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Sunday, August 14, 2011

Slip & Fall due to ice law JUAN GUTIERREZ,

Slip & Fall due to ice law

JUAN GUTIERREZ,

Plaintiff-Appellant,

v.

JEAN M. HUNTINGTON and CLIFFORD

HUNTINGTON,

Defendants/Third-Party

Plaintiffs-Respondents,

v.

JORGE CABRERADUARTE a/k/a

JORGE CABRERA,

Third-Party Defendant.

APPELLATE DIVISION

DOCKET NO. A-0965-10T2

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY


_________________________________________

Submitted July 5, 2011 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No.

L-5068-08.

Flores Sternick Poosikian, attorneys for

appellant (Edwin Flores, of counsel;

Joseph P. Kreoll, on the brief).

Caruso Smith Edell Picini, attorneys for

respondents (Richard D. Picini, of counsel;

Jennifer L. Bocchi, on the brief).

PER CURIAM

August 10, 2011

2 A-0965-10T2

Plaintiff Juan Gutierrez appeals from the order of the Law

Division granting defendants Jean M. and Clifford Huntington's

summary judgment motion and dismissing his personal injury cause

of action. We reverse and remand.

Plaintiff was injured when he slipped on ice and fell onto

the concrete patio abutting a single family house rented by

third-party defendant Jorge Cabrera. At the time of the

accident plaintiff was temporarily residing with Cabrera as his

guest. Plaintiff sued the Huntingtons, alleging that the

accident was caused by snow-covered ice that formed from water

that pooled around a clogged drain in a depressed section of the

patio. This drainage problem was exacerbated by the absence of

roof gutters, which permitted precipitation from the roof to

fall directly onto the patio. Plaintiff submitted a report from

an engineer who opined the conditions of the patio violated a

municipal ordinance that requires all premises to be graded to

prevent the accumulation of stagnant water.

Relying on Patton v. The Texas Co., 13 N.J. Super. 42 (App.

Div.), certif. denied, 7 N.J. 348 (1951), defendants moved for

summary judgment arguing that, as a residential landlord, they

are not liable for injuries sustained by a tenant or a tenant's

guest "unless there has been fraudulent concealment of a latent

defect." Id. at 47. In response, plaintiff urged the court to

3 A-0965-10T2

rely on the standard established in Section 358 of the

Restatement (Second) of Torts (1965), which states:

(1) A lessor of land who conceals or fails

to disclose to his lessee any condition,

whether natural or artificial, which

involves unreasonable risk of physical harm

to persons on the land, is subject to

liability to the lessee and others upon the

land with the consent of the lessee or his

sublessee for physical harm caused by the

condition after the lessee has taken

possession, if

(a) the lessee does not know or have reason

to know of the condition or the risk

involved, and

(b) the lessor knows or has reason to know

of the condition, and realizes or should

realize the risk involved, and has reason to

expect that the lessee will not discover the

condition or realize the risk.

(2) If the lessor actively conceals the

condition, the liability stated in

Subsection (1) continues until the lessee

discovers it and has reasonable opportunity

to take effective precautions against it.

Otherwise the liability continues only until

the vendee has had reasonable opportunity to

discover the condition and to take such

precautions.

Plaintiff relied on Reyes v. Egner, 404 N.J. Super. 433,

448-55 (App. Div. 2009), aff'd by equally divided court on other

grounds, 201 N.J. 417 (2010), in which this court used Section

358 to determine the duty owed by a landlord to short-term

tenants of a vacation home and their guests. The dangerous

condition in Reyes involved an elevated deck and stairs which,

4 A-0965-10T2

given the plaintiff's unfamiliarity with the residence's layout,

caused the plaintiff to fall and injure himself. Id. at 440-41.

The question before this court was whether the lessor and

the lessee had "reason to know" of a condition that "involves

unreasonable risk of physical harm." Id. at 461-62. Focusing

on the short duration of the rental, we declined to follow

Patton and held the defendant potentially liable. Ibid.

Writing for the panel, Judge Sabatino concluded that, in such

circumstances, the landowner's duties "should be defined

consistent with the precepts of Section 358" of the Restatement.

Ibid.

The short duration of the tenancy, however, was not the

only factor we considered in Reyes. Because the dangerous

condition created by the elevated deck was also a violation of

the construction codes, this factor could be considered by a

jury as "evidential if not conclusive" evidence of the

landlord's breach of the duty owed to the tenants. Id. at 458.

Here, the record shows the motion judge was sympathetic to

plaintiff's argument but considered himself bound by our

decision in Patton, which he viewed as a viable precedent even

after Reyes. The judge noted:

I would not at all be surprised if in the

next case an Appellate Court were to adopt

the full rule of the Restatement (Second)

Section 358. But they had not up to this

5 A-0965-10T2

point and the rule is enunciated and []

Patton and Szeles1 does remain the rule in

this state. They're from . . . the

Appellate Division and this Court is bound

to follow it.

The court heard and decided defendants' summary judgment

motion on September 16, 2010. Approximately eight months

thereafter, we decided Meier v. D'Ambose, 419 N.J. Super. 439

(App. Div. 2011), in which we considered "whether the ownerlandlord

of a single-family residence had a duty to the tenant

to maintain, and thus periodically inspect, the furnace to

prevent a hazardous condition." Id. at 441.

In Meier, decedent's estate and heir sued the landlord for

negligence and wrongful death, alleging the tenant died from

smoke inhalation from a fire that may have been caused by a

defective gas-fired heater located in the crawl space of the

single-family dwelling. Id. at 442. The trial court in Meier

characterized the "deteriorated flue pipe" in the furnace that

1 Szeles v. Vena, 321 N.J. Super. 601 (App. Div.), certif.

denied, 162 N.J. 129 (1999), in which the plaintiff-tenant was

injured when he fell from an exterior staircase where a brick

had come loose. Plaintiff had not noticed the loose brick, and

he had not requested that the landlord repair the steps. Id. at

603-04. Relying on Patton, the panel in Szeles held that "where

plaintiff was in exclusive possession of the premises and the

condition of the brick step was not a condition that was known

to the landlord at the inception of the lease, or brought to the

landlord's attention, there is no basis to impose tort liability

on the landlord." Id. at 608.

