FORWARD. SGLFRJTS. CHIEF JUSTICE RABNER: MAY WE PLEASE HAVE APPEARANCES OF
COUNSEL. (APPEARANCES TENDERED.) RICHLTD GOOD MORNING, COUNSEL, WELCOME,
MR. SAFE VET, PLEASE GO AHEAD. SAFE ET. APPELLANT: MAY I HAVE FIVE MINUTES
FOR REBUTTAL PLEASE RIECHLT R. CHIEF JUSTICE RABNER: WE'LL HAVE YOU BACK,
PERHAPS FOR A LITTLE LESS. APPELLANT: THANK YOU. THE QUESTION BEFORE
THIS COURT ASK A QUESTION THAT HAS BEEN ANSWERED REPEATEDLY IN FAVOR OF COMMERCIAL LANDS
OWNERS BY THE APPELLATE DIVISION WITH A NOTABLE EXCEPTION OF THE COURT BELOW HERE. IN
NO FEWER THAN THREE CASES IN THE PAST TWO YEARS, THE APPELLATE DIVISION HAS IDENTIFIED
THE PLEA SIES ISSUE IN LANGUAGE ALMOST VERBATIM TO THE QUESTION THAT'S BEEN CERTIFIED
BY THIS COURT. IN EACH OF THOSE UNPUBLISHED DECISION, JIMENEZ VERSUS POURL, WARD VERSUS
BAYONNE INDUSTRIES AND TODAY SILL VA VERSUS 110-112 FERRY STREET, THE PANELS RECOGNIZED
THE ISSUES ADDRESSED IN HARLTHS MOUNTAIN AND MCBRIDE VERSUS PORT AUTHORITY, IN ALL OF
THOSE CASES, THE APPELLATE DIVISION HELD THAT WHERE A TENANT AGREES IN THE LEASE TO
MAINTAIN AND REPAIR THE DEMISED PREMISES, AN OUT OF POSSESSION LANDLORD CANNOT BE LIABLE
TO AN INVITEE INJURED AS A RESULT OF AN ALLEGED FAILURE TO MAINTAIN OR REPAIR THE PREMISES.
THE DECISION ISSUED BY THE APPELLATE DIVISION BELOW HERE IS AN ANOMALY SINCE NO PANEL
BEFORE OR SINCE HAS EXPANDED SIDEWALK LIABILITY LAW TO ENCOMPASS DEMISED PREMISES, WHAT IS
ALL THE MORE STRIKING HERE ABOUT THE DECISION BELOW IS THAT TWO OF THE THREE JUDGES ON THE
PANEL COMPRISED THE TWO JUCHL PANEL THAT RULED IN FAVOR OF THE COMMERCIAL LANDOWNER IN
JIMENEZ CASE, TOP UPHOLD THE APPELLATE DIVISION DECISION HERE WOULD DECADES OF AND LITTLE
OF ANY OPPORTUNITY TO ADDRESS. SGLFRJS THE APPELLATE DIVISION DECISION AS IT STANDS NOW
HAS FAR REACHING CONSEQUENCES AND ADVERSELY IMPACTS THE RIGHT OF COMPANIES TO ENTER INTO
PRIVATE AGREEMENTS OVER DEMISED LEASED PREMISES. THE APPELLATE DIVISION
DECISION BELOW HAS TWO FUNDAMENTAL FLAWS, THE FIRST IS THAT IT CONFLATES SIDEWALK LIABILITY
LAW WITH THE LAW INVOLVING DEMISED PREMISES. THE LEASE AT ISSUE HERE, MUCH LIKE THE LEASE
THAT I REFERENCED IN OUR BRIEF, UNAMBIGUOUSLY REQUIRES THE TENANTS TO MAINTAIN AND REPAIR
THE DEMISED PREMISES, THE AREA WHERE MR. SHIELDS FELL WAS UNDISPUTEDLY WITHIN THE DEMISED
PREMSDZ AND IN SPITE OF THE MANY CASES THAT DISTINGUISH SIDEWALK LIABILITY LAW THE PANEL
HERE MADE NO DISTINCTION BETWEEN THE SIDEWALK AND IT'S LEASED PREMISES HOLDING THE LAND
EVERYONE HERE TO THE SAME STANDARD IT WOULD HAVE IF MR. SHIELDS FELL DUE TO A TRANSIENT
