FRANCISCA ALVAREZ v. TERMINI PIZZERIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5949-08T25949-08T2

FRANCISCA ALVAREZ,

Plaintiff-Appellant,

v.

TERMINI PIZZERIA and MARIA

SANFILIPPO,

Defendants,

and

ANTONIO SANFILIPPO,

Defendant-Respondent.

_____________________________________________

 

Argued March 24, 2010 - Decided

Before Judges J. N. Harris and Newman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3003-07.

Randy Grossman argued the cause for appellant (Greenberg, Walden & Grossman, L.L.C., attorneys; Mr. Grossman, on the brief).

Bella Pevzner argued the cause for respondent (Gibson & Behman, P.C., attorneys; Ron L. Langman, on the brief).

PER CURIAM

Plaintiff, Francisca Alvarez, appeals from an order granting summary judgment to defendant, Antonio Sanfilippo, the landlord/owner of the building at 4107 Bergenline Avenue, Union City, New Jersey. We affirm.

Viewing the facts in a light most favorable to plaintiff, they may be summarized as follows. The building in question has a commercial pizzeria on the ground floor and two rental apartments on the second floor. Sanfilippo operated the pizza establishment for many years but sold it to Termini. In the lease agreement, Termini assumed all responsibility for repairs to the premises and also held Sanfilippo harmless from any injuries or damages that could occur on and to the premises.

Plaintiff was exiting the pizzeria with a cup of soup when she slipped and fell on the one step down from the entrance/exit door of the pizzeria. She suffered a femoral fracture, requiring surgery, as well as depression and post-traumatic reaction to the accident.

Plaintiff sued both the landlord and tenant, settling her case against the tenant for $125,000.

The step on which plaintiff fell was not a design defect which could affect the potential liability of Sanfilippo because he made certain repairs when he took over the premises. The step was in disrepair because of excessive wear and tear which, according to plaintiff's engineering expert, Wayne F. Nolte, left the step with an irregular edge due to wear and tear. Nolte was of the opinion that it constituted an extreme hazard. Subsequent to the accident, Termini had the step repaired.

Sanfilippo had nothing to do with repairs to the pizzeria, but did maintain responsibility for the second floor apartments which had a separate entrance on the side of the building. His only contact with the pizzeria was to collect the rent. He did not assume any inspection role regarding the pizzeria.

In granting summary judgment, the trial court relied on Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007), and concluded that the landlord owed no duty to the pizzeria patron.

On appeal, plaintiff raises the following issues for our consideration:

POINT I

SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED SINCE THERE IS A GENUINE ISSUE OF MATERIAL FACT WHICH SHOULD BE DECIDED BY A JURY AS TO DEFENDANT'S LIABILITY IN THIS MATTER.

POINT II

SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED BECAUSE THE PUBLIC USE EXCEPTION APPLIES TO COMMERCIAL PROPERTY OPEN TO THE PUBLIC LIKE THE BERGENLINE PREMISES AND MS. ALVAREZ WAS A LAWFUL BUSINESS INVITEE.

We reject plaintiff's arguments. Geringer, supra, is controlling authority and indistinguishable from the accident which occurred here. In Geringer, this court 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. 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. Id. at 400-01. The lease agreement between the landlord in this case and his tenant calls for a similar conclusion. See also McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521, 526 (App. Div. 1996).

All of the commercial tenant's maintenance and repair were done by the commercial tenant, Termini. The landlord was only obliged for repairs for the second floor tenants. As the trial court correctly observed, the landlord owed no duty to the customers of the pizzeria.

Notwithstanding the applicability of Geringer, plaintiff argues that Geringer and, for that matter, McBride, supra, are distinguishable. In both those cases, plaintiff points out that plaintiffs were employees of the respective tenants, unlike plaintiff here who was a customer. Neither Geringer or McBride relies on the plaintiff's status in its holding or draws any distinction between the plaintiff's status in relation to the responsible tenant.

