In the recent past, I have written several posts about when property owners can be liable for accidents caused by their failure to shovel snow from the sidewalks abutting their property. The basic rules are well settled – residential property owners generally don't have a duty to shovel but commercial property owners do. Therefore, my posts focused on the more unique (and hopefully, interesting) cases. For example, one post discussed whether a property was residential or commercial, and therefore whether the property owner would be required to shovel or not, when the owner lived in one unit of the multifamily building and rented out the other units. Another post discussed whether a lender who obtained final judgment of foreclosure on a commercial property, but that had not yet taken title to the property through a sheriff's sale, was required to shovel the sidewalks around the building.
Now there is another case that is somewhat different than the traditional snowy sidewalk slip and fall. In Holmes v. INCAA-Carroll Street Houses Corp, plaintiff was a tenant in a property owned by defendants. She sued after she slipped, while on the way to her car, on "an accumulation of snow" approximately three feet from the doorway to her apartment. (The area where she fell was actually not a sidewalk, but was instead a "lawn or grassy area," but this distinction was not relevant to the court's decision.) A snowstorm has been raging since the night before. The snow had slowed, and perhaps even stopped, by the morning of the accident, but the storm had nonetheless dropped more than 15 inches of snow on the area. The conditions in the area were so severe that, when plaintiff's son called an ambulance to take her to the hospital, the ambulance company refused because of poor road conditions. The roads were not clear until the following day, at which point plaintiff drover herself to her doctor's office to be examined.
Plaintiff alleged that defendant had a duty to clear the snow from the property. Defendant moved for summary judgment, arguing that it had no duty to do so in the middle of a storm. The court agreed with defendant.
There is a scene in the movie "Forgetting Sarah Marshall" where the main character goes to a surf instructor to teach him how to surf. The lesson is not that helpful because, among other things, the instructor gives the main character advice that is impossible to follow, like: "Don't do anything. Don't try to surf. Don't do it. The less you do the more you do." And, then later: "try less" and "do less."
I was reminded of this decision when I read the Appellate Division's recent opinion in McRoy v. Eskander. In that case, the Appellate Division held that a lender was not a mortgagee in possession and therefore could not be liable for injuries sustained by someone who slipped and fell on the sidewalk in front of the property. The reason the lender could not be deemed a mortgagee in possession was because it had done almost nothing to maintain the property in the 18 months after it obtained a final judgment of foreclosure.
In McRoy, plaintiff slipped and fell on snow and ice in front of a four-unit apartment building that was owned by Defendant Eskander. At the time of plaintiff's fall, however, the building had been vacant for approximately 18 months. Eskander had defaulted on his loan with Bank of America ("BofA"), which led BofA to foreclose on its mortgage on the property. BofA obtained final judgment of foreclosure but had not proceeded to a sheriff's sale at the time of plaintiff's fall. Once final judgment of foreclosure was entered, Eskander stopped maintaining the property. Except for performing yard work once, BofA did not maintain the property either. It did periodically inspect the property to ensure it was vacant and, to protect its collateral, it paid the real estate taxes and a water bill.
We just got another round of snow/rain/ice/freezing rain (hereinafter referred to as a “wintry mix”) this weekend. As I was out shoveling, my thoughts turned to the potential liability of property owners when someone slips on the wintry mix piled up on their property. OK, my thoughts did not really turn to this, but one of the questions that I do get asked somewhat frequently from friends and family is whether they can be liable if someone slips on their property under these circumstances. A recent decision from the Appellate Division, Zheng v. Santos, revisited the law on this subject. Although it is generally considered to be well-settled, the decision in Zheng reveals that there are a number of exceptions and nuances that make the law about as unsettled as our weather has been this winter.
In Zheng, plaintiff slipped and fell on the sidewalk outside of defendants’ three-family home in Jersey City. The issue before the court was whether the owners had a duty to remove snow and ice from the sidewalk. The trial court held that it did not, and the Appellate Division affirmed. In doing so, however, it provided a primer on the evolution of the law governing property owner liability for such injuries in New Jersey.
Although a landlord is generally required to maintain a leasehold in good condition, the Appellate Division has now clarified that the leasehold’s condition must make the premises attractive to tenants’ customers and assist in the tenants’ “in selling their wares and goods.” In Wallington Plaza, LLC v. Taher, decided on July 7, 2011, the tenant vacated the premises upon one months’ notice, with six months remaining in the lease term. The landlord demanded judgment in the amount of six months’ rent. However, the tenant claimed that because the landlord had breached an implied covenant to maintain the shopping center in a good condition attractive to tenants’ customers, tenant was only obligated to pay rent for the time it occupied the premises. Finding that the parking lot of the shopping center was run-down and that many of the other shopping center stores were vacant, the court agreed that landlord had breached this obligation. The court held that tenant was responsible for paying two months’ rent, inclusive of its last month of occupancy following its notice, because the lease required two months’ notice of termination of the lease.