On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5944-04.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2007
Before Judges Coburn, Fuentes and Grall.
This wrongful death action arose when plaintiff's decedent, Charles Brierley, was struck at night by a car as he was walking across a county road from Huntley Tavern, where he had just finished eating and drinking, to The New Summit Car Wash, Inc. ("New Summit"), where he had parked his car. Plaintiff settled with the driver for $250,000 and with Huntley Tavern for $875,000. New Summit obtained summary judgment, and plaintiff appeals.
New Summit and Huntley Tavern had agreed that cars belonging to the tavern's customers could be parked in New Summit's parking lot. Originally, the understanding was that the parking would be done by the tavern's valets, but New Summit became aware before the accident that the tavern's customers were self-parking in New Summit's lot with Huntley Tavern's approval.
Plaintiff contends that we should expand the following principle to establish a duty on New Summit's part that would allow recovery in these circumstances if New Summit was negligent: when a business on one side of a public road provides parking on the other side of the road for its customers, it must use reasonable care to protect them while crossing the road, whether or not it owns or controls the parking lot. Warrington v. Bird, 204 N.J. Super. 611, 617-18 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986); Mulraney v. Auletto's Catering, 293 N.J. Super. 315, 319-22 (App. Div.), certif. denied, 147 N.J. 263 (1996). In other words, plaintiff argues that when a business permits the customers of another business to use its parking lot, and the businesses are on opposite sides of a public road, the parking lot owner has a duty to the other business's customers to make passage over the road reasonably safe. We reject plaintiff's argument as unsupported by considerations of public policy or fairness and therefore affirm.
Huntley Tavern is a restaurant and tavern located in Summit on the corner of Springfield Avenue and Morris Avenue, a county road. New Summit, a commercial carwash, is on the other side of Morris Avenue. In the 1980's Huntley Tavern, then under different ownership and known as Uncle Mike's Tavern, obtained permission from the municipal planning board to use ten spaces on New Summit's lot for customer parking. Although the planning board's resolution did not require valet parking for those spaces, the tavern's witnesses represented to the board that the area would be used exclusively by its valets. A representative from New Summit, which operates a carwash on its property, was present at the hearing when those representations were made.
Under the original agreement, New Summit received $500 per month from Uncle Mike's for leasing the ten parking spaces, which could be used only after 6:00 p.m., by which time the carwash would always be closed. Around 2000, the agreement was changed in this respect: instead of receiving money for the parking spaces, New Summit was given the right to use Huntley Tavern's parking lot for New Summit's customers during its business hours. Sometime before the accident, Huntley Tavern put a sign on its premises advising customers that they could self-park in the New Summit parking lot across the road. With one exception, neither Huntley Tavern nor New Summit took any action to make the crossing between them safer; the exception was that Huntley Tavern provided valet service for its customers during the evenings from Thursday through Saturday.
The accident occurred on August 22, 2002, which was a Thursday. Although Huntley Tavern's parking valets were available when Brierley arrived that night, he parked his car himself on the New Summit lot, and crossed Morris Avenue to have dinner at Huntley's Tavern. As usual, the carwash was closed.
Around 10:30 p.m., Brierly, who was by then intoxicated, left Huntley Tavern and began walking across Morris Avenue to re-enter his car. Before he reached the other side of the road, a car struck ...