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Osvaldo Lopez and Amalia R. Lopez, His Wife v. Tri-Port Distribution Center

May 5, 2011

OSVALDO LOPEZ AND AMALIA R. LOPEZ, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
TRI-PORT DISTRIBUTION CENTER, LLC, A DELAWARE LIMITED LIABILITY COMPANY AND
AMB PROPERTY CORPORATION*FN1 , DEFENDANTS-RESPONDENTS, AND MORECOP-270 ASSOCIATES, LLC, A MARYLAND LIMITED LIABILITY COMPANY;
W65 BEDFORD PARK, INC., A NEVADA CORPORATION;
FEDERAL EXPRESS CORPORATION; AND
LINC FACILITY SERVICES FORMERLY KNOWN AS AFFILIATED BUILDING SERVICES, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1204-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 11, 2011

Before Judges Grall and LeWinn.

Plaintiff Osvaldo Lopez, a Federal Express (FedEx) truck driver, tripped and fell in the parking lot of a FedEx truck yard in 2007. Lopez and his wife, whose claims are per quod, filed a personal injury action alleging that his accident was caused by a bar that formerly anchored a cement parking stop sticking above the pavement level. Among the defendants named by plaintiffs were Lopez's employer's landlord, Tri-Port Distribution, LLC (Tri-Port), and the landlord's property manager, AMB Property Corporation (AMB). Plaintiffs contend that Tri-Port and AMB had a duty to repair and maintain the parking lot. Finding a valid delegation of that duty to FedEx under an amended lease and sublease assigned to Tri-Port, the trial court granted summary judgment to defendants. Plaintiffs appeal.*fn2

The relevant facts are not disputed. Lopez fell in June 2007 and thereafter had surgery to correct an incarcerated umbilical hernia. The hazard of exposed parking-stop bars in this parking lot was not unknown. Eleven months earlier, another FedEx employee was injured when he tripped over a different exposed bar, and seven months before Lopez's accident FedEx retained a contractor to replace twenty-five parking stops and eighty-five parking-stop bars. In contrast, Tri-Port and AMB had never inspected or repaired the parking lot or the parking stops.

Plaintiffs acknowledge that under our case law, if Tri-Port and FedEx agreed that FedEx would accept full responsibility for maintaining the parking lot in a safe condition, then Tri-Port and AMB had no duty to Lopez. Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392, 400-02 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007) (holding that a commercial landlord is not negligent where a lease "unquestionably places the responsibility for . . . maintenance or repair solely upon the tenant"); McBride v. Port Auth. of N.Y. and N.J., 296 N.J. Super. 521, 522 (App. Div. 1996) (same). Because the most reasonable interpretation of the various lease agreements do assign that duty to FedEx, we agree that defendants are entitled to summary judgment as a matter of law and affirm. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

A main lease, an amendment of the main lease, a sublease and assignments of the leases define the parties' respective responsibilities for maintenance of the premises. The relevant transactions were completed in 2004, about three years before this accident. Tri-Port purchased the property from Elizabeth Properties Limited Partnership (Elizabeth), and at the time of the purchase Elizabeth had leased the property to W65 Bedford Park, Inc. (W65) with W65 subleasing the premises to FedEx. As subtenant under the sublease, FedEx agreed to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[]" between Elizabeth and W65 and to be bound by the main lease "as fully and to the same extent as though Subtenant were named as tenant" in that lease. Despite the broad delegation of W65's responsibilities as tenant under the main lease to FedEx, pursuant to section N-4 of the main lease W65 remained jointly and severally responsible as tenant to Elizabeth.

Through the sale and assignments, Tri-Port not only acquired all of Elizabeth's interest in the property but also all of W65's interest, which it took subject to W65's sublease to FedEx. The transaction was accomplished through assignments to Tri-Port of the main lease and the sublease and by an amendment of the main lease to which the subtenant FedEx consented.

The assignments effectively put Tri-Port in the position of landlord and tenant under the main lease and sublandlord to FedEx under the sublease. In accepting the assignment of the main lease, Tri-Port "assume[d] and agree[d] to perform the liabilities and obligations of [Elizabeth] with respect to the [Main] Lease." Additionally, through the assignment of W65's interests as tenant under the main lease and as sublandlord under W65's sublease to FedEx, Tri-Port acquired W65's "right, title and interest" in the main lease and sublease and "assume[d] and agree[d] to perform the liabilities and obligations of [W65] with respect to the Assigned Property."

In conjunction with those assignments, however, the parties modified the main lease. That amendment was executed by Elizabeth and W65 and consented to by FedEx. It expressly provides that all of its provisions will be "deemed part of the" main lease and "incorporated by reference into the Sublease [with FedEx] as if fully set forth therein."

The amendment recognizes the assignment of the lease and sublease and specifies that W65 is assigning to Tri-Port both its interest "as tenant" under the main lease and its interest "as sublandlord" under the sublease. The amendment further specifies that Tri-Port's fee and leasehold estates will not merge and that the lease and sublease will remain in full force and effect. Most importantly, the amendment clearly enumerates the responsibilities that Tri-Port is assuming. It states that Tri-Port will assume "the obligations of [Elizabeth] under the Main Lease[] and the obligations of W65 under the Sublease." Notably, the amendment does not provide for Tri-Port to assume W65's obligations under the main lease.

By executing the amendment, FedEx "consented to" the assignments and Tri-Port's description of the obligations it was assuming. FedEx also agreed to "recognize Tri-Port as the lessor under the Sublease upon all terms and conditions set forth in the Sublease," which, as noted above, obligated FedEx to "perform, honor and comply with ...


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