EDNA ALBERT VS. PATHMARK STORES, INC. (L-8938-12, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5163-17T3
EDNA ALBERT and
SCHMUEL ALBERT,
her husband,
Plaintiffs-Appellants,
v.
PATHMARK STORES, INC., and
KLINGENSMITH ASSOCIATES,
LLC,
Defendants-Respondents,
and
MICHAEL C. DISTEFANO,
M.D., CHARLES F. ASTA, M.D.,
THE VALLEY HOSPITAL, and
MALWINDER SINGH, M.D.,
Defendants.
______________________________
Submitted June 6, 2019 – Decided July 10, 2019
Before Judges Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8938-12.
Joseph H. Neiman, attorney for appellants.
Respondents have not filed briefs.
PER CURIAM
In this personal injury matter, Edna Albert and her husband, Schmuel
Albert, appeal from a June 14, 2018 judgment, focusing their appeal on a May
22, 2015 order granting summary judgment for defendants Pathmark Stores, Inc.
(Pathmark) and Klingensmith Associates, LLC (Klingensmith). We affirm.
On November 27, 2010, Plaintiff Edna Albert suffered personal injuries
when she slipped and fell on a sidewalk outside a Pathmark grocery store.
Pathmark leased the premises from Klingensmith. Plaintiff and her husband
sued Pathmark and Klingensmith for negligence, as well as several doctors and
a hospital for medical malpractice. 1
Klingensmith is a trust whose only asset is the subject property. In 1988,
Pathmark signed a lease with United Trust Fund Limited Partnership,
1
Plaintiff's claims against certain doctors and the hospital were voluntarily
dismissed. A jury returned a no cause verdict in favor of Michael C. DiStefano,
M.D. On June 14, 2018, the trial court entered a judgment dismissing plaintiff's
complaint with prejudice. The medical malpractice claim is not before us on
appeal.
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2
Klingensmith's predecessor in interest, and has operated its store on the property
ever since. The 1988 lease agreement is still operative and is considered a
"triple-net lease." Section 2.1 of the lease agreement states:
Lessee acknowledges that it has received the [p]remises
in good order and repair. Lessee, at its own expense,
will maintain all parts of the [p]remises in good repair
and good condition . . . and will take all action and will
make all structural . . . changes and repairs which may
be required to keep all parts of the [p]remises in good
repair and condition (including, but not limited to . . .
all paving [and] sidewalks . . .) in as good a condition
as they existed at the beginning of the [i]nterim [t]erm
. . . . [Pathmark] waives the right to require
[Klingensmith] to maintain, repair or rebuild all or any
part of the [p]remises . . . .
Plaintiff alleged she tripped over a gap in the sidewalk created by the
deterioration of an expansion joint between two concrete slabs. Plaintiff
commissioned two expert reports. The first expert, an architect , visited the
Pathmark store on May 17, 2014, and measured the gap between the two
concrete slabs where plaintiff tripped. He opined the expansion joint gap was
too wide, the expansion joint filler had deteriorated and the gap violated industry
norms thereby creating an uneven walkway. Although he could not tell when
the expansion joint filler began to decay, he concluded the expansion joint was
improperly constructed. Plaintiff's second expert opined the defect was either
present at the time of construction or developed over time. On May 8, 2015,
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both Pathmark 2 and Klingensmith moved for summary judgment. Klingensmith
argued Pathmark had a duty to maintain the sidewalk under the triple-net lease.
In response, plaintiff argued (1) the duty to maintain a premises is a non-
delegable duty and (2) even if it is, section 2.1 of the lease agreement does not
apply because the defect in the sidewalk arose before the lease was entered into.
The judge disagreed and entered summary judgment in defendant's favor. This
appeal followed.
On appeal, plaintiff argues the trial court erred granting summary
judgment to Klingensmith, the lease provided for Klingensmith's liability and
commercial landowners are obligated to provide a safe premises. Plaintiff also
argued Klingensmith could not delegate the obligation to maintain a safe
premises. We disagree.
We "review the trial court's grant of summary judgment de novo under the
same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union
2
Pathmark is a subsidiary of The Great Atlantic & Pacific Tea Company (A&P).
A&P filed for bankruptcy on December 12, 2010. Their reorganization plan was
approved by the bankruptcy court, and they emerged from bankruptcy on March
13, 2012. All claims against A&P that arose prior to March 13, 2012, were
discharged and all claimants were enjoined from pursuing those claims. Before
the trial court, both parties conceded plaintiff could not sue Pathmark.
Therefore, the trial judge granted summary judgment for Pathmark and ordered
Pathmark remain in the case in name only to allocate liability at trial.
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Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for summary
judgment should be granted, "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). We "view the evidence in the light most favorable to the non-moving
party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).
"Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates that the
opposing party do more than 'point[] to any fact in dispute' in order to defeat
summary judgment." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)
(alterations in original) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 529 (1995)). "[C]onclusory and self-serving assertions by one of the parties
are insufficient to overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-
41 (2005).
