § 8(j). Finally, the Lease required the
landlord to “carry or cause to be carried commercial general
liability insurance . . . upon all Common Areas and Common
Facilities (not including the Demised Premises), naming Tenant
as an additional insured . . . .” Lease § 10(c).

In October 2004, Price Legacy contracted with Bountiful
Acres to remove snow from the Common Areas of the Shopping
Center. The agreement provided for “monitor[ing of] the site 24
hours a day, 7 days a week during the snow season for snow
and/or ice conditions,” and for dispatch of equipment to the site
to “control these conditions.” During the winter season,
Bountiful Acres kept equipment at the site, and dedicated a full-
time foreman to the Shopping Center, with responsibility for all
snow maintenance activities. On January 19, 2005, the day
before Holmes’s accident, Bountiful Acres had plowed and
salted the parking lot and shoveled the sidewalks.

When Holmes learned that Lowe’s did not own the real
estate upon which he fell, he amended his complaint to add two
entities suspected of owning the parking lot: Price Legacy and
Kimco Realty Corporation.3 This amendment came too late,

3
Price Legacy apparently sold the property to PL
Mapleshade LLC c/o DRA Advisors LLC shortly before January
2005. In December 2008, during argument before the District
Court on the motions for summary judgment, the parties still had

6
however, so the District Court granted summary judgment for
both entities because the statute of limitations had expired. The
District Court also granted summary judgment for Lowe’s,
finding that New Jersey would not impose a duty on a tenant for
maintenance of a multi-tenant parking lot. The District Court
ruled from the bench:

In this situation under the Erie doctrine I have to
predict what the New Jersey Supreme Court
would do with this. And although the Supreme
Court of New Jersey has extended liability in
some very specific situations beyond the actual
premises, I don’t think they would do so in this
case because of the multi-tenant use of this lot
and, therefore, I’m going to grant the motion for
summary judgment for Lowe’s. I do not find that
Lowe’s had any duty whatsoever.

I further don’t find under the facts presented to
the Court that Lowe’s assumed any duty over this
parking lot to maintain it free of ice and snow.

(Mot. Hr’g Tr. 53, Dec. 5, 2008.)

not identified conclusively the owner of the property at the time
of Holmes’s accident.

7
 Holmes appeals only the grant of summary judgment to
Lowe’s. The District Court had jurisdiction over this matter
pursuant to 28 U.S.C. § 1332, and we have appellate jurisdiction
pursuant to 28 U.S.C. § 1291.

II.

We exercise de novo review over the District Court’s
summary judgment and view the facts in the light most
favorable to Holmes, the nonmoving party. See Kopec v. Tate,
361 F.3d 772, 775 (3d Cir. 2004). The existence of a duty is
generally a matter of law. Carvalho v. Toll Bros. & Developers,
675 A.2d 209, 212 (N.J. 1996). Because the question of a
tenant’s common law duty to maintain a multi-tenant parking lot
has not been addressed by the New Jersey Supreme Court, we
must “predict how the New Jersey Supreme Court would rule if
presented with this case.” Repola v. Morbark Indus., Inc., 934
F.2d 483, 489 (3d Cir. 1991). In predicting how the highest
state court would decide an issue, we look to analogous state
court cases and “[i]n the absence of an authoritative
pronouncement by a state’s highest court, we may give serious
consideration to the opinion of an intermediate appellate court.”
Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir.
1988) (citations omitted). We may also look to “scholarly
treatises, the Restatement of Law, and germane law review
articles.” McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662-
63 (3d Cir. 1980) (footnotes omitted). “[R]elevant state
precedents must be scrutinized with an eye toward the broad
policies that informed those adjudications, and to the doctrinal
trends which they evince.” Id. at 662.

8
 A.

The threshold inquiry in a negligence action is whether
the defendant owed the plaintiff a duty of care. Under New
Jersey law, “whether a person owes a duty of reasonable care
toward another turns on whether the imposition of such a duty
satisfies an abiding sense of basic fairness under all of the
circumstances in light of considerations of public policy.”
Monaco v. Hartz Mountain Corp., 840 A.2d 822, 833 (N.J.
2004) (quoting Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110
(N.J. 1993)). This inquiry requires the balancing of several
factors including “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.” Id. (internal
quotations omitted).

