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Ahlstrom v. TMC Properties

September 30, 2010

KENNETH AHLSTROM AND JOANNE KELLY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
TMC PROPERTIES, LLC, 210 LLC, EATONTOWN 210, LLC, LA/FX PROPERTIES, LLC, STRANGE ENTERPRISES, NANCY L. STRANGE, DAYMON C. STRANGE, MOTOR SPORTS PLUS, DEFENDANTS, AND JOHN DONATO, JR. AND THE DONATO GROUP*FN1, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-9580-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Wefing, Baxter and Koblitz.

Plaintiff appeals from a trial court order granting summary judgment to defendant Donato Contracting, Inc. and its principal, defendant, John Donato, Jr.*fn2 After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was employed by Federal Express at a facility in Eatontown that it used in connection with its package shipping business. On August 21, 2006, while unloading a truck, plaintiff fell off a flip-down gate that had been attached to a loading dock extender. He commenced suit for the injuries he received in this fall. Donato had constructed the building pursuant to a long-term lease between Donato and Federal Express dated June 7, 1988, and plaintiff named Donato as a defendant.

The building contains more than 36,000 square feet. Donato built it in accordance with plans and specifications supplied by Federal Express. Shortly after Federal Express took over occupancy of the building, it discovered that truck drivers had difficulty aligning their trucks properly with the loading docks. It thus contracted with defendant Strange Enterprises for the fabrication and installation of flip-down gates to be attached to the loading docks. These gates, which had no railings or visual or tactile warnings that one was approaching an edge, were installed in 1991 and were in continuous use thereafter. Federal Express did not seek Donato's approval to install these flip-down gates, and Donato had no involvement in the design, fabrication or installation of these gates.*fn3

The Federal Express building is located in an industrial park owned by Donato. Donato testified in his deposition that he regularly drove through the industrial park but said he had no recollection of ever noticing that the flip-down gates had been installed.

In October 1991, Donato sold the land and building and had no further involvement with the premises. Plaintiff's accident that led to this litigation occurred nearly fifteen years after Donato sold his interest in the building.

Donato's lease with Federal Express, which was the sole occupant of the building, was a triple net lease. Under a triple net lease, "a commercial tenant is responsible for 'maintaining the premises and for paying all utilities, taxes and other charges associated with the property.'" Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400 n.2 (App. Div. 2006) (quoting N.J. Indus. Props. v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985)). Under Article Six of its lease with Donato, Federal Express agreed to "take good care of the Demised Premises, interior and exterior, and the fixtures and appurtenances thereto...." Article Six also defined Donato's limited maintenance obligation as the landlord:

Landlord's responsibility for repairs during the Demised Term, as the same may be extended, shall be limited to structural repairs to the roof, the load bearing walls and members, footings, foundations, and exterior walls, provided that Tenant shall not have caused the need for said repairs.

Plaintiff recognizes that in New Jersey, a landlord such as Donato, who has leased the entire premises to a commercial tenant under a triple net lease, has no duty to maintain the premises in areas in which the landlord has not retained control. McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521, 522 (App. Div. 1996) (recognizing that a landlord has no liability to the "employee of a commercial tenant in exclusive possession... for personal injuries suffered on the leased premises, due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for such maintenance or repair solely upon the tenant"); Milacci v. Mato Realty Co., 217 N.J. Super. 297 (App. Div. 1987).

Plaintiff seeks to avoid the principles enunciated in McBride, supra, and Milacci, supra, by invoking Article Twelve of the lease, which states in pertinent part:

Tenant may, at its expense and only upon Landlord's prior written approval, which approval shall not be unreasonably withheld or delayed, make such alterations and improvements to the Demised ...


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