Plaintiff argues Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 251(App. Div. 2013), and Meier v. D'Ambose, 419 N.J. Super. 439 (App. Div.
2011), support the proposition that a triple-net lease cannot absolve a landowner
from their non-delegable duty to maintain a premises open to the public, and
Geringer v. Hartz Mountain Development, 388 N.J. Super. 392 (App. Div.
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2006), supports the proposition landowners remain liable for injuries caused by
defects to property that existed at the inception of the lease agreement. These
cases are distinguishable.
Traditionally, a landlord is not responsible for the maintenance of a leased
premises; rather, the tenant assumes that duty as a condition of possession. See,
e.g., Michaels v. Brookchester, Inc., 26 N.J. 379, 382 (1958). We have
recognized two "exceptions to the general rule: (1) a landlord is responsible to
use reasonable care with regard to portions of the leased premises which are 'not
demised and remain in the landlord's control[,]'" and "(2) a landlord's covenant
to repair gives rise to a duty to the tenant[.]" McBride v. Port Auth. of N.Y. &
N.J., 295 N.J. Super. 521, 525 (App. Div. 1996) (first alteration in original)
(quoting Michaels, 26 N.J. at 383-85). The lease in McBride also included a
duty-shifting provision, and we said that because neither exception was met, the
lessee, not lessor, was duty-bound to maintain the premises. Id. at 526-27.
We discussed the exceptions to the general rule further in Meier where we
noted, regardless of the lease terms, a landlord retained a non-delegable duty to
maintain fixtures over which the landlord had exclusive control and access. 419
N.J. Super. at 449. In Meier, it was fair to impose liability on a landlord for the
failure to maintain a furnace system, because the landlord had the incentive and
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was in the best position to maintain permanent and potentially dangerous
fixtures in the leased premises. Id. at 450. To determine whether a duty-shifting
provision in a lease should be ignored, courts, when necessary, should apply the
Hopkins factors and focus on which party had the opportunity and ability to
exercise care. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).
Here, Pathmark, not Klingensmith, was in the best position to remedy the
defective sidewalk, and, as a result, section 2.1 controls the allocation of
liability. Plaintiff's reliance on Nielsen is misplaced. The plaintiff in Nielsen
slipped and fell outside a Walmart store. 429 N.J. Super. at 254. Walmart
purchased its store from a developer pursuant to a master deed. Id. at 254-55.
The developer retained the duty to "repair, replace and maintain" the common
areas around the store. Id. at 255. Thus, Walmart argued it had no duty to
maintain the premises outside its store. We disagreed, because Walmart was in
the best position to mitigate the risk of harm on and around its store. Id. at 263.
It was foreseeable that invitees would use the common areas outside the store in
order to patronize the Walmart and potentially suffer injuries caused by defects
just outside the store's perimeter. Ibid.
Nielsen is different from this case. Section 2.1 of the lease specifically
required Pathmark to maintain the concrete and sidewalks on the leased
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premises. Unlike in Nielsen, the landlord, not the business who invited the
patron onto their property, is seeking to avoid liability.
Meier also does not help plaintiff's case. In a commercial lease,
particularly where the lessee is a grocery store conducting business both in and
outside of its store, a sidewalk is not the type of fixture that only the landlord
could reasonably access and maintain. Rather, like in Nielsen, Pathmark is
properly responsible for maintaining the common area outside their store.
In Geringer, the plaintiff was injured when she tripped and fell on
carpeting in commercial office building and sued the tenant and developer. 388
N.J. Super. at 394-95. The stairway where the plaintiff fell was built by the
tenant pursuant to the terms of a lease agreement between the tenant and
developer. Id. at 395. The lease declared the tenant responsible for constructing
the stairway and shifted the duty to maintain the interior of the premises to the
tenant. Id. at 397. However, per the terms of the lease, the developer retained
the authority to review and sign-off on the plans to build the new stairway. Id.
at 402. As a result, the plaintiff could maintain a claim against the developer
for negligently designing the stairway, because the developer was intimately
involved with its construction. Ibid.
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Geringer is inapplicable here because in that case there was at least a
genuine dispute of material fact that the developer had constructive notice of the
defect. Here, section 2.1 of the lease, by implication, held Klingensmith
responsible for all defects arising prior to the inception of the lease. Thus,
plaintiff needed to allege a genuine dispute of material fact that the defect
existed prior to the existence of the lease agreement and that Klingensmith, or
its predecessor in interest, had constructive notice of the defect. However, her
proofs fail to do this. At best, plaintiff's expert opines that the defect was present
since construction of the sidewalk. But plaintiff failed to show when that took
place, let alone that Klingensmith should have known of the defect before the
inception of the lease. Moreover, we note the lease states Pathmark
acknowledged it took the premises in good order and repair.
Affirmed.
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