On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3222-08.
The opinion of the court was delivered by: Espinosa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.
Reargued October 23, 2012 -
Before Judges Messano, Espinosa and Kennedy.
The opinion of the court was delivered by ESPINOSA, J.A.D.
This appeal from an order granting summary judgment concerns whether a commercial tenant in a multi-tenant shopping center owes a duty to its patrons to maintain an area of the parking lot that the landlord is contractually obligated to maintain. We hold that, as a general rule, the commercial tenant does not have such a duty and affirm.
In reviewing the order that granted summary judgment, we view the facts with all reasonable inferences drawn in favor of plaintiffs. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Defendant Marrazzo's Market at Robbinsville (Marrazzo's or defendant) is one of thirty-six stores in a shopping center, The Shoppes at Foxmoor (The Shoppes). The shopping center is owned by co-defendant Foxmoor Associates, LLC (Foxmoor), a subsidiary of Pettinaro Enterprises (Pettinaro or the landlord).*fn1 Plaintiff Arlene Kandrac*fn2 was injured when she fell in the shopping center's parking area after leaving defendant's store on February 28, 2007. It was a nice day; there was no rain or ice. Plaintiff testified that after she and her husband left Marrazzo's, she proceeded to the crosswalk to cross the roadway to the parking area. Although plaintiff was uncertain about some of the details regarding the scene in the parking lot, she testified that it was after she moved around a car that her "foot caught a hump." She tripped, fell forward onto her face and suffered injuries. During the course of her deposition, plaintiff was shown a photograph and circled the location where she fell. The fall occurred approximately two feet from the cross walk in a roadway that separates the stores from the area where cars are parked.
Plaintiff filed a complaint against Marrazzo's and Foxmoor, alleging that their negligence caused her injuries. Marrazzo's and Foxmoor each filed claims against the other for contribution and indemnification.
Marrazzo's lease included the following provision:
The LESSOR covenants and agrees that it shall maintain the common areas of the shopping center in good operating condition and repair . . . [and t]he LESSOR shall resurface the sidewalk, parking and driveway areas when the same shall be ...