On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6129-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Baxter.
Defendant Arisa Realty Co., LLC, doing business as Arisa Urban Renewal Company, appeals from orders entered on August 31 and October 5, 2007, and September 16, 2008, which granted summary judgment to defendant Target Corporation, improperly sued as Target Stores, on Target's cross-claims and dismissed Arisa's cross-claims, denied reconsideration of the summary judgment, and awarded attorney's fees and costs to Target in the amount of $77,258.85, respectively. We reverse and remand for further proceedings.
This is an action for damages in connection with personal injuries suffered by plaintiff Cathy Marino and loss of consortium suffered by plaintiff William Marino.*fn1 Upon learning of plaintiffs' claim, Target tendered the claim to Arisa by letter on April 6, 2004. The letter indicated that Arisa had a duty to indemnify and defend Target for the claim. No response to that letter was included in the appendix on appeal.
On August 23, 2005 plaintiffs filed a complaint against Target, Arisa, and TK Cleaning, LLC. They alleged that all three defendants were negligent, careless, or reckless in failing to use reasonable care to inspect and make the sidewalk in front of the Target Store in the Milltown Shopping Center, Milltown, safe for plaintiff, causing her to trip on fall on debris left on that sidewalk, and failed to warn her of same. On September 23, 2005, Target tendered its defense and demanded indemnification from the claims adjuster for Arisa's insurance carrier. On October 18, 2005 The Law Offices of Brian M. Murphy filed an answer on behalf of Target and Arisa. Arisa's carrier, through its adjuster, formally agreed on November 29, 2005, to defend Target under the policy it issued to Arisa. It issued a reservation of rights regarding its duty to indemnify Target under its policy with respect "to control of the accident site at the time of the alleged accident." Thereafter, Target retained its own counsel to defend it instead of the counsel assigned by Target's carrier.*fn2 The case proceeded through discovery.
Plaintiff testified that on March 24, 2004, she and Cathy Conguista drove to the Target in Milltown, where they parked Conguista's car and began to walk to the Target store. Plaintiff stepped up onto the sidewalk from the parking lot, took two or three steps, and fell down on her side about twenty-five feet from the entrance to the Target store. After she fell, she saw an opaque, circular piece of strapping around her left foot. Although she was initially diagnosed with a contusion, she was later diagnosed with an L-3 compression fracture and a left hip fracture. Conguista corroborated plaintiff's testimony, although she estimated they were about fifteen feet from the entrance to the Target Store when plaintiff fell. She threw the strapping away because she did not want anyone else to trip on it. Neither one of them reported the incident to anyone. Four or five days later, Conguista took plaintiff to the Target store and spoke to a manager and told her what happened.
Photographs of the Target store depict an entryway that projects from the face of the building into the depth of the sidewalk. That entryway has wing walls to the right and left of the four sets of double doors and one central single door. The wing walls are connected with an outward projection of the building's façade that creates a roof over the entryway giving customers an area outside the doors that is protected from the weather. Because there is also a door in the wing wall on the right side, it appears that the entryway has significant depth well in excess of the width of the door.
Maureen Reddington, a Target employee, prepared a Guest Incident Information report indicating that on March 31, 2004, plaintiff reported she tripped and fell on March 24, 2004, on a white plastic packing strip on the sidewalk outside the front entrance, breaking her fall with her hands and landing on the left side of her thigh. Reddington indicated on the report that she, Reddington, could not describe the item involved in the incident. She also reported that John Sturdy, the cart attendant, did not recall anything being on the ground on the day of the incident.
At her deposition, Reddington testified that Target did have merchandise with plastic strapping to hold boxes together, which she recalled were yellow rather than opaque white. If an employee saw a plastic strap on the ground outside the store, the employee should pick it up. She testified that customers only use the front entrance and, if one needed assistance getting merchandise to his or her car, an employee would help bring the item to the customer's car, which the customer might pull up to the front of the store.
Sturdy, an employee of Target, was also deposed. He had no recollection of March 24, 2004, but when he sees debris on the sidewalk, he picks it up and throws it away. He stated there are a couple of trash barrels by the front entrance and it was his job to empty them, although another Target employee also empties them when they are filled up. He would periodically check to see if they needed to be emptied and, generally, he would empty them two or three times a day.
Patricia Marambio, also an employee of Target, testified at her deposition that employees were encouraged to clean up debris on the front of the walkway. Target had a twenty-four-hour safety policy at the time of this incident. Although the policy did not specifically extend to the outside of the building, cleaning up the outside was nonetheless encouraged. It was the cart attendants' duty to pick up debris and trash they found outside. Additionally, a Target employee would steam clean the front sidewalks twice a week. This was done before the store opened in the morning. There was a company that cleaned the outside of the store "through the landlord," which she identified as Arisa. She denied having knowledge of whose duty it was to clean the sidewalk.
The premises where plaintiff fell were the subject of a 1998 Operation and Easement Agreement between Target and Arisa. The agreement recites that Target is the owner of Block 84.02, Lot 1.11, on the tax maps of Milltown. Target's property was identified as "the Target Tract" on Exhibit X, a site plan.*fn3
Arisa, called the "Developer" in the agreement, was the owner of Block 84.02, Lots 1.12 and 1.13, on the Milltown tax maps. Arisa's property was identified as the "Developer Tract" on Exhibit X. The Agreement defined "Tract" as "each legally subdivided portion of the Shopping Center owned by a party." The Target Tract and the Developer Tract, collectively called the "Shopping Center," were contiguous and adjacent.
Because the Tracts were separately owned, one lot by Target and two lots by Arisa, each party granted and conveyed to the other a nonexclusive perpetual easement for the passage of vehicles over and across the parking and driveway areas of their Tract and a similar easement for the passage and accommodation of pedestrians over and across the parking, driveway, and sidewalk areas of each party's Tract. Target also granted and conveyed to Arisa "a non-exclusive perpetual easement" for the parking of vehicles in the fifty-nine parking spaces contained within the area on the Target tract, cross-hatched and designated as "Shared Parking Area" on the Site Plan. Thus, it is readily apparent from the agreement that the Target Tract contained the Target building, sidewalks, and parking lots. Those improvements were all owned by Target.
The Agreement allocated responsibility for maintenance of the Common Area, which was defined as "all areas within the exterior boundaries of the Shopping Center, exclusive of (i) Buildings, and (ii) any Outside Sales Area." The latter term was defined in Article I, § 1.9, as follows:
"Outside Sales Area" shall mean those areas, if any, designated on the Site Plan which may be used from time to time for sales, display and/or storage purposes. [If d]uring the period an Outside Sales Area is: . . . (ii) not [being] used, the surrounding barrier, if any, shall be removed by the Occupant and the surface of such area shall be used for Common Area purposes or, if the area is located within a Building Area, for the location of Buildings.
The terms "Building" and "Building Area" were given the following definitions in Article I, §§ 1.2 and 1.3, respectively:
"Building" shall mean any enclosed structure placed, constructed or located on a Tract, which for the purpose of this [Agreement] shall include appurtenant canopies, supports, loading ...