CONDITION ON THE SIDEWALK, YET THAT IS A DISTINCTION WITH A MATERIAL DIFFERENCE HERE,
WHETHER MR. SHIELDS FELL WITHIN THE DEMISED PREMISES FIVE FEET FROM THE SIDEWALK OR 50
FEET FROM THE SIDEWALK MAKES NO DIFFERENCE HERE, THIS WAS NOT AN OPEN DRIVEWAY, IT WAS
A DRIVEWAY THAT WAS SEPARATED BY A FENCE AND AN ENTRANCE GATE, THERE'S NO ASSERTION THAT
ANY CONDITION OF THE SIDEWALK LED TO HIS FAULT ON THE DEMISED PREMZ. THE
SECOND FUNDAMENTAL FLAW IN THE COURT'S DECISION BELOW IS THAT IT CREATED OR FOUND A SO-CALLED
AMBIGUITY IN THE LEASE. THE PANEL TRIED TO DISTINGUISH THE MCBRIDE CASE AND ANOTHER
APPELLATE DIVISION CASE MILACCI VERSUS MAT TOE BASED ON THE FACTS, YET THE FACTS MAKE THIS
CASE ANY DIFFERENT THAN ANY OTHER CASE THAT RUNS IN FAVOR OF PROPERTY OWNERS, THE LEASE
PUTS THE PREMISES IN THE EXCLUSIVE -- THE CASE DOES NOT HAVE AN AFFIRMATIVE COVENANT BY
WHICH THE LANDOWNER HAS TO MAINTAIN ANY PORTION OF THE PREMISES AND MOREOVER THE LANDLORD
LEER ADMITTED THAT SNOW AND ICE REMOVAL WAS ITS RESPONSIBILITY, THE FACT THAT THE LEASE
DOES NOT SPECIFICALLY MENTION SNOW OR ICE REMOVAL IS IRRELEVANT. NEW JERSEY COURTS HAVE
LONG HELD THAT SNOW AND ICE REMOVAL IS SUB ZOOMED WITHIN MAINTENANCE RESPONSIBILITIES
OF THE THIS COURT CASE IN MERE IS A FOR EXAMPLE, TWO APPELLATE DIVISION CASES, AL DID HE SAY
AND KA BREAKER RA, ONE FROM LAST YEAR, 1 FROM 2008, INVOLVES LEASE AGREEMENTS THAT SAY
MAINTENANCE AND REPAIR YET INVOLVED A RESPONSIBILITY FOR THE 10 NAJTS TO CLEAR THE
PROPERTY, THE DEMISED PREMISES OF SNOW AND ICE, THERE'S NOTHING IN ANY OF THOSE CASES THAT
SUTHSD THAT SNOW AND ICE HAS TO BE EXPRESSLY STATED OR SPECIFICALLY ALLOCATED, CARVED
OUT SOMEHOW FROM MAINTENANCE AND REPAIR. IN FACT IN THE MILACCI CASE THERE WAS NO WRITTEN
LEEMENT LEASE AGREEMENT, SO THE FACT THAT THE LANGUAGE OF A LEASE I WOULD ARGUE IS
IRRELEVANT IF THE PARTIES HAVE AN UNDERSTANDING AND AGREEMENT THAT THE TENANT IS GOING
TO BE RESPONSIBLE FOR MAINTENANCE AND REPAIR, SNOW AND ICE. JUSTICE TIMPONE:
WELL WE DON'T HAVE TO REALLY GET TO THAT, RIGHT, BECAUSE LAST SUMMER WE SAID IN J H THAT
CONTROL IS THE FOCAL POINT OF THE DUTY QUESTION WITH RESPECT TO LANDLORD LIABILITY, AND
IN THIS CASE, THE LIABILITY APPEARS TO BE WITH RAMSEY BECAUSE THE LEASE HAD GIVEN -- HAD
TURNED OVER THE RESPONSIBILITY FOR THAT PROPERTY TO RAMSEY, AND THE ACTION HAPPENED ON
THE DRIVEWAY THAT WAS WITHIN RAMSEY'S CONTROL. APPELLANT: ABSOLUTELY, YOUR
HONOR. JUSTICE TIMPONE: DOESN'T THAT END THE DISCUSSION.
APPELLANT: I'M SORRY? JUSTICE TIMPONE: DOESN'T THAT END THE DISCUSSION.