6 A-0965-10T2

caused the fire as a "latent defect" because the defendant had

no prior notice of its malfunction. Id. at 445.

Relying on Patton and Szeles, the trial court in Meier

granted the landlord's motion for summary judgment, holding "as

a matter of law that [the] defendant did not have a duty to make

periodic inspections of the furnace to discover any such defects

because [the tenant] was in sole possession of the premises."

Id. at 445-46. We reversed and remanded the matter for trial.

Id. at 446.

We began our premises liability analysis in Meier by

reaffirming the fact-specific, public policy principles

articulated by our Supreme Court in Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426 (1993):

To determine whether the owner of property

had a duty in particular circumstances to

the injured person, a court must examine

such factors as "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."

[Meier, supra, 419 N.J. Super. at 445,

quoting Hopkins, supra, 132 N.J. at 439.]

From this point, we reviewed the evolutionary trend in premises

liability law defining a landowner's duty consistent with the

precepts of Section 358 of the Restatement (Second) of Torts

7 A-0965-10T2

(1965). Meier, supra, 419 N.J. Super. at 446-47, citing Reyes,

supra, 404 N.J. Super. at 448-55.2

With these principles as our guide, we now return to the

question presented in this appeal. At the time of this

accident, plaintiff had been living as the "guest" of thirdparty

defendant Cabrera for approximately two months. Cabrera

allowed plaintiff to share his home rent-free while plaintiff

searched for his own place to live.

Cabrera was defendants' tenant under a written lease that

began on July 27, 2004, and continued on a month-to-month basis.

The lease contained certain "terms and conditions." Of

relevance here, paragraph 5 required Cabrera to "keep and

maintain the premises in a clean and sanitary condition;"

paragraph 10 "reserves" defendants the right to enter the

premises "for the purpose of inspection, and whenever necessary

to make repairs and alterations." At his deposition, Cabrera

testified that he had a verbal agreement with defendants through

which he was responsible for removing the snow and ice from the

property.

2 We also noted the Supreme Court's decision in Parks v. Rogers,

176 N.J. 491, 499 (2003), in which the Court looked to the

Restatement (Second) of Torts § 342 (1965), to determine a

homeowner's duty to protect an unsuspecting social guest from

dangers on the premises.

8 A-0965-10T2

Here, plaintiff argues defendants have a duty to plaintiff

to maintain the premises they rented to Cabrera, including the

concrete patio abutting the house, free from dangerous

conditions. Plaintiff further argues that defendants' duty in

this respect is independent of and notwithstanding any verbal

agreement they may have had with Cabrera.

The alleged dangerous condition here is twofold. The

first is the defective drain, which permits water to pool and

freeze when the temperatures fall below the freezing point. The

second is the lack of gutters on the roof of the dwelling, which

exacerbates the drainage problem because it allows water to cast

down in the same area. In the opinion of plaintiff's liability

expert, both of these alleged defects are violations of local

municipal laws that set certain minimum standards of maintenance

for this kind of dwelling.

In our view, these are not latent defects. Both of these

defects are structural matters that are within the exclusive

control of the landlord. The structural defects remain the

responsibility of the landlord to remediate when they create a

dangerous condition on the property. These structural defects

do not fall within day-to-day maintenance of the property

properly assumed by the tenant. Although the record suggests

that the clogged drain and absence of gutters was a long9

A-0965-10T2

standing problem, the record does not permit the motion judge to

find that the landlord had notice of the defects at or before

the time of the accident.

We are satisfied that the principles articulated in

Hopkins, Reyes, and Meier constitute the appropriate standard to

determine defendants' duty to plaintiff under these

circumstances. As we held in Meier:

The lessor . . . has a non-delegable duty of

care to third parties to avoid a hazardous

condition of his property. Whatever may be

the terms of a lease and the duties of

lessor and lessee as to each other, the

lessor cannot by virtue of the lease release

himself from potential liability to third

parties. In addition, the lessor benefits

in the long-term from maintaining the

property. He collects rent to fund

maintenance of the property, and he should

have the incentive and means to arrange

inspections to prevent hazardous conditions.

[Meier, supra, 419 N.J. Super. at 450

(internal citation omitted).]

Our standard of review from a trial court's order granting

a defendant summary judgment is plenary. We must independently

determine, without deference to the trial court's ruling,

whether disputed issues of fact exist for determination by a

jury. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.

Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608

(1998). We must "consider whether the competent evidential

materials presented, when viewed in the light most favorable to

10 A-0965-10T2

the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995); R. 4:46-2(c).

Plaintiff's expert's report contains sufficient evidence to

create a jury question as to whether defendants should be held

liable for plaintiff's injuries. By means of any reasonable

inspection, defendant should have discovered how the defective

drain, coupled with the absence of roof gutters, were causing

water to pool in the patio. Under Meier, defendants have a duty

to inspect this property to ensure it is free of these dangerous

conditions. If a jury were to find defendants negligently

failed to inspect and thereafter correct this dangerous

condition on the property, it could then determine whether such

negligence was a proximate cause of plaintiff's injuries and if

so, to what extent plaintiff's own conduct, as compared with

defendants' negligence, caused him to fall.

Reversed and remanded. We do not retain jurisdiction.

