Upholding dismissal of a shopper’s slip-and-fall suit, a state appeals court on Monday declined to extend a commercial tenant’s duty of care to an adjacent parking area.
“[A]s a general rule, when a commercial tenant in a multi-tenant shopping center has no control or contractual obligation to maintain a parking lot shared with other tenants, the common law does not impose a duty upon the tenant to do so,” the Appellate Division said in Kandrac v. Marrazzo’s Market, A-6081-10, a published decision.
Whether a duty exists “remains a fact-sensitive issue,” the panel said.
According to her suit, Arlene Kandrac was injured on Feb. 28, 2007, after leaving Marrazzo’s Market, one of 36 businesses occupying The Shoppes at Foxmoor, an outdoor shopping center in Robbinsville. She claimed her foot got caught in a patch of uneven pavement in the parking area, causing her to trip. The spot was about two feet past a painted crosswalk, which linked the parking area to the stores and led to Marrazzo’s door.
Marrazzo’s leased the property from Foxmoor Associates, a subsidiary of Pettinaro Enterprises, the landlord. The lease required Pettinaro to “maintain the common areas of the shopping center in good operating condition and repair” and “resurface the sidewalk, parking and driveway areas when … reasonably necessary.” The contract defined common areas as employee and customer parking areas, service roads, loading facilities and sidewalks.
Kandrac, now 71, won $721,000 from Foxmoor in binding arbitration and proceeded with suit against Mazzarro’s.
During depositions, Pettinaro employees said they were responsible for repairs and regularly inspected the common areas. Marrazzo’s owner, Martin Reeser, testified that he and his store manager also inspected the parking areas for safety issues.
Mercer County Superior Court Judge Douglas Hurd granted Marrazzo’s motion for summary judgment, finding no duty of care for an injury that occurred in a common area.
Hurd relied on Holmes v. Kimco Realty Corp., 598 F.3d 115 (3d Cir. 2010), where the court posited that the U.S. Supreme Court would not impose a duty to maintain the parking lot on the tenant in a multitenant shopping center.
Kandrac appealed, pointing to Marrazzo’s responsibility to provide safe ingress and egress to its store. The path Kandrac followed was the only one reasonably available between the door and the lot, she claimed.
On Monday, Judges Marianne Espinosa, Carmen Messano and John Kennedy affirmed, finding that a line of cases expanding commercial entities’ duty to adjoining sidewalks and passageways to parking areas — and to parties who are lessees, rather than owners of the properties in which their businesses operate — “do not apply … to tenants in a multi-tenant mall that do not have control or maintenance responsibilities for a common area and have no contractual obligation to maintain such areas.”
While the state Supreme Court has assigned a duty to commercial property owners in connection with dangerous conditions neither on their property nor under their control, it has not made a similar determination for commercial tenants, specifically those in multitenant properties, the court said.
Also, the record failed to show that Kandrac’s injury occurred in a location necessary to get into or out of Marrazzo’s, in an area under Marrazzo’s control or in such close proximity to the store “as to make a distinction in liability arbitrary,” the court said.
Even though the lease provision “does not relieve Marrazzo’s of all duties to its customers regarding ingress and egress,” it “squarely assigns the duty to maintain the area where plaintiff was injured to the landlord,” Espinosa wrote for the panel, noting that Pettinaro did make inspections and repairs and fielded complaints about unsafe conditions.
Holding otherwise “might well be counter-productive” because it would create uncertainty as to which tenant was responsible for which portion of the common area, she said.
Kandrac’s lawyer, Jerrold Kamensky of Kamensky, Cohen & Riechelson in Trenton, says the court “usurped the jury’s province in this decision.”
A jury should decide whether Kandrac’s route of travel was expected, Kamensky says, noting Marrazzo’s did not have to repair the defect but simply could have reported it to the landlord.
“What the court fails to recognize is how businesses operate,” he says. “It doesn’t cost anything to impose further incentive on a tenant … to pay attention to the direct ingress and egress of their store.”
Kamensky says he’s considering further appeal.
Marrazzo’s lawyer, Brad Weintraub of Weiner Lesniak in Parsippany, says the decision “really doesn’t needlessly expand the law to a set of facts that wouldn’t support it.”