The New Jersey Supreme Court’s recent decision in Shields v. Ramslee Motors, is the latest in a seemingly endless series of cases dealing with the duties of landlords and tenants to keep their property clear of snow and ice. These cases usually involve sidewalks, but Shields involved a driveway.
In Shields, plaintiff was a Federal Express delivery man. After delivering an envelope to the tenant’s car dealership, he slipped on snow and ice on the dealership’s driveway. He sued both the dealership and its landlord. The dealership settled, while the landlord moved for summary judgment.
The lease between the landlord and the tenant provided that the tenant was “solely responsible for the maintenance and repair of the land and any structure placed on the premises . . . as if TENANT were the de facto owner of the leased premises.” The lease allowed the landlord to come onto the property to inspect the property or make repairs, but expressly noted that this provision should not be deemed “a covenant by the LANDLORD nor be construed to create an obligation on the part of the LANDLORD to make such inspection or repairs.” Based on these provisions, the landlord argued that it was not responsible for clearing the property of snow and ice.
The trial court agreed and granted the landlord’s motion. But the Appellate Division reversed, holding that the lease was silent on the issue of snow removal. The Appellate Division reasoned that there was no “legal or public policy distinction between a sidewalk and an open driveway used with regularity.” Therefore, according to the Appellate Division, since commercial landlords have a non-delegable duty to keep abutting sidewalks clear of snow and ice, they have the same duty to “ensure that the driveway abutting the sidewalk was clear of snow and ice.” The landlord sought certification from the Supreme Court, which was granted.
The Supreme Court reversed. It framed the question this way: “[W]hether New Jersey law imposes a non-delegable duty on commercial landlords to maintain the demised premises free of snow and ice.” To answer this question in Shields, the Supreme Court had to determine: (1) whether the landlord actually delegated the duty to remove snow and ice to the tenant; and (2) if so, whether it was permitted to do so or whether the duty was non-delegable (as it is in the context of sidewalks).
To answer the first question, the Supreme Court focused on the language of the lease, which required that landlord “maintain the leased premises.” Based on both the definition of “maintain” – “to care for (property) for purposes of operational productivity and appearance; to engage in general repair and upkeep” – and prior decisions holding that “maintenance” of a public sidewalk includes the removal of snow and ice, the Supreme Court held that the tenant in Shields was required to keep the property free of snow and ice.
The Supreme Court held that the provision in the lease allowing the landlord to inspect the property or make repairs did not change its view. Relying on 60-year-old precedent, the Supreme Court held that “a reservation of right to enter is not the same as a covenant to make repairs.”
To answer the second question, the Supreme Court looked to decisions requiring commercial landlords to keep sidewalks abutting their property free from snow and ice. In that scenario, the Supreme Court has held that a landlord cannot delegate its duty to a tenant. In other words, even if a lease between a commercial landlord and a commercial tenant requires the tenant to keep the sidewalks clear, the landlord is still liable if the tenant fails to do so and someone slips and falls as a result. The Appellate Division applied this same rationale in Shields and held the landlord liable.
The Supreme Court disagreed. It held that the policy behind holding commercial landlords liable for abutting sidewalks – essentially to incentivize landlords to maintain the sidewalks and thus protect the public that uses them – did not apply to the driveway in Shields.
Finally, the Supreme Court noted that the question of control is often highly relevant to situations like the one in Shields. Generally, a landlord owes a duty of care with respect to the portions of a building that are “not demised and remain in the landlord’s control.” In that situation, a landlord has a duty to “exercise reasonable care to guard against foreseeable dangers arising from the use of those portions of the [ ] property over which the landlord retains control.” In Shields, however, the tenant, not the landlord, controlled the driveway. Therefore, the Supreme Court held that “the landlord did not enjoy the sort of control over the subject driveway that would give rise to a duty of care.”
The Supreme Court’s decision was unanimous, but Justice Albin wrote a concurring opinion suggesting that the decision should be limited to the “transient condition of snow and ice” (emphasis in original). Justice Albin would have held that landlords nonetheless have a duty to “make reasonable efforts to repair a dangerous condition on the property that it knows or should know places at risk the lives and safety of people visiting or frequenting the premises.” This more narrow approach, however, did not carry the day.