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Supermarket Found Not Liable for Vandalism to Employee’s Car Parked in Designated Area of Shopping Center Parking Lot

By on July 13, 2018 in Litigation with 0 Comments

Plaintiff Tanisha Lane, a Whole Foods’ employee, was directed by her employer to park her vehicle in an area of the shopping center distant from the entrance to the store. While parked in that area during her shift, her side view mirror was stolen. The issue in Lane v. Whole Food, 2018 N.J. Super. Unpub. LEXIS 1625 (App. Div. July 10, 2018) was whether Whole Foods was responsible to pay for the damage to her vehicle because it directed plaintiff to park in this particular area of the parking lot.

Both Whole Foods, as well as the property owner’s management company, Silbert Realty and Management Company, Inc. (“Silbert”) were sued by plaintiff to recover the damage to her vehicle. Whole Foods was located in Clark Commons, a 240,000 square foot retail shopping center, in which it was one of 28 tenants. Per the lease between Whole Foods and the owner of the shopping center, the landlord was responsible for maintenance and security of the shopping center parking lot. The owner contracted with Silbert to fulfill these obligations.

Whole Foods did instruct its employees to park in an area of the parking lot which was distant from the store’s entrance. In fact, parking outside of that designated area by a Whole Foods’ employee could result in discipline, up to and including termination.

This area of the lot was not delineated with signs, painted lines, or other markings. Its use was not limited to Whole Foods’ employees. This area of the lot was open to all customers and employees of all of the shopping center’s tenants.

This incident was not the first incident in which plaintiff’s vehicle was damaged while parked in this location of the lot. On two prior occasions, her vehicle suffered damage, including having her bumper removed and paint damage.

The trial court, in a bench opinion, determined that both Whole Foods and Silbert had a duty to protect plaintiff’s vehicle while it was parked in the shopping center parking lot. Silbert’s duty was based upon the contractual obligation in the lease. Whole Foods’ obligation was based upon Whole Foods’ requirement for its employees to park in a designated area. The trial court found that this requirement created a duty to plaintiff. The trial court found Silbert 70% liable and Whole Foods 30% liable for the damage to plaintiff’s vehicle.

Whole Foods appealed this decision.

The Appellate Division stated that its prior decisions concerning the duty of a commercial tenant to its business invitees in a multi-tenant shopping center guided its resolution of this appeal. The Court noted that the general rule under this prior case law established that “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.” This rule is “especially true where, as is the case here, the property owner assumes responsibility to maintain and secure the common areas of the shopping center in its lease with the tenant.”

The Appellate Division found that Whole Foods did not assume control of the parking lot by directing its employees to park in a specified area. Further, it had no contractual right or apparent ability to control that portion of the lot. There were no signs or other markings limiting that area to Whole Foods’ employees. Also, the record showed that Silbert requested Whole Foods and the other tenants to instruct their employees to park away from spaces near the stores to permit customer access.

The area where plaintiff was directed to park was not immediately adjacent to Whole Foods’ leased space. Whole Foods “was not readily able to remedy known dangers in the area in which plaintiff’s vehicle was damaged.” The Appellate Division found that Silbert had a contractual obligation and right to provide security in the parking lot and that it would be “unrealistic” for Whole Foods to provide security in the limited area of the lot to which it directed its employees to park.

A finding that Whole Foods did not have a duty to protect plaintiff’s vehicle from vandalism would not leave plaintiff without a remedy. The trial court had found Silbert liable based upon its contractual obligation. Accordingly, the Appellate Division reversed the trial court’s decision as to Whole Foods and remanded the matter back to the trial court to mold the judgment to allocate all liability for plaintiff’s damages to Silbert.



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 30 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.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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