In Kandrac v. Marrazzo’s Mkt., the New Jersey Superior Court, Appellate Division, in a recently published decision, held that a commercial tenant in a multi-tenant shopping center does not owe a duty to patrons to maintain an area of a shared parking lot over which it has no control or contractual obligation to maintain.

In the complaint, the husband and wife plaintiffs alleged negligence against defendants, Foxmoor Associates (the landlord of a multi-tenant shopping center) and Marrazzo’s (one of 36 stores in that shopping center) arising from the wife’s fall in a parking lot. The plaintiffs alleged that after they left Marrazzo’s, the wife crossed the roadway to the parking area. After moving around a car, the wife’s “foot caught a hump” and she tripped and fell, sustaining various injuries. The fall occurred approximately two feet from a crosswalk that separated the stores from the parking area.

The lease between Marrazzo’s and Foxmoor stated that Foxmoor, “shall maintain the common areas of the shopping center… .” “Common areas” included parking areas, sidewalks, and loading facilities. At deposition, employees for Foxmoor’s parent company testified that they would inspect the parking lot at various times. The owner of Marrazzo’s also testified that his manager would be responsible for inspecting the parking lot.

Following depositions, Marrazzo’s filed a Motion for Summary Judgment, which the plantiffs opposed. The motion judge granted summary judgment, and, relying on the Third Circuit decision in Holmes v. Kimco Realty Corp., 598 F.3d 115 (3d Cir. 2010), reasoned that “as a commercial tenant in a multi-tenant facility, Marrazzo’s owed no duty of care to its invitee for an injury that occurred in the common area of the shopping center.” In its appeal, the plaintiffs argued that the motion judge erred because, inter alia, “Marrazzo’s had a duty to provide safe ingress and egress from its store to the parking lot.”

The Appellate Division affirmed the trial court’s entry of summary judgment. It noted that while “the covenant in the lease regarding the landlord’s obligation to maintain the common areas of the shopping center in good operating condition and repair does not relieve Marrazzo’s of all duties to its customers regarding ingress and egress,” the “record fails to show that the injury occurred in a location necessary to such ingress and egress.” The appellate panel explained: “the record shows that the injury did not occur in an area within Marrazzo’s control.” Indeed, “[o]nce she left the crosswalk, there was no defined route to or from Marrazzo’s and plaintiff could have taken any number of paths to her car.”

What It Means to You

The Appellate Division made clear in its opinion that the determination of whether a duty exists remains a fact-sensitive issue. Therefore, while a commercial tenant in a multi-tenant shopping center that has no control or contractual obligation will likely have no duty to maintain a shared parking lot, the location of the fall is paramount in determining whether or not a duty exists. The Appellate Division suggested in dicta that, even if a fall were to occur in a parking lot, there may be occasions in which a duty may be found, such as when a tenant store has control over a point of ingress/egress for its customers.