Plaintiff also argues that there is a public use exception that would be applicable and expose the landlord for liability. The principles upon which the duty of a landlord/owner are based were summarized in Hopkins v. Fox & Lazo Realtors, supra, 132 N.J. at 439, and cited in both the Geringer and McBride opinions. There, the court articulated the principles in the following terms:

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. That inquiry involves identifying, weighing, and balancing several factors - the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.

[Ibid. (internal citations omitted.]

Utilizing this analysis, we decided in Geringer that no duty was owed to plaintiff by the landlord, Hartz Mountain Corporation. Geringer, supra, 388 N.J. Super. at 400-01. So too here. Sanfilippo owed no duty to Alvarez based on the terms of the lease and relationship between Sanfilippo and Termini. Termini not only had the exclusive responsibility to maintain the entryway/exit stair, but also made all the repairs to the premises, including the stair in question. Sanfilippo was an out-of-possession or absentee landlord whose only contact with the pizzeria was collection of the monthly rent.

The case of Winkler v. Motter, 310 N.J. Super. 393 (Law Div. 1996), cited for the public use exception to the general non-liability rule of commercial landowners, is readily distinguishable. There, the landlord had created a defective condition before leasing the premises to the tenant. Id. at 404-05. Sanfilippo did not create either a defective or hazardous condition from which a duty to maintain the premises may have arisen prior to leasing the pizzeria to Termini. Indeed, plaintiff's own engineering expert was of the opinion that wear and tear of the step created the hazardous condition.

To the extent that plaintiff contends that Sanfilippo was bound by a non-delegable duty to plaintiff, we disagree. As an out-of-possession landlord, Sanfilippo could rely on the terms of a lease delegating the duty to repair and to keep the premises reasonably safe for its customers. Vasquez v. Mansol Realty Assocs., Inc., 280 N.J. Super. 234 (App. Div. 1995) does not hold otherwise. Vasquez recognized the distinction between a landlord who vested exclusive possession of the premises in the tenant and has no opportunity or obligation to make repairs and a landlord who relieved itself from a duty to maintain the premises while remaining present on the premises. Id. at 236-37. Moreover, Vasquez also distinguished between a dangerous condition within the premises and on a public sidewalk as present in Vasquez. Id. at 237. Insofar as a public sidewalk was concerned, we held in Vasquez that the commercial landlord's duty to maintain was non-delegable. Ibid. Needless to say, the slip and fall here did not occur on a public sidewalk.

Plaintiff's reliance on Rigatti v. Reddy, 318 N.J. Super.

537 (App. Div. 1999) is misplaced. There, the claim was brought by an employee of the landowner's independent contractor. In Rigatti, unlike here, the premises were not leased to a tenant, but the landowner was in possession when the injury took place. Additionally, we held that a landowner cannot be responsible for dangerous conditions that were easily discoverable by the independent contractor employing the plaintiff. Id. at 543. If an independent contractor of an in-possession landlord can be saddled with a duty to protect its employees, an out-of- possession landlord, relying on the terms of a lease, is well within his rights to delegate that duty to his tenant to protect the customers of its business establishment.

O'Connell v. New Jersey Sports & Exposition Authority, 337 N.J. Super. 122 (App. Div. 2001), also does not support plaintiff's position. The New Jersey Sports and Exposition Authority had express responsibility under the lease with a sports team to maintain the area of the premises upon which the injured plaintiff fell. Id. at 122. Here, the responsibility for repair and maintenance was delegated to Termini which, according to O'Connell, is contractually permitted by "a lease agreement between the lessor and lessee, or landlord and tenant, may fix the respective duties and allocate costs for repair and maintenance as between the lessor and lessee . . . ." Id. at 128-29. That is exactly what was done here between lessor Sanfilippo and lessee Termini.

This case was ripe for summary judgment. There was no genuine issue of material fact in dispute. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Sanfilippo was an out-of-possession landlord who had no duty to repair or inspect the pizzeria. Collecting the rent monthly was not a basis to pin liability on him for plaintiff's slip and fall.

 
Affirmed.

(continued)

(continued)

2

A-5949-08T2

April 9, 2010