Holmes correctly notes that New Jersey places a
relatively broad duty on commercial landowners to ensure the
safe ingress and egress of their patrons. In the landmark case of
Stewart v. 104 Wallace Street, Inc., 432 A.2d 881, 887 (N.J.
1981), New Jersey reversed its “no liability” rule and extended
a commercial landowner’s duty of care to include the sidewalk
abutting its property, even when the sidewalk is neither owned
nor controlled by the landowner. The court identified a number
of public policy considerations supporting the imposition of
liability, including: (1) commercial landowners receive
considerable benefits from and rights to use the sidewalks, over
and above those of the public; (2) the “no liability” rule
undermines the goals of tort law by “le[aving] without recourse
many innocent parties who suffered serious injuries because of
sidewalk defects”; (3) the “no liability” rule provides no

9
incentive to abutting property owners to repair deteriorated
sidewalks and prevent injuries; (4) landowners are in an ideal
position to inspect and repair sidewalks abutting their property;
and (5) a New Jersey statute authorizes municipalities to make
abutting landowners responsible for sidewalk repair. Stewart,
432 A.2d at 884, 886-88. Two years after Stewart, the New
Jersey Supreme Court held that the duty to maintain sidewalks
in a reasonably safe condition includes a duty to remove
accumulations of snow and ice. Mirza v. Filmore Corp., 456
A.2d 518, 521 (N.J. 1983) (“The many innocent plaintiffs that
suffer injury because of unreasonable accumulations should not
be left without recourse.”). In the years since Stewart,
New Jersey courts have applied the case to broaden the duty of
care owed by landowners and tenants in exclusive possession for
the ingress and egress of their customers. In these cases, courts
have rejected lack of control over the premises as a defense to
imposition of a duty of care. See Monaco, 840 A.2d at 831
(“[I]n a long line of cases, our courts have extended a
commercial landowner’s duty, when warranted by the facts, to
cases in which the landowner had no control over the dangerous
condition and the condition was not located on its property.”).
For example, in Warrington v. Bird, the New Jersey Appellate
Division applied Stewart to impose a duty on a restaurant owner
whose customers were hit by a speeding car while crossing a
public road at night as they returned to the restaurant’s parking
lot. 499 A.2d 1026, 1030 (N.J. Super. Ct. App. Div. 1985)
(“[W]hen a business provides a parking lot across the roadway
from its establishment, the duty of the proprietor to exercise
reasonable care for the safety of its patrons extends to conditions
obtaining at the parking lot and requires that the patrons not be
subjected to an unreasonable risk of harm in traversing the

10
expected route between the two locations.”), cert. denied, 511
A.2d 653 (N.J. 1986).

Similarly, in Antenucci v. Mr. Nick’s Mens Sportswear,
the Appellate Division applied Stewart to impose a duty for
sidewalk maintenance on commercial tenants in exclusive
possession of the premises, reasoning that “the policy
considerations underlying the holding in Stewart have equal
applicability . . . to a lessee who is in exclusive possession of
commercial premises abutting a sidewalk.” 514 A.2d 75, 76-77
(N.J. Super. Ct. App. Div. 1986); see also Jackson v. K-Mart
Corp., 442 A.2d 1087, 1090-91 (N.J. Super. Ct. Law Div. 1981)
(tenant had same sidewalk duty as owner, otherwise “[b]usiness
tenants, knowing that their customers were traveling a defined
route to reach their premises, could ignore the unsafe condition
of that route with impunity”). The Antenucci court was careful
to limit its holding to tenants in exclusive possession, however,
and expressly declined to opine whether the same rule applied
to multi-tenant facilities. Id. at 77-78.

Although the New Jersey Supreme Court has not
addressed the question left open by Antenucci, subsequent cases
from lower courts have refused to impose a duty on tenants for
common areas of a multi-tenant facility. We now turn to those
cases.

B.

In Barrows v. Trustees of Princeton University, the New
Jersey trial court refused to apply Stewart and Antenucci to
commercial tenants in a “multi-tenant shopping complex.” 581

11
A.2d 913, 914 (N.J. Super. Ct. Law Div. 1990). After arriving
at a shopping complex, Barrows visited three stores before
falling on a patch of ice on the sidewalk in front of a fourth store
called Lavake’s. Barrows sued all four of the stores he had
visited, as well as the owner of the complex. The Barrows court
reviewed the expansive rules established by Stewart and
Antenucci but held that the duties they imposed “do not extend
to tenants in multi-tenant shopping complexes” because such
tenants “will not, absent a contractual obligation, have control
or maintenance responsibilities for common walkways or
sidewalks.” Barrows, 581 A.2d at 915. The court dismissed all
of the tenant stores except Lavake’s, whose potential liability
“d[id] not rest upon the holdings of Stewart and Antenucci but
upon common law principles of negligence,” i.e., Lavake’s had
control over the awning which created the icy patch on the
sidewalk and it could have foreseen the danger. Id. (citations
omitted).

