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 tenantâ€™s invitee a duty to clear snow and ice from the propertyâ€™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 â€œTENANT 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.â€ The lease reserved for the landlord the right to enter the premises to make inspections and repairs, as well as â€œto enter onto the leased premises at any time in the event of an emergency.â€ 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 â€œdistinction between a sidewalk and an open driveway used with regularity,â€ the Appellate Division held that the landlord had a non-delegable duty to â€œensure that the driveway abutting the sidewalk was clear of snow and ice.â€ The Court granted certification. 236 N.J. 566 (2019). HELD: Ramslee Motorsâ€™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 plaintiffâ€™s injuries. The Court declines to hold the landlord responsible for property over which it had relinquished control. 1 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. â€œMaintenanceâ€ 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 â€œan obligation on the part of the Landlord to make such repairs.â€ 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-Ã -vis sidewalks does not apply to private property. Nor do the physical characteristics of the property support the appellate courtâ€™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 -- â€œthe 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.â€ 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) 2 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 Albinâ€™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. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINAâ€™S opinion. JUSTICE ALBIN, concurring in the judgment and dissenting in part, filed a separate opinion.