Daily Development for Thursday, February 3, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
LANDOWNER LIABILITY; INJURY TO PATRONS ON ADJACENT PREMISES OWNED BY OTHERS: A shopping mall owner owes no duty to a shopper to remedy an icy condition in an adjacent municipal parking lot in which shopper slipped and fell while on his way to the mall, when the mall owner did not install or maintain the parking lot, where mall owner provided twenty five parking spaces for its customers on its own property, and where municipal lot served many other businesses and establishments, and mall owner did not cause ice in parking lot.
Puterman v. City of Long Branch, 2004 WL 2534376 (N.J. Super) (2004).
Plaintiff parked in a municipal parking lot that was owned by the local municipality. After exiting his car, plaintiff proceeded across the lot intending to patronize the West End Pharmacy, one of the tenants of the defendant mall owner. Plaintiff was injured while walking between two parked cars, when he slipped and fell on black ice. Thereafter, plaintiff instituted suit against the landowner of the adjacent shopping center and the municipality. Plaintiff contended that, because the landlord informed invitees that parking was available in the municipal lot, and knew that invitees would park in the lot, the commercial landowner therefore breached a duty to provide a safe method of ingress and egress to the strip shopping mall.
The court began its analysis by reiterating the well settled principle of law that commercial landowners are responsible for maintaining abutting sidewalks in a reasonably good condition and are liable to injured pedestrians for their negligent failure to do so. The court then succinctly explained a commercial landlord’s duty to exercise reasonable care for an invitee’s safety, including making reasonable inspections of its property and taking such steps as are necessary to correct or give warning of hazardous conditions or defects actually known to the landlord, and that a landlord is liable to an invitee for failing to correct or warn of defects that, by exercise of reasonable care, should have been discovered. The issue on appeal, however, was whether it was appropriate to extend this duty of care to situations in which the landlord had no control over the dangerous condition and when the condition was not located on his property.
The court recognized the long line of cases in which courts have extended a commercial landowner’s duty, when warranted by the facts, to cases in which the landowner had no control over the dangerous condition and the condition was not located on his property. The court, however, distinguished the present case from that line of cases based on the following factual determinations: defendant did not install or maintain the parking lot; the parking lot was not installed solely to advance the interests of the defendant, but was used by a myriad of other businesses; there was no evidence that the defendant had any notice of a dangerous condition prior to plaintiff’s accident; and there was no evidence that defendant ever inspected the municipal parking lot. The court reasoned that it would offend notions of fairness to impose a duty upon commercial landowners to maintain contiguous lands owned by others simply because the public chooses to use the lands as a means of access to the c
ommercial property. The court noted that in the present case, the plaintiff had the option to park in the defendant’s parking lot, and from there proceed to the defendant’s strip mall.
The court went on to find that although a commercial landlord owes the highest duty of care to its invitees, this duty does not extend to an icy patch that is not under the control or ownership of the landlord. Thus, the court held that a commercial property owner does not have a duty to alleviate the danger of black ice in an entire adjoining municipal parking lot that serves many surrounding businesses and establishments.
Comment 1: Don’t get all giddy just yet landlords. There’s plenty of authority going the other way. Compare: . Zepf v. Hilton Hotel & Casino, 786 A.2D 154 (N.J. Super. App. Div. 2001). (the DIRT DD for 11/1/02) (A business owner may be liable to employees and others for criminal acts occurring on the sidewalks adjacent to or leading to the business' property.) In Zepf, the casino owner had provided an alternate parking lot some distance away, and a shuttle service, but the employee elected to use a more convenient municipal lot and was attacked walking on a sidewalk from this lot to work. True - the case involved a sidewalk, but the court’s analysis was not dependent upon the fact that the attack took place on a sidewalk, but rather than the sidewalk was a predictable venue for the casino’s employees to be present in the course of their coming to work. The case cited with approval: Mulraney v. Auletto’s Catering, 350 A. 2d 793 (N.J. App. 1996), where a patron of a caterin
g business elected to use a lot owned by another across a busy street from the defendant caterer. The patron was injured while crossing the street to return to his car. The court held that the use of the alternate parking lot was foreseeable, even though the caterer provided its own parking lot, and that there were steps the caterer could have undertaken to make the crossing safer.
Comment 2: On the other hand, don’t be too gloomy either. Consider: Kuzmicz v. Ivy Hill Park Apartments, et.al., 688 A.2d 1018 (N.J. 1997) (Landlord of apartment complex owes no duty to tenant to protect him from criminal assault on vacant lot adjacent to complex, whether by warning of risks or by making more efforts to mend fence separating the areas, where landlord does not own the vacant lot and had no control over it, landlord received no economic benefit from path across lot to nearby shopping center, and landlord provided exit to public sidewalk.) (Note the same jurisdiction as the Mulraney case cited above.)This was the DIRT DD for 11/4/97) The “no economic benefit” analysis was critical to the decision, and may provide a basis for differentiating it from the cases above. In any event, the case was a close split decision.
In discussing Kuzmicz, the editor said the following:
Most other courts also have shown reluctance to open a "Pandora's Box" of liability by permitting juries to consider cases involving injury on premises other than the landowner's own land. In one interesting diade in California, one case held that a landlord was liable for a tenant when gangs congregating on his premises attacked the tenant in the tenant's apartment, while another case held that a fast food operator was not liable when gangs congregating on his premises chased the plaintiff, whom they suspected of being a rival gang member, into a nearby lot and murdered him. Compare Zuniga v. Housing Authority, 48 Cal. Rptr. 2d 353 (Cal. App. 1995) with Medina v. Hillshore Partners, 46 Cal. Rptr. 2d 871 (Cal. App. 1995) (DD for 3/28/96).
For cases in which there arguably was "economic benefit" to a landowner but no duty found, see Palmer v. Prescott, 617 N.Y.S.2d 411 (N.Y. App. Div. 1994) (dangerous conditions in vacant lot where restaurant patrons parked); Shive v. Ferdinando, 555 A.D. 2d 573 (Sup. Ct. 1990) (criminal attack in parking lot in which lounge operator had use rights, but no control.)
Also, compare Parker v. Singer, 608 N.Y.S. 2d 680 (N.Y. App. Div. 1994) (no liability for condition of sidewalk adjacent to premises) with Alcaraz v. Vece, 60 Cal. Rptr. 2d 488 (Cal. 1997) (landlord's liability for faulty cover on water meter box on city land surrounded by landlord's rental property.)
Another interesting case is Banks v. Hyatt Corp., 722 F.2d 214 (5th Cir. 1984) (hotel operator liable for death of guest shot by armed robber four feet from doors of hotel underneath an overhang that was actually the second floor of the hotel complex.)
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