Opinion
DOCKET NO. A-2361-14T3
07-22-2016
GRAZIA SPANO, Plaintiff-Appellant, and GIUSEPPI SPANO, her husband, Plaintiff, v. SUPERVALU, INC., d/b/a ACME MARKETS, Defendant-Respondent, and ERIC'S SNOW REMOVAL t/a ERIC'S LAWNCARE, INC., FRESH CUT LAWN CARE and PARAMOUNT REALTY SERVICES, INC., d/b/a FESTIVAL AT HAMILTON, LLC, Defendants.
Ginsberg & O'Connor, P.C., attorneys for appellant (Stephen P. Burke, Jr., on the brief). Hack, Piro, O'Day, Merklinger, Wallace, & McKenna, P.A., attorneys for respondent (Patrick M. Sages, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2309-12. Ginsberg & O'Connor, P.C., attorneys for appellant (Stephen P. Burke, Jr., on the brief). Hack, Piro, O'Day, Merklinger, Wallace, & McKenna, P.A., attorneys for respondent (Patrick M. Sages, on the brief). PER CURIAM
Plaintiff Grazia Spano appeals from an order entered by the trial court on June 20, 2014, granting summary judgment in favor of defendant Supervalu, Inc., d/b/a Acme Markets (Acme), and an order entered on August 15, 2014, denying reconsideration. We affirm.
I.
Paramount Realty Services, Inc. (Paramount), which conducts business as Festival at Hamilton LLC, is the owner of the multi-tenant shopping center on Black Horse Pike in Mays Landing. Paramount leased space in the shopping center to Acme, which is the anchor store. It is undisputed that the Acme store is located in a multi-tenant shopping center. Paramount has a contractual obligation to maintain the parking lot, pursuant to a common area maintenance agreement, which governs its landlord-tenant relationship with Acme.
Paramount had a maintenance program for snow and ice removal at the shopping center and contracted with Eric's Snow Removal (Eric's) to provide such services. Eric's hired Fresh Cut Lawn Care (Fresh Cut) to perform snow and ice removal at the shopping center. On December 26, 2010, approximately twenty-one inches of snow fell in the parking lot of the shopping center.
Fresh Cut plowed the snow in the parking lot and moved the snow into large piles on the grass islands located across from the front of the Acme store. Fresh Cut on December 30, 2010, and January 3, 2011, to apply rock salt on the parking lot.
On January 6, 2011, plaintiff went to the shopping center and parked her car adjacent to one of the grass islands where Fresh Cut had piled the snow. The pile of snow next to plaintiff's car was over five feet high. After she finished shopping in the Acme store, plaintiff was walking back to her vehicle when she slipped and fell on black ice in the parking lot.
Plaintiff thereafter filed a complaint in the Law Division against Acme, Eric's, Fresh Cut, and Paramount. Plaintiff alleged defendants' negligence and/or carelessness allowed a dangerous and hazardous condition to exist in the shopping center's parking lot. Plaintiff alleged that, as a result of defendants' negligence and/or carelessness, she sustained severe, permanent, and crippling injuries. Defendants filed answers denying liability, along with cross-claims for contribution and indemnification.
Plaintiff's spouse Giuseppi Spano also was named as a plaintiff in the complaint. Mr. Spano asserted a claim for the loss of his wife's consortium, society and services, and for the medical expenses he incurred for his wife's care. Mr. Spano later dismissed his claims. --------
After discovery, Paramount and Acme filed motions for summary judgment. On June 20, 2014, after hearing oral argument, the judge granted the motions. Plaintiff thereafter filed a motion for reconsideration. Eric's also filed a cross-motion for reconsideration. Paramount and Acme opposed the motions. On August 15, 2014, the judge denied the motions.
Plaintiff then filed a motion with this court for leave to appeal the trial court's order granting summary judgment to Paramount and Acme. We denied leave to appeal the court's interlocutory order. Thereafter, plaintiff settled her claims with Paramount, Eric's, and Fresh Cut. Plaintiff's appeal followed.
On appeal, plaintiff argues that the trial court erred by granting summary judgment in Acme's favor. We cannot agree.
In Kandrac v. Marrazzo's Mkt. at Robinsville, 429 N.J. Super. 79 (App. Div. 2012), the defendant was a commercial tenant in a multi-tenant shopping center. Id. at 81. Pursuant to the lease, the property owner retained the responsibility to maintain the common areas, including the location of the plaintiff's fall. Id. at 82. We held that the defendant did not owe a duty to the plaintiff to maintain the common areas of the shopping center. Id. at 90-91. We held that "the assignment of responsibilities in [a] lease, within the context of a multi-tenant shopping center" has an impact upon "the scope of [a tenant's] ability to address conditions in the [shopping center's] parking lot." Id. at 89.
We took note of the policy considerations that would be implicated by imposing a duty on a commercial tenant to maintain common areas. Id. at 90. We pointed out that duplicative maintenance efforts by landlords and tenants would create confusion and interference with each other's maintenance programs. Ibid. We also noted that uncertainty regarding the areas in a shopping center that each tenant would be responsible to maintain would encourage "shotgun" litigation. Ibid.
