NOT FOR PUBLICATION WITHOUT THE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-2894-16T1
BALDWIN SHIELDS and
TRICIA SHIELDS, his wife,
Plaintiffs-Appellants,
v.
RAMSLEE MOTORS,
Defendant,
and
608 TONNELLE AVENUE, LLC,
Defendant-Respondent.
_______________________________
Argued February 28, 2018 – Decided August 20, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-6329-
14.
Kristian A. Krause argued the cause for
appellants (Goldstein, Ballen, O'Rourke &
Wildstein, attorneys; Kristian A. Krause, on
the brief).
Patrick J. Reilly, III, argued the cause for
respondent (Clark & Fox, attorneys; Michael
R. Fox and Patrick J. Reilly, III, on the
brief).
PER CURIAM
At all times relevant to this case, plaintiff1 Baldwin Shields
was employed by Federal Express to deliver packages. At
approximately 10:30 a.m. on February 6, 2014, plaintiff delivered
an envelope to Ramslee Motors, a car dealership located at 608
Tonnelle Avenue in Jersey City. Plaintiff parked the Federal
Express vehicle on the street next to the sidewalk that abuts the
driveway of the property. At his deposition, plaintiff testified
that the dealership's driveway was covered with snow and ice and
no salt or other deicing agent had been applied. After he
delivered the envelope, plaintiff began to walk back to the vehicle
when he slipped and fell on the ice covered driveway.
Plaintiff testified that he was "unconscious" immediately
after the fall. After he regained consciousness, he tried "to
jump up," but noticed he could not move; he felt "excruciating
pain" from his neck down the left side of his back. Emergency
Medical Technicians who responded to the 911 call transported him
by ambulance to the Jersey City Medical Center. The fall injured
his neck, lower back, and both shoulders.
1
Although Tricia Shields has filed a derivative per quod claim as
Baldwin Shields' spouse, we will refer to "plaintiff" in the
singular.
2 A-2894-16T1
Plaintiff filed a personal injury suit against both Ramslee
Motors (Ramslee), as the commercial tenant of the premises at the
time of the accident, and 608 Tonnelle Avenue, LLC, (608 Tonnelle),
the owner of the property. Neither defendant filed a cross-claim
or sought indemnification from the other. After joinder of issue,
608 Tonnelle moved for summary judgment against plaintiff,
claiming that under the commercial lease agreement it had with
Ramslee, the tenant is contractually obligated to maintain the
property clear of snow and ice.
At oral argument before the motion judge, counsel for 608
Tonnelle also claimed that one of the owners of Ramslee "admitted
that he was responsible for snow and ice [removal] under [the]
demised premises." Thus, counsel argued that "[t]here is no
dispute" that 608 Tonnelle was not in possession of the commercial
land and did not retain "any portion of control." 608 Tonnelle
did not include Ramslee in its notice of motion, and Ramslee did
not attend or participate in any way in the oral argument session
before the Law Division Judge.
In the course of oral argument, the motion judge noted that
the lease agreement does not include a provision expressly
allocating the responsibility to clear snow and ice to the tenant.
In response, counsel for 608 Tonnelle acknowledged that "the lease
does not say, snow and ice removal, it says maintain." Relying
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on this court's holding in McBride v. Port Auth. of N.Y. and N.J.,
295 N.J. Super. 521, 525 (App. Div. 1996), counsel continued to
argue that an "out-of-possession" commercial landlord did not have
a common law duty to a business invitee to maintain its property
clear of snow and ice.
Plaintiff's counsel conceded the relevancy of the legal
paradigm advocated by 608 Tonnelle's counsel, but argued that the
lease agreement did not address or allocate which party had the
responsibility for snow and ice removal. The motion judge found
that Ramslee's admission that the tenant was responsible for the
removal of snow and ice cured this deficiency. Relying on both
McBride and Milacci v. Mato Realty Co., 217 N.J. Super. 297, 301
(App. Div. 1987), the motion judge found 608 Tonnelle was not
liable to plaintiff. The judge held that "since the lease in this
case unquestionably placed responsibility for maintenance on
Ramslee, and the condition that caused the injury was both obvious
and [transient] in nature, 608 [Tonnelle] cannot be held liable
for the plaintiff's injuries as a matter of law."
Plaintiff's counsel also argued that even if the lease
agreement provided for this type of allocation of civil liability
between the parties, 608 Tonnelle retained a non-delegable duty
to plaintiff as a business invitee. The motion judge rejected
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this argument as well. Plaintiff now appeals asking us to reverse
the Law Division's legal conclusion.
We review the grant of a motion for summary judgment de novo.
We apply the standard codified under Rule 4:46-2 without according
any deference to the motion judge's legal conclusions. Nicholas
v. Mynster, 213 N.J. 463, 478 (2013). After reviewing the record
presented by the parties, we now reverse. It is well-established
that a commercial landlord has a duty to maintain the sidewalks
abutting its property in a reasonably good condition, Stewart v.
