Premise Liability – Exception to commercial landowner’s non-delegable duty to ensure its property is safe for invitees

A commercial landowner has a non-delegable duty to ensure that the property is safe for use by invitees of the landowner’s commercial tenant.

However, the New Jersey Superior Court, Appellate Division, published two cases indicating that there is an exception to a commercial landowner’s non-delegable duty in this regard if the landowner provides exclusive control of the property to its commercial tenant. See Milacci v. Mato Realty Co., Inc., 217 N.J. Super. 297, 301 (App. Div. 1987), and McBride v. Port Authority of New York & New Jersey, 295 N.J. Super. 521, 525-526 (App. Div. 1996).

In Milacci, the Appellate Division held that the owner of a building that was leased to the State was not liable for plaintiff’s personal injuries sustained at the building, because the owner’s lessee, the State, had exclusive control over the premises. 217 N.J. Super. at 301. Plaintiff Milacci alleged that she slipped and fell on an accumulation of sand and dirt on the floor of the State unemployment office located in the building. Id. at 299. To support the proposition that the State was in exclusive control of the premises, the Appellate Division considered the fact that the State had entered into its own contract with a third party, B. Anderson Custodial Services, to perform custodial services at the site. Id. at 302.

In the McBride case, the court held that a commercial landlord was not liable for injury to a commercial tenant’s employee that was allegedly injured on the leased premises since the commercial lease placed responsibility for maintenance and repair of the leased premises solely upon the tenant. 295 N.J. Super. at 522. Plaintiff McBride was injured when the vehicle he was operating on his employer’s loading dock struck a hole, causing him to fall to the ground and sustain injury. Id . at 524.

The Appellate Division in McBride set forth an analysis of the evolution of the case law regarding the duties of commercial landowners. The court specifically states that:

While some states have imposed a general tort duty of reasonable care upon landlords which may not be avoided by lease provisions, (citation omitted), our Supreme Court has not yet accepted that concept, and plaintiff has not contended in the court below or in this court that is should be incorporated into our common law.Furthermore, in Milacci v. Mato Realty Co., Inc., we expressly rejected the opportunity to so hold.” McBride, 295 N.J. Super. at 526.

The McBride court went on to hold that the terms of the lease between plaintiff’s employer and the Port Authority were unambiguous with regard to the responsibility for maintenance and repair of the loading dock, the site of the accident. Id. 523.

The New Jersey Supreme Court has not considered this issue. Consequently, the Appellate Division’s holding in Milacci is still good law, and sets forth an exception to the general principle that a commercial landowner has a non-delegable duty to protect invitees from danger. Goetz Schenker Blee & Wiederhorn currently represents commercial landowners throughout the State of New Jersey. Where appropriate the above argument is asserted by our office in the defense of cases where the tenant of the commercial landlord assumed all maintenance responsibilities for the property from our clients pursuant to a commercial lease. Most recently we have been successful in moving for summary judgment based on this argument.