A Capehart Scatchard Blog

Private Owner Of Parking Lot Leased To Municipality Found Not Liable For Fall On Ice In Lot

By on May 22, 2020 in Negligence with 0 Comments

The plaintiff Richard Underhill parked his car in a municipal parking lot known as the Kaplan Lot located in the Borough of Caldwell.  He walked across the street with his wife and friends to eat dinner at a nearby restaurant.  Upon returning to his parked car, he walked up an internal driveway that connected the street to the lot.  As he was walking on the driveway, he slipped on what he had described as “black ice” and suffered an injury.  In the published Appellate Division decision of Underhill v. Borough of Caldwell, 2020 N.J. Super. LEXIS 58 (App. Div. May 21, 2020), the Appellate Division found the lease between the defendant owners and the Borough controlling in delegating to the Borough the responsibility to clear the premises of ice and snow.

The Kaplan parking lot and the connecting driveway were owned by the defendants Carol Dakin and Susan Fields who had leased the property to the Borough in September 1998 for a term of about 20 years.  Based upon the lease agreement, the Borough was contractually responsible for the maintenance of the lot, which included snow and ice removal.

The plaintiff and his wife sued both the Borough and the private owners, claiming that they were negligent in failing to maintain the parking lot and the internal driveway connected to it in a safe condition.  The Borough had leased the parking lot from the defendant owners.  Both the defendant property owners and the Borough filed for a summary judgment dismissal.  The trial court granted the Borough’s motion based upon the plaintiff’s failure to establish actual or constructive notice of a dangerous condition.  That decision was not appealed. 

The trial court also granted summary judgment to the property owners based upon the absence of notice.  The plaintiffs, however, appealed that ruling, arguing that the property owners had a non-delegable duty under tort law to keep the premises safe from accumulated ice and snow, or in the alternative, they argued that the language of the lease did not delegate that duty to the Borough with sufficient clarity.

The Appellate Division affirmed the trial court’s decision in finding that the property owners were not liable for the plaintiff’s injuries.  However, their ruling was based upon the Supreme Court’s recent opinion in Shields v. Ramslee Motors, 240 N.J. 479, (2020), in which the Court had found that the property owners were entitled to summary judgment as a matter of law based upon the lease with its tenant.

On the days leading up to the plaintiff’s fall, it had snowed intermittently.  The Borough had engaged in extensive snow removal in all of the Borough’s roadways and properties during those five days.  The Kaplan lot was included in the snow and ice removal activities. 

The issue in this case was whether there was a duty of care owed by the defendant property owners to remove ice and snow from the parking lot and internal driveway they leased to the Borough.  The Appellate Division based its ruling on the Shields case, in which the Supreme Court had framed the issue as “whether the owner of a commercial property owes its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property is in the sole possession and control of the tenant.”  The Supreme Court answered that question in the negative.

Relying on the Shields decision, the Appellate Division pointed to the language in the Lease Agreement which broadly stated that the lessee must “[k]eep the demised premises free of obstructions, snow and ice.”  The Court rejected the argument that the Shields case was distinguishable because this was a “public” driveway and parking lot.

It was undisputed that the Borough maintained control over this lot and driveway during the term of the lease.  The lease delegated to the Borough the obligation for snow and ice removal and, in fact, it had performed snow and ice removal for several days in a row leading up to the plaintiff’s fall.  Just like in Shields, the lot and driveway where plaintiff fell were within the exclusive control of the tenant Borough.  The Appellate Division found that the lease agreement “sufficiently and expressly delegated snow and ice removal duties to it, and the Borough thereafter consistently performed those duties.”

The Appellate Division rejected the plaintiff’s attempt to analogize the parking lot, because it was used by the tenant as a municipal facility, to a public sidewalk that abuts a public street.  The Appellate Division found that the Borough’s decision to use the premises for public parking did not “thrust upon the landlords a non-delegable duty of care to clear snow and ice within the interior perimeter of the premises.”  The Appellate Division found that this duty was assumed by the Borough when it entered into the lease.

Thus, the Appellate Division upheld the summary judgment to the property owners, although on a different reason than the trial court judge expressed.  Hence, the trial court’s decision was affirmed.

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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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