Friday, August 12, 2011

O'BOYLE VS. DISTRICT I ETHICS COMMITTEE A-4599-09T4 08-12-11

08-12-11 MARTIN O'BOYLE VS. DISTRICT I ETHICS COMMITTEE, ET AL. A-4599-09T4


Rule 1:20-3(h) provides that in cases where a grievance that was found by the district ethics committee to allege unethical behavior was docketed and dismissed following an investigation, a grievant may appeal that decision to the Disciplinary Review Board. In contrast, Rule 1:20-3(e)(3) allows the secretary of a district ethics committee to decline to docket a grievance against an attorney which the secretary, with the concurrence of a public member, has determined fails to allege conduct violative of the Rules of Professional Conduct. The issue presented in this appeal is whether Rule l:20-3(e)(6), which precludes an appeal of an undocketed grievance, violates a grievant's right to due process or equal protection of the laws. As the plaintiff-grievant fails to assert a viable constitutional basis for his challenge, we affirm the Law Division's dismissal of his complaint.



NAVILLUS GROUP VS. ACCUTHERM INCORPORATED A-4754-08T1;A-0568-09T1(CONSOLIDATED) 08-11-11

08-11-11 NAVILLUS GROUP, ET AL. VS. ACCUTHERM INCORPORATED, ET AL.

A-4754-08T1;A-0568-09T1(CONSOLIDATED)

The Industrial Site Recovery Act does not establish an alternative ground upon which a party who has obtained a final judgment in a tax foreclosure action under the Tax Sale Law may secure relief from the judgment based on environmental contamination of the site; the Tax Sale Law provides the exclusive grounds upon which a tax foreclosure judgment may be vacated.

SMITH VS. JERSEY CENTRAL POWER AND LIGHT COMPANY A-2801-08T2 08-10-11

08-10-11 GARY SMITH, ET AL. VS. JERSEY CENTRAL POWER & LIGHT COMPANY, ET AL.

A-2801-08T2

The determination whether an electric utility's intermittent interference with a property owner's use of his property is so substantial that a taking has occurred depends on all the circumstances of that interference, which requires development of a full record and fact finding. Therefore, a jury's finding that the utility's distribution of electricity to a property owner's home, which caused stray current that interfered with the use of his property, constituted a nuisance,

1:20-3(h) provides that in cases where a grievanceis insufficient to support a judgment on an inverse condemnation claim.

A showing of negligence is not an essential element of the tort of nuisance. Therefore, an electric utility may be found liable on the basis of nuisance to a property owner for interfering with the property owner's use of his property due to stray current even though the utility exercised due care in its efforts to control the stray current.

DEUTSCHE BANK NATIONAL TRUST COMPANY VS. LAWRENCE MITCHELL A-4925-09T3

08-09-11 DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. CONSTANCE LAWRENCE MITCHELL, ET AL.

A-4925-09T3

The grant of summary judgment to plaintiff in this foreclosure case involving a "mortgage rescue scam" was appealed by the homeowner victim after a sheriff's sale back to plaintiff. Nonetheless, given the importance of the issue, we reverse the trial court's decision that, although plaintiff filed its original complaint before being assigned the mortgage, it acquired standing by filing an amended complaint after the assignment. Holding that either an assignment or possession of the note prior to the filing of the complaint is required to obtain standing to foreclose, we remand to the trial court to allow plaintiff to submit proof that it had possession of the note before filing the original complaint.

WILLINGBORO MALL VS. 240/242 FRANKLIN AVENUE A-4598-09T2 08-09-11

08-09-11 WILLINGBORO MALL, LTD, VS. 240/242 FRANKLIN AVENUE, L.L.C., ET AL.

A-4598-09T2

A settlement reached at a complementary dispute resolution session, such as a mediation, must be reduced to writing expeditiously, but not necessarily at the mediation session. When the mediator and the parties waive the confidentiality afforded to such proceedings, as in this case, an oral settlement agreement reached through mediation may be enforced by the court.

BANK OF NEW YORK VS. LAKS A-4221-09T3 08-08-11

08-08-11 BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT 2004 26T1 VS. SARAH G. LAKS, ET AL A-4221-09T3

N.J.S.A. 2A:50-56(c)(11), a provision of the Fair Foreclosure Act, requires that a notice of intention to foreclose state "the name and address of the lender and the telephone number of a representative of the lender whom thedebtor may contact if the debtor disagrees with the lender's assertion that a default has occurred or the correctness of the mortgage lender's calculation of the amount required to cure default." We held that a notice of intention that does not state the name and address of the "lender" as that term is defined in the Fair Foreclosure Act, and instead only states that of the lender's mortgage servicer, is deficient. We further held that the remedy for a deficient notice of intentiondeficiency had been raised in the trial court is

where the dismissal of the foreclosure complaint without prejudice.


Department of Children and Families v. T.B. A-21-10; 066294 8-8-11

8-8-11 Department of Children and Families, Division of Youth and Family Services v. T.B. (A-21-10; 066294)

Susan did not fail to “exercise a minimum degree of care” under N.J.S.A. 9:6-8.21(c)(4)(b) because her conduct did not rise to the level of gross negligence or recklessness.

In the Matter of Perskie D-75-10; 067680 8-1-11

8-1-11 In the Matter of Steven P. Perskie, a Former Judge of the Superior Court (D-75-10; 067680)

By clear and convincing evidence, former Judge Steven P. Perskie’s conduct as charged in Counts I and III for the formal complaint violated Canons 1, 2A, 2B, and 3C(1) of the Code of Judicial Conduct and R. 1:12- 1(f). There is not clear and convincing evidence that respondent deliberately misled the Senate Judiciary Committee as charged in Count II. Respondent is censured.

Friday, August 5, 2011

LOPEZ V. TRI-PORT A-1654-10T2 May 5, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1654-10T2

OSVALDO LOPEZ and AMALIA R. LOPEZ, his wife,

Plaintiffs-Appellants,

v.

