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Owner of Commercial Property With Triple Net Lease Agreement Found Not To Be Liable For Fall on Sidewalk

By on July 19, 2019 in Negligence with 0 Comments

Plaintiff Edna Albert slipped and fell on a sidewalk outside a Pathmark grocery store and suffered personal injuries.  The Pathmark had leased the premises from Klingensmith Associates, LLC (“Klingensmith”).  The issue in Albert v. Pathmark Stores, Inc., 2019 N.J. Super Unpub. LEXIS 1586 (App. Div. July 10, 2019), was whether the commercial landowner, Klingensmith, who leased the property to Pathmark pursuant to a triple-net lease could be liable for injuries suffered from a fall on a sidewalk outside of the Pathmark grocery store.

The lease governing the property required the Lessee (“Pathmark”) to maintain the premises in good order and repair.  In particular, the Lessee, at its own expense was required to keep the sidewalks in good repair.

Plaintiff claimed that she fell over a gap in the sidewalk created by the deterioration of an expansion joint between two concrete slabs.  Plaintiff retained an expert who opined that the expansion joint gap was too wide and the gap violated industry norms, thus creating an uneven walkway.

Klingensmith filed a motion for summary judgment, arguing that Pathmark had a duty to maintain the sidewalk under the triple-net lease and, hence, it should not be responsible for an injury caused by the condition of the sidewalk.   The plaintiff argued in response that the duty to maintain the premises is a non-delegable duty and, even if it is not, the Lease Agreement did not apply because the defect in the sidewalk existed before the lease was executed.  The trial court judge disagreed with the plaintiff and entered an order for summary judgment in the defendant’s favor.

Upon appeal, the plaintiff argued that the trial court erred in its decision and, again argued that Klingensmith could not delegate the obligation to maintain a safe premises.  However, the Appellate Division disagreed with that argument and affirmed the trial court decision.

The Appellate Division noted the traditional rule that a landlord is not responsible for the maintenance of a leased premises but, rather, the tenant assumes that duty as a condition of possession.  The Court noted that there were two exceptions to the general rule: “(1) A landlord is responsible to use reasonable care with regard to portions of the leased premises which are not demised and remain in the landlord’s control and (2) a landlord’s covenant to repair gives rise to the duty to the tenant.”

Neither exception applied in this case. The Appellate Division found that Pathmark, not Klingensmith, was in the best position to remedy the defective sidewalk and the pertinent lease provision controlled the allocation of liability.  The Court found that Pathmark was properly held responsible for maintaining the common area outside their store.  Further, the lease provision specifically required Pathmark to maintain the concrete and sidewalk on the leased premises.

As for whether the owner could be responsible because the defect preexisted, Court found that the pertinent lease section, by implication, held Klingensmith responsible for all defects arising prior to the inception of the lease.  Regardless, the plaintiff failed to present any proofs that the defect was present since construction of this sidewalk, let alone that Klingensmith should have known of the defect before the inception of the lease.  Further, the Court noted that the lease specifically stated that Pathmark acknowledged that it took the premises in good order and repair.            

Hence, the Appellate Division affirmed the trial court decision and upheld the dismissal of the lawsuit as to the owner of the property, Klingensmith.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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