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William Nielsen and Debra Nielsen v. Wal-Mart Store #2171

January 11, 2013


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1014-08.

The opinion of the court was delivered by: Fisher, P.J.A.D.



Argued October 23, 2012 -

Before Judges Fisher, Alvarez and St. John.

The opinion of the court was delivered by FISHER, P.J.A.D.

In this appeal, defendant Walmart Store #2171 -- the owner of a unit in a multi-unit commercial condominium developed by defendant Nassau Shopping Center Condominium Association (the developer) -- argues it had no duty to warn its independent contractor's employee of a hazardous condition in an area that the developer was contractually bound to repair and maintain. Because the particular relationship of the parties, the nature of the attendant risk, Walmart's opportunity and ability to exercise care, and the public interest all balance in favor of the imposition of a duty on Walmart in this setting, we affirm the judgment entered in plaintiff's favor at the conclusion of a jury trial.

Plaintiff William Nielsen was injured on April 27, 2006, when he slipped and fell at the Nassau Park Shopping Center in Princeton. Nielsen was present at the site on behalf of his employer, Ecolab, Inc., which was retained by Walmart to exterminate pests. Walmart directed plaintiff, in the course of setting rodent traps, to access the various store entrances from the exterior of the unit owned by Walmart.*fn1 The exterior area around the perimeter of Walmart's unit, where plaintiff slipped and fell,*fn2 was owned and maintained by the developer. In the master deed governing its relationship with Walmart, the developer agreed to "supervise, administer, operate, manage, insure, repair, replace and maintain" the common elements, including the area in question.

Plaintiff and his wife commenced this action on April 16, 2008, against Walmart and fictitious defendants. More than two years after the action's accrual, plaintiff amended his complaint to join the developer, which soon thereafter successfully moved for summary judgment on statute-of-limitations grounds; Walmart did not oppose the developer's motion.

Walmart later moved for summary judgment, arguing it could not be held liable because plaintiff's fall occurred outside the boundaries of its unit and Walmart had not contractually agreed to maintain or repair the area in question; plaintiff cross-moved for summary judgment on this liability issue. Both motions were denied on July 9, 2010.

In November 2010, a few weeks prior to a scheduled trial date, Walmart sought leave to file a third-party complaint against the developer. The motion was denied on December 17, 2010, not only because Walmart filed no opposition to the developer's motion for summary judgment, but also because the trial was scheduled to occur a few weeks later.

During a five-day trial, the jury heard evidence concerning the manner in which the accident occurred and the nature and extent of plaintiff's injuries. At the trial's conclusion, the jury returned a verdict, finding Walmart eighty percent negligent and plaintiff twenty percent negligent, and awarding damages of $400,000 in favor of plaintiff and $125,000 to plaintiff's wife on her per quod claim.

After unsuccessfully moving for judgment notwithstanding the verdict or new trial, Walmart filed this appeal, arguing, first, that the motion judge abused his discretion in denying Walmart's motion to join the developer as a party. Second, Walmart argues that the trial judge erred in denying its motion for judgment notwithstanding the verdict because, Walmart claims, the judge was mistaken: (a) in determining, as a matter of law, that plaintiff was Walmart's business invitee; (b) in denying Walmart's request for a jury instruction concerning plaintiff's status as the employee of an independent contractor; and (c) in failing to distinguish between the duty owed by a business owner regarding conditions on and off its premises. And, third, Walmart argues the trial judge erred in denying its motion for a new trial.

We find insufficient merit in the first and third of these arguments, as well as that part of Walmart's second argument regarding plaintiff's status as a business invitee, to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We would add only, with regard to the first point, that Walmart's failure to oppose the developer's summary judgment motion, and its considerable delay in seeking leave to assert a third-party complaint against the developer until a few weeks before trial, more than amply supported the judge's exercise of discretion in denying the motion. See Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990).*fn3 And, as ...

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