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McTighe v. Lowe's Home Centers

September 8, 2009

DENNIS M. MCTIGHE AND LISA MCTIGHE, PLAINTIFFS-APPELLANTS,
v.
LOWE'S HOME CENTERS, INC., AND MARLBORO LOWE'S ROUTE 9 RETAIL CENTER CONDOMINIUM ASSOCIATION, INC. AND LORENZO'S OUTDOOR SERVICES, INC., DEFENDANTS-RESPONDENTS.
MARLBORO ROUTE 9 AND 520 DEVELOPMENT, LLC, I/P/A MARLBORO LOWE'S ROUTE 9 RETAIL CENTER, THIRD-PARTY PLAINTIFF,
v.
LOWE'S HOME CENTERS, INC., THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1066-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 25, 2009

Before Judges Miniman and Simonelli.

Plaintiff Dennis McTighe appeals from the June 12, 2008 order and the June 30, 2008 judgment granting the motion of defendants Marlboro Route 9 and 520 Development, LLC (Marlboro) and Lorenzo's Outdoor Services Inc. (Lorenzo's) for a directed verdict at the close of all the evidence pursuant to Rule 4:40-1. We affirm as to Marlboro and reverse as to Lorenzo's. Marlboro owns property known as the Route 9 & 520 Retail Center in Marlboro. Pursuant to a lease, third-party defendant Lowe's Home Centers, Inc. (Lowe's)*fn1 leased a large portion of the property for its store. The leased premises include a parking lot, which is also used by other commercial tenants. Included within the leased premises are the "Common Areas" and "Common Facilities." The lease defines "Common Area" as "the Access Ways, the Non-Exclusive Parking Area and the North-South Connectors" including that portion of the parking lot leased to Lowe's. The lease defines "Access Ways" as "the two driveways designated on the Site Plan[.]" The lease defines "Non-Exclusive Parking Area" as "the parking area designated on the Site Plan... containing approximately twenty-two (22) parking spaces." The "North-South Connectors" are the paved areas used for vehicular traffic.

The lease provides, in relevant part, that Lowe's "shall, during the [lease term], own all buildings and improvements placed upon the [leased premises,]" and that Lowe's and "its agents, employees, customers, and invitees shall have free and unobstructed right to use the [leased premises]." Regarding maintenance of the property, the lease provides, in relevant part, that [Lowe's] shall, throughout the [lease term], at its own cost, without any cost to [Marlboro] keep and maintain the [leased premises], including all buildings and improvements of every kind including parking lots and drainage systems which may be a part thereof, and appurtenances thereto, including sidewalks adjacent thereto and Common Areas located on the [leased premises], in good condition and repair, reasonable wear and tear and damages by casualty excepted. [Marlboro] shall not be obligated to make repairs, or replacements of any kind, nature or description, whatsoever, to the [leased premises] or any buildings or improvements or Common Areas thereon.

....

[Lowe's], at all times, shall keep in good repair, maintenance and condition, the Common Areas within the [leased premises] (i.e. the North South Connectors and the Non-Exclusive Parking Area and the Access Way), including all directional signs therein and all other Common Facilities within the [leased premises], keeping parking suitably paved and marked for parking and traffic flow, sidewalks in good condition and repair, keeping such Common Areas and Access Ways free of refuse and obstruction, keeping such Common Areas and Access Ways and such Common Facilities properly cleared of snow[.]

The lease also permitted Marlboro the right to enter the demised premises only for limited reasons, which did not include snow and ice removal.

Lowe's retained Lorenzo's to snow plow the parking lot. A contract between the parties set forth the scope of work and snow plowing required:

1. Snow plowing shall commence automatically by contractor at the first indication of an accumulation of more than one inch.

2. Incremental accumulation as indicated in price schedule shall be paid on and "up to and including" basis. A snowfall must exceed the previous increment by one quarter (1/4) inch.

3. The determination of final accumulation in the event of a problem will be determined by the Rutgers Field Analysis for that given snowfall.

4. Due to changing weather conditions, due to freeze, thaw, wind drifts, puddles refreezing, etc. Lorenzo's Landscape, Lorenzo's Outdoor Services Inc. makes no claim to provide service that eliminates ...


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