A state appeals court upheld a personal-injury verdict against Wal-Mart for a contractor’s slip and fall in an area the store wasn’t contractually obligated to maintain.
Imposing liability on Wal-Mart “advances important policy interests by fostering the land occupier’s constant vigilance” and “encourages a business owner … to alert the contractually responsible entity about hazardous conditions,” the Appellate Division said Jan. 11 in Nielsen v. Wal-Mart Store #2171, A-2790-11.
“The notion that a land occupier’s duty of care extends only as far as the boundaries of its property — the ostensible central thesis of Walmart’s argument — is simply out of step with the modern course of the common law,” the court said.
In so ruling, the court took exception to a different Appellate Division panel that two months ago declined to extend a commercial tenant’s liability to a shopping center’s common parking area.
Wal-Mart owned the store — in a multiunit retail development in Princeton — but the surrounding grounds were owned by the developer, Nassau Shopping Center Condominium Association, which had agreed in the deed to maintain common areas.
On April 27, 2006, William Nielsen, an exterminator with Ecolab Inc., which Wal-Mart had contracted to provide pest-control services at the site, was setting rodent traps outside the building’s numerous doors.
Wal-Mart had instructed Ecolab to access those doors by walking around the exterior perimeter of the store — owned by Nassau — rather than walking through it. While doing so, Nielsen slipped and fell on an area of loose gravel and sand — which he later described as “like stepping on marbles” — and suffered knee injuries that required multiple surgeries.
In his April 2008 suit, Nielsen claimed negligence against Wal-Mart, but left Nassau out.
About two years later, Nielsen changed counsel but was unsuccessful in adding Nassau as a defendant. Mercer County Superior Court Judge Thomas Sumners Jr. granted Nassau’s motion for summary judgment in July 2010 because Nielsen sought to amend his complaint more than two years after the accident.
That December, Sumners denied Wal-Mart’s motion for leave to file a third-party complaint against Nassau because Wal-Mart failed to oppose Nassau’s summary judgment motion.
The matter was reassigned to Judge Pedro Jimenez, who conducted trial in 2011. The jury apportioned 80 percent negligence to Wal-Mart and the rest to Nielsen. The panel awarded Nielsen and his wife a total of $525,000.
Wal-Mart appealed, contending, among other things, that Jimenez erred in deeming Nielsen a business invitee, denying Wal-Mart’s request for a jury instruction about his status as an independent contractor’s employee, and failing to distinguish between on- and off-premises conditions.
On Jan. 11, Judge Clarkson Fisher Jr., joined by Appellate Division Judges Carmen Alvarez and Jerome St. John, affirmed the verdict. They found Wal-Mart’s not owning the property “simply one factor to be considered in determining whether a duty of care should be imposed.”
That factor “carries little weight,” and Nielsen and “others invited to make foreseeable uses of the premises” shouldn’t be limited in recovery because of the contractual arrangement between Wal-Mart and Nassau, the court said.
Aside from policy reasons, the relationship of the parties, the nature of the risk, and the opportunity and ability to exercise care all weigh in favor of imposing a duty on Wal-Mart, the panel said, citing factors from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993).
Without that duty, the plaintiff must interpret the contract rather than simply pursue negligence against the adjacent property owner, “whose presence is well known … and for whose benefit the plaintiff is present,” Fisher wrote, noting that Wal-Mart could have sought indemnification from Nassau.
Fisher also noted that Nielsen walked around rather than through the building based on Wal-Mart’s specific instructions.
Jimenez “was entitled to assume that Wal-Mart was not only familiar with its unit but also the surrounding perimeter” and “had every opportunity to recognize and exercise care with regard to the attendant risk,” Fisher wrote.
The court also rejected Wal-Mart’s argument that it was entitled to an exception from duty based on Nielsen’s status as an employee of an independent contractor.
Fisher said the ruling “may seem inconsistent” with a Nov. 5 decision by a different Appellate Division panel in Kandrac v. Marrazzo’s Market, A-6081-10, which declined to extend a commercial tenant’s duty to an adjacent parking area.
“We view Kandrac as unduly dependent upon the assignment of responsibility for a common area defined by the defendant’s lease,” Fisher said in a footnote. “The content of the lease is a factor to be considered but we do not view it as having the great weight assigned by Kandrac.”
David Wheaton of Edison’s Levinson Axelrod, who took on representation of Nielsen two years into the case, calls the decision in the Wal-Mart case “more in the nature of a clarification” than an expansion of liability.
“This area is not where the public’s invited but is an area where [Nielsen] … had to go to fulfill his obligation,” says Wheaton. “It wasn’t his job to clean up or fix the area where he fell — that’s not why he was hired.”
According the judiciary’s online public access database, Nielsen initially was represented by Gaylord Popp in Trenton. Founding partner Samuel Gaylord did not return a call.
Neither did Wal-Mart’s counsel, Patrick McDonnell, who heads a firm in King of Prussia, Pa.