APPELLANT: I BELIEVE SO, AND THIS IS NOT A SITUATION WHERE MR. SHIELDS HAD
NO RECOURSE, HE SETTLED THE CLAIM AGAINST THE TENANT HERE, SO THERE'S NO PUBLIC POLICY
ISSUE WHERE PLAINTIFF NEEDS TO BE MADE WHOLE HERE, I AGREE WITH YOUR HONOR, THAT SHOULD
BE THE BE ALL AND END ALL OF THE DISCUSSION. JUSTICE ALBIN: BUT IS THERE
EXCLUSIVE CONTROL AND UNDER THE CONTRACT, I'M LOOKING AT THE PROVISION ON P.A. 104 AND 05,
I'LL JUST READ TO YOU THE PORTION THAT I'D LIKE YOU TO RESPOND TO, TENANT AGREES THAT
THE LANDLORD AND HIS AGENTS IN REFERENCE SHALL HAVE THE RIGHT TO ENTER INTO AND UPON THE
SAID PREMISES OR ANY PART THEREOF AT ALL REASONABLE HOURS FOR THE PURPOSE OF EXAMINING
THE SAME OR MAKING SUCH REPAIRS OR ALTERATIONS THEREIN AS MAY BE NECESSARY FOR THE SAFETY
AND PRESERVATION THEREOF. APPELLANT: WHAT SECTION IS THAT, YOUR HONOR.
JUSTICE LAVECCHIA: ARTICLE 21. JUSTICE FERNANDEZ-VINA: BUT
IT ALSO SAYS BUT THAT RIGHT DOES NOT CREATE AN OBLIGATION ON THE PART OF THE LANDLORD
TO MAKE REPAIRS, ISN'T THERE MORE TO THAT SECTION, EVEN THOUGH THE LANDLORD HAD THE
RIGHT TO ENTER, THE LEASE SAYS IT DOES NOT CREATE AN OBLIGATION ON THE PART OF THE LANDLORD
TO MAKE SUCH REPAIRS. 104, 105, COUNSEL. APPELLANT: I'M SORRY, WHAT SECTION,
YOUR HONOR. JUSTICE ALBIN: ARTICLE 21 READS SECTION 2 L 21, IT MUST BE 21.01.
SO MY QUESTION IS LOOKING AT IT IN ITS TOTALITY, IT PROVIDES THE LANDLORD
THE RIGHT OF ENTRY TO MAKE -- APPELLANT: THE LEASE SAYS THAT THE OWNER IS
PROHIBITED FROM ENTERING THE LEASED PREMISES OR THE BUILDING WITHOUT ONE DAY NOTICE FOR
PURPOSES OF INSPECTION, THAT'S SECTION 1103. JUSTICE LAVECCHIA: LOOK AT
ARTICLE 21 WHERE IT TALKS ABOUT THE REASONABLE RIGHT TO ANSWER BUT IT HAS THAT SECOND
SENTENCE WHICH SAYS THE ARTICLE SHALL NOT BE DEEMED TO BE A COUGH NANTD BY THE LANDLORD
NOR BE CONSTRUED TO BE TO CREATE AN OBLIGATION ON THE PART OF THE LANDLORD TO MAKE SUCH
INSPECTION OR REPAIRS. IT'S CRITICAL LANGUAGE BECAUSE SINCE 1958 IN THE MICHAELS CASE
THIS COURT HAS DISTINGUISHED BETWEEN RIGHT TO ENTER AND COVENANT TO REPAIR. THE COVENANT
TO REPAIR CAN GIVE RISE TO A DUTY IN TORT, BUT NOT THE FORMER. OUR COURT HAS SAID THAT,
AND IT'S BEEN REPEATEDLY FOLLOWED BY THE APPELLATE DIVISION, SO WHOEVER DRAFTED THIS
LEASE WAS WELL AWARE OF OUR CASE LAW DISTINGUISHING BETWEEN COVENANT AND A SIMPLE
RIGHT TO ENTER TO EXAMINE, INSPECT AND MAKE REPAIRS IF THEY CHOSE.
APPELLANT: I APPRECIATE THAT, YOUR HONOR, BUT THE SPECIFIC RIGHT TO MAINTAIN AND REPAIR
IS AN AFFIRMATIVE COVENANT THAT THE TENANT HAD AGREED TO. JUSTICE LAVECCHIA:
THAT'S SECTION 304. APPELLANT: THAT'S CORRECT, AS IF THEY WERE THE DE-FACTO
OWNER. JUSTICE LAVECCHIA: THEY'RE READ IN TANDEM, CORRECT?
JUSTICE ALBIN: MY QUESTION TO YOU IS VERY SIMPLE, DID THE LANDLORD HAVE A RIGHT TO ENTER
TO MAKE REPAIRS IF HE DEEMED IT NECESSARY. APPELLANT: NO, YOUR HONOR.
