Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

NJ Appeals Court Holds New Jersey Businesses May Be Liable for Off-Site Injuries

Author: Donald M. Pepe

Date: January 22, 2013

Key Contacts

Back

The Appellate Division recently held that New Jersey businesses could be held liable for injuries that occur on surrounding property, even if it is owned and maintained by another party.

In Nielsen v. Wal-Mart Store #2171, A-2790-11, a pest control worker was injured when he allegedly fell on loose gravel as he walked around the perimeter of the building rather than through it, at the request of Wal-Mart store management. In defending the suit, the defendant store argued that there was no duty owed to the injured worker where the injury occurs in an area that the developer, Nassau Shopping Center Condominium Association, was contractually bound to maintain and repair.

In an apparent expansion of the Stewart Doctrine, referring to a 1981 New Jersey Supreme Court case that held a commercial property owner could be found liable for injuries that occur on adjoining, publicly owned sidewalks, the court here held that the “particular relationship of the parties, the nature of the attendant risk, Wal-Mart’s opportunity and ability to exercise care, and the public interest all balance in favor of the imposition of a duty on Wal-Mart.” It specifically found that ownership of the property was “simply one factor to be considered in determining whether a duty of care should be imposed.”

In its opinion, the court further noted that imposing liability “advances important policy interests by fostering the land occupier’s constant vigilance” and “encourages a business owner … to alert the contractually responsible entity about hazardous conditions.”  The notion that a land occupier’s duty of care extends only as far as the boundaries of its property — the ostensible central thesis of Walmart’s argument — is simply out of step with the modern course of the common law,” the court said.

The court also acknowledged that its decision “may seem inconsistent” with a ruling by a different Appellate Division panel in Kandrac v. Marrazzo’s Market, which we previously discussed on this New Jersey Business Law Blog. In that case, the Appellate Division declined to extend liability when a customer was injured in a common parking area.

“We view Kandrac as unduly dependent upon the assignment of responsibility for a common area defined by the defendant’s lease,” the panel stated in a footnote. “The content of the lease is a factor to be considered but we do not view it as having the great weight assigned by Kandrac.”

These cases highlight that premises liability is rarely clear-cut. Rather, it may depend on a number of factors, including the relationships between the parties, the underlying contract, and public policy considerations.

An interesting footnote to the main holding in the case is the fact that Wal-Mart’s trial counsel failed to seek contractual indemnification from the condominium association as a third-party defendant.  The court declined to comment on whether indemnification might be available to Wal-Mart in a separate action, an obvious nod to the Entire Controversy Doctrine.  While not related to the main holding in the case, an important tip that can be taken from the case is when negotiating indemnification provisions in leases, operating agreements, master deeds and other documents relating to maintenance obligations, it may prove useful to include an express waiver of the Entire Controversy Doctrine.  While not a bullet proof solution in light of the court’s interest in the efficient administration of cases that in part underpins the doctrine, there is little doubt that Wal-Mart would be in a better position if such a waiver were included in its agreement with the condominium association.

If you have any questions about business records or would like to discuss how to improve your company’s policies and procedures, please contact me, Donald Pepe, or the Scarinci Hollenbeck attorney with whom you work. 

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Why Every Business Should Conduct an Annual Insurance Coverage Review post image

Why Every Business Should Conduct an Annual Insurance Coverage Review

Most New Jersey business owners purchase insurance policies, file them away, and assume they are protected if a claim arises. Without a regular insurance coverage review, many companies discover gaps only after a lawsuit, cyberattack, property loss, or other significant event occurs. An annual insurance coverage review can help businesses identify potential risks, ensure their […]

Author: George McGowan

Link to post with title - "Why Every Business Should Conduct an Annual Insurance Coverage Review"
Demand Letters & Cease and Desist Letters: When to Send One (and When Not To) post image

Demand Letters & Cease and Desist Letters: When to Send One (and When Not To)

Businesses and individuals often encounter situations where another party breaches a contract, fails to pay a debt, or continues harmful conduct. In many such disputes, a precisely drafted demand letter or cease-and-desist letter serves as a powerful legal tool. It can frequently resolve the dispute and avoid litigation. While demand or cease-and-desist letters can resolve […]

Author: George McGowan

Link to post with title - "Demand Letters & Cease and Desist Letters: When to Send One (and When Not To)"
How to Effectively Use Contracts to Manage Risk post image

How to Effectively Use Contracts to Manage Risk

Key provisions in your contracts, including those relating to indemnification, insurance, and defense, are essential to contract risk management. While sometimes considered “boilerplate,” these provisions play a pivotal role when determining which party is responsible for certain costs and liabilities. They must always be negotiated and drafted carefully. Indemnification Clauses Businesses should never overlook the […]

Author: George McGowan

Link to post with title - "How to Effectively Use Contracts to Manage Risk"
Understanding Portability for Estate and Gift Tax post image

Understanding Portability for Estate and Gift Tax

Portability of estate and gift tax enables a surviving spouse to inherit any unused portion of their deceased spouse’s federal estate and gift tax exemption. So, if one spouse doesn’t utilize their full exemption, the surviving spouse can effectively double their exemption amount with regard to estate tax liability. For married couples, portability offers a […]

Author: Marc J. Comer

Link to post with title - "Understanding Portability for Estate and Gift Tax"
Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool post image

Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool

For many of us, pets are more than companions—they are members of the family. Yet they are often overlooked or inadequately provided for when it comes to estate planning. A pet trust offers a legally enforceable way to ensure that your animal continues to receive proper care if you become incapacitated or pass away. As […]

Author: Marc J. Comer

Link to post with title - "Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool"
How Can Trusts Be Used in Business Succession? post image

How Can Trusts Be Used in Business Succession?

For many New Jersey business owners, a closely held company represents decades of work, financial investment, and personal sacrifice. Trusts in business succession planning are one of the most effective tools for protecting that value, allowing founders to control how and when the business passes to the next generation while reducing the risk of disputes, […]

Author: George McGowan

Link to post with title - "How Can Trusts Be Used in Business Succession?"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!