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Jackson v. K-Mart Corp.

Decided: November 16, 1981.


Haines, A.j.s.c.


Plaintiff Jackson slipped and fell upon the sidewalk in front of the defendant, K-Mart's store, of which she was a patron. The sidewalk connected the store to a parking lot. The store and the sidewalk were owned by defendant, Millside Center, Inc. The store, but not the sidewalk, were leased to K-Mart. Defendant, Amterre Management, Inc., managed the entire property and had entered into a contract with a non-party to remove snow and ice from the sidewalk. Jackson has sued the tenant, owner and manager for damages.

The tenant, K-Mart, now moves for summary judgment dismissing all claims against it on the ground that it did not own the sidewalk, had no responsibility for its maintenance and cannot be held liable under existing law. This is a question of first impression in this state, but some guidance is available by analogy from several similar, although distinguishable, cases.

It is a general rule in this state that a landowner has no duty to maintain the sidewalk abutting his land free from a natural accumulation of snow and ice, unless the landowner's own negligence adds some new hazard to the natural one. Taggart v. Bouldin , 111 N.J.L. 464 (E. & A.1933). Duty is owed neither to the general public nor to the landlord's own tenants. MacGregor v. Tinker Realty Co. , 37 N.J. Super. 112 (App.Div.1955). However, in the interests of public safety and enterprise accountability, exceptions to this rule have long been recognized.

An early case and closely on point is McKeown v. King , 99 N.J.L. 251 (E. & A.1923). Landlord constructed a drain line from the roof of her building, which ran across a sidewalk and into the gutter. The drain line was protected by a metal cover, flush with the sidewalk. Tenant, a retail store noted on several occasions that the metal cover had slipped, exposing the drain. It merely replaced the cover each time, without making repairs,

since the landlord had covenanted to maintain the drain cover under the terms of the lease. A passerby tripped over the displaced drain cover and was injured. The Court of Errors and Appeals found:

(1) When a commercial tenant has actual or constructive notice of a defective condition in the sidewalk regularly used by his business invitees, the duty of a tenant to these invitees to keep the premises in reasonably safe condition, includes a duty to use ordinary care to make the sidewalk reasonably safe. The court did not consider sidewalk ownership or lease as a factor.

(2) The covenant of repair cannot act to relieve the tenant. "This provision of the lease fixes the obligation and duties between the landlord and tenant, but no provision of a lease can absolve a tenant as against a third person from the tenant's duty to maintain a sidewalk in front of the demised premises in a reasonably safe condition." Id at 255.

Accord, Restaino v. Griggs Motor Sales, Inc. , 118 N.J.L. 442 (1937). The duty of care to business invitees was generalized in Ratering v. Mele , 11 N.J. Super. 211 (App.Div.1951), which held that the "operator" of a commercial business was obliged to provide business invitees with reasonably safe premises, including proper means of egress." Id at 213.

Shortly, thereafter, a curious and illogical distinction appeared in the law: the distinction between public and private sidewalks. Over a strong dissent, the court in Moskowitz v. Herman , 16 N.J. 223 (1954), held fast to the common law rule that no property owner could be held liable for a dangerous condition on a public sidewalk, unless he had contributed to the condition. Relying on Moskowitz , the court in Krug v. Wanner , 28 N.J. 174 (1958), regretfully held that the duty to provide safe egress stopped short of the public sidewalk, unless the party charged had exercised some measure of control. Id at 180. However, in the same year, the court readily subjected landlords to a specific duty of keeping private sidewalks reasonably free of natural snow and ice "for the benefit of his tenants and proper invitees". Skupienski v. Maly , 27 N.J. 240 (1958). As a result of these three cases, the "safe egress" theory of liability was again buried under the traditional public/private distinction.

The "safe egress" theory reappeared, however, in a persuasive lower court opinion, Merkel v. Safeway Stores, ...

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