DENNIS M. MCTIGHE v. LOWE'S HOME CENTERS, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5426-07T25426-07T2

DENNIS M. MCTIGHE and

LISA MCTIGHE,

Plaintiffs-Appellants,

v.

LOWE'S HOME CENTERS, INC.,

and

MARLBORO LOWE'S ROUTE 9 RETAIL

CENTER CONDOMINIUM ASSOCIATION,

INC. and LORENZO'S OUTDOOR

SERVICES, INC.,

Defendants-Respondents.

_______________________________

MARLBORO ROUTE 9 AND 520

DEVELOPMENT, LLC, I/P/A

MARLBORO LOWE'S ROUTE 9 RETAIL

CENTER,

Third-Party Plaintiff,

v.

LOWE'S HOME CENTERS, INC.,

Third-Party Defendant.

________________________________

Submitted August 25, 2009 - Decided:

 

Before Judges Miniman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1066-05.

Fruchter & Associates, L.L.C., attorneys for appellants McTighe (Harvey Fruchter, of counsel and Jared B. Weiss, on the briefs).

Law Offices of Charles Peter Hopkins, II, attorney for defendant Lorenzo's Outdoor Services, Inc. (Gerard M. Green, on the brief).

Martin, Kane & Kuper, attorneys for respondents Marlboro Route 9 and 520 Development, L.L.C. (John W. Harding, on the brief).

PER CURIAM

Plaintiff Dennis McTighe appeals from the June 12, 2008 order and the June 30, 2008 judgment granting the motion of defendants Marlboro Route 9 and 520 Development, LLC (Marlboro) and Lorenzo's Outdoor Services Inc. (Lorenzo's) for a directed verdict at the close of all the evidence pursuant to Rule 4:40-1. We affirm as to Marlboro and reverse as to Lorenzo's.

Marlboro owns property known as the Route 9 & 520 Retail Center in Marlboro. Pursuant to a lease, third-party defendant

Lowe's Home Centers, Inc. (Lowe's) leased a large portion of the property for its store. The leased premises include a parking lot, which is also used by other commercial tenants. Included within the leased premises are the "Common Areas" and "Common Facilities." The lease defines "Common Area" as "the Access Ways, the Non-Exclusive Parking Area and the North-South Connectors" including that portion of the parking lot leased to Lowe's. The lease defines "Access Ways" as "the two driveways designated on the Site Plan[.]" The lease defines "Non-Exclusive Parking Area" as "the parking area designated on the Site Plan . . . containing approximately twenty-two (22) parking spaces." The "North-South Connectors" are the paved areas used for vehicular traffic.

The lease provides, in relevant part, that Lowe's "shall, during the [lease term], own all buildings and improvements placed upon the [leased premises,]" and that Lowe's and "its agents, employees, customers, and invitees shall have free and unobstructed right to use the [leased premises]." Regarding maintenance of the property, the lease provides, in relevant part, that

[Lowe's] shall, throughout the [lease term], at its own cost, without any cost to [Marlboro] keep and maintain the [leased premises], including all buildings and improvements of every kind including parking lots and drainage systems which may be a part thereof, and appurtenances thereto, including sidewalks adjacent thereto and Common Areas located on the [leased premises], in good condition and repair, reasonable wear and tear and damages by casualty excepted. [Marlboro] shall not be obligated to make repairs, or replacements of any kind, nature or description, whatsoever, to the [leased premises] or any buildings or improvements or Common Areas thereon.

. . . .

[Lowe's], at all times, shall keep in good repair, maintenance and condition, the Common Areas within the [leased premises] (i.e. the North South Connectors and the Non-Exclusive Parking Area and the Access Way), including all directional signs therein and all other Common Facilities within the [leased premises], keeping parking suitably paved and marked for parking and traffic flow, sidewalks in good condition and repair, keeping such Common Areas and Access Ways free of refuse and obstruction, keeping such Common Areas and Access Ways and such Common Facilities properly cleared of snow[.]

The lease also permitted Marlboro the right to enter the demised premises only for limited reasons, which did not include snow and ice removal.

Lowe's retained Lorenzo's to snow plow the parking lot. A contract between the parties set forth the scope of work and snow plowing required:

1. Snow plowing shall commence automatically by contractor at the first indication of an accumulation of more than one inch.