JUSTICE ALBIN: THAT seems TO BE IN DIRECT CONFLICT WITH ARTICLE 21. DO YOU HAVE THAT
WITH YOU? APPELLANT: WITH THE EXCLUSIVE CONTROL, YOUR HONOR, IS STILL
WITHIN THE AMBIT OF THE TENANT HERE, JUST BECAUSE THEY HAVE THE -- IT'S STILL THE PROPERTY
IS OWNED BY THE OWNER, BY THE LANDLORD, BUT THAT DOESN'T -- AGAIN, IN CONJUNCTION WITH
THE PARAGRAPH THAT I JUST READ THAT THEY HAVE TO GIVE 24 HOUR NOTICE. JUSTICE
PATTERSON: IF THE FURNACE BREAKS FOR EXAMPLE AND THE TENANT SAYS PART OF OUR LEASE AGREEMENT
IS THAT YOU'RE GOING TO PROVIDE US WITH HEAT, YOU BETTER FIX THIS FURNACE, THE LANDLORD
WITH APPROPRIATE NOTICE COULD COME ON THE PROPERTY TO REPAIR THAT FURNACE, YOU WOULD
AGREE WITH THAT, BUT IT'S THE TENANT -- I'M NOT FIGHTING WITH YOU ABOUT THIS, THIS IS
AN EXAMPLE OF WHERE THAT RIGHT TO ENTRY MIGHT BE INVOLVED. APPELLANT: SURE.
THE TENANT IS THERE 24/7, THE TENANT IS THERE ON A DAILY, REGULAR, ROUTINE BASIS AS A
MATTER OF OPERATING ITS BUSINESS, AN OUT OF POSSESSION LANDLORD IS --
JUSTICE PATTERSON: NOT PRESENT. APPELLANT: IS JUST THAT, AN OUT OF
POSSESSION LANDLORD. JUSTICE PATTERSON: LET ME ASK YOU BECAUSE THE
PHOTOGRAPHS ARE NOT VERY REVEALING, THIS WAS A DRIVEWAY USED FOR ESSENTIALLY FOR PEOPLE
TO COME AND LOOK AT POSSIBLE CARS THEY MIGHT WANT TO BUY, THERE WERE CARS PARKED ON THE
DRIVEWAY, AM I CORRECT ABOUT THAT. APPELLANT: YES, WHEN THE BUSINESS IS
OPEN AND OPERATING THE GATE IS OPEN SO THAT BUSINESS INVITEES CAN WALK ON.
JUSTICE PATTERSON: YOU CAN WALK ON AND DO THAT. SO IF THE LANDLORD SUDDENLY DECIDED I'VE
GOT TO PLOW THIS THING BECAUSE THERE WAS JUST A SNOW STORM, THE LANDLORD WOULD HAVE
ENCOUNTERED CARS THAT HAD NO OWNERSHIP OR INTEREST IN ON THAT LOT AND WOULD NOT BE IN
A POSITION EVEN TO PLOW THAT. APPELLANT: CORRECT. JUSTICE
PATTERSON: SO THAT'S WHAT YOUR POINT WITH RESPECT TO THE CONTROL ISSUE, CORRECT?
APPELLANT: CORRECT. AND SO -- JUST TO YOUR HONOR'S POINTS, I KNOW WE'RE TALKING ABOUT
THE LANGUAGE OF THE LEASE, ABOUT IF YOU LOOK AT THE MILACCI CASE THERE WAS NO LEASE, SO
THE TENANT IN MILACCI WHO I BELIEVE WAS THE STATE HAD UNDERTAKEN, THERE WAS AN UNDERSTANDING
AND AGREEMENT BETWEEN THE OUT OF POSSESSION LANDLORD AND THE TENANT THAT THE TENANT WAS
RESPONSIBLE FOR MAINTENANCE REPAIR OF THE FLOOR OF THE SHOWROOM, WHATEVER YOU WANT TO
CALL IT, WHERE THE BUSINESS WAS TAKING PLACE. THAT'S EXACTLY WHAT WE HAVE HERE.
