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Ahlstrom v. TMC Properties, LLC

A-1115-09T1 (N.J. Super. App. Div. 2010) (Unpublished)

LEASES; LANDLORD LIABILITY — A landlord who is leasing the entire premises to a commercial tenant under a triple net lease had no duty to maintain the premises in areas in which the landlord had not retained control, and thus has no liability to a person injured for a maintenance deficiency at the premises.

A tenant’s employee was injured while unloading a truck. The injuries resulted from a fall at a flip-down gate that had been attached to a loading dock extender. Among other parties, the injured employee sued the landlord because, among other things, the landlord actually constructed the building pursuant to a long-term lease with the injured employee’s employer. The building was constructed in accordance with plans and specifications supplied by the tenant. Shortly after the tenant took occupancy, it discovered a problem with trucks aligning properly with the loading dock. The tenant then engaged a third party to fabricate and install flip-down gates to be attached to the loading docks. These gates had “no railings or visual or tactile warnings that one was approaching an edge.” The tenant did not seek its landlord’s approval to install these gates and the landlord had no involvement with the gates themselves. Although the landlord’s principal frequently visited the industrial park within which this building was located, he testified that “he had no recollection of ever noticing that the flip-down gates had been installed.” In fact, the landlord who constructed the building sold the property fifteen years before the tenant’s employee was injured.

Under the lease, the tenant was the sole occupant of the building and was responsible for “maintaining the premises and paying all utilities, taxes, and other charges associated with the property.” The tenant agreed to “take good care of the Demised Premises, interior and exterior, and the fixtures and appurtenances thereto.” The landlord had limited maintenance obligations only extending to “structural repairs to the roof, the load bearing walls and members, footings, foundations, and exterior walls, provided that Tenant shall not have caused the need for said repairs.”

Under New Jersey law, a landlord, who has leased the entire premises to a commercial tenant under a triple net lease, has no duty to maintain the premises in areas in which the landlord has not retained control. The injured employee sought to avoid this principle by arguing that the following lease provision indicated the landlord had retained control over the loading dock changes: “Tenant may, at its expense, and only upon Landlord’s prior written approval, ..., make such alterations and improvements to the Demised Premises and install interior partitions as it may require.” The Appellate Division was not persuaded by that argument and agreed with the lower court that just because the landlord’s prior written approval was required did not mean that the landlord became responsible for the injuries suffered by the tenant’s employee. The Court pointed to a case where the landlord had, in fact, approved certain plans and specifications for a stairway, but still was relieved of any liability for an injury caused on the stairway. Essentially, the Court restated its reasoning in that case to the effect that it discerned “no ‘public interest’ or other compelling reason to impose upon [the landlord in that case] a duty to assure to third parties such as plaintiff that [the tenant in that case] would carry out its obligation to keep the stairway in a safe condition.”

Given that the record was “barren of any evidence that [the landlord] had any involvement at all in the design or installation of [the] flip-down gates,” the Court would not impose liability on the landlord for the injuries suffered by the tenant’s employee.

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