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For those of you who are engaged in commercial real estate, and particularly multi-tenant shopping centers, I wanted to alert you to a recent and important decision from our NJ Courts regarding landlord liability for injuries suffered by a tenant’s customer (known as a legal “invitee”) in an adjacent, common area parking lot. In Kandrac v. Marrazzo’s Market, A-6081-10, the Court addressed a situation where a customer of Marrazzo’s Market fell and suffered injuries in an adjacent, common area parking lot. The landlord Foxmoor Associates (subsidiary of Pettinaro Enterprises) was held liable for her injuries, but the real issue and important question in this case was whether the injured customer could also hold the tenant Marrazzo’s Market liable for the injuries.
The Appellate Court concluded in a published and precedent-setting opinion (11/5/2012) that where 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. While this decision signals a win for commercial tenants, the Appellate Court cautioned that the determination still remains fact-sensitive and must be based upon the circumstances of each individual case. In the case of Marrazzo’s Market, the lease agreement itself stated that the landlord was responsible to maintain the common areas of the shopping center, including any necessary resurfacing or maintenance of the sidewalks and parking areas.
The injured customer (plaintiff) had argued that the tenant, too, has a common law duty to maintain a safe area for ingress and egress of its customers – who are legal invitees and therefore a protected class based upon other case law. But here, one of the defining factors was that the area where the customer fell was not necessarily an expected route between the parking lot and the tenant’s store. This portion of the Court’s opinion signals that the decision might have been different if the area where the injury was incurred happened to be directly adjacent to solely the tenant’s front doors. But in the Marrazzo’s Market case, the injury occurred in an area where the customer could have been coming or going from many of the other shops within the same shopping center. It was not necessarily “the expected route” into Marrazzo’s Market.
In sum, the Court will impose a fact-specific inquiry to determine tenant liability. But based upon this recent Court decision, a commercial tenant in a multi-tenant shopping center is generally protected from liability where an injury occurs to a customer in an area of the common parking lot that the landlord is contractually obligated to maintain. It is advised that commercial tenants obtain sound legal advice in order to draft and include in their leases the necessary contractual language concerning maintenance and repair of such common areas so as to avoid liability in such situations.
Good information Anthony.
This is great info. Thank you.