The Appellate Division recently held that New Jersey businesses could be held liable for injuries that occur on surrounding property, even if it is owned and maintained by another party.
In Nielsen v. WalMart Store #2171, A279011, a pest control worker was injured when he fell on loose gravel as he walked around the perimeter of the building at the request of WalMart store management. The area where he fell was not within the boundaries of WalMart’s unit, which included a small outside area. Under the terms of the master deed, the location where the injury occurred was to be managed and maintained by the developer of the property.
Plaintiff initially filed a Complaint against WalMart and fictitious defendants. More than two years later, Plaintiff amended his Complaint to join the developer. The developer successfully moved for Summary Judgment on statute of limitations grounds. Walmart did not oppose that motion. Approximately two weeks before the trial date, Walmart sought leave to file a third party Complaint against the developer. The Court denied the motion because of WalMart’s prior failure to oppose the developer’s Motion for Summary Judgment and because of the untimeliness of the motion.
During a five-week trial, the jury heard evidence concerning the manner in which the accident occurred and the extent of the Plaintiff’s injuries. Once the trial concluded, the jury returned a verdict finding that Walmart was 80% negligent and the Plaintiff was 20% negligent. The Plaintiff was awarded $400,000 in damages and the Plaintiff’s wife
was awarded $125,000 for her per quod claim.
In its appeal, Walmart argued that the motion judge abused his discretion in denying Walmart’s motion to join the developer as a party. In addition, Walmart argued that the trial judge erred in (a) denying its motion for judgment notwithstanding the verdict because the judge was mistaken in determining as a matter of law that the Plaintiff was Walmart’s business invitee; (b) that the judge was mistaken in denying Walmart’s request for a jury instruction concerning Plaintiff’s status as the employee of an independent contractor; (c) that the judge was mistaken in failing to distinguish between the duty owed by a business owner regarding conditions on and off its premises; and d) that the judge erred in denying its motion for new trial.
In its decision, the Appellate Division found Walmart’s first and third points to be without merit. The Appellate Division found Walmart’s failure to oppose the developer’s motion for summary judgment motion, and its considerable delay in seeking leave to assert a third party Complaint against the developer until a few weeks before trial, more than supported the judge’s exercise of discretion in denying the motion pursuant to Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 (App. Div. 1989).
In rendering its decision, the Appellate Division discussed at length the case law development of whether a land occupier’s duty of care extends only as far as the boundaries of its property. The Court discussed the seminal case, Stewart v. 104 Wallace Street Inc., 87 N.J. 14, 157 (1981), which held that commercial land owners are responsible for maintaining public sidewalks abutting their property in reasonably good condition, and are liable to pedestrians that are injured as a result of their negligent failure to do so. A number of cases followed in which the Court imposed sidewalk liability on an abutting owner whose negligent failure to clear snow and ice from the sidewalk caused a pedestrian’s injuries. Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983). The Court imposed sidewalk liability on owners of an abutting vacant commercial building and not just on commercial owners, but also their tenants. See, Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496, 501-502 (App. Div. 2012) and Antenucci v. Mr. Nick’s Mens Sportswear, 212 N.J. Super. 124, 128-130 (App. Div. 1986).
The Court noted that the notion a land occupier’s duty of care extends only as far as the boundaries of its property is simply out of step with the modern course of the common law. Many cases now extend liability beyond property lines in appropriate circumstances. The Court further noted it was not dispositive that the developer had the duty, as between itself and Walmart to take care of the area in question. Because the Plaintiff was an invitee, an innocent person who was present at the site at the request of Walmart, and because he was directed to do his work by entering from the outside rather than by going through the interior of the store, Walmart should have taken action to maintain the area on which it could foresee that invitees would enter, despite, or in addition to, what the developer might do to maintain the area.
The Appellate Division recognized that the ruling may “seem” inconsistent with another recent decision of the Panel in Kandrac v. Marrazzo’s Market at Robbinsville, 429 N.J. Super. 79 (App. Div. 2012). The Kandrac case involved a plaintiff who was injured when she fell in the parking lot of a shopping center after leaving the defendant’s store. The Court noted that Kandrac was dependent upon the assignment of responsibility for a common area (the parking lot) as defined by the defendant’s lease.
The Court found that Walmart had not contractually agreed to maintain or repair the area where the Plaintiff was injured, but noted the factor carries little weight because a tenant, as in Kandrac, could turn a “blind eye to any defects or hazards” in the common area which can be foreseen to be used by their invitees and passers by. The Court agreed with the dissent in a Third Circuit case, Holmes v. Kimco Realty Corp., 598 F.3d 115 (3d Cir. 2010), which stated that imposing a duty on a commercial tenant would encourage the tenant to be aware of problems on the leased premises and notify the landlord of them promptly.
This case and the recent decision in Kandrac indicate the inconsistency of off premises liability matters. These cases will likely be decided on fact sensitive factors such as the relationship between the parties and the underlying contract. Given the conflicting decisions, the Supreme Court should review off premises liability to give some guidance to business owners and land owners. Until then, NJ business owners should be aware of this new decision and the possibility of their liability being extended to areas outside of their responsibility as noted on the master deed or lease.