ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.
In a recent New Jersey case, a Plaintiff sued for personal injuries after she slipped and fell on a sidewalk outside of a Grocery Store, which leased the subject premises from a Defendant-LLC. More specifically, Plaintiff alleged that the cause of her 2010 fall was a defect in the sidewalk created by the deterioration of an expansion joint between two concrete slabs.
The lease agreement (which was executed in 1988) in place at the time of Plaintiff’s fall specified that the Grocery Store (the tenant/lessee) was responsible for maintaining and repairing all parts of the premises, including the sidewalks. The lease also expressly stated that Defendant (the landlord) was not responsible for maintaining, repairing, or rebuilding any part of the premises. Given these unambiguous lease provisions, Defendant moved for summary judgment, arguing that it had no responsibility to maintain the sidewalk where Plaintiff fell (as opposed to the Grocery Store). Plaintiff, in response, argued that: (1) the duty to maintain a premises is a non-delegable duty; and (2) even if the duty to maintain the premises was a delegable duty, Defendant was still liable because the defect in the sidewalk arose before the lease was entered into. The trial court disagreed with Plaintiff and entered summary judgment in Defendant’s favor. Plaintiff appealed, and repeated her arguments before the Appellate Division.
The Appellate Division began its analysis by noting that, generally speaking, a landlord is not responsible for the maintenance and control of a leased premises, as the tenant usually assumes such responsibility as a condition of possession. The Appellate Division further explained that, under some exceptional circumstances, a landlord has a responsibility to use reasonable care when it maintains some modicum of control over a particular portion of the leased premises, but, in light of the provisions of the lease cited above (which clearly indicated that Defendant had no responsibility for maintaining any portion of the subject premises), that exception was not applicable to the case at bar. Indeed, the Appellate Division stated that the controlling lease clearly required the Grocery Store - not Defendant - to maintain the concrete and the sidewalks on the leased premises, and that, as a practical matter, the Grocery Store - not Defendant - was in the best position to remedy any structural defects in or around the property.
The Appellate Division also explained that, in order to survive summary judgment, Plaintiff had to allege and demonstrate that: (1) the defect in the sidewalk existed prior to the 1988 lease agreement; and (2) Defendant had constructive notice of the defect prior to executing the lease. However, Plaintiff offered no proofs in that respect, as her expert merely opined that the defect was present “since the construction of the sidewalk” without providing any information as to when the construction of the sidewalk actually occurred. Accordingly, as there was no genuine dispute of any material fact, the Appellate Division affirmed the lower court’s grant of summary judgment to Defendant.
Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.