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Stier v. Shop Rite of Manalapan

Decided: May 10, 1985.

HENIA STIER AND LEONARD STIER, PLAINTIFFS,
v.
SHOP RITE OF MANALAPAN, DEFENDANT-APPELLANT, AND VORNADO, INC., DEFENDANT-RESPONDENT, AND MARK SMOLIN, KENNETH M. PHILPOT, WAYNE CRAVEN AND JOHN LESTER CLARK, DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

King, Deighan and Bilder. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

Defendant Shop Rite of Manalapan (Shop Rite) appeals from a $25,000 judgment against it in favor of defendant Vornado, Inc. (Vornado) pursuant to an indemnification clause in a lease. Vornado and Shop Rite were sued, along with other individual defendants not parties to this appeal, in a personal injury action by plaintiff and her husband per quod for damages arising out of a mugging which occurred in the parking lot of a shopping center owned by Vornado, a part of which was leased to Shop Rite.

On May 6, 1981 plaintiff Henia Stier was a patron of Shop Rite in Manalapan. She left the store at about 9:40 p.m. and was mugged in the parking lot by the four individual defendants who were later apprehended. She claimed that most of the lights in the parking lot were off but employees of Shop Rite, as well as two of the muggers-defendants, claimed that the lights were lit at the time. Plaintiffs allege that defendants negligently operated, maintained, and supervised the premises, and as a result Henia was assaulted and robbed by the four individual defendants whereby she sustained serious personal injuries.

Shop Rite maintained its own shoplifting patrol within the store area consisting of a team of two individuals to cover four or five of its stores in the area. Vornado, who also operated a Two Guys discount store in the shopping center, maintained uniformed security guards at the door of its store and nonuniformed guards for internal patrol. None of the Vornado guards remained after 9 p.m. when Vornado closed. Shop Rite remained open until 10 p.m. The lights in the parking area were turned on automatically and remained lit until 10:30 p.m. when they turned off automatically.

Shop Rite as a tenant leased space in the shopping center in Manalapan from Vornado as landlord. Under Section 11.01, the "demised premises" was defined in the lease as that portion of a certain building shown as an exhibit attached to the lease.

Shop Rite was granted a nonexclusive license to permit its customers and employees to use the entrance and exits designated by Vornado for access to the demised premises.

Section 11.04 of the lease required Shop Rite to contribute to the cost of maintenance and operation of the parking area as well as the cost of Vornado's obligations concerning the common area including the cost of insurance. Under Section 2.01 the "common area" is defined as the entire shopping center other than those portions upon which buildings, structures or other improvements have been erected except for designated special use areas. Under Section 11.05 Vornado assumed the obligation to keep the parking area properly paved in good order and repair; to keep the lights on at certain designated hours; to keep the area drained; to provide painted parking spaces, and to keep the area free of snow and ice.

Section 14.01 of the lease contained reciprocal indemnification clauses. Under Subsection (b), Shop Rite, as tenant, agreed to indemnify Vornado as follows:

(b) Tenant hereby indemnifies and agrees to save harmless Landlord, any Master Lessor and Mortgagee from and against any and all claims, which either

(i) arise from or are in connection with the possession, use, occupation, management, repair, maintenance or control of the Demised Premises, or any portion thereof;

(ii) arise from or are in connection with any act or omission of Tenant, or Tenant's agents;

(iii) result from any Default, breach, violation or non-performance of this Lease or any provision therein by Tenant; or

(iv) result in injury to person or property or loss of life sustained in or about the Demised Premises.

Vornado under Subsection (c) agreed to indemnify Shop Rite as follows:

(c) Landlord hereby indemnifies and agrees to save harmless Tenant from and against any and all claims which either

(i) arise from or are in connection with the possession, use, occupation, management, repair, maintenance or control of the ...


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