snowplow

In Shields v Ramslee Motors, decided by the New Jersey Supreme Court on Jan. 23, plaintiff slipped and fell on ice on the driveway of commercial property in Jersey City. Under the lease to the tenant, Ramslee Motors, a used car dealership, Ramslee was responsible for maintaining the premises as if it were "de facto owner." The lease provided, among other things, that "during TENANT'S use and occupancy of the premises that TENANT shall be solely responsible for the maintenance and repair of the land and any structure placed on the premises at any time and from time to time during the lease, as if Tenant were the de facto owner of the leased premises." The landlord reserved the right to enter the premises for specified purposes, including "at any time in the event of emergency" and "at all reasonable hours, for the purpose … making such repairs or alterations therein as may be necessary for the safety and preservation thereof." That covenant was expressly stated not "to create an obligation on the part of the LANDLORD to make such inspection or repairs."

After plaintiff settled with the tenant, who had caused the driveway to be cleaned the day before the accident, the landlord obtained summary judgment. The Appellate Division reversed, holding that the lease was silent as to responsibility for snow and removal; that there was no distinction between the duty of the owner of commercial property to clean a sidewalk and to clean "an open driveway used with regularity;" and that the landlord had a non-delegable duty to "ensure that the driveway abutting the driveway was clear of snow and ice."

The Supreme Court reversed. It found that the lease clearly placed responsibility for maintenance of the property, including snow and ice removal, upon the tenant. It stated the term "maintenance" of the premises "includes the responsibility to remove snow and ice based on the plain meaning of that term." Further, there is a legal distinction between the right to enter the premises and the covenant to make repairs. Independently, the court held that the duty to clean a driveway "does not apply to private property," here the driveway was separated from the sidewalk by a gate which had to be opened for access, and the landlord did not retain control over the premises. The court concluded that the tenant "controlled the driveway where the plaintiff fell based both on relevant provisions in the lease" relating to the tenant's sole responsibility to maintain the property which Ramslee Motors had exercised, "and on the physical characteristics of the property." The court rejected the factors in Hopkins v Fox & Lazo Realtors, 132 NJ 436 (1993), where a plaintiff was injured while being shown a home for sale by a broker, as requiring the application of a non-delegable duty to maintain the premises.

Justice Albin concurred in the result and dissented in part. He agreed with the majority that, based on the record on the landlord's motion for summary judgment, there was "no common law duty to clear the commercial tenant's driveway of the transient condition of ice and snow."  "[T]he landlord had no practicable way to know that the tenant would not clear the driveway in a timely way and therefore no reasonable opportunity to remedy the situation." But Justice Albin believes the "landlord has a duty to make reasonable efforts to repair a dangerous condition on the property that it knows or should know places at risk the lives and safety of people visiting or frequenting the premises." The landlord did maintain the right to enter to make repairs, profits from the lease and maintains sufficient control "to ensure the safety of the public." In essence, imposing the "common law duty on the landlord is both fair and in accord with public policy." Stated differently, the dissent disagreed with the "seeming pronouncement that absolves the landlord of the duty to make reasonable efforts to repair a dangerous condition on the property when the landlord knows or should know of the danger, when the landlord retains authority to remove the danger, and when the tenant fails to make the necessary repairs and the lives and safety of people are imperiled by negligent inaction."

We can debate the meaning of the lease regarding the landlord's right to enter the premises to make repairs and maintain the premises and its relation to removal of ice and snow, and whether this case presents the issue of concern to Justice Albin, as even he recognized by concurring in the result. We can hardly argue about the result in this case by virtue of the "de facto owner" clause and the record, but the court's split on an opinion of such public importance leads us again to urge the Legislature to examine the questions of sidewalk and premise liability by commercial and non-commercial landowners and tenants. Certainly, leases may contain significant if not controlling language, but some general principles of public policy remain with respect to issues affecting the health and safety of the public, which should not be left to case law development on an ad hoc basis.