Previously, in Holmes v. Kimco Realty Corp., 598 F.3d 115, 199-24 (3d Cir. 2010), the Court of Appeals for the Third Circuit, applying New Jersey law, held that a commercial tenant in a multi-tenant shopping center did not have a duty to remove snow and ice from a common parking lot. The Court of Appeals held that "New Jersey would not impose a duty on an individual tenant for snow removal from the common areas of a multi-tenant parking lot when the landlord has retained and exercised that responsibility." Id. at 124-25.
In Holmes, the plaintiff business invitee fell on a patch of ice in a shopping center parking lot after making a purchase at the defendant's store. Id. at 116-17. The defendant and several other businesses were located throughout the shopping center and shared the parking lot. Id. at 123. The lease obligated the landlord to maintain and remove snow from the common areas. Ibid. The lease also required the landlord to carry liability insurance for the common areas and name the defendant as an additional insured under the insurance policy. Ibid. The lease further required each commercial tenant to pay their pro rata share for maintaining the common areas. Ibid.
We are convinced that in this matter, the trial court correctly applied Kandrac and Holmes in concluding that Acme did not have a duty to plaintiff to remove snow and address icy conditions in the shopping center's parking lot. Indeed, this case presents an almost identical factual scenario to those presented in those earlier cases. Here, the lease imposed a duty upon the property owner to maintain the parking lot for the shopping center. In furtherance of that duty, Paramount entered into a contract with Eric's to remove snow from the parking lot, and Eric's had in turn contracted with Fresh Cut to provide that service.
Plaintiff argues, however, that Kandrac does not apply because Acme allegedly assumed a duty of care of informing the landlord or the snow removal contractor of dangerous or icy conditions so that these conditions could be addressed. Plaintiff also claims that it is Acme's policy to apply rock salt to icy areas of the parking lot, when required.
Plaintiff notes that, after plaintiff fell in the parking lot, the assistant store director and another store employee placed rock salt in a few areas of the parking lot. Plaintiff contends Acme breached its "protocol" by failing to contact Paramount or the snow removal contractor of the icy condition in the parking lot before or after plaintiff's fall.
We are not persuaded by these arguments. As we have explained, Acme did not have a contractual duty or obligation to maintain the parking lot. If Acme's employees informed the landlord or the snow removal contractor of dangerous conditions in the parking lot, they did so that the landlord and its contractor could carry out their contractual responsibilities.
Moreover, the record does not support plaintiff's assertion that Acme had a policy of applying rock salt on icy patches in the parking lot. At her deposition, the assistant store director stated that rock salt had been applied to the icy area in response to this particular incident, not because it was Acme's general policy to salt the parking lot when needed. The fact that Acme's employees may have applied salt to the icy areas of the lot at one time does not justify imposition of a general duty to keep the parking lot reasonably free of snow and ice.
Plaintiff further argues that the motion judge erred by failing to consider our decision in Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 251 (App. Div. 2013). In that case, the plaintiff was injured after slipping and falling on an exterior sidewalk around the perimeter of the defendant Walmart's store. Id. at 254-55.
The store was part of a multi-unit commercial condominium complex developed by codefendant Nassau Shopping Center Condominium Association, and Walmart owned the condominium unit wherein the store was located. Id. at 254. Walmart had hired an exterminator to address a problem with rodents in the store. Ibid. The plaintiff worked for the exterminator. Ibid.
The plaintiff was "present at the site on behalf of" the exterminator, and Walmart "directed [the] plaintiff, in the course of setting rodent traps, to access the various store entrances from the exterior of the unit." Ibid. While setting these rodent traps, the plaintiff slipped and fell. Ibid. It was undisputed that the plaintiff did not fall within the boundaries of the Walmart store. Ibid.
The "exterior area around the perimeter of Walmart's unit" where the plaintiff slipped and fell "was owned and maintained by the develop." Id. at 254-55. The master deed governing the developer's relationship with Walmart stated, in part, that the developer agreed to "supervise, administer, operate, manage, insure, repair, replace and maintain the common elements, including the area in question." Id. at 255.
We rejected Walmart's contention that it did not have any duty to address the alleged hazardous condition where the plaintiff fell. Id. at 256. We stated that
[t]he relationship of the parties, the attendant risks, the nature of the risks, and simpl[e] fairness to the innocent plaintiff, warrant[ed] the imposition of a duty of care on Walmart regarding hazardous conditions outside and along the perimeter of Walmart's premises even though the developer may also be liable and even though the developer contractually agreed to be responsible for repair and maintenance of the area.
[Id. at 263.]
We are convinced that plaintiff's reliance upon Nielsen is misplaced. In Nielsen, the plaintiff was injured while walking along the exterior perimeter of the Walmart in an area immediately abutting the store itself. Id. at 254. In this case, plaintiff fell in the parking lot, a distance from the Acme store. In addition, in Nielsen, Walmart had directed the plaintiff to walk around the exterior perimeter of its store in order to reach certain entrances, rather than allow the plaintiff to use the inside entrances. Id. at 262.
We imposed a duty of reasonable care upon Walmart because it had the opportunity, but failed, to exercise care in order to avoid the plaintiff's injury by allowing the plaintiff to use the inside entrances. Ibid. In this case, there are no comparable facts that would justify imposing a duty of care upon Acme to maintain the parking lot of the shopping center.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION