JO MICELLI v. LAKELAND AUTOMOTIVE, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3757-08T33757-08T3

JO MICELLI,

Plaintiff-Appellant,

v.

LAKELAND AUTOMOTIVE, INC.,

Defendant,

and

DANIEL MARVIN PEYTON, individually

and d/b/a NEW EKC CORPORATION,

Defendants-Respondents.

_______________________________________

 

Submitted November 18, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2040 08.

Shebell & Shebell, L.L.C., attorneys for appellant (Richard A. Amdur, Jr., on the brief).

Weston, Stierli, McFadden & Capotorto, attorneys for respondent New EKC Corporation (Margaret M. Mitchell, on the brief).

PER CURIAM

Plaintiff appeals from the March 6, 2009 order granting summary judgment dismissing her complaint arising out of injuries she sustained in the parking lot of property owned by defendant New EKC Corporation (EKC). The trial court held that the contract between the landlord and tenant was a triple net lease that directed tenant Lakeland Automotive, Inc. (Lakeland) to exclusively maintain the premises, and, therefore, EKC breached no duty of care owed to plaintiff. We affirm.

The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), disclose that plaintiff fell in the parking lot of property that EKC leased to co-defendant Lakeland. Clause 4.2 of the lease agreement required that:

[Lakeland] shall keep and maintain, or cause to be kept and maintained, the buildings and other improvements now or in the future constructed on the Premises in good repair and condition . . . [and] will not call upon [EKC], during the Term of this lease, for the making of any repairs, replacements, alterations or other work whatsoever.

There is no dispute that the parking lot was included as "other improvements" of the property. The trial court, in its statement of reasons, found:

Lakeland entered into a triple net lease with EKC. Section 4.2 of the lease, labeled "Tenant Work and Repairs," unequivocally shifts the responsibility to repair and replace the "sidewalks, parking lots and other paved areas" to the tenant. It is undisputed [that] plaintiff fell on ice in the parking lot of the premises. Section 4.1 of the lease labeled "Landlord's Work: Additions by Landlord" does not shift control back to the landlord for any responsibility to maintain and repair the premises. Michael[s] v. Brookchester, [Inc.,] 26 N.J. [379], 382 (1958), relied upon by plaintiff[,] is inapposite where there was a landlord's covenant to repair. EKC is entitled to summary judgment. Geringer v. Hartz Mountain [Dev. Corp.], 388 N.J. Super. 392, 400 (App. Div. 2006); McBride v. Port [Auth.] of N.Y. [&] N.J., 295 N.J. Super. 521 (App. Div. 1996).

On appeal, plaintiff contends "the landlord had the duty that cannot be eliminated by the lease in this case to oversee or correct a dangerous condition on its property." We disagree.

Because the issue before the court involves a question of law, namely, whether the lease agreement absolved EKC of any duty of care towards plaintiff, we owe no special deference to the trial court's legal interpretations. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). In Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400 (App. Div. 2006), we addressed the duty owed by a landlord to a plaintiff injured on premises subject to a triple net lease. There, the landlord leased an entire floor to the plaintiff's employer. Id. at 394. The plaintiff fell on an interior stairway. Ibid. She filed a complaint naming, among other defendants, Hartz Mountain Development Corporation (Hartz). Ibid. We noted that the approach to resolving premises liability issues no longer exclusively focuses upon traditional common-law classifications of injured persons as trespassers, invitees, licensees, and the like:

Rather, the question of whether a duty is owed to a person injured on the premises and the extent of that duty, turns upon a multiplicity of factors, including a consideration of the relationship of the parties, the nature of the attendant risk, defendant's opportunity and ability to exercise reasonable care and the public interest in the proposed solution."

[Id. at 400 (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).]

We examined the lease agreement between Hartz and the plaintiff's employer and found that under its terms, it conferred responsibility for maintaining the interior stairway upon Hartz' tenant. Geringer, supra, 388 N.J. Super. at 400-01. The lease agreement between EKC and Lakeland calls for a similar conclusion.

The terms of Clause 4.2 evidence the parties' agreement to enter into as a "triple net" lease. See N.J. Indus. Properties, supra note 3, 100 N.J. at 434. The fact that EKC, under Clause 4.1, reserved to itself the right from time to time to enter the premises to construct other buildings or make other improvements did not, in our view, impose upon EKC a duty of care owed to plaintiff. See McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521, 525 (App. Div. 1996) (rejecting as inconsistent with the state of law the plaintiff's contention that a commercial landlord should be responsible for the plaintiff's injuries because it reserved to itself the right of re-entry to perform repairs). Here, Lakeland agreed to undertake all maintenance and repair responsibilities associated with the leased premises and there is nothing in the record to suggest that, "in actual practice, any employees of [EKC] participated with [Lakeland] in maintaining or repairing the [parking lot]." Geringer, supra, 388 N.J. Super. at 401.

Affirmed.

 

Lakeland Automotive, Inc., improperly pled as Lakeland Automotive Corporation, was granted summary judgment on September 26, 2008, and is not part of this appeal.

Although the March 6, 2009 order granted summary judgment to Daniel Marvin Peyton, individually and d/b/a New EKC Corporation, the appeal is only as to New EKC Corporation.

A triple net lease is a lease where a commercial tenant is responsible for "maintaining the premises and for paying all utilities, taxes, and other charges associatd with the property." N.J. Indus. Properties v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985).

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A-3757-08T3

February 19, 2010