The United States District Court for the District of New
Jersey subsequently applied Barrows to a negligence action
arising from a fall on a moving walkway at an airport in
Kantonides v. KLM Royal Dutch Airlines, 802 F. Supp. 1203
(D.N.J. 1992). The court held that the airline’s duty to provide
its passengers with a reasonably safe means of ingress and
egress “did not and does not encompass the common areas of
the airport terminal.” Id. at 1215. Extension of a duty of care
to areas beyond the airline’s control would “violate principles of
foreseeability and fairness,” id. at 1216, with “no logical end to
th[e] duty,” id. at 1215.

12
 The New Jersey Appellate Division also has considered
the issue of multi-tenant facilities in two unpublished decisions,
and has followed the reasoning of Barrows and Kantonides. In
a negligence action by a ferry customer who slipped on ice in a
parking lot, the court refused to impose a duty of care on the
ferry operator, which licensed its terminal from the County, for
snow removal in the adjacent County-owned parking lot, even
though the ferry operator had some responsibility with respect
to the lot which was used by its customers. Siegel v. County of
Monmouth, No. L-57-04, 2007 WL 1628141 (N.J. Super. Ct.
App. Div. June 7, 2007), certification denied, 932 A.2d 28 (N.J.
2007). Pursuant to the agreement between the ferry operator
and the County, passengers were permitted to park in the lot free
of charge, with the ferry operator providing a shuttle bus from
various areas of the parking lot to the terminal. Id. at *1. The
passengers did not have exclusive rights to the lot, however, as
it was also used by “[b]eachgoers, fishermen, sightseers, and any
other member of the public wishing to use the lot.” Id. at *1.
The agreement also provided that the County would be
responsible for snow removal from the lot, while the ferry
operator would be responsible for routine maintenance and daily
cleaning. Id. at *2.

The Siegel court concluded that the agreement did not
constitute a lease of the parking facility, and further held that the
ferry operator “lacked the necessary control over the parking lot
to give rise to a duty of care to plaintiff.” Id. at *5. Among
other reasons, the Appellate Division declined to impose a duty
for snow removal on the ferry operator because it was not
contractually required or authorized to remove snow from the
parking lot. Rather, the County retained responsibility for snow

13
removal and was exercising that duty. Finally, the court
distinguished Siegel from Jackson v. K-Mart Corp., noting that
(1) the ferry operator was a licensee, not a lessee of the County,
and (2) the ferry operator was not in exclusive possession of the
parking lot, so there was no “defined route” the ferry operator
knew its patrons would cross, unlike the tenant in Jackson. Id.
at *5.

Like Siegel, in McCann v. Borough of Washington, the
Appellate Division refused to impose a duty of care on Weight
Watchers, which rented a room inside a municipal building for
weekly meetings. No. L-294-04, 2006 WL 2726818 (N.J.
Super. Ct. App. Div. Sept. 26, 2006). A participant at a Weight
Watchers meeting slipped on ice on the front steps of the
Borough building and sued Weight Watchers and the Borough
for negligence. In refusing to impose a duty on Weight
Watchers, the court noted that the extension of liability to
commercial tenants in Antenucci had been limited to tenants in
exclusive possession of the premises. The court discounted the
plaintiff’s reliance on Warrington on the ground that the
restaurant was the sole occupant of the building and the parking
lot whereas Weight Watchers was one of many tenants of the
Borough building. Id. at *1-2. The Appellate Division
acknowledged that the New Jersey Supreme Court had
previously “eschewed ‘control’” over the premises as the
determinative factor in imposing a duty and instead looked to
basic fairness under all the circumstances. Id. at *2. The
McCann court reasoned: “it would not comport with basic
principles of fairness to impose a duty on the weekly renter of
a single meeting room, in a building occupied on a regular basis
by others.” Id.

14
 The approach taken by Barrows and Kantonides is in
accord with the rule adopted by the great majority of other
jurisdictions to have considered the question which hold that a
lessee in a multi-tenant shopping center does not have a duty to
maintain common areas controlled by the landlord.4 See Frank

4
See Berry v. Houchens Mkt. of Tenn., Inc., 253 S.W.3d
141, 146 (Tenn. Ct. App. 2008) (shopping center tenant had no
duty to patron who slipped in oil in parking lot where parking lot
served multiple tenants and landlord was responsible for its
maintenance); Marrone v. S. Shore Props., 816 N.Y.S.2d 530,
532 (N.Y. App. Div. 2006) (lessee had no duty to maintain strip
mall sidewalk it neither owned nor possessed exclusively);
Durm v. Heck’s, Inc., 401 S.E.2d 908, 911 (W. Va. 1991)
(“[W]here a lease agreement clearly sets forth that the lessor has
the duty to maintain the non-leased common areas, thereby
retaining the lessor’s control over such areas, the lessee of a
store located in a shopping center is not liable when a patron
sustains injuries as a result of an accident which occurs on the
non-leased common area.”); Johnson v. Tom Thumb Stores, Inc.,
771 S.W.2d 582 (Tex. Ct. App. 1989) (shopping center tenant
not liable to customer who fell in common area of shopping
center ten feet from entrance to tenant’s store where landlord
was responsible for and had control over common areas);
Dopico-Fernandez v. Grand Union Supermarket, 841 F.2d 11,
14-15 (1st Cir. 1988) (under Puerto Rico law, tenant served by
common areas in mini-mall not responsible for maintaining
those areas) cert. denied, 488 U.S. 864 (1988); Raspilair v.
Bruno’s Food Stores, Inc., 514 So. 2d 1022, 1024 (Ala. 1987)
(shopping center tenants Wal-Mart and Bruno’s did not owe