2. Incremental accumulation as indicated in price schedule shall be paid on and "up to and including" basis. A snowfall must exceed the previous increment by one quarter (1/4) inch.

3. The determination of final accumulation in the event of a problem will be determined by the Rutgers Field Analysis for that given snowfall.

4. Due to changing weather conditions, due to freeze, thaw, wind drifts, puddles refreezing, etc. Lorenzo's Landscape, Lorenzo's Outdoor Services Inc. makes no claim to provide service that eliminates slip/fall injuries or accidents due to slippery surfaces.

The contract also included a provision for sand and salt application at an additional cost, which Lorenzo's would perform only at Lowe's request.

From February 16, to February 18, 2003, sixteen inches of snow fell in the Middlesex County area. According to Lorenzo's representative, on February 18, 2003, Lorenzo's plowed and salted the parking lot, Lowe's inspected Lorenzo's work before Lorenzo left the premises and Lorenzo's received no complaints about its work. The invoice for the work Lorenzo's performed did not indicate an additional charge for salt application.

Additional trace precipitation occurred on February 19, 2003, which plaintiff's expert civil engineer, Ronald Cohen (Cohen), described as "some flurries out there, nothing measurable." Lorenzo's did not return to re-plow or re-salt the parking lot because the contract contained no such requirement and because Lowe's made no request for such services.

Plaintiff was employed as a loader. A loader is an hourly-rate employee whose duties include retrieving customer product from the rear of the store and bringing it to the front, helping customer's load product into their vehicles, performing general housekeeping of the building, retrieving shopping carts from the parking lot, and taking care of snow removal in certain areas of the exterior of the property, including the immediate walkway into the door of the store, the outside garden, and the shopping cart corrals in the parking lot.

According to plaintiff, when he arrived to work at 10:00 a.m. on February 20, 2003, the condition of the parking lot was "icy and slippery" and "[t]here was patches of snow and big mounds of snow all over the place[,]" which plaintiff reported to the store manager. At approximately 2:00 p.m., plaintiff was instructed to gather shopping carts from the parking lot and bring them inside the store. He claimed that at the time, the parking lot was "very, very slippery" and there "was ice and snow all over the place, patches of snow, ice." While "yanking and pulling" a cart that had frozen to the ground, plaintiff slipped and fell, injuring his right shoulder. Expert medical evidence revealed that plaintiff suffered a torn rotator cuff requiring surgery.

The matter was tried before a jury on June 10, 11, and 12, 2008. At the close of all the evidence and before presentation of the case to the jury, Marlboro and Lorenzo sought a directed verdict. Relying on the lease, the trial judge directed a verdict in Marlboro's favor, finding, in relevant part, as follows:

this is an exclusive use and occupancy lease including the parking areas. Under the lease references that I read into the records Lowes was responsible for the parking lot, Lowes was responsible for snow removal. To meet their obligation for snow removal in the party they contracted with the defendant Lorenzo's. They reserved to themselves based on the testimony of their representative to do the small areas and the close areas with their own employees including snow, shoveling, salting and sanding. The application to salt and sand by Lorenzo's was at the control and request of Lowes, the principal duty being snow plowing. Snow plowing customarily deals with the large scale removal of snow, not the small scale removal of snow from closer obstructed areas because of the nature of the snow plowing.

I refer also to model civil jury charge 520C, duty of owner to tenant leasing entire premises and to others on premises, approved 5/11, May, 1977. . . . Section C refers to nonresidential land and buildings. Quote: Generally, on the renting or leasing of a building or land for other than residential purpose, the purpose in the lease in question and the property in question was for other than residential purposes. In the absence of a contract to that effect, there is no implied warranty or condition that the premises are fit and suitable for the purpose specified or for the use to which the tenant or lessee proposes to devote them or for any purpose. And in such case, the landlord is under no liability for injury sustained by the tenant or his guests or employees by reason of the unsafe condition of the rented premises.

The judge also found that Marlboro did not conceal or fail to disclose any natural or artificial condition involving an unreasonable risk of bodily harm to persons upon the land.