TRI-PORT DISTRIBUTION CENTER, LLC, a Delaware Limited Liability Company and AMB PROPERTY CORPORATION1,

Defendants-Respondents,

and

MORECOP-270 ASSOCIATES, LLC, a Maryland

Limited Liability Company; W65 BEDFORD

PARK, INC., a Nevada Corporation; FEDERAL

EXPRESS CORPORATION; and LINC FACILITY

SERVICES formerly known as Affiliated

Building Services,

Defendants.

Argued April 11, 2011 - Decided May 5, 2011

Before Judges Grall and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Union County,

Docket No. L-1204-09.

Harvey R. Pearlman argued the cause for appellants (Friedman, Kates, Pearlman & Fitzgerald, attorneys; Mr. Pearlman, on the brief).

Laurie B. Kachonick argued the cause for respondent Tri-Port Distribution Center (Connell Foley LLP, attorneys; Jeffrey W. Moryan, of counsel and on the brief; Ms. Kachonick, on the brief).

Robert D. Kretzer argued the cause for respondent AMB Property Corporation (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Kretzer, on the brief).

PER CURIAM

Plaintiff Osvaldo Lopez, a Federal Express (FedEx) truck driver, tripped and fell in the parking lot of a FedEx truck yard in 2007. Lopez and his wife, whose claims are per quod, filed a personal injury action alleging that his accident was caused by a bar that formerly anchored a cement parking stop sticking above the pavement level. Among the defendants named by plaintiffs were Lopez's employer's landlord, Tri-Port Distribution, LLC (Tri-Port), and the landlord's property manager, AMB Property Corporation (AMB). Plaintiffs contend that Tri-Port and AMB had a duty to repair and maintain the parking lot. Finding a valid delegation of that duty to FedEx under an amended lease and sublease assigned to Tri-Port, the trial court granted summary judgment to defendants. Plaintiffs appeal.2

The relevant facts are not disputed. Lopez fell in June 2007 and thereafter had surgery to correct an incarcerated umbilical hernia. The hazard of exposed parking-stop bars in this parking lot was not unknown. Eleven months earlier, another FedEx employee was injured when he tripped over a different exposed bar, and seven months before Lopez's accident FedEx retained a contractor to replace twenty-five parking stops and eighty-five parking-stop bars. In contrast, Tri-Port and AMB had never inspected or repaired the parking lot or the parking stops.

Plaintiffs acknowledge that under our case law, if Tri-Port and FedEx agreed that FedEx would accept full responsibility for maintaining the parking lot in a safe condition, then Tri-Port and AMB had no duty to Lopez. Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392, 400-02 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007) (holding that a commercial landlord is not negligent where a lease "unquestionably places the responsibility for . . . maintenance or repair solely upon the tenant"); McBride v. Port Auth. of N.Y. and N.J., 296 N.J. Super. 521, 522 (App. Div. 1996) (same). Because the most reasonable interpretation of the various lease agreements do assign that duty to FedEx, we agree that defendants are entitled to summary judgment as a matter of law and affirm. Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540 (1995).

A main lease, an amendment of the main lease, a sublease and assignments of the leases define the parties' respective responsibilities for maintenance of the premises. The relevant transactions were completed in 2004, about three years before this accident. Tri-Port purchased the property from Elizabeth Properties Limited Partnership (Elizabeth), and at the time of the purchase Elizabeth had leased the property to W65 Bedford Park, Inc. (W65) with W65 subleasing the premises to FedEx. As subtenant under the sublease, FedEx agreed to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[]" between Elizabeth and W65 and to be bound by the main lease "as fully and to the same extent as though Subtenant were named as tenant" in that lease. Despite the broad delegation of W65's responsibilities as tenant under the main lease to FedEx, pursuant to section N-4 of the main lease W65 remained jointly and severally responsible as tenant to Elizabeth.

Through the sale and assignments, Tri-Port not only acquired all of Elizabeth's interest in the property but also all of W65's interest, which it took subject to W65's sublease to FedEx. The transaction was accomplished through assignments to Tri-Port of the main lease and the sublease and by an amendment of the main lease to which the subtenant FedEx consented.

The assignments effectively put Tri-Port in the position of landlord and tenant under the main lease and sublandlord to FedEx under the sublease. In accepting the assignment of the main lease, Tri-Port "assume[d] and agree[d] to perform the liabilities and obligations of [Elizabeth] with respect to the [Main] Lease." Additionally, through the assignment of W65's interests as tenant under the main lease and as sublandlord under W65's sublease to FedEx, Tri-Port acquired W65's "right, title and interest" in the main lease and sublease and "assume[d] and agree[d] to perform the liabilities and obligations of [W65] with respect to the Assigned Property."

In conjunction with those assignments, however, the parties modified the main lease. That amendment was executed by Elizabeth and W65 and consented to by FedEx. It expressly provides that all of its provisions will be "deemed part of the" main lease and "incorporated by reference into the Sublease [with FedEx] as if fully set forth therein."

The amendment recognizes the assignment of the lease and sublease and specifies that W65 is assigning to Tri-Port both its interest "as tenant" under the main lease and its interest "as sublandlord" under the sublease. The amendment further specifies that Tri-Port's fee and leasehold estates will not merge and that the lease and sublease will remain in full force and effect. Most importantly, the amendment clearly enumerates the responsibilities that Tri-Port is assuming. It states that Tri-Port will assume "the obligations of [Elizabeth] under the Main Lease[] and the obligations of W65 under the Sublease." Notably, the amendment does not provide for Tri-Port to assume W65's obligations under the main lease.

By executing the amendment, FedEx "consented to" the assignments and Tri-Port's description of the obligations it was assuming. FedEx also agreed to "recognize Tri-Port as the lessor under the Sublease upon all terms and conditions set forth in the Sublease," which, as noted above, obligated FedEx to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[.]"