JUSTICE ALBIN: WELL, OKAY, SO LET ME GIVE YOU A SLIGHTLY DIFFERENT SCENARIO. YOU HAVE
A LANDLORD WHO PERIODICALLY INSPECTS THE LEASED PREMISES BECAUSE HE WANTS TO MAKE CERTAIN
THE TENANT ISN'T DESTROYING IT. IN THIS SITUATION INSTEAD OF SNOW HE SEES A HUGE SINK
HOLE AND KNOWS THAT PEOPLE, CARS, PEDESTRIANS MAY BE GOING THROUGH THAT DRIVEWAY AND SUFFER
SERIOUS INJURY AND HIS INTENT IS MAKING THE REPAIR. I HAVE TWO QUESTIONS FOR YOU, THE
FIRST ONE, UNDER THE LEASE, ARTICLE 21, DOESN'T THE LANDLORD HAVE THE RIGHT TO MAKE THE
REPAIR? AND NUMBER TWO, EVEN IN THE ABSENCE OF ARTICLE 21, NO CONTRACT, WONDER HE HAVE
A DUTY TO DO SO? BECAUSE THE LANDLORD HAS LEASED THE PREMISES, IS MAKING A PROFIT FROM
THE PREMISES, AND ALSO HAS AN OBLIGATION, JUST AS THE TENANT DOES, TO MAKE CERTAIN THAT
INNOCENT MEMBERS OF THE PUBLIC ARE NOT GOING TO BE EXPOSED TO UNNECESSARY DANGERS. GO
AHEAD. APPELLANT: IF I MAY JUSTICE ALBIN, THE SECOND QUESTION FIRST. IF
YOU HAVE A LANDLORD LIKE AS WE HAVE HERE WHO IS WHERE THE TENANT IS THE DE-FACTO OWNER,
TAKE A TRIPLE NET LEASE FOR EXAMPLE, IT'S THE CONTINUE NANT THAT HAS THE OBLIGATION TO
MAINTAIN THE DEMISED PREMISES, NOT -- JUSTICE ALBIN: SO YOU'RE TELLING ME
IF THE LANDLORD PASSES BY AND SEES A DANGEROUS CONDITION OF PROPERTY ON HIS PREMISES,
THAT HE CAN REPAIR AND HE KNOWS THAT THERE'S A SUBSTANTIAL LIKELIHOOD THAT SOMEONE IS
GOING TO BE INJURED AND HE'S PROFITING THROUGH THE RENT, HE CAN JUST RIDE ON, HE HAS NO
OBLIGATION, NO DUTY? APPELLANT: NO, I'M NOT SUGGESTING THAT, YOUR HONOR.
JUSTICE PATTERSON: THE APPROPRIATE THING IN THAT SITUATION WOULD BE TO CONTACT
THE COMMERCIAL ENTERPRISE THAT'S ON THE PROPERTY. APPELLANT: UNDER YOUR HONOR'S
SCENARIO THE OWNER HAPPENS TO BE DRIVING BY AND I WOULD AGREE WITH YOU THAT WHETHER IT'S
-- WHETHER YOU WANDER TO CALL IT A LEGAL DUTY OR NOT THE OWNER SHOULD CALL THE TENANT
AND SAY HEY YOU HAVE AN ISSUE, ARE YOU ADDRESSING THIS, HAVE YOU BEEN ADDRESSING IT, OR
UNDER 21 TAKE THE MATTER INTO ITS OWN HANDS. BUT THAT'S THE DRIVE BY IS INCIDENTAL,
THAT'S NOT PART OF THE OWNER'S RESPONSIBILITY. JUSTICE ALBIN: BUT IT MIGHT BE,
MAYBE NOT IN THIS CASE WHERE THERE'S SNOW, YOU KNOW, IT SNOWS AND THE SNOW MAY BE THERE
ONE DAY AND THE LANDLORD MIGHT NOT HAVE NOTICED, BUT THERE ARE MANY CASES WHERE LANDLORDS
INSPECT THEIR PROPERTIES, STRIP MALLS, THEY WANT TO MAKE CERTAIN THE TENANTS AREN'T DESTROYING
IT, THEY MAY VERY WELL BE AWARE OF DANGERS TO THE PROPERTY THAT MAY EXPOSE MEMBERS OF
THE PUBLIC TO HARM. AND WOULD YOU AGREE UNDER THAT CIRCUMSTANCE, REGARDLESS OF WHATEVER
CONTRACTUAL OBLIGATIONS THE TENANT MAY HAVE TO THE LANDLORD THE LANDLORD HAS THE DUE TOE
TO REPAIR HIS PROPERTY IF THE TENANT WOBT DO SO IN ORDER TO PROTECT THE PUBLIC.
APPELLANT: IF THE LANDLORD IS AWARE OF A CONDITION THAT IS A POTENTIAL HAZARD?
JUSTICE ALBIN: THAT'S RIGHT, ON THE LEASED PREMISES. APPELLANT: THAT
THEY WOULD HAVE A DUTY. THAT PRESUPPOSES THAT THEY'VE MADE AN INSPECTION OR THEY HAVE
ANY KIND OF DUTY. JUSTICE ALBIN: KNEW OR REASONABLY KNOW, WELL THE QUESTION
OF DUTY IS A QUESTION OF LAW, THEY KNEW OR REASONABLY KNOW THAT THERE IS A PRESENT
DANGER ON THE PROPERTY, DO THEY HAVE A DUTY TO CONTACT THE TENANT TO REPAIR IT OR TO DO SO
THEMSELVES ON PROPERTY THAT THEY OWN AND FROM WHICH THEY'RE MAKING A PROFIT?
APPELLANT: THE PROFIT -- LET ME ADDRESS THE PROFIT ISSUE, IF I MAY. THERE IS NO CONTINUE
TING JAENS ON SAY THE AMOUNT OF CARS SOMEBODY COMING ON TO THEIR CAR LOT, IF THEY PURCHASED
A CAR. JUSTICE ALBIN: I'M ASKING A GENERAL -- I WAS ASKING A HYPOTHETICAL
QUESTION. APPELLANT: YES. THE COURT: I'M NOT AND CORD TO YOUR
FACTS NECESSARILY. APPELLANT: ALTHOUGH THIS IS NOT A TRIPLE NET LEASE THE
FACT THAT THERE IS LANGUAGE IN HERE THAT SAYS THE TENANT IS ACTING AS IF THEY ARE THE
DE FACTO OWNER, LET'S SAY THE LANDLORD IS IN CALIFORNIA OR SOMEWHERE OUT OF STATE, THEY
DON'T HAVE A BL ON GAGS TO MAKE AN INSPECTION OF THE PREMISES. JUSTICE ALBIN:
I UNDERSTAND THAT, I GAVE YOU A DIFFERENT EXAMPLE, IF THEY KNEW OR REASONABLY HAD --
APPELLANT: IF THEY KNEW, IF THEY DRIVE BY, I'M HESITANT TO USE THE FAMOUS
ATTORNEY WORDS IT DEPENDS, BUT WHAT IF THEY -- WHAT IF THERE'S A TRANSIENT CONDITION OR
A DIV. IT SOMEWHERE WHERE THEY CAN'T OBSERVE IT. JUSTICE ALBIN: THAT'S DIFFERENT,
AND THE REASON I'M ASKING THESE QUESTIONS, I'M ABOUT TO STOP, DUTY IS A DUTY, UNDER OUR
TORT LAW ISN'T NECESSARILY RESTRICTED BY THE CONTRACTUAL TERMS BETWEEN A LANDLORD AND
TENANT, A DUTY MAY IMPOSE UPON THE OWNER OF PROPERTY AN OBLIGATION THAT IS GREATER THAN
THE PARTIES HAVE AGREED TO AMONG THEMSELVES, DO YOU AGREE WITH THAT? APPELLANT:
I AGREE WITH THAT. BY THE SAME TONE, YOUR HONOR, IF THE COURT LOOKS AT ALL OF THE APPELLATE
DIVISION CASES ADDRESSING THE DUTIES AND OBLIGATIONS IF ANY OF AN OUT OF POSSESSION
LANDLORD VIS-A-VIS THE TENANT IN A DEMISED PREMISES WITH THE EXCEPTION OF THE COURT IN
THIS CASE, THEY'VE ALL HELD THAT -- AND THE EXCLUSIVE RIGHT AND OBLIGATION TO MAINTAIN
THOSE PREMISES ARE WITHIN THE TENANT'S RESPONSIBILITY, THEN IT'S THE TENANTS THAT
OWES THE DUTY, NOT THE LILD. JUSTICE PATTERSON: YOU HAVE TWO CRITICAL FACTS HERE,
YOU'RE DEALING WITH A COMMERCIAL PREMISES AND YOU'RE DEALING WITH A COMMERCIAL PREMISES
THAT IS EXCLUSIVELY IN THE POSSESSION OF THIS TENANT, THIS IS KNOTS A STRIP MALL, THIS IS
NOT A SHOPPING MALL. APPELLANT: IT'S NOT A HOUSE. JUSTICE
PATTERSON: IT'S NOT A RESIDENTIAL PROPERTY. THIS IS A COMMERCIAL PROPERTY HANDED OVER
TO THE TENANT TO OPERATE A BUSINESS WITH NO SUPERVISION FROM THE LANDLORD. THOSE ARE
CRITICAL FACTS FOR YOU, ARE THEY NOT. APPELLANT: YES. THE OTHER POINT I WOULD
MAKE ABOUT SECTION 22 IS THERE'S NOTHING IN THE LEASE THAT AFFIRMATIVELY OBLIGATES THE
LANDLORD TO MAINTAIN THE PROPERTY. SO EVEN THOUGH THE LEASE MAY SAY THEY HAVE A RIGHT
OF ENTRY, THAT'S DIFFERENT FROM SAYING THEY HAVE A RIGHT TO REMOVE SNOW AND ICE OR KEEP
A PRICED OF TRANSIENT CONDITIONS. CHIEF JUSTICE RABNER: ISN'T THAT A THIRD
CRITICAL FACTOR, THAT THIS CASE INVOLVES SNOW AND ICE, YOU MAY HAVE A DUTY IN ANOTHER
AREA THAT ARISES, THAT PRESENTS A DAENG INJURY, BUT OUR ANALYSIS HERE, WHETHER UNDER THE
CONTRACT OR UNDER THE HOPKINS FACTORS HAS TO FOCUS ON SNOW AND ICE. NO?
APPELLANT: YES. SNOW AND ICE BEING A TRANSIENT CONDITION IS SIMILAR TO MOST OF THE APPELLATE
DIVISION CASES THAT I'VE REFERENCED HERE TODAY AND IN OUR BRIEF, THE -- AND THAT'S ALSO
I THINK PART OF WHAT JUSTICE ALBIN WHAT YOU WERE ASKING, IS IT COINCIDENTAL THAT -- IT
CAN'T BE BASED ON COINCIDENCE, WHETHER A LANDLORD IS GOING TO PASS BY AND THEY HAPPEN
TO SAY A TRANSIENT CONDITION AND DO THEY HAVE A DUTY TO -- IT CAN'T HINGE ON THAT, SO
BECAUSE IT'S TRANSIENT, YOU KNOW, IN ANOTHER CASE THERE WAS DUST AND DIRT ON THE FLOOR
THAT COULD BE CLEANED UP, SNOW AND ICE, YOU KNOW, WITH MELTING AND RE FREEZING CONDITIONS,
THOSE ARE ALL TRANS TRANSIENT CONDITIONS THAT THE TENANT IS IN THE BEST POSITION AS THE
PARTY WITH EXCLUSIVE POSSESSION OF THE PREMISES AND THE EXCLUSIVE OBLIGATION TO MAINTAIN
THAT IT'S THEIR DUTY NOT THE OUT OF POSSESSION LANDLORD TO ADDRESS THOSE TRANSIENT
CONDITIONS. CHIEF JUSTICE RABNER: OTHER QUESTIONS, ANYONE? ANYTHING YOU'D
LIKE TO ADD. APPELLANT: NOT AT THIS TIME, YOUR HONOR. KRAUS KRAUS THIS CASE
COMES FROM THIS COURT FROM THE APPELLATE DIVISION, I AM HERE TODAY TO ASK YOU TO
AFFIRM WHAT THE APPELLATE DIVISION DID. IN PARTICULAR THE APPELLATE DIVISION LOOKED AT
THE CASES THAT CAME FROM THIS COURT. AND THEY APPLIED INSTRUCTIONS ON HOW TO FIND OUT
IF SOMEONE HAS THE DUTY IN THIS STATE TO THE FACTS OF THIS CASE. WHAT THE
PETITIONER IS ARGUING FOR IS ESSENTIALLY KREE ALTH A CLASS OF XHERNL LANDOWNERS THAT
HAVE SPECIAL PROTECTIONS THAT AREN'T AVAILABLE TO ANY OTHER LANDOWNERS IN THIS STATE.
THE AREA WHERE MY CLIENT FELL WOULD OTHERWISE BE CONSIDERED A COMMON AREA IF THERE WAS
ANOTHER TENANT ON THE PROPERTY. SO, COMMERCIAL PROPERTIES WITH MULTIPLE TENANTS,
THE LANDOWNER WOULD HAVE THE DUTY THERE. JUSTICE FERNANDEZ-VINA: ISN'T THAT
A SIGNIFICANT DIFFERENCE. ? YOU HAVE A SINGLE TENANT WHO IS IN POSSESSION
OF THE ENTIRE PREMISES? ISN'T IT VERY DIFFERENT. MS. KRAUSE:
COMBROBL IT'S ANY DIFFERENT. THE ONLY WAY YOU COULD TRY TO DISTINGUISH A DIFFERENCE
IS IF YOU'RE TALKING ABOUT THE ELEMENT OF CONTROL. JUSTICE FERNANDEZ-VINA:
ISN'T THAT KEY TO THE ARGUMENT HERE? MS. KRAUSE: NOT ACCORDING TO MONDAY
NANG COMPANY, MONDAY COMPANY IS VERY CLEAR IT IS SOMETHING THAT CAN BE CONSIDERED BUT
IT'S NOT A DECIDING FACTOR. JUSTICE FERNANDEZ-VINA: ISN'T THAT A KEY FACTOR
WHERE THERE ARE NO OTHER FACTORS? MS. KRAUSE: THE FACTOR IS THAT THE FALL
HAPPENS RIGHT NEXT TO THE PUBLIC SIDEWALK. JUSTICE FERNANDEZ-VINA: ON THE
TENANT'S PREMISES, THOUGH, RIGHT? MS. KRAUSE: YES, BUT HERE IS WHAT WE HAVE
TO LOOK AT. THIS LANDOWNER HAD A DUTY TO CLEAR THAT SIDEWALK, THE PICTURES AND APPENDIX
ARE CLEAR THAT NOBODY CLEARED THAT SIDEWALK. THEY HAD TO BE IN THAT SPOTS TO CLEAR THOSE
SIDEWALKS AND IF THEY WERE IN THAT SPOT AN PARTICIPATING IN THAT DUTY, THEY WOULD HAVE
SEEN RIGHT OUT OF THEIR PERIPHERAL VISION, RIGHT NEXT TO THE SIDEWALK THAT THE ENTIRE
DRIVEWAY WAS A SHEET OF ICE. AS MY CLIENT TESTIFIED AFTER HE WAS ON THE GROUND
AND FELL WHEN THE EMTS FINALLY REACHED HIM THEY HAD TO CRAWL ON THEIR HANDS AND NIECE
TO GET TO HIM BECAUSE THE WHOLE THING WAS A SHEET OF ICE. HAD THIS LANDOWNER PARTAKEN
IN ITS RESPONSIBILITY TO CLEAR THOSE SIDEWALKS, IT'S RIGHT THERE. JUSTICE
FERNANDEZ-VINA: IF HE WAS A LITTLE FURTHER UP THE DRIVEWAY WOULD THEY STILL HAVE THE DUTY?
WHERE DOES THAT DUTY END? MS. KRAUSE: IN THIS CASE IS THE THE
ENTIRE DRIVEWAY WAS A SHEET OF ICE. JUSTICE FERNANDEZ-VINA: WHERE DOES THE
DUTY ENDS, IF YOU COULD SEE PERIPHERALLY ALL THE WAY UP TO THE DOOR OF THE DRIVEWAY, WHERE
DOES THE DUTY END. MS. KRAUSE: THE DUTY ENDS WHERE IT WOULDN'T BE UNREASONABLE
TO FORESEE OR EXPECT A DANGER. JUSTICE FERNANDEZ-VINA: WASN'T THE DRIVEWAY
COMPLETELY COVERED IN ICE. MS. KRAUSE: CORRECT. JUSTICE
FERNANDEZ-VINA: WOULDN'T IT BE FORESEEABLE ALL THE WAY UP THE DRIVEWAY? AND IF SOMEONE
WAS THERE TO CLEAN THE SIDEWALK, THE DRIVEWAY AND THE BACK LOT BECAUSE IT WOULD ALL BE
FORESEEABLE IS THE THAT THE DUTY YOU WOULD IMPOSE ON THE LANDLORD. MS. KRAUSE:
POTENTIALLY. THE DUTY MAY HAVE BEEN RESOLVED SIMPLY BY CONTACTING THE TENANT JUSTICE
TIMPONE: BUT THE DUTY WAS ON THE TENANT AN YOU HAVE SETTLED WITH THE TENANT.
MS. KRAUSE: UNDERSTAND WHAT ANALYSIS WAS THE DUTY UNDERSTAND THAT OF THE TENANT JUSTICE
TIMPONE: IN OUR CASE LAW. MS. KRAUSE: THE DUTY UNDER OUR CASE LAW THE
DUTY IS DECIDED BY LOOKING AT SEVERAL FACTORS AN AN AGREEMENT BETWEEN THE PARTIES IS ONE
FACTOR YOU'RE GOING TO LOOK AT. CHIEF JUSTICE RABNER: LET'S LOOK AT THE
HOP KINS FACTORS AN THE THIRD FACTOR IN PARTICULAR I'M FOLLOWING UP ON JUSTICE
PATTERSON'S QUESTIONS EARLIER. YOU HAVE USED CARS ON THIS LOT. WLAS THE ABILITY AND
OPPORTUNITY OF THE OWNER TO CLEAN UP THIS LOT WITHOUT DAMAGING THAT WHICH IS ON THE
DRIVEWAY? MS. KRAUSE: WELL, THE ISSUE WITH THIS PARTICULAR DANGER IS NOT THAT
THE LOT WASN'T PLOWED, THE LOT WAS PLOWED. THE DANGER HERE IS NOW THAT ICE HAD BEEN ALLOWED
TO FORM BECAUSE THERE WAS NO SANDING OR ASSAULTING DONE, SANDING AND ASSAULTING A
SAFE PASSAGEWAY FROM THE SIDEWALK TO THE BUILDING IS NOT GOING TO INTERFERE WITH ANY OF
THOSE CARS. THE COURT: YOU SAID EARLIER IF I HEARD YOU CORRECTLY THAT THE
DUTY WOULD EXTEND TO THE ENTIRE DRIVEWAY NOW IT SOUNDS AS IF YOU'RE LIMITING IT TO A
SINGLE PASSAGEWAY TO THE FRONT OF THE BUILDING. A. MS. KRAUSE: THE LANDLORD
IS RