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Hawthorne v. Norpak Corporation

A-6677-00T2 (N.J. Super. App. Div. 2003) (Unpublished)

LEASES; LANDLORD’S LIABILITY—Where a tenant’s operations create a dangerous condition, a landlord is not liable for a resulting accident even if the lease requires the landlord to perform all maintenance, repairs, and replacements necessitated by reason of ordinary wear and tear.

A tenant’s forklift driver traversed a wide metal plate running down the middle of the tenant’s warehouse. The plate covered a hollow area under the floor. “[T]he forklift dipped, the load shifted, and a piece of dunnage fell” on another employee’s head. The employee alleged that the metal plate was a dangerous condition and that the landlord had a duty to repair the floor under the terms of its lease. Under the lease, the Landlord “was responsible to make structural repairs, which included the floor where the metal plate was located.” The Court found that “the condition caused by the metal plate on the floor was necessitated by [the tenant’s] use of the premises, and thus it, not the landlord, was responsible” under both the lease and an addendum to the lease. The lease provided that the tenant was to take good care of the premises and to make all repairs “other than roof repairs and structural repairs which are not made necessary by any use or misuse of the Tenant… .” An addendum to the lease provided that “Landlord shall continue to be responsible for all maintenance, repair and replacement of the roof and structural repairs… .” The addendum did not modify the direct lease language. Consequently, the Court interpreted the lease to mean that the tenant was responsible for repairs caused by the tenant’s use of the premises other than those caused by normal wear and tear. Where structural repairs were necessitated by “normal wear and tear,” the landlord was responsible for making such structural repairs. “Ordinary wear and tear implies degradation of a condition.” Here, there was no evidence that the metal plate on the floor had worn down or even that it was in a different condition than it was on delivery of the premises. It didn’t matter to the Court that the warehouse didn’t have the best type of floor for forklift use. Moreover, “even if the lease [could] be construed as establishing a duty to repair by the landlord, [the Court held] there was no breach of the duty.” The landlord had no notice of the condition and the tenant had not asked the landlord to rectify the problem. Further, the floor plate “was not in and of itself a dangerous condition.” Rather, [the tenant’s] operation of having forklifts drive over the plate created the danger… .”

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