JUANG. CALDAS v. JANARD MANAGEMENT SERVICES, 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NOT FOR PUBLICATION WITHOUT THE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-2076-16T3

JUAN G. CALDAS,

        Plaintiff-Appellant,

v.

JANARD MANAGEMENT SERVICES, INC.,

        Defendant-Respondent/
        Third-Party Plaintiff,

v.

BLUE KNIGHT SNOW PLOWING, LLC,

     Third-Party Defendant.
__________________________________

              Submitted March 21, 2018 – Decided April 26, 2018

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              1322-15.

              Law Office of Paul Grosso, attorneys for
              appellant (Clark M. Sarkisian, on the brief).

              Mintzer Sarowitz Zeris Ledva & Meyers, LLP,
              attorneys for respondent (Jeffrey S. Simons,
              on the brief).

PER CURIAM
     Plaintiff, Juan G. Caldas, was injured at work when he slipped

on ice on property his employer leased from defendant, Janard

Management Services, Inc.   Janard successfully moved for summary

judgment.   Plaintiff appealed.   Because a landlord is not liable

for injuries suffered by a commercial tenant's employee due to

lack of maintenance of the leased premises when the lease places

responsibility for such maintenance solely upon the tenant — which

the lease did here — we affirm.

     In February 2015, plaintiff filed a complaint against Janard.

Janard answered and filed a third-party complaint against Blue

Knight Snow Plowing, LLC.   After the parties completed discovery,

plaintiff and Janard filed cross-motions for summary judgment.

The trial court denied plaintiff's motion and granted Janard's

cross-motion.

     The motion record contains these undisputed facts.         When

plaintiff fell, he worked for a company that operated its business

on premises leased from Janard.1      The lease was a fifteen-year

triple net lease.

     The lease required plaintiff's employer, as tenant, to "take

good care of the premises and . . . at the Tenant's own cost and



1
   Plaintiff's employer was Rudox Engine & Eq. Co. when it signed
the lease. It had merged with Ener-G Rudox before plaintiff fell.

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expense, make all repairs . . . and maintain the entire premises,

without limitation, including, but not limited to . . . driveway

and parking areas."       The lease stated:

           Landlord shall not be responsible for . . .
           injury to persons, occurring in or about the
           demised premises, by reason of any existing
           or future condition, defect, matter or thing
           in said demised premises . . . or for the
           acts, omissions or negligence of other persons
           or Tenants in and about the said property.

     Plaintiff's employer agreed to indemnify and hold Janard

harmless for liability for property damage and injury claims.          The

parties acknowledged "the Landlord shall not be liable for any

damage or injury to person or property caused by or resulting from

steam, electricity, gas, water, rain, ice or snow."

     Plaintiff slipped and fell on the leased premises.                  He

declared in the first paragraph of the statement of material facts

he submitted in support of his summary judgment motion, "Plaintiff,

Juan Caldas . . . slipped and fell on ice, around a Key Box on

[his employer's] premises on December 16, 2013."          Plaintiff had

driven a truck through the gate with the key box but returned to

retrieve his cellular phone and wallet.        Almost immediately after

turning his key in the gate's key box, he slipped and fell.

     Janard and plaintiff's employer were once owned by members

of the same family.       The father and mother owned Janard, and the

father,   mother,   and    their   three   children   owned   plaintiff's

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employer before the merger.   After the merger, the father, mother,

three children, and the other company to the merger held ownership

interests in the company that employed plaintiff.    When Janard and

plaintiff's employer executed the fifteen-year lease — before the

merger — the father signed on behalf of plaintiff's employer and

the mother signed on behalf of Janard.

     In 2013, the year plaintiff fell, the father was in charge

of engineering at plaintiff's employer.      The mother also worked

at plaintiff's employer as a marketing manager and had an office

on the premises.   In her role as an owner of Janard, she collected

rent from plaintiff's employer.      The father was a boss at the

company that employed plaintiff.     The father had an office on the

premises and spent long hours there most days. During each working

day, he would converse with others in senior administrative and

executive positions.

     Plaintiff's employer contracted with third-party defendant,

Blue Knight Snow Plowing, LLC, to remove snow and ice.           Blue

Knight's owner confirmed it performed snow and ice removal for

plaintiff's employer.   The owner never heard of Janard.

     Based on the foregoing facts, the trial court denied plaintiff

summary judgment and granted Janard summary judgment. In a January

11, 2017 letter opinion supplementing its January 6, 2017 orders,

the court found controlling our decision in Geringer v. Hartz

                                 4                           A-2076-16T3
Mountain Dev. Corp., 
388 N.J. Super. 392 (App. Div. 2006).        There,

we held, "'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.'"        Id. at 401 (quoting McBride v.

Port Auth. of New York and New Jersey, 
295 N.J. Super. 521, 522

(App. Div. 1996)).

     We affirm, substantially for the reasons expressed by the

trial court in its supplemental opinion.          We reject plaintiff's

argument that Hopkins v. Fox & Lazo Realtors, 
132 N.J. 426 (1993),

compels a different result.         In that case, our Supreme Court

explained the factors to be considered when determining whether a

duty is owed — and if so, to what extent — in a premises liability

action.   The factors include 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 439.    In Geringer, we noted, "in light

of the undisputed nature of the record germane to the maintenance

and repair of the [alleged dangerous condition], such a result

comports with the factors identified in Hopkins."         Geringer, 
388 N.J. Super. at 401.    We reach the same conclusion here.



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       We   also   reject   —   as    did       the    trial    court    —   plaintiff's

arguments     suggesting     the     applicability         of    cases   concerning      a

commercial landlord's duty to maintain public sidewalks abutting

its premises.       This case did not involve a public sidewalk.                        To

the contrary, plaintiff acknowledged his accident occurred on the

leased premises.       Nothing in the record suggests members of the

public ever entered upon the employer's premises at the location

where plaintiff fell.

       Lastly, we reject plaintiff's argument that Janard should be

charged with a non-delegable duty of maintenance because of the

dual   ownership     and    employment      of        Janard's   owners.       Imposing

liability under such circumstances would disregard the companies'

status as separate and distinct legal entities and effectively

nullify the exclusivity of the maintenance and repair obligations

in the lease, thereby diminishing the value of the consideration

exchanged for plaintiff's employer's exclusive possession of the

premises.

       Plaintiff's remaining arguments are without sufficient merit

to warrant further discussion.              R. 2:11-3(e)(1)(E).

       Affirmed.




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