15
duty to customer who fell on plastic bag in parking lot where,
under the lease, shopping center owner was responsible for
cleaning and maintenance of parking lot); Hall v. Quivira
Square Dev. Co., Inc., 675 P.2d 931, 932-33 (Kan. App. 1984)
(tenant had no duty to warn customer who fell in multi-tenant lot
because shopping center owner solely responsible for making all
repairs and conducting maintenance for common areas including
sidewalks and parking spaces); Torres v. Piggly Wiggly Shop
Rite Foods, Inc., 600 P.2d 1198, 1200 (N.M. App. 1979)
(shopping center tenant not liable for customer’s fall on grease
in parking lot where, though lease silent as to responsibility for
maintenance, parking lot was for common use of all tenants and
tenant did not exercise control over parking lot), cert. denied,
604 P.2d 821 (N.M. 1979); Leary v. Lawrence Sales Corp., 275
A.2d 32, 34 (Pa. 1971) (“In Pennsylvania, it has long been
established as a principle of landlord-tenant law that where the
owner of real estate leases various parts thereof to several
tenants, but retains possession and control of the common
passageways and aisles which are to be used by business
invitees of the various tenants, the obligation of keeping the
common aisles safe for the business invitees is imposed upon
the landlord and not upon the tenants, in the absence of a
contrary provision in the lease or leases.”); Underhill v.
Shactman, 151 N.E.2d 287, 290 (Mass. 1958) (shopping center
tenant not liable to customer who fell in parking lot landlord was
obliged to maintain notwithstanding fact that tenant could
provide parking attendants). But see, e.g., Levy v. Home Depot,
Inc., 518 So. 2d 941 (Fla. Dist. Ct. App. 1987) (Home Depot not
absolved from liability for gap in elevated sidewalk in common

16
D. Wagner, Annotation, Liability of Lessee of Particular
Premises in Shopping Center for Injury to Patron from
Condition on Portion of Premises Not Included in His
Leasehold, 48 A.L.R.3d 1163 (2009).

C.

In light of the cases we have discussed, Holmes argues
that Lowe’s is more similar to a stand-alone facility with
responsibility for its parking lot like the K-Mart in Jackson,
while Lowe’s urges us to apply the rule for multi-tenant
shopping complexes.5 Holmes relies heavily on the following

parking lot of shopping mall simply because mall owner
contractually responsible for common area maintenance);
Wilson v. Allday, 487 So. 2d 793, 798 (Miss. 1986) (lessee had
duty of care with respect to shopping center parking lot if its use
constituted possession and control); Hopkins v. F.W. Woolworth
Co., 419 N.E.2d 302, 304 (Mass. Ct. App. 1981) (lessee in
shopping mall had duty to patron who fell on common area
sidewalk near lessee’s store, “[e]ven if a finding were warranted
that Woolworth had no control over the sidewalk on which the
plaintiff fell, it would not be relieved from its duty to warn
invitees of danger” of which it was aware).
5
We reject Lowe’s argument that it should not be held
liable because the Lease obliged the landlord to remove snow
and the contracting parties are in the best position to allocate
such risks. The allocation of risk made by the lease may define
indemnity rights between Lowe’s and the landlord, but it cannot

17
language from Warrington for the proposition that imposition of
a duty is determined by the reasonable expectation of an invitee:

[T]he critical element should not be the question
of the proprietor’s control over the area to be
traversed but rather the expectation of the invitee
that safe passage will be afforded from the
parking facility to the establishment to which they
are invited. Commercial entrepreneurs know in

conclusively determine Lowe’s common law tort duties to third
party invitees. See Jackson v. K-Mart Corp., 442 A.2d at 1091
(“The effect of the covenant to maintain is only to allocate costs
between the tenant and the property owner. . . . [T]he covenant
absolves neither landlord nor tenant from liability to innocent
third parties.”); O’Connell v. New Jersey Sports and Exposition
Auth., 766 A.2d 786 (N.J. Super. Ct. App. Div. 2001) (tenant not
absolved of liability where lease placed maintenance
responsibility on landlord because tenant exercised some control
over interior of stadium where plaintiff fell) (citations omitted).
Of course, the converse of this proposition is true as well. If
New Jersey were to adopt the dissent’s rule of law, tenants
would be jointly and severally liable and would have no
common law right of complete indemnification. See New Jersey
Joint Tortfeasors Contribution Law, N.J. Stat. Ann. § 2A:53A-3
(providing that a joint tortfeasor who “pays [a] judgment in
whole or in part, . . . shall be entitled to recover contribution
from the other joint tortfeasor . . . for the excess so paid over his
pro rata share”).