I

Our review of the trial court's interpretation of the agreements allocating the duty to maintain this parking lot in a safe condition is de novo. Fastenberg v. Prudential Ins. Co., 309 N.J. Super. 415, 420 (App. Div. 1998). In interpreting the agreements, we give their terms their "usual and natural meaning," Middlesex County Sewerage Authority v. Borough of Middlesex, 74 N.J. Super. 591, 604 (Law Div. 1962), aff’d o.b., 79 N.J. Super. 24 (App. Div.), certif. denied, 40 N.J. 501 (1963), read the documents as a whole and avoid interpretations that render terms or provisions meaningless. Cumberland County Improvement Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 497 (App. Div.), certif. denied, 177 N.J. 222 (2003). To the extent that the documents are ambiguous, the parties' practical interpretation of them — as reflected by their actions — is a "consideration of great weight." Anthony L. Petters Diner, Inc. v. Stellakis, 202 N.J. Super. 11, 20-21 (App. Div. 1985) (internal quotations omitted).

A

Plaintiffs' first argument is based on Tri-Port's obligations as landlord under the terms of the main lease. They contend Tri-Port, as assignee of the landlord's duties under the main lease, had a duty to eliminate the hazard posed by protruding parking-stop bars. We reject that claim.

Under the main lease, responsibility for keeping and maintaining the premises "in good repair [and] in a clean and safe condition" is not assigned to the landlord. It is assigned to the tenant in article G, which is entitled "REPAIRS, MAINTENANCE, AND ALTERATIONS." Section G-1 requires the tenant to "keep and maintain the PREMISES, including without limitation, all . . . parking areas . . . in all respects in good repair, in a clean and safe condition . . . subject to LANDLORD'S repair obligations hereunder, ordinary wear and tear, [and] casualty." Under section G-3, the landlord's repair obligations are limited to the roof, decking, skylights, foundation, and structural integrity of the building. Thus, with respect to the parking area, the landlord has no "repair" obligations under article G.3

This broad assignment of responsibility for keeping and maintaining the premises to the tenant is consistent with the structure for payment of rent under the lease. Section D-2 requires the tenant to pay base rent plus operating expenses, which are defined to include taxes and ordinary maintenance such as clearing the parking area of debris, snow and ice, repairing and replacing curbing, and resurfacing, resealing and restriping the surface of the parking area.4

Despite the clarity of sections G-1 and G-3 and consistent with the tenant's obligations to pay for the expense of routine maintenance, plaintiffs argue that Tri-Port as landlord has an obligation to repair the parking stops pursuant to "Article K - DAMAGE OR DESTRUCTION." Section K-1 obligates the landlord to act when "the parking area or any area thereof is damaged or destroyed." Section K-1 defines the scope of the landlord's duty to repair such damage or destruction. The landlord does not have a duty to bring the parking area into "good repair, in a clean and safe condition," as does the tenant under section G-1. Instead, the landlord's obligation is to bring the damaged area "to substantially the condition [that] existed immediately prior to such damage or destruction." The remaining sections of article K provide remedies in the form of abatement of rent or termination of the lease in the event the landlord's restoration or reconstruction limits the tenant's use and enjoyment of the premises.

Read together and in light of the rent structure, articles G and K are best understood to generally divide responsibility for the premises by distinguishing routine maintenance from restoration required in the face of significant damage caused by a single event, structural failure or the age of the landlord's improvements. Section G-1 assigns the duty of keeping and maintaining the premises in clean and safe condition to the tenant, with three exceptions: "casualty," "wear and tear" and designated structural elements of the building which the landlord must maintain under section G-3. Article K, meanwhile, addresses the landlord's duty and tenant's rights in the event of "casualty" or failure of an improvement. A "casualty" is generally understood as "[a] disastrous occurrence due to sudden, unexpected or unusual cause." Black's Law Dictionary 198 (5th ed. 1979).

Plaintiffs' interpretation of section K-1, which would require Tri-Port to do routine maintenance like replacement of dislodged parking stops, is in conflict with articles G and D, which make the tenant responsible for that work. If section K-1 is interpreted as plaintiffs suggest, then sections G-1 and D-2 have no readily discernible application.

Although we perceive no ambiguity in the main lease's assignment of responsibility for keeping and maintaining the parking lot, even if we did, the parties' conduct demonstrates that they understood that duty to be one assigned to the tenant and not the landlord. As noted above, FedEx previously arranged and paid for repair and replacement of the parking stops. If FedEx understood section K-1 to require Tri-Port to do that work, FedEx presumably would have demanded Tri-Port do it or pay for the expense of having it done. Cf. Anthony L. Petters Diner, Inc., supra, 202 N.J. Super. at 20-21 (parties to a contract "often claim more, but rarely less than they are entitled to" (internal quotations omitted)).

For all of the foregoing reasons, plaintiffs' reliance on section K-1 is misplaced.

B

Plaintiffs also argue that Tri-Port, as assignee of W65's interest as tenant under the main lease, had a duty to keep and maintain the parking area in a safe condition pursuant to section G-1. We reject that claim as well, because it overlooks the amendment to the main lease executed in conjunction with the assignments.

Without doubt, W65, as the tenant under the original main lease, was obligated by section G-1 to keep and maintain the parking lot and remained jointly and severally liable for that obligation despite its delegation of that duty to FedEx under the sublease. It is also true that Tri-Port accepted an assignment of W65's "right title and interest in" the main lease. But the amendment to the main lease, to which FedEx consented, made it clear that Tri-Port assumed Elizabeth's responsibility as landlord under the main lease and W65's responsibility as sublandlord under the sublease. Thus, we reject plaintiffs' contention that in agreeing to assume W65's obligations "with respect to the Assigned Property," Tri-Port assumed W65's obligations as tenant under the main lease.