104 Wallace Street, Inc., 87 N.J. 146, 149 (1981), including the
removal of snow and ice, Mirza v. Filmore Corp., 92 N.J. 390, 400
(1983). Here, the lease agreement between the landlord and the
commercial tenant is silent on which one has the duty to maintain
the driveway leading to the building on the property clear of snow
and ice. This is not an area of the property where the landlord
does not have access without the tenant's consent.
In Vasquez v. Mansol Realty Assocs., Inc., 280 N.J. Super.
234, 238 (App. Div. 1995), this court held "a commercial landowner
is liable to an innocent third party injured as the result of the
negligent failure of its tenant to exercise due care in removing
or reducing the hazard of snow and ice accumulations on an abutting
public sidewalk, even though the landowner has allocated that
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responsibility by contract to its tenant." In reaching this
conclusion, we explained:
This is not a situation where the owner has
vested a tenant with exclusive possession and
no longer has the power of entry into the
premises to make repairs. In such case, to
hold the owner liable for injuries to a
passerby due to a condition of disrepair over
which it has relinquished access is unfair.
The same, however, cannot be said about a
public sidewalk.
[Id. at 237.]
We discern no legal or public policy distinction between a
sidewalk and an open driveway used with regularity by plaintiff
and other business invitees of Ramslee's car dealership. The two
cases from this court relied on by the motion judge are materially
distinguishable from the facts of this case. In McBride:
The dispositive issue . . . [was] whether an
employee of a commercial tenant in exclusive
possession may hold the tenant's landlord
responsible for personal injuries suffered on
the leased premises, due to a lack of proper
maintenance or repair, when the lease
unquestionably places responsibility for such
maintenance or repair solely upon the tenant.
[McBride, 295 N.J. Super. at 522 (emphasis
added).]
The landlord in McBride was the Port Authority of New York
and New Jersey (Port Authority). The tenant, Hudson Refrigerating
Company, leased from the Port Authority approximately sixty acres
of land and a 300,000 square foot warehouse. Id. at 523. The
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parties entered into a lengthy, meticulously detailed lease
agreement that unambiguously delegated the responsibility for
maintaining the demised premises to this sophisticated commercial
tenant. Id. at 524. The plaintiff, an employee of the tenant,
was injured on the job site "when the vehicle he was operating on
his employer's loading dock at the leased premises struck a hole
which caused the vehicle to jerk, throwing him to the ground and
seriously fracturing his heel." Ibid. In rejecting the
plaintiff's argument seeking to invalidate the Port Authority's
delegation of responsibility via contract, we expressly
distinguished the line of cases that precluded commercial
landlords from avoiding responsibility for sidewalk liability.
Id. at 526.
The same legal and public policy considerations were applied
by this court in Milacci where we upheld the Law Division's order
granting summary judgment to the commercial landlord that had
leased the entire premises to the State of New Jersey. Milacci,
217 N.J. Super. at 301. The plaintiff in Milacci sought to hold
the State's landlord liable as a result of her falling on an
"'accumulation of sand and dirt' on a floor in the State
unemployment office as she 'was going to step down onto the first
step' to exit the building . . . ." Id. at 299. We rejected the
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plaintiff's argument to impose a non-delegable duty to the landlord
based on the following uncontested facts:
All parties appear to agree that the State had
exclusive control of the premises even though
no copy of the lease between the State and
[the landlord] was offered for the record.
The State's contract for custodial services
reinforces the State's apparent exclusive
control over the premises. Plaintiff does not
contend that the dangerous condition existed
at the time of the original possession by the
State . . . .
[Id. at 301.]
Here, the material facts are sufficient to distinguish the
legal reasoning that drove our decisions in McBride and Milacci,
the two cases relied on by the motion judge to grant summary
judgment in favor of 608 Tonnelle. The lease agreement entered
into by the tenant and the landlord here does not mention which
party has the responsibility for the removal of snow and ice from
areas of the property commonly used by third parties such as
plaintiff. Snow accumulation and icy conditions are common,
recurrent conditions in this State. It is also well-established
that our Supreme Court has imposed a non-delegable duty on
commercial landlords to protect the public from this seasonal
hazard by keeping public sidewalks clear.
Our Supreme Court has made clear that "[w]hether a person
owes a duty of reasonable care toward another turns on whether the
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imposition of such a duty satisfies an abiding sense of basic
fairness under all the circumstances in light of considerations
of public policy." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
439 (1993); see also Monaco v. Hartz Mountain Corp., 178 N.J. 401,
418 (2004). "The imposition of a duty 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.'"
Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251, 257 (App.
Div. 2013) (quoting Hopkins, 132 N.J. at 439).
The lease agreement upon which both the landlord and the
motion judge rely on to support this immunity does not address
this critical issue. The tenant's post hoc acknowledgement of
this responsibility is, at the very least, an issue of fact for
the jury to decide, or legally inconsequential given its omission
in the lease agreement. Under these circumstances, we hold that
608 Tonnelle owed a duty to plaintiff, and other third-party
business invitees, to ensure that the driveway abutting the
sidewalk of its property was clear of snow and ice.
Reversed and remanded. We do not retain jurisdiction.
9 A-2894-16T1