18
 providing the parking facility that their customers
will travel a definite route to reach their premises.
The benefitting proprietor should not be permitted
to cause or ignore an unsafe condition in that
route which it might reasonably remedy, whether
the path leads along a sidewalk or across a
roadway.

Warrington, 499 A.2d at 1029-30 (emphasis added). Under
Holmes’s approach, Barrows and Kantonides do not apply here
because Lowe’s did not look or act like a multi-tenant facility;
it was located in a stand-alone building, with essentially its own
parking area designated by Lowe’s cart corrals and signs.
Therefore, a “reasonable invitee” would expect Lowe’s to have
a duty to maintain the parking area where Holmes fell.

As a preliminary matter, we note that it is unclear that the
expectation of an invitee is relevant in the context of a multi-
tenant facility, as Warrington involved a proprietor in exclusive
possession, and neither Barrows nor Kantonides considered
invitee expectation as part of their multi-tenant analyses. See
Kantonides, 802 F. Supp. at 1214 (refusing to apply reasoning
of Antenucci/Warrington because “[t]his line of cases . . . deals
only with tenants in exclusive control of the premises”).
Regardless, even when invitee expectation is considered,
Holmes’s argument fails because the Shopping Center parking
lot looked like a multi-tenant facility. The signs at the entrance
to the lot identify multiple tenants, not just Lowe’s. While a
Lowe’s customer will undoubtedly park as close as possible to
that store, he could park anywhere in the lot. Unlike in
Warrington and Jackson—and contrary to the dissent’s

19
characterization—there is not one “defined route” from the lot
to the store.6 Therefore, while a reasonable invitee to the
Shopping Center would expect safe passage from the parking lot
to any of the stores benefitting from the lot, the invitee would
not reasonably expect one tenant to be responsible for
maintaining the entire lot. See Puterman v. City of Long
Branch, 859 A.2d 1246 (N.J. Super. Ct. Law Div. 2004)
(refusing to impose duty on owner of strip mall for icy
conditions in an adjacent municipal lot even though owner
advertised that patrons could park in the lot where there were
numerous routes an invitee could take from the lot to the mall).
While our dissenting colleague correctly notes that Lowe’s and
the other tenants are located in stand-alone buildings instead of
interconnected stores, this fact does not negate the shared nature
of the parking lot.

Although Barrows, Siegel, McCann, and Kantonides are
not decisions of the New Jersey Supreme Court, and are not
binding on our interpretation of New Jersey law, we find them
persuasive because they are consonant with the public policy
considerations underlying Stewart and the basic fairness

6
The record demonstrates that some of the parking
spaces in front of Bally’s are closer to Lowe’s than many of the
parking spaces in front of Lowe’s. This is especially true if one
patronizes Lowe’s lumber center. This fact highlights the
uncertainty inherent in the rule of law proposed by the dissent,
which would vary from store to store and from shopping center
to shopping center depending on the tenant mix and the
configuration of the parking lot.

20
principle of Monaco. It is true both that Lowe’s derives a
benefit from the parking lot and that the imposition of a duty
would incentivize Lowe’s to prevent dangerous conditions. But
countervailing policy considerations weigh more heavily against
imposition of a duty. To oblige tenants to maintain common
areas would result in substantially increased costs with little
added benefit. Landlords already have great incentive to keep
the parking areas of their shopping centers free of snow, ice, and
other hazards. A well-maintained parking lot induces shoppers
to patronize the center and motivates tenants to pay their
common area maintenance fees. Given the landlord’s snow
removal program here, the risk of not imposing a duty on
Lowe’s is minimal. Moreover, the imposition of a duty on the
tenants would result in duplicative effort and interference with
the landlord’s maintenance program. It is not hard to imagine
the confusion, and perhaps danger, that could ensue if snow
plows and salt trucks hired by the landlord, Lowe’s, Bally’s
Total Fitness, and Mattress Giant all attempted to maintain the
parking lot at the same time. The thought of the same occurring
in a shopping center with twenty or more tenants highlights the
absurdity of such a shared duty.