The judge also directed a verdict in Lorenzo's favor, finding that Lorenzo's work was limited to snow plowing and did not include snow removal and salting, that Lorenzo performed the work required by the contract, that the contract expressly excluded changing weather conditions, freeze/thaw, wind drifts, puddles and freezing, and that Lorenzo did not warrant or provide a service that eliminates slip and fall injuries or accidents due to slippery surfaces.

On appeal, plaintiff contends that the trial judge erred in directing a verdict in Marlboro's favor because as Marlboro's business invitee, Marlboro owed him a duty of care to provide a reasonably safe work place free from dangerous and hazardous conditions. We disagree.

"In the case of motions for involuntary dismissal, the test is, as set forth in [Rule] 4:37-2(b) . . ., whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor' of the party opposing the motion[.]" Dolson v. Anastasia, 55 N.J. 2, 5 (1969). If, accepting as true all the evidence which supports the position of the party opposing the motion and "according him [or her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Ibid. The court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6. This standard applies to a motion brought pursuant to Rule 4:40-1. See Pressler, Current N.J. Court Rules, comment 1 on R. 4:40 (2008). Applying this standard, we continue our analysis.

A business invitee is a person who has been invited on the premises for purposes of the owner that often are commercial or business related. Longo v. Aprile, 374 N.J. Super. 469, 473 (App. Div. 2005); Monheit v. Rottenberg, 295 N.J. Super. 320, 324 (App. Div. 1996). Here, plaintiff was not a business invitee of Marlboro. He was not on the premises for Marlboro's commercial or business related purposes. He was on the premises as an employee of Lowe's and was performing his job-related duties at the time of the accident.

Plaintiff also contends that Marlboro is responsible for his injuries because Lowe's was not in exclusive possession of the property. He posits that Lowe's and other smaller commercial tenants shared the parking lot, and that Marlboro retained control over the other tenants' portion of the parking lot. Plaintiff's contention lacks merit.

In light of the applicable lease provisions, Marlboro owed no duty to plaintiff. The parking lot was a component of the leased premises for which Lowe's alone assumed the duty to maintain, including snow and ice removal. Marlboro had no duty whatsoever to maintain the parking lot. Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392, 400-01 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007); McBride v. Port Auth. of New York and New Jersey, 295 N.J. Super. 521, 526 (App. Div. 1996). Accordingly, a directed verdict was properly granted to Marlboro as a matter of law.

Although we do not reach the same conclusion as to Lorenzo's, we disagree with plaintiff that Lorenzo's had a duty to return to the property to re-salt the parking lot. The duration of Lorenzo's duty extended only so far as permitted by the contract. Aronsohn v. Mandara, 98 N.J. 92, 105-06 (1984). Under the contract, Lorenzo's had no continuing obligation to remove snow and ice or to salt the parking lot for trace precipitation. Its duty of care was triggered only by a snow fall of more than one inch, and its duty to re-salt the parking lot occurred only on Lowe's request. There was no such request here. Accordingly, Lorenzo's owed plaintiff no continuing duty of care beyond the scope of the original work.

Nevertheless, we agree with plaintiff that his negligence claim against Lorenzo's should have survived a directed verdict on other grounds.

Under well-established principles a contractor has a duty to persons, other than the one with whom the contractor has made the contract, to carry out his undertaken work in a careful and prudent manner, and he may be responsible to third persons for their personal injuries and property damages proximately caused by his failure to exercise that care. This duty exists irrespective of privity.

[Id. at 105. (citations omitted.]

Plaintiff contends that Lorenzo's failure to properly plow and store the plowed snow caused his injury. As Cohen testified, plaintiff's fall was caused, in relevant part, by "[t]he . . . improper plowing of snow, where it was stored, . . . the failure to place the snow in an alternate location or the failure to cordon the area off . . . to . . . keep people away from it." This evidence should have been judged in a light most favorable to plaintiff on Lorenzo's motion for a directed verdict. Accordingly, the matter must be remanded for a new trial as to plaintiff's claim against Lorenzo's for failure to properly plow and store the snow. Dolson, supra, 55 N.J. at 5-6.

 
Affirmed in part; reversed in part and remanded for a new trial as to Lorenzo's.

All cross-claims and third-party claims against Lowe's were dismissed, and Lowe's remained in the case for discovery purposes only.

(continued)

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A-5426-07T2

September 8, 2009