Skip to main content



Donahue v. Chapman

A-1831-98T1 (N.J. Super. App. Div. 2000) (Unpublished)

NEGLIGENCE; LANDLORD LIABILITY—Where commercial property is leased in its entirety, the landowner’s obligation to provide for the safety of others is limited to areas over which the landowner retains control.

An employee alleged that he slipped and fell on a patch of ice and snow in an area of a parking lot painted yellow to delineate the walkway to the entrance of his employer’s premises. The employer leased the premises from its chief executive officer, in his individual capacity. Under the lease, his employer was required to “maintain all of the lawns, shrubbery, driveways, and parking areas, including keeping the driveways, sidewalk and steps and parking areas free and clear of ice and snow.” The employee collected workers’ compensation and sued the individual owner of his employer’s property. In doing so, he asserted that the sidewalk exception and public use exception applied to the employer’s property. In New Jersey, “[w]here commercial property is leased in its entirety, the landowner’s obligation to provide for the safety of others is limited to areas over which the landowner retains control. (citations omitted) Conversely, where the landowner does not maintain control over the area where the injury occurred, no liability will attach. (citations omitted) Thus, it is clear that a landowner is not liable to third parties ‘for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession.’” The sidewalk exception, however, “provides that a commercial landowner may be liable for injuries sustained by an employee of the tenant as a result of the tenant’s negligent failure to exercise due care in removing snow and ice along an abutting public sidewalk even though the tenant assumed such a duty in the lease. (citations omitted) Thus, if the exception applies, ‘the sole effect of a lease provision requiring the tenant to maintain the sidewalk free of the hazard of snow and ice accumulations is to allocate the cost between the landowner and the tenant.’ (citations omitted) The legal duty, however, remains with the landowner alone, i.e., it is non-delegable.” Here, however, the employee slipped and fell on a pathway that led to the employee entrance of the building; there was no sidewalk for use by the general public. The employee argued “it is only necessary for the fall to have occurred in the area available to the public,” thus asserting that the public use exception was also applicable. The employee argued that he was “a member of the public vis-a-vis defendant [the individual landowner]” and therefore the public use exception extended to the employee entrance where he fell. The Court, however, pointed out that the public use exception only applies where the dangerous condition exists when a lessee takes possession of its premises. It does not concern the duty to repair or repair defects in the premises that occur after the commencement of a lease. Because the patch of ice and snow was a “transient and obvious [condition] and was not present when the lessee assumed possession and control of the premises,” the landowner was not liable. Further, the question as to whether the landowner owed a duty to the injured employee was properly within the scope of a judge’s powers.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com