Imposition of a duty on tenants in a multi-tenant facility
also would lead to uncertainty with respect to the areas of the
parking lot for which each tenant is responsible. See
Kantonides, 802 F. Supp. at 1215 (“If KLM were found to owe
passengers a duty of care with regard to distant premises that it
does not own, lease, control or maintain, there would be no
logical end to that duty.”). This uncertainty would encourage
“shotgun” litigation of the type seen in Barrows, where the

21
customer sued every store at which he had browsed or purchased
an item prior to his fall.

Finally, one of the driving factors behind Stewart’s
abandonment of the “no liability” rule is not implicated in the
multi-tenant situation. The Stewart court expressed concern for
injured customers who would be left without a remedy if
landowners were not held responsible for abutting public
sidewalks. Here, it is undisputed that the landlord—who owned,
controlled, and was responsible for maintenance of the parking
lot—had a duty to Holmes. That Holmes failed to file suit
against the landlord within the limitations period leaves him
without a remedy in this case, but counsel’s error here should
not result in the imposition of an unfair and unworkable duty
upon the tenant.7 The burden of identifying the owner of a
multi-tenant property is not an onerous one and can be
determined simply by examining public records.8

7
Holmes also argues that Lowe’s owed him a duty
because it exercised some control over the parking lot, primarily
with respect to the placement and maintenance of cart corrals.
This argument is factually inapt because Holmes was not injured
in a cart corral or by a shopping cart.
8
We also reject Holmes’s argument that Lowe’s should
be estopped from denying liability because it misled him into
believing that it was the responsible party. Holmes’s evidence
is insufficient to establish estoppel because he has not presented
any affirmative statements by Lowe’s that it was the owner of
the parking lot. Moreover, because estoppel is an equitable

22
 III.

For the foregoing reasons, we predict that New Jersey
would not impose a duty on an individual tenant for snow
removal from the common areas of a multi-tenant parking lot
when the landlord has retained and exercised that responsibility.
Therefore, we will affirm Lowe’s summary judgment.

doctrine, the party requesting such a remedy must demonstrate
“good faith . . . and reasonable diligence.” Gluck v. Rynda
Dev. Co., 134 A. 363, 367-68 (N.J. 1926) (emphasis added).
Neither Holmes nor his counsel (whom Holmes retained shortly
after the accident) undertook to determine ownership of the lot
in a timely manner.

23
FISHER, Circuit Judge, dissenting.

The New Jersey courts have placed a broad duty of care
on proprietors to ensure the safe ingress and egress of their
patrons. Because I believe that the New Jersey Supreme Court
would find that Lowe’s owes Holmes a duty of care in the
circumstances presented here, I respectfully dissent.

The landmark decision imposing a broad duty of care on
store proprietors is Stewart v. 104 Wallace Street Inc., 432 A.2d
881 (N.J. 1981). In Stewart, the New Jersey Supreme Court
rejected a traditional “no liability” rule and held that
“commercial landowners are responsible for maintaining in
reasonably good condition the [public] sidewalks abutting their
property and are liable to pedestrians injured as a result of their
negligent failure to do so.” Id. at 887. In explaining its
rationale, the court articulated some of New Jersey’s public
policy considerations. According to the court, the liability rule
would (1) “provide a remedy to many innocent plaintiffs,”
(2) “give owners of abutting commercial property an incentive
to keep their sidewalks in proper repair,” and (3) “eliminate . . .
arbitrariness.” Id. The court also noted that owners are in the
best position to inspect and discover sidewalk defects: “Logic
and common sense also support the imposition of this duty,
inasmuch as owners of abutting property are in an ideal position
to inspect sidewalks and to take prompt action to cure defects.”
Id. at 888. See also Mirza v. Filmore Corp., 456 A.2d 518, 521
(N.J. 1983) (extending Stewart to cover snow and ice removal).

The lower New Jersey courts have also placed a broad
duty of care on store proprietors. See, e.g., Nelson v. Great Atl.
& Pac. Tea Co., 137 A.2d 599, 603 (N.J. Super. Ct. App. Div.
1958) (extending a proprietor’s duty of care to the supermarket
parking lot); Merkel v. Safeway Stores, Inc., 187 A.2d 52, 55
(N.J. Super. Ct. Law Div. 1962) (extending a proprietor’s duty
of care to the public sidewalk connecting the parking area to the
store entrance). But see, e.g., Chimiente v. Adam Corp., 535
A.2d 528, 529-30 (N.J. Super. Ct. App. Div. 1987) (declining to
extend the duty of care to a pathway created by the trespassing
public on a grassy slope adjacent to a shopping center but held
by a separate owner). In particular, in Warrington v. Bird, 499
A.2d 1026 (N.J. Super. Ct. App. Div. 1985), the New Jersey
Appellate Division held that a proprietor’s duty of care to its
patrons extended to a roadway when patrons were required to
cross the roadway to reach the proprietor’s parking lot. The
court explained, “the critical element should not be the question
of the proprietor’s control over the area to be traversed but
rather the expectation of the invitee that safe passage will be
afforded from the parking facility to the establishment to which
they are invited.” Id. at 1029-30.