Plaintiffs' claim that Tri-Port did not absolve itself of joint and several responsibility for maintaining the parking lot as tenant under the main lease lacks merit. Read with the amendment incorporated in the main lease, the most reasonable interpretation is that section N-4 of the main lease did not survive the amendment. Moreover, the performance of FedEx and Tri-Port, through its agent AMB, after the execution of these related conveyances is wholly consistent with that interpretation. Tri-Port left all maintenance in the parking lot to FedEx, and FedEx performs the inspections and work to keep and maintain it in a clean and safe condition. In contrast, Tri-Port's agent inspects nothing other than the roof and structure of the building.

In sum, the amendment to the main lease clarifies what Tri-Port meant when it agreed to take an assignment of W65's duties "with respect to" the property. Tri-Port agreed to perform the duties that W65 had to FedEx under the sublease but did not agree to perform W65's duties as tenant under the main lease. Those duties were assigned to and accepted by FedEx in the sublease, and with its consent to the amendment of the main lease, it accepted sole responsibility.

Plaintiffs' contrary reading is not only inconsistent with the most reasonable reading of the documents and the parties' subsequent performance but also contrary to any discernible business purpose the parties might have had. In interpreting agreements, courts consider the setting in which they are made and the parties' likely goals. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 183-84 (1981); see Krosnowski v. Krosnowski, 22 N.J. 376, 387 (1956) (a contract is to be interpreted "in accord with . . . the probable intention of the parties" and as if the parties were practical and intent on accomplishing "an honest and straightforward" goal (internal quotations omitted)). Plaintiffs have not explained why Tri-Port and FedEx would want to have Tri-Port hold itself responsible for doing work assigned to FedEx under the sublease. Unable to conjure up a reason, we decline to strain for an interpretation that would require us to assume the parties intended that impractical result.

C

Having considered the arguments presented in light of the record and guiding legal principles, we conclude that neither Tri-Port nor its agent AMB had a duty to protect Lopez from the danger posed by the dislodged parking stop and exposed bar. If there was a duty breached here, it was the duty assumed by Lopez's employer, FedEx.

Affirmed.

1 Improperly pled as AMB Property, LP, a Delaware Limited Partnership.

2 All claims against all defendants have been resolved. Plaintiffs' claims against FedEx and W65 Bedford Park, Inc. were dismissed, and the trial court granted summary judgment to defendants Morecop-270 Associates and Linc Facility Services. Plaintiffs do not appeal those orders.

3 The landlord reserved a right to make repairs neglected by the tenant, but under this court's decision in McBride, supra, 295N.J. Super. at 525-527 that reservation does not make the landlord liable for the tenant's failure to repair. Plaintiffs present no argument based on the reservation of right to re-enter in the main lease.

4 The main lease is of the type that our courts have described as a "triple net" or "net-net-net" lease. See N.J. Indus. Properties v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985).

LOPEZ V. TRI-PORT A-1654-10T2 May 5, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1654-10T2

OSVALDO LOPEZ and AMALIA R. LOPEZ, his wife,

Plaintiffs-Appellants,

v.

TRI-PORT DISTRIBUTION CENTER, LLC, a Delaware Limited Liability Company and AMB PROPERTY CORPORATION1,

Defendants-Respondents,

and

MORECOP-270 ASSOCIATES, LLC, a Maryland

Limited Liability Company; W65 BEDFORD

PARK, INC., a Nevada Corporation; FEDERAL

EXPRESS CORPORATION; and LINC FACILITY

SERVICES formerly known as Affiliated

Building Services,

Defendants.

Argued April 11, 2011 - Decided May 5, 2011

Before Judges Grall and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Union County,

Docket No. L-1204-09.

Harvey R. Pearlman argued the cause for appellants (Friedman, Kates, Pearlman & Fitzgerald, attorneys; Mr. Pearlman, on the brief).

Laurie B. Kachonick argued the cause for respondent Tri-Port Distribution Center (Connell Foley LLP, attorneys; Jeffrey W. Moryan, of counsel and on the brief; Ms. Kachonick, on the brief).

Robert D. Kretzer argued the cause for respondent AMB Property Corporation (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Kretzer, on the brief).

PER CURIAM

Plaintiff Osvaldo Lopez, a Federal Express (FedEx) truck driver, tripped and fell in the parking lot of a FedEx truck yard in 2007. Lopez and his wife, whose claims are per quod, filed a personal injury action alleging that his accident was caused by a bar that formerly anchored a cement parking stop sticking above the pavement level. Among the defendants named by plaintiffs were Lopez's employer's landlord, Tri-Port Distribution, LLC (Tri-Port), and the landlord's property manager, AMB Property Corporation (AMB). Plaintiffs contend that Tri-Port and AMB had a duty to repair and maintain the parking lot. Finding a valid delegation of that duty to FedEx under an amended lease and sublease assigned to Tri-Port, the trial court granted summary judgment to defendants. Plaintiffs appeal.2

The relevant facts are not disputed. Lopez fell in June 2007 and thereafter had surgery to correct an incarcerated umbilical hernia. The hazard of exposed parking-stop bars in this parking lot was not unknown. Eleven months earlier, another FedEx employee was injured when he tripped over a different exposed bar, and seven months before Lopez's accident FedEx retained a contractor to replace twenty-five parking stops and eighty-five parking-stop bars. In contrast, Tri-Port and AMB had never inspected or repaired the parking lot or the parking stops.

Plaintiffs acknowledge that under our case law, if Tri-Port and FedEx agreed that FedEx would accept full responsibility for maintaining the parking lot in a safe condition, then Tri-Port and AMB had no duty to Lopez. Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392, 400-02 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007) (holding that a commercial landlord is not negligent where a lease "unquestionably places the responsibility for . . . maintenance or repair solely upon the tenant"); McBride v. Port Auth. of N.Y. and N.J., 296 N.J. Super. 521, 522 (App. Div. 1996) (same). Because the most reasonable interpretation of the various lease agreements do assign that duty to FedEx, we agree that defendants are entitled to summary judgment as a matter of law and affirm. Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540 (1995).

