BENJIMENEZ v. STEPHEN POWELL, CONCETTA POWELL, and SMP INC and ATLANTIC FREIGHT SYSTEMS, INC

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0690-16T4

BEN JIMENEZ,

        Plaintiff-Appellant,

v.

STEPHEN POWELL, CONCETTA
POWELL, and SMP INC.,

        Defendants-Respondents,

and

ATLANTIC FREIGHT SYSTEMS, INC.,

     Defendant.
________________________________

              Argued January 24, 2018 – Decided February 20, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Warren County, Docket No. L-
              0168-12.

              Lisa A. Sanzalone argued the cause for
              appellant (Kessler, Digiovanni & Jesuele, LLP,
              attorneys; Lisa A. Sanzalone, on the briefs).

              Patrick M. Sages argued the cause for
              respondents (Hack Piro, PA, attorneys; Patrick
              M. Sages, on the brief).
PER CURIAM

     Plaintiff Ben Jimenez appeals from an order granting summary

judgment in favor of defendants Stephen and Concetta Powell (the

Powells).    As we find that the trial judge correctly held that the

Powells were not liable for plaintiff's injuries incurred while

working for a tenant on the leased property, we affirm.

     The Powells own commercial property located in Phillipsburg,

New Jersey.     Pursuant to a written lease agreement (agreement)

dated May 1, 2000, the Powells, as individuals, leased the entire

premises located in Phillipsburg to SMP Inc., a trucking company

engaged in the transportation of freight by truck, for a term of

twenty years.    The property was to be used as a transportation and

trucking     terminal   and   for   offices,   parking,   storage,   and

maintenance facilities. The agreement specifically provides under

the paragraph entitled "Care of Property" as follows:

            The [t]enant has examined the [p]roperty,
            including all facilities, furniture and
            appliances, and is satisfied with [its]
            present condition.    The [t]enant agrees to
            maintain the property in as good condition as
            it is at the start of the [l]ease except for
            ordinary wear and tear. The [t]enant must pay
            for all repairs, replacements and damages
            caused by the act or neglect of the [t]enant
            or the [t]enant's visitors . . . Tenant agrees
            to and shall pay for all utilities and
            maintenance costs.

The agreement was in effect on the date of plaintiff's injury.


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    As the landlord, the Powells did not retain any control over

the property after signing the agreement.         Stephen Powell signed

the document as President of SMP, whereupon the corporate entity

SMP assumed exclusive possession and control over the entire

premises, and responsibility for "all utilities and maintenance

costs."

    Atlantic      Freight    Systems,   Inc.   (AFS)   is   a    New    Jersey

corporation having its principal place of business at the same

address as SMP.     AFS is a labor leasing company of motor carrier

personnel for hire.    Pursuant to a contract, AFS provides tractor

trailer drivers to SMP, and SMP owns the vehicles operated by

AFS's drivers.

    At the time of his injury, plaintiff was employed as a truck

driver by AFS.    Plaintiff alleges that he slipped and fell in the

company yard during the course of his employment.                The Powells

moved for summary judgment and after oral argument, Judge Thomas

C. Miller granted the motion, finding that defendants had no

liability   for   injuries    sustained   by   plaintiff        because    they

individually relinquished all control and responsibility for the

property to SMP under the terms of the lease.                    This appeal

followed.

    We review a grant of summary judgement under the same standard

as the trial court.     Rowe v. Mazel Thirty, LLC, 
209 N.J. 35, 41

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(2012).   Summary judgment is proper where there is no genuine

issue of material fact when the evidence is viewed in the light

most favorable to the non-moving party, and the moving party is

entitled to prevail as a matter of law.   Id. at 38, 41; R. 4:46-

2(c).

     On appeal, plaintiff cites Monaco v. Hartz Mountain Corp.,


178 N.J. 401 (2004), and contends the judge erred by relying upon

our decisions in Geringer v. Hartz Mountain Development Corp., 
388 N.J. Super. 392, 400 (App. Div. 2006) and McBride v. Port Authority

of New York & New Jersey, 
295 N.J. Super. 521, 526-27 (App. Div.

1996), in granting summary judgment to the Powells.   We disagree.

     In Monaco, the Court stated that a commercial landlord owes

a duty to its invitees to:

          exercise reasonable care for an invitee's
          safety.    That includes making reasonable
          inspections of its property and taking such
          steps as are necessary to correct or give
          warning of hazardous conditions or defects
          actually known to the landowner.          The
          landowner is liable to an invitee for failing
          to correct or warn of defects that, by the
          exercise of reasonable care, should have been
          discovered.

