ROSEMARY McCANN v. BOROUGH OF WASHINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0570-05T20570-05T2

ROSEMARY McCANN,

Plaintiff-Appellant,

v.

BOROUGH OF WASHINGTON

Defendant,

and

WEIGHT WATCHERS,

Defendant-Respondent.

________________________________

 

Argued May 24, 2006 - Decided September 26, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Warren County, L-294-04.

Christian T. Merlino argued the cause for

appellant (Robert A. Scirocco, attorney;

Mr. Merlino, on the brief).

William T. McGloin argued the cause for

respondent (Connell Foley, attorneys; Mr.

McGloin, of counsel; Mr. McGloin and Michael

A. Baseluos, on the brief).

PER CURIAM

Defendant Weight Watchers rented a room in the Borough of Washington's municipal building for its weekly meeting. Weight Watchers actually rented the meeting room, "Fireman's Hall," from the local fire department, which is one of the building's regular occupants along with the police department and the various municipal offices. The written agreement between the Washington Borough Fire Department and Weight Watchers of North Jersey, Inc., had provided for use of the hall on Wednesday evenings, in exchange for payment of $25 per meeting, since 1989. "Full custodial service" was to be provided by "the Owner."

After attending a Weight Watchers meeting on the evening of January 21, 2004, plaintiff, Rosemary McCann, slipped and fell, allegedly on an icy spot on the last step leading from the building's main entrance to the building's walkway. In her deposition, plaintiff testified that it was a cold night, she did not recall any precipitation, but it had snowed several days before, and there was snow on the grass outside the building. During the drive to the meeting, she had seen plowed snow piled along the roadway.

Plaintiff did not recall whether she saw "any de-icing material" on the walkway or the steps. There was a yellow stripe marking the step where she fell. She felt herself slide on that last, single step, and when she looked back, she saw that it was dark and shiny. Plaintiff suffered serious injuries as a result of the fall. Plaintiff's negligence complaint against both the municipality and Weight Watchers was dismissed on summary judgment. This appeal concerns only the judgment in favor of Weight Watchers. We now affirm.

Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), was the landmark case that changed the common law and held that a commercial landowner is liable for failing to maintain an abutting sidewalk in good repair. Stewart was based on the dual rationale underlying much of tort law: to provide a remedy to an innocent, injured person as well as an incentive for a commercial property owner to maintain an adjoining sidewalk in good repair. Id. at 155, 157. In Mirza v. Filmore Corp., 92 N.J. 390 (1983), the Court extended Stewart to include a commercial landowner's liability for snow and ice removal on an adjoining sidewalk. Id. at 395.

We applied Stewart to a "lessee who is in exclusive possession of commercial premises abutting a sidewalk" in Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124, 128 (App. Div. 1986) (emphasis added). We emphasized in our opinion that exclusive or sole possession of the premises was the basis for imposing liability, expressly limiting our holding to "a commercial tenant who is in exclusive possession of the premises abutting the sidewalk." Id. at 130.

The motion judge here relied substantially on the Law Division decision in Barrows v. Trustees of Princeton Univ., 244 N.J. Super. 144 (Law Div. 1990). There the plaintiff fell on a walkway in Forrestal Village, "a multi-tenant shopping complex" owned by the University. Id. at 146. The plaintiff had parked in the common parking lot, shopped in several stores in the outdoor shopping mall, and slipped on a patch of ice in front of another store where he had been window shopping. Ibid. Plaintiff's complaint named the University as well as each of the stores where he had shopped, alleging that all were liable for failing to adequately treat or remove the ice. Summary judgment was granted to all defendants except the tenant whose awning allegedly allowed snow to accumulate, melt, drip, and freeze on the sidewalk. That tenant was held in on general negligence principles for causing the dangerous condition. The judge in Barrows held that "[b]ecause tenants in a multi-tenant shopping mall will not, absent a contractual obligation, have control or maintenance responsibilities for common walkways or sidewalks, . . . the duties imposed by Stewart and Antenucci do not extend to tenants in multi-tenant shopping complexes." Id. at 148.

Plaintiff relies in part on our decision in Warrington v. Bird, 204 N.J. Super. 611 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986). There we held that where a restaurant parking lot was located across a county roadway from the restaurant itself, the restaurant's operator had a duty to provide "proper notice of the danger to motorists and pedestrians or . . . illumination on an uninterrupted basis . . . thereby facilitating a motorist's view of patrons about to cross the roadway." Id. at 618. There the restaurant was the sole occupant of the building and the parking lot, and its invitees were expected to traverse an obviously dangerous roadway. We do not find the circumstances before us to be comparable.

The Supreme Court's rationale in Monaco v. Hartz Mt. Corp., 178 N.J. 401 (2004), addressing somewhat different facts, is consistent nonetheless with our conclusion that Weight Watchers bears no liability in this case. The Court in Monaco held that a commercial landowner could be liable to a person injured on the landowner's abutting sidewalk, even though the injury was caused by a falling municipal sign, because the landowner's "duty to its invitees to maintain its land in a safe condition" included the duty "to inspect, and to warn of hidden defects." Id. at 404. The plaintiff in Monaco was an employee of the property owner's sole tenant, and there was evidence that the defective condition of the street sign was visible to the owner. The Court eschewed "control" over the abutting sidewalk as the determinative factor. Id. at 415. Instead, the Court followed its earlier approach in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), that the question "'whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.'" Monaco, supra, 178 N.J. at 418 (quoting Hopkins, supra, 132 N.J. at 439).

In our view, it would not comport with basic principles of fairness to impose a duty on the weekly renter of a single meeting room, in a building occupied on a regular basis by others, to maintain, repair, or clear snow and ice from a common walkway outside the building. Even if a tenant in a multi-occupant property can be said to have a more limited duty to inspect and warn of a dangerous condition of a common entrance there is no evidence in this record to support the contention that Weight Watchers had notice of a potentially dangerous condition such as could trigger a duty to inspect the step, or to warn plaintiff before she left the building. No other witness described seeing any snow or ice on the steps at the time; plaintiff herself saw none until after her fall.

The fact that the walkway is owned by a public entity, which may itself be immune from liability under the Tort Claims Act, N.J.S.A. 59:1-1 to N.J.S.A. 59:14-4, while unfortunate for plaintiff, does not justify imposing liability upon a tenant such as Weight Watchers, where liability otherwise would not exist.

Affirmed.

 

Plaintiff's complaint alleges that "ice was allowed to accumulate on the steps of the Borough Hall . . . [and as she] proceeded on to said stairway, she was caused to slip and fall." In plaintiff's deposition, she testified that there were "a few steps going down, and . . . [t]hen there was like a landing. Then there was one step down, and that's where I fell. On that step." Her brief on appeal, however, describes her fall occurring "while on a walkway . . . leading from the main entrance of the building to the adjacent sidewalk."

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A-0570-05T2

 

September 26, 2006