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Saturday, February 22, 2020

Owner of property not liable for fall down on ice here where tenant controls property Baldwin Shields v. Ramslee Motors (A-53-18)

Owner of property not liable for fall down on ice here where tenant controls property  Baldwin Shields v. Ramslee Motors (A-53-18) (081969)

Decided January 23, 2020

FERNANDEZ-VINA, J., writing for the Court.

       The Court considers whether the owner of a commercial property owes its tenant’s
invitee a duty to clear snow and ice from the property’s driveway while the property is in
the sole possession and control of the tenant.

       After plaintiff delivered an envelope to Ramslee Motors, a used car dealership, he
slipped and fell on snow and ice on the driveway, suffering injuries. The driveway is
adjacent to the public sidewalk but is separated from it by a fence.

        Ramslee Motors leased the property for its dealership. The lease agreement with
its landlord provided that “TENANT shall be solely responsible for the maintenance and
repair of the land and any structure placed on the premises . . . as if TENANT were the de
facto owner of the leased premises.” The lease reserved for the landlord the right to enter
the premises to make inspections and repairs, as well as “to enter onto the leased
premises at any time in the event of an emergency.” The owner of Ramslee Motors
testified that he was responsible for clearing snow and ice at the property and that he
maintained equipment at the property to do so.

       Plaintiff filed a complaint against Ramslee Motors and the landlord; he settled
with Ramslee Motors. The landlord moved for summary judgment, and the trial court
granted its motion. The Appellate Division reversed, finding that the lease was silent as
to who was responsible for snow and ice removal. Then, finding no “distinction between
a sidewalk and an open driveway used with regularity,” the Appellate Division held that
the landlord had a non-delegable duty to “ensure that the driveway abutting the sidewalk
was clear of snow and ice.” The Court granted certification.  236 N.J. 566 (2019).

HELD: Ramslee Motors’s lease agreement directly addressed responsibility for
maintenance of the property, which includes removal of snow and ice. That duty rested
solely with Ramslee Motors, whether based on the lease or common law. Ramslee
Motors retained complete control over the premises where plaintiff fell and was
exclusively responsible for plaintiff’s injuries. The Court declines to hold the landlord
responsible for property over which it had relinquished control.

 1. The lease in this case was clear as to which party is responsible for maintenance of the
premises. The parties agreed to place that responsibility solely on the tenant.
“Maintenance” includes the responsibility to remove snow and ice based on the plain
meaning of that term. The provision through which the landlord retained the right to
enter the property without notice for the purpose of making repairs does not change that
allocation of responsibility. First, the lease specifically stated that the right to enter did
not create “an obligation on the part of the Landlord to make such repairs.” Second,
reservation of a right to enter is not a covenant to make repairs. (pp. 8-10)

2. The Court reviews the genesis and development of the duty to clear sidewalks and
notes that it was declared a non-delegable duty in Vasquez v. Mansol Realty Associates,
Inc.,  280 N.J. Super. 234, 238 (App. Div. 1995). The Appellate Division determined that
Vasquez governs here, reasoning that the driveway was not distinct from the sidewalk
and that the same non-delegable duty should therefore apply. The Court does not agree.
First, the duty to maintain the driveway was always a private duty, with the potential of
private recovery; the logic that led to the imposition of the duty vis-à-vis sidewalks does
not apply to private property. Nor do the physical characteristics of the property support
the appellate court’s conclusion: the driveway is separated from the sidewalk by a gate
and cannot therefore be readily accessed by passers-by when not expressly opened by
Ramslee Motors. In fact, the Vasquez panel itself suggested that the duty it prescribed
would not apply under the circumstances presented here, given that the landlord here has
vested the tenant with exclusive possession. See id. at 237. (pp. 11-13)

3. Under the traditional liability analysis specific to the landlord-tenant context, a
landlord has a duty to exercise reasonable care to guard against foreseeable dangers
arising from use of those portions of the rental property over which the landlord retains
control. Here, the landlord did not enjoy the sort of control over the subject driveway
that would give rise to a duty of care. (pp. 13-15)

4. In Hopkins v. Fox & Lazo Realtors,  132 N.J. 426, 439 (1993), the Court departed
from the traditional, categorical approach to liability based on the status of the plaintiff
and provided four factors to consider in determining whether a duty of care exists -- “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.” On the facts of this case,
the Court reaches the same result by application of the Hopkins factors that it did
considering control. First, the landlord here had no relationship with plaintiff. Second, it
would not be fair to place responsibility for removal of snow and ice -- transient
conditions -- on a commercial landlord that lacks control over the property. Third, it
would be impractical to require the landlord here to prevent the harm accompanying
temporarily slippery conditions caused by weather on property when it does not have
access to information about the condition of the property. And fourth, holding a landlord
liable for snow and ice on demised property would not serve any public policy interest
because plaintiff can recover from Ramslee Motors. (pp. 15-18)

     The judgment of the Appellate Division is REVERSED and the grant of
summary judgment is REINSTATED.

       JUSTICE ALBIN, concurring in the judgment and dissenting in part,
disagrees with any seeming pronouncement that absolves the landlord of the duty to
make reasonable efforts to repair a dangerous condition on the property when the
landlord knows or should know of the danger, when the landlord retains authority to
remove the danger, and when the tenant fails to make the necessary repairs and the lives
and safety of people are imperiled by negligent inaction. In Justice Albin’s view, the
landlord here had the authority to enter the property to repair any dangerous condition of
which it was aware but, given the transient condition of the ice and snow in the driveway,
had no practicable way to know that the tenant would not clear the driveway in a timely
way and therefore no reasonable opportunity to remedy the situation.

JUSTICE ALBIN, concurring in the judgment and dissenting in part, filed a
separate opinion.