A main lease, an amendment of the main lease, a sublease and assignments of the leases define the parties' respective responsibilities for maintenance of the premises. The relevant transactions were completed in 2004, about three years before this accident. Tri-Port purchased the property from Elizabeth Properties Limited Partnership (Elizabeth), and at the time of the purchase Elizabeth had leased the property to W65 Bedford Park, Inc. (W65) with W65 subleasing the premises to FedEx. As subtenant under the sublease, FedEx agreed to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[]" between Elizabeth and W65 and to be bound by the main lease "as fully and to the same extent as though Subtenant were named as tenant" in that lease. Despite the broad delegation of W65's responsibilities as tenant under the main lease to FedEx, pursuant to section N-4 of the main lease W65 remained jointly and severally responsible as tenant to Elizabeth.

Through the sale and assignments, Tri-Port not only acquired all of Elizabeth's interest in the property but also all of W65's interest, which it took subject to W65's sublease to FedEx. The transaction was accomplished through assignments to Tri-Port of the main lease and the sublease and by an amendment of the main lease to which the subtenant FedEx consented.

The assignments effectively put Tri-Port in the position of landlord and tenant under the main lease and sublandlord to FedEx under the sublease. In accepting the assignment of the main lease, Tri-Port "assume[d] and agree[d] to perform the liabilities and obligations of [Elizabeth] with respect to the [Main] Lease." Additionally, through the assignment of W65's interests as tenant under the main lease and as sublandlord under W65's sublease to FedEx, Tri-Port acquired W65's "right, title and interest" in the main lease and sublease and "assume[d] and agree[d] to perform the liabilities and obligations of [W65] with respect to the Assigned Property."

In conjunction with those assignments, however, the parties modified the main lease. That amendment was executed by Elizabeth and W65 and consented to by FedEx. It expressly provides that all of its provisions will be "deemed part of the" main lease and "incorporated by reference into the Sublease [with FedEx] as if fully set forth therein."

The amendment recognizes the assignment of the lease and sublease and specifies that W65 is assigning to Tri-Port both its interest "as tenant" under the main lease and its interest "as sublandlord" under the sublease. The amendment further specifies that Tri-Port's fee and leasehold estates will not merge and that the lease and sublease will remain in full force and effect. Most importantly, the amendment clearly enumerates the responsibilities that Tri-Port is assuming. It states that Tri-Port will assume "the obligations of [Elizabeth] under the Main Lease[] and the obligations of W65 under the Sublease." Notably, the amendment does not provide for Tri-Port to assume W65's obligations under the main lease.

By executing the amendment, FedEx "consented to" the assignments and Tri-Port's description of the obligations it was assuming. FedEx also agreed to "recognize Tri-Port as the lessor under the Sublease upon all terms and conditions set forth in the Sublease," which, as noted above, obligated FedEx to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[.]"


I

Our review of the trial court's interpretation of the agreements allocating the duty to maintain this parking lot in a safe condition is de novo. Fastenberg v. Prudential Ins. Co., 309 N.J. Super. 415, 420 (App. Div. 1998). In interpreting the agreements, we give their terms their "usual and natural meaning," Middlesex County Sewerage Authority v. Borough of Middlesex, 74 N.J. Super. 591, 604 (Law Div. 1962), aff’d o.b., 79 N.J. Super. 24 (App. Div.), certif. denied, 40 N.J. 501 (1963), read the documents as a whole and avoid interpretations that render terms or provisions meaningless. Cumberland County Improvement Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 497 (App. Div.), certif. denied, 177 N.J. 222 (2003). To the extent that the documents are ambiguous, the parties' practical interpretation of them — as reflected by their actions — is a "consideration of great weight." Anthony L. Petters Diner, Inc. v. Stellakis, 202 N.J. Super. 11, 20-21 (App. Div. 1985) (internal quotations omitted).

A

Plaintiffs' first argument is based on Tri-Port's obligations as landlord under the terms of the main lease. They contend Tri-Port, as assignee of the landlord's duties under the main lease, had a duty to eliminate the hazard posed by protruding parking-stop bars. We reject that claim.

Under the main lease, responsibility for keeping and maintaining the premises "in good repair [and] in a clean and safe condition" is not assigned to the landlord. It is assigned to the tenant in article G, which is entitled "REPAIRS, MAINTENANCE, AND ALTERATIONS." Section G-1 requires the tenant to "keep and maintain the PREMISES, including without limitation, all . . . parking areas . . . in all respects in good repair, in a clean and safe condition . . . subject to LANDLORD'S repair obligations hereunder, ordinary wear and tear, [and] casualty." Under section G-3, the landlord's repair obligations are limited to the roof, decking, skylights, foundation, and structural integrity of the building. Thus, with respect to the parking area, the landlord has no "repair" obligations under article G.3

This broad assignment of responsibility for keeping and maintaining the premises to the tenant is consistent with the structure for payment of rent under the lease. Section D-2 requires the tenant to pay base rent plus operating expenses, which are defined to include taxes and ordinary maintenance such as clearing the parking area of debris, snow and ice, repairing and replacing curbing, and resurfacing, resealing and restriping the surface of the parking area.4

Despite the clarity of sections G-1 and G-3 and consistent with the tenant's obligations to pay for the expense of routine maintenance, plaintiffs argue that Tri-Port as landlord has an obligation to repair the parking stops pursuant to "Article K - DAMAGE OR DESTRUCTION." Section K-1 obligates the landlord to act when "the parking area or any area thereof is damaged or destroyed." Section K-1 defines the scope of the landlord's duty to repair such damage or destruction. The landlord does not have a duty to bring the parking area into "good repair, in a clean and safe condition," as does the tenant under section G-1. Instead, the landlord's obligation is to bring the damaged area "to substantially the condition [that] existed immediately prior to such damage or destruction." The remaining sections of article K provide remedies in the form of abatement of rent or termination of the lease in the event the landlord's restoration or reconstruction limits the tenant's use and enjoyment of the premises.

