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Hoffman v. Rockaway Townsquare Mall

A-1256-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

INDEMNIFICATION—A shopping center property owner has an independent and non-delegable duty to maintain its premises in a safe manner. If a janitorial contractor has agreed only to provide indemnification for its own fault, it does not have to indemnify the owner for the owner’s breach of the owner’s own duty.

A janitorial company entered into a contract with a shopping mall to maintain the mall’s common areas. The contract contained an indemnification provision that required the janitorial company to indemnify the mall for damages, costs, and attorney’s fees arising out of its performance of or breach of the contract. A shopper slipped and fell and sued the mall and the janitorial company. The shopper settled the case before trial and no determination of negligence was made against either defendant. The mall and the janitorial company contributed towards the settlement, which was placed on the record and memorialized in a court order, which granted the mall’s motion for indemnification against the janitorial company. The janitorial company appealed, arguing that, since the contract’s indemnification clause did not require it to indemnify the mall under all circumstances (including the mall’s independent negligence), it had no duty to indemnify the mall. The mall countered that its liability was vicarious and not based on independent negligence. Therefore, the janitorial company was required to indemnify the mall and pay its defense costs. The Appellate Division disagreed. It held that the mall, as a commercial property owner, has an independent and non-delegable duty to maintain its premises in a safe manner. In addition, the shopper’s lawsuit did not allege that the mall’s liability was solely vicarious. Rather, the shopper claimed that the mall maintained the premises in a careless manner. Since the mall had an independent duty to maintain its commercial premises, and there was no determination that the mall was not at fault, it was not entitled to indemnification and defense costs.

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