Nielsen v. Wal-Mart Store #2171, A-2790-11T1; Appellate Division; opinion by Fisher, P.J.A.D.; decided and approved for publication January 11, 2013. Before Judges Fisher, Alvarez and St. John. On appeal from the Law Division, Mercer County, L-1014-08. [Sat below: Judge Jimenez.] DDS No. 36-2-8689 [19 pp.]

Plaintiff William Nielsen was injured when he slipped and fell at the Nassau Park Shopping Center. He was at the site on behalf of his employer, Ecolab Inc., which had been retained by Wal-Mart to exterminate pests.The exterior area around the perimeter of Wal-Mart’s unit, where plaintiff slipped and fell, was owned and maintained by Nassau Shopping Center Condominium Association, the developer. In the master deed governing its relationship with Wal-Mart, the developer agreed to maintain and repair the common elements, including the area in question.

More than two years after this action’s accrual, plaintiff amended his complaint to join the developer, which successfully moved for summary judgment on statute-of-limitations grounds; Wal-Mart did not oppose the developer’s motion.

Wal-Mart then moved for summary judgment, arguing it could not be held liable because plaintiff’s fall occurred outside its unit and it had not contractually agreed to maintain or repair that area. The motion was denied.

A few weeks before the trial date, Wal-Mart sought leave to file a third-party complaint against the developer. The motion was denied because Wal-Mart had not opposed the developer’s motion for summary judgment and because the trial was scheduled to begin shortly.

The jury found Wal-Mart 80 percent negligent and plaintiff 20 percent negligent. It awarded $400,000 to plaintiff and $125,000 to his wife.

On appeal, Wal-Mart argues, inter alia, it had no duty to warn its independent contractor’s employee of a hazardous condition in an area that the developer was contractually bound to repair and maintain.

Held: Because the particular relationship of the parties, the nature of the attendant risk, Wal-Mart’s opportunity and ability to exercise care, and the public interest all balance in favor of the imposition of a duty on Wal-Mart in this setting, the judgment in plaintiff’s favor is affirmed.

The panel says whether a person owes a duty of reasonable care toward another turns on whether imposing such a duty satisfies an abiding sense of basic fairness under the circumstances in light of considerations of public policy. A determination requires the balancing of several factors, including 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.

The panel reviews the development of the common law from the general rule absolving landowners of liability for injuries resulting from the condition of abutting sidewalks to the present law. It then says the fact that Wal-Mart had not contractually agreed to maintain or repair the area where plaintiff was injured is one factor to be considered in determining whether a duty of care should be imposed. However, a private contractual arrangement of duties between unit owner and developer should be given little weight because, otherwise, a commercial unit owner or tenant could turn a blind eye to any defects or hazards in common areas not owned by the unit owner or tenant but foreseeably used by their invitees and passersby. The imposition of liability on a unit owner or tenant advances important policy interests by fostering the land occupier’s constant vigilance.

The panel then says that although the fact that the developer had contractually agreed to repair, replace and maintain the area at issue provides some weight for insulating Wal-Mart from liability, other circumstances carry the day. Wal-Mart, as a unit owner, is fairly chargeable with a duty to be familiar with the area outside its unit and other common areas that its invitees and passersby might foreseeably use. The imposition of a duty encourages a business owner to alert the contractually responsible entity about hazardous conditions. Also, Wal-Mart directed plaintiff to access the store entrances from the exterior of its unit and it was in the course of following that direction that plaintiff was injured. Wal-Mart also had an adequate remedy if found liable and held obligated to compensate for an injury occurring on the developer’s property in its right to seek indemnification from the developer. Thus, the parties’ relationship, the attendant risks, the nature of the risks, and simple fairness to the plaintiff warrant the imposition of a duty of care on Wal-Mart regarding hazardous conditions along the perimeter of its premises.

For these reasons, and because the progression of the common law has largely disregarded labels and artificial distinctions regarding the parties’ relationship to the property, the panel finds no principled reason for adopting Wal-Mart’s argument that it owed no duty to plaintiff because the injury occurred beyond the boundaries of its unit.

The panel also rejects Wal-Mart’s argument that it had no duty to warn or protect plaintiff because he was an employee of an independent contractor. It says the exception in Olivo v. Owens-Illinois Inc., 186 N.J. 394 (2006), that an occupier of land’s duty to provide a reasonably safe working place for an independent contractor’s employees does not relate to known hazards that are part of or incidental to the work the contractor was hired to perform, does not cover the situation here, where the occupier fails to warn of a hazardous condition that the independent contractor is not there to repair, but only to traverse in order to reach another location where the work is to be done.

For appellant — Patrick J. McDonnell (McDonnell & Associates; McDonnell and Lindsey S. Forshay on the brief). For respondents — David T. Wheaton (Levinson Axelrod).