New Jersey Appellate Division finds that the lease is controlling in landlord-tenant sidewalk liability dispute.
In an unpublished opinion, the Appellate Division held in favor of a commercial tenant against a landlord in a case arising from a trip and fall on an allegedly defective sidewalk. In this matter, the appellant-landlord, Belmont, sought reversal of a trial court decision granting summary judgment in favor of the appellee-tenant, Kmart. The trial court held that Belmont breached the terms of the contract with Kmart and was liable to Kmart for any damages resulting from the breach. Kmart sought indemnification from Belmont, via a third-party complaint, after Belmont’s insurer rejected Kmart’s tender request because Belmont had neglected to add Kmart as an additional insured. The subject lease agreement defined “sidewalks” as part of the “common areas,” and it further required the landlord to “[f]ully maintain and keep in good order and repair the common areas of the shipping center and shall keep the same adequately paved.” The Appellate Division found in favor of Kmart, reasoning that the court must enforce the terms of the contract as written, which the parties themselves made. The Appellate Division rejected Belmont’s argument that Kmart was required to indemnify Belmont as the injury that arose from Kmart’s use of the “demised premises” because the sidewalks were not included as a part of the “demised premises.” The Appellate Division also rejected Belmont’s attempt to impute liability upon Kmart by arguing that Kmart had a common-law duty to the plaintiff, as a lessee in exclusive possession of the premises abutting a public sidewalk, to keep the walkway in good repair because Kmart did not have exclusive possession of the sidewalk and was not responsible for maintaining the sidewalk pursuant to the lease.
Case Law Alerts, 1st Quarter, January 2016
Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.