Against this backdrop of proprietor liability, we are
presented with a discrete sub-issue: we must determine whether
the Lowe’s store’s status as a tenant affects any duty of care it
might otherwise have owed to its customers. Since the New
Jersey Supreme Court has not yet ruled on this question, we are
obliged to predict how it would resolve the issue. See Hunt v.
U.S. Tobacco Co., 538 F.3d 217, 220 (3d Cir. 2008). As the
majority states, “[i]n the absence of an authoritative
pronouncement by a state’s highest court, we may give serious
consideration to the opinion of an intermediate appellate court.”
Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir.
1988). Fortunately, several New Jersey superior court cases are

2
illustrative. A New Jersey trial court, Jackson v. K-Mart Corp.,
442 A.2d 1087 (N.J. Super. Ct. Law Div. 1981), and appellate
court, Antenucci v. Mr. Nick’s Mens Sportswear, 514 A.2d 75
(N.J. Super. Ct. App. Div. 1986), have extended the Stewart
liability rule to cover commercial tenants. However, another
New Jersey trial court, Barrows v. Trustees of Princeton
University, 581 A.2d 913 (N.J. Super. Ct. Law Div. 1990), and
a federal district court applying New Jersey law, Kantonides v.
KLM Royal Dutch Airlines, 802 F. Supp. 1203 (D.N.J. 1992),
have since carved out an exception to the liability rule for multi-
tenant facilities.

In Jackson, the plaintiff slipped and fell on a sidewalk
connecting a K-mart store, of which she was a patron, to a
parking lot. 442 A.2d at 1088. K-mart, a lessee, filed a motion
for summary judgment on the grounds that it did not own the
sidewalk and held no responsibility for its maintenance. Id. The
New Jersey Law Division disagreed, holding that K-mart’s
liability was concurrent with that of the property owner. Id. at
1091. Looking to Stewart for guidance, the court made three
“conclusions of law and policy”:

“(1) The operator of a commercial establishment
must provide reasonably safe premises for
business invitees.

(2) No distinction should be made between the
operator-owner and the operator-tenant, since in
either case it is the operator who is in the best
position to discover any dangerous condition.

3
 (3) The duty to provide reasonably safe premises
includes a duty to provide a safe path of egress
from the premises.”

Id. at 1090. The court explained that to hold otherwise “would
discourage commercial operators from undertaking necessary
corrective measures even though a transient hazard, such as a
snow and ice accumulation, would often be easily discovered by
an operator.” Id.

The New Jersey Appellate Division followed suit in
Antenucci. As in Jackson, the plaintiff in Antenucci fell on a
sidewalk in front of a proprietor-tenant, a sporting goods store.
514 A.2d at 75-76. Finding that Stewart “did not make a
distinction between the owner and a tenant in exclusive
possession of the commercial premises” and that the Stewart
public policy considerations applied in both instances, the court
held, “we find sufficient direction in Stewart to impose upon a
lessee in exclusive possession of premises abutting a public
sidewalk[] a duty to keep the walkway in good repair for the
benefit of pedestrians.” Id. at 77. The court emphasized that the
rule “applies only to a commercial tenant who is in exclusive
possession of the premises abutting the sidewalk.” Id.

Four years later, the New Jersey Law Division in
Barrows carved out a logical exception to the tenant liability
rule. Unlike Jackson and Antenucci, where the plaintiffs each
fell in front of a single store, the plaintiff in Barrows slipped and
fell on a patch of ice on a mall sidewalk. 581 A.2d at 914.
Although the plaintiff was in front of a particular store when he
fell, he had shopped in several of the mall’s stores during the

4
course of his trip. Id. Under these circumstances, the Barrows
court cited Antenucci with approval but declined to apply its
holding in the mall context:

“Because tenants in a multi-tenant shopping mall
will not, absent a contractual obligation, have
control or maintenance responsibilities for
common walkways or sidewalks, this court
concludes that the duties imposed by Stewart and
Antenucci do not extend to tenants in multi-tenant
shopping complexes.”

Id. at 915. Accordingly, the court granted the defendants’
motions for summary judgment. Id.