          [Monaco, 
178 N.J. at 414-15 (citing Hopkins
          v. Fox & Lazo Realtors, 
132 N.J. 426, 429
          (1993)).]

     A commercial landlord's liability may extend "to cases in

which the landowner had no control over the dangerous condition


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and the condition was not located on its property."            Id. at 415.

Indeed, "neither ownership nor control is the sole determinant of

commercial landlord liability when obvious danger to an invitee

is implicated."        Id. at 417.    Instead, "whether [a commercial

landlord]     owes   a   duty   of   reasonable   care    toward   another

[individual] 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."             Id.

at 418 (quoting Hopkins, 
132 N.J. at 439).

     In Monaco, a traffic sign situated on the abutting sidewalk

of the property of a commercial landlord became dislodged and the

landowner's invitee was injured.         Id. at 404.     We held that the

landlord did not have a legal duty to the invitee because the

municipality owned and installed the traffic sign.            Id. at 411.

The Supreme Court found, however, that the landlord owed a duty

to the invitee to maintain safe premises, "including areas of

ingress and egress and to inspect and give warning of a dangerous

condition."    Monaco, 
178 N.J. at 413.

     The Monaco Court noted that the landlord had leased the

premises to the municipal board of education, which employed the

plaintiff.     Ibid.     The plaintiff was injured on the landlord's

property, when the sign flew out of a sidewalk that the landlord

had installed and maintained.        Id. at 413-14.      The sign had been

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installed to advance the interests of the landlord and its tenants.

Id. at 414.

     The Court also noted that under the municipality's ordinance,

the sidewalk where it was placed was the landlord's responsibility.

Ibid.   The plaintiff's expert opined that "a minimally competent

inspection of the area" would have indicated that the sidewalk at

the base of the sign was cracked.    Ibid.

     Monaco does not, however, address the precise issue presented

here, which is whether a commercial landlord has a duty of care

to invitees of its tenant, when the lease agreement between the

landlord and tenant places responsibility for ordinary maintenance

and repair of the premises upon the tenant. Here, as the judge

recognized, that issue was specifically addressed in Geringer and

McBride.

     In Geringer, we held that "'there is no landlord liability'

for personal injuries suffered by a commercial tenant's employee

on the leased premises 'due to a lack of proper maintenance or

repair, when the lease unquestionably places responsibility for

such maintenance or repair solely upon the tenant.'"          Geringer,


388 N.J. Super. at 401 (quoting McBride, 
295 N.J. Super. at 522).

     Traditionally,   a   landlord   is   not   responsible   for    the

maintenance of leased premises; the tenant is liable for the

condition of the premises.      McBride, 
295 N.J. Super. at 525.

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However, in McBride we recognized that two exceptions to the

general rule had developed, which if met, extended a landlord's

duty of care to third persons injured on the leased premises.

Ibid.         Those   exceptions   pertain       when:   "(1)   a   landlord        is

responsible to use reasonable care with regard to portions of the

leased premises which are 'not demised and remain in the landlord's

control[,]'" and "(2) a landlord's covenant to repair gives rise

to a duty to the tenant . . . ."                  Ibid. (quoting Michaels v.

Brookchester, Inc., 
26 N.J. 379, 383-85 (1958)).

         The lease in McBride provided that the tenant "is and shall

be in exclusive control and possession of the premises and the

[landlord] shall not in any event be liable for any injury or

damage to any property or to any person happening on or about the

premises . . . ." Id. at 524.            It also required the tenant to make

all repairs of the premises.         Ibid.

         We   concluded   in   McBride    that   neither   of   the    delineated

exceptions that would extend liability to the landlord were met.

See id. at 526-27.        The lease clearly granted the tenant exclusive

control and possession of the leased premises and the landlord had

no obligation to perform repairs.                McBride, 
295 N.J. Super. at
 526-27.       Therefore, the landlord had no liability for personal

injuries suffered by tenant's employee on the leased premises "due

to   a    lack   of   proper   maintenance       or   repair,   when   the     lease

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unquestionably     places   responsibility    for   such   maintenance    or

repair solely upon the tenant."         Id. at 522; see also Geringer,


388 N.J. Super. at 394.

     We   reject    plaintiff's    argument    here    that   McBride     is

inapposite.   The lease clearly delegated the responsibility for

the maintenance and repairs of the property to the tenant.               The

clause is specific as to the tenant's obligation to maintain and

be responsible for the entire building.       The judge correctly found

that the Powells as the landlord and the Powells as the shareholder

of the employer were separate legal entities.

     We are satisfied that the substantial credible evidence in

the record supports Judge Miller's determination that the lease

was unambiguous, and therefore summary judgment was appropriate

under McBride.

     Affirmed.




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