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Lagunovich v. St. Georges Avenue CVS

A-2620-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

CONTRACTS; INDEMNIFICATION—The law allows for indemnification for joint liability; it does not require it.

An individual slipped and fell on a patch of black ice in a shopping center’s parking lot. The ice was located between two parking spaces only a few steps from a sidewalk. It had snowed two days earlier, and on that day the shopping center’s snow removal service had plowed the lot, shoveled the sidewalks, and salted the lot and sidewalks. The individual who fell was awarded damages against the shopping center owner, which in turn filed suit against the snow removal service.

The snow removal specifications required the service to remove snow from the property automatically whenever more than three inches of snow fell, as was the case here. The service came and removed the snow, but was not required to return until three more inches of snow had fallen or when requested to return by the shopping center owner. There was no snowfall between the time the service removed the snow and the occurrence of the accident , and the shopping center owner never requested the service to return to perform additional duties.

The contract between the removal service and the shopping center owner stated that the shopping center would be indemnified by the snow removal company for any and all claims for injury to any person arising out of, or resulting from, any act or omission or resulting from the service’s breach of the contract. The lower court found this clause to be applicable, and awarded summary judgment in favor of the shopping center owner.

The Appellate Division wasn’t so sure. It believed that a rational factfinder could find that the shopping center owner was negligent. The service was not required to return to the shopping center unless requested. If the shopping center owner could have observed the ice patch, it could have either treated the condition using its own employees or called the removal service to return. This finding precluded a holding of summary judgment.

Accordingly, if it was determined that the shopping center owner were solely at fault, there could be no indemnification. If the removal service were found solely at fault, full indemnification would be required. If joint liability were to be found, the scope of the clause would have to be resolved. Although the law does allow for indemnification for joint liability, it does not require it. Therefore, the Appellate Division reversed the lower court’s ruling and remanded the matter for further analysis.

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