Nielsen v. Walmart Continues Expansion of Commercial Landowner's Duty of Care In Premises Liability Cases
By Timothy J. Jaeger, Esq.*
For many years, Walmart Corporation has sought to put smiles on its customers' faces by offering convenient shopping at the "lowest prices." Now, in New Jersey, thanks to a recent decision by the Appellate Division of the Superior Court of New Jersey, the Walmart name will also make plaintiff lawyers happy, as the court's decision in Nielsen v. Walmart, 57 A.3d 1121 continues the expansion of the duty of care owed by commercial owners and occupiers of land to pedestrians.
In Nielsen v. Walmart, Walmart owned a building unit in a multi-unit commercial condominium shopping center. Walmart only owned the property delineated by the perimeter of its building and did not own the property outside of its store. The common area surrounding the perimeter of Walmart's store was owned, operated and maintained by a developer. In the Master Deed governing its relationship with Walmart, the developer agreed to "supervise, administer, operate, manage, insure, repair, replace and maintain" the common elements of the development, including the area outside of the perimeter of Walmart's store.
The plaintiff was an employee of an exterminating company that Walmart had hired to set rodent traps in its store. Walmart directed the plaintiff to access its various store entrances from the exterior of the building. To do so, it was necessary for the plaintiff to walk through the common area surrounding the perimeter of the Walmart store. The plaintiff was injured while setting rodent traps, when he slipped and fell on loose sand and pebbles in the area outside of Walmart's store.
The plaintiff sued Walmart, arguing that it owed him a duty to make the area safe for his use or warn him of the hazard. After a jury verdict for the plaintiff, Walmart appealed. Walmart argued that it had no legal duty to the plaintiff to inspect or maintain the area where he fell or to warn him of the dangerous condition located there because it did not own the area and was not contractually obligated to inspect or maintain it.
In affirming the judgment, the court disagreed with Walmart's position that its duty of care extended only as far as the boundary of its property. The court noted that the traditional bases of the duty of care owed in premises liability cases involving commercial properties, which were tied to ownership or occupation of property, or contractual obligations to maintain property, were no longer consistent with the modern course of common law. New Jersey provides that whether a person owes a duty of reasonable care toward another turns on basic fairness under all the circumstances and public policy.
In Nielsen, the court held that Walmart had a duty to familiarize itself with the perimeter outside of its building and other common areas used by its customers and business invitees. In imposing this duty, it recognized that Walmart had no contractual obligation to maintain the area where the plaintiff fell, but held that this single factor carried little weight when compared with the factors favoring the imposition of a duty. Those factors included that: Walmart was familiar with the area outside of its store; Walmart hired the plaintiff and directed him to utilize the common areas to perform his work; Walmart benefited from the plaintiff's work; Walmart was in a better position than the plaintiff to address the risk with the developer.
Additionally, the court relied heavily upon public policy arguments in deciding that Walmart owed a duty to the plaintiff. The court acknowledged the growing importance of the public policies favoring compensation for innocent pedestrians and the need to discourage the occurrence of future harm. The court reasoned that the imposition of a duty upon a commercial owner or tenant would advance important policy interests encouraging the land occupier to monitor and maintain the property and to alert the responsible entity about hazardous conditions.
It is important to recognize that the court's decision in Nielsen v. Walmart does not represent a sharp change in New Jersey law, as prior cases had made commercial landowners responsible for conditions outside of their properties under certain circumstances. Nielsen does, however, represent another step in the expansion of the duty of care owed by landowners and occupiers to pedestrians. The idea that a commercial landowner may be responsible for conditions outside of its property, even though there is another entity putatively responsible for that property, has potentially far-reaching consequences given the trend favoring protection of pedestrians and invitees.
The analysis in Nielsen also highlights the importance of understanding the factors supporting imposition of a duty of care. When evaluating the facts of a premises liability case in order to determine the potential liability of the parties, and potential third-party defendants, it is crucial to consider these factors and policy arguments.
There is little doubt that the court's decision in Nielsen v. Walmart is sure to bring happiness to plaintiff lawyers, it has expanded the duty of care owed by commercial landowners to pedestrians and business invitees. Given the trend of New Jersey courts and the strong emphasis placed on the public policy of protecting innocent pedestrians, this expansion is likely to continue.
*Tim is an associate in our Roseland, New Jersey, office who can be reached at 973.618.4151 or firstname.lastname@example.org.
Defense Digest, Vol. 19, No. 3, September 2013
Defense Digest 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 © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.