The only other court to apply a multi-tenant exception in
a published opinion is the federal district court in Kantonides, a
case involving a very unique set of facts. In Kantonides, the
plaintiffs filed suit against an airline company, which was to
provide them with round-trip air transportation, after the
plaintiffs fell on a moving walkway while proceeding to a
connecting flight. 802 F. Supp. at 1205. The moving walkway
was in the common area of a terminal building that was owned,
maintained, and controlled by the airport, not the specific airline
company. Id. at 1206. Citing both Antenucci and Barrows with
approval, the district court held that “[the airline] is a
commercial tenant and does not ‘exclusively possess’ the
common area of [the airport] where the moving walkway is
located” and granted the airline’s motion for summary judgment.
Id. at 1214-16. The court explained that the opposite conclusion
would be “impractical”: “If [the airline] were found to owe

5
passengers a duty of care with regard to distant premises that it
does not own, lease, control or maintain, there would be no
logical end to that duty.” Id. at 1215.

Examining these opinions against the backdrop of New
Jersey case law, I would hold that the New Jersey Supreme
Court would find Lowe’s liable and not apply the multi-tenant
exception articulated in Barrows and applied in Kantonides.
Although Lowe’s may technically be a part of a multi-tenant
complex, the Maple Shade Shopping Center does not resemble
the Barrows or Kantonides facilities: Lowe’s was in “exclusive
possession” of its building – albeit in a larger, shared shopping
area – while the tenants in Barrows shared possession of one
mall building, and the airlines in Kantonides shared possession
of one airport terminal. See Antenucci, 514 A.2d at 77. The
Barrows and Kantonides facilities also housed a much larger
number of tenants in much closer proximity than the Maple
Shade Shopping Center.

The facts of the instant case are much more similar to
those presented in Jackson. Like most K-mart and Lowe’s
stores, Lowe’s occupies a separate building that sits at a distance
from the three other tenants in the Maple Shade Shopping
Center. Its parking lot is defined and set apart by “cart corrals”
that house Lowe’s carts and are marked by Lowe’s signs, which
demonstrates that the tenants have jointly inspected and
exercised control over separate sections of the parking area.
The cart corrals also signal to the customer that Lowe’s is a
separate entity with its own responsibilities, leading Lowe’s
patrons to “expect[] . . . that safe passage will be afforded from
the parking facility to the [Lowe’s] to which they are invited.”

6
Warrington, 499 A.2d at 1029. In these circumstances, a New
Jersey court would likely hold that there is no distinction
between proprietor-owners and proprietor-tenants. A contrary
holding could lead to an absurd result, as a K-mart or Lowe’s
store’s duty of care would depend on whether the store stood
alone on a highway or within a few hundred feet of another
tenant in a “shopping center.”

The majority states that “a Lowe’s customer . . . could
park anywhere in the lot” and that “there is not one ‘defined
route’ from the lot to the store.” I disagree. Since the Maple
Shade Shopping Center has only three distinct stores – a
Lowe’s, a fitness center, and a mattress store – its customers
most likely park directly in front of the single store they plan to
visit and do not meander through the parking lot on an extended
shopping trip that encompasses multiple stops. Therefore, the
“defined route” extends from the parking lot in front of Lowe’s
to the Lowe’s store entrance.

The public policy considerations articulated by the New
Jersey Supreme Court in Stewart also support a finding of
liability in the present case. First, the imposition of a duty of
care will provide a remedy to Holmes, who, other than his
failure to examine the public records to determine the owner of
the Maple Shade Shopping Center, is an “innocent plaintiff.”
Stewart, 432 A.2d at 887. More importantly, allowing plaintiffs
like Holmes to pursue their claims gives Lowe’s “an incentive
to keep [its parking lot] in proper repair.” Id. This makes sense.
Even beyond owners, who may or may not keep watch over their
property, tenants “are in an ideal position to inspect [parking
lots] and to take prompt action to cure defects.” Id. at 888. To

7
hold otherwise would allow tenants to turn a blind eye to
dangerous parking lot or sidewalk conditions with the assurance
that they will not be held responsible. Finally, liability will
“eliminate . . . arbitrariness” by placing plaintiffs who file suit
against proprietor-owners and those who file suit against
proprietor-tenants in the same position. Id. at 887.

The majority expresses a legitimate concern that “the
imposition of a duty on the tenants would result in duplicative
effort and interfere with the landlord’s maintenance program.”
Keeping in mind that we are charged with predicting New Jersey
Supreme Court decisions, not with fashioning a preferable rule,
I disagree that this concern outweighs those I have just
expressed. The imposition of a duty of care will probably not
incite tenants to engage in their own competing maintenance
programs. Rather, tenants will be encouraged to keep a
watchful eye over leased premises and give prompt notification
to landlords when problems arise. In the event that a tenant is
held liable for its patrons’ injuries, the tenant will have the
option of pursuing an indemnification action against the
responsible landlord, a point that the majority opinion fails to
stress.

Therefore, for the foregoing reasons, I respectfully
dissent.

8