Read together and in light of the rent structure, articles G and K are best understood to generally divide responsibility for the premises by distinguishing routine maintenance from restoration required in the face of significant damage caused by a single event, structural failure or the age of the landlord's improvements. Section G-1 assigns the duty of keeping and maintaining the premises in clean and safe condition to the tenant, with three exceptions: "casualty," "wear and tear" and designated structural elements of the building which the landlord must maintain under section G-3. Article K, meanwhile, addresses the landlord's duty and tenant's rights in the event of "casualty" or failure of an improvement. A "casualty" is generally understood as "[a] disastrous occurrence due to sudden, unexpected or unusual cause." Black's Law Dictionary 198 (5th ed. 1979).

Plaintiffs' interpretation of section K-1, which would require Tri-Port to do routine maintenance like replacement of dislodged parking stops, is in conflict with articles G and D, which make the tenant responsible for that work. If section K-1 is interpreted as plaintiffs suggest, then sections G-1 and D-2 have no readily discernible application.

Although we perceive no ambiguity in the main lease's assignment of responsibility for keeping and maintaining the parking lot, even if we did, the parties' conduct demonstrates that they understood that duty to be one assigned to the tenant and not the landlord. As noted above, FedEx previously arranged and paid for repair and replacement of the parking stops. If FedEx understood section K-1 to require Tri-Port to do that work, FedEx presumably would have demanded Tri-Port do it or pay for the expense of having it done. Cf. Anthony L. Petters Diner, Inc., supra, 202 N.J. Super. at 20-21 (parties to a contract "often claim more, but rarely less than they are entitled to" (internal quotations omitted)).

For all of the foregoing reasons, plaintiffs' reliance on section K-1 is misplaced.

B

Plaintiffs also argue that Tri-Port, as assignee of W65's interest as tenant under the main lease, had a duty to keep and maintain the parking area in a safe condition pursuant to section G-1. We reject that claim as well, because it overlooks the amendment to the main lease executed in conjunction with the assignments.

Without doubt, W65, as the tenant under the original main lease, was obligated by section G-1 to keep and maintain the parking lot and remained jointly and severally liable for that obligation despite its delegation of that duty to FedEx under the sublease. It is also true that Tri-Port accepted an assignment of W65's "right title and interest in" the main lease. But the amendment to the main lease, to which FedEx consented, made it clear that Tri-Port assumed Elizabeth's responsibility as landlord under the main lease and W65's responsibility as sublandlord under the sublease. Thus, we reject plaintiffs' contention that in agreeing to assume W65's obligations "with respect to the Assigned Property," Tri-Port assumed W65's obligations as tenant under the main lease.

Plaintiffs' claim that Tri-Port did not absolve itself of joint and several responsibility for maintaining the parking lot as tenant under the main lease lacks merit. Read with the amendment incorporated in the main lease, the most reasonable interpretation is that section N-4 of the main lease did not survive the amendment. Moreover, the performance of FedEx and Tri-Port, through its agent AMB, after the execution of these related conveyances is wholly consistent with that interpretation. Tri-Port left all maintenance in the parking lot to FedEx, and FedEx performs the inspections and work to keep and maintain it in a clean and safe condition. In contrast, Tri-Port's agent inspects nothing other than the roof and structure of the building.

In sum, the amendment to the main lease clarifies what Tri-Port meant when it agreed to take an assignment of W65's duties "with respect to" the property. Tri-Port agreed to perform the duties that W65 had to FedEx under the sublease but did not agree to perform W65's duties as tenant under the main lease. Those duties were assigned to and accepted by FedEx in the sublease, and with its consent to the amendment of the main lease, it accepted sole responsibility.

Plaintiffs' contrary reading is not only inconsistent with the most reasonable reading of the documents and the parties' subsequent performance but also contrary to any discernible business purpose the parties might have had. In interpreting agreements, courts consider the setting in which they are made and the parties' likely goals. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 183-84 (1981); see Krosnowski v. Krosnowski, 22 N.J. 376, 387 (1956) (a contract is to be interpreted "in accord with . . . the probable intention of the parties" and as if the parties were practical and intent on accomplishing "an honest and straightforward" goal (internal quotations omitted)). Plaintiffs have not explained why Tri-Port and FedEx would want to have Tri-Port hold itself responsible for doing work assigned to FedEx under the sublease. Unable to conjure up a reason, we decline to strain for an interpretation that would require us to assume the parties intended that impractical result.

C

Having considered the arguments presented in light of the record and guiding legal principles, we conclude that neither Tri-Port nor its agent AMB had a duty to protect Lopez from the danger posed by the dislodged parking stop and exposed bar. If there was a duty breached here, it was the duty assumed by Lopez's employer, FedEx.

Affirmed.

1  Improperly pled as AMB Property, LP, a Delaware Limited Partnership.

2  All claims against all defendants have been resolved. Plaintiffs' claims against FedEx and W65 Bedford Park, Inc. were dismissed, and the trial court granted summary judgment to defendants Morecop-270 Associates and Linc Facility Services. Plaintiffs do not appeal those orders.

3  The landlord reserved a right to make repairs neglected by the tenant, but under this court's decision in McBride, supra, 295N.J. Super. at 525-527 that reservation does not make the landlord liable for the tenant's failure to repair. Plaintiffs present no argument based on the reservation of right to re-enter in the main lease.

4  The main lease is of the type that our courts have described as a "triple net" or "net-net-net" lease. See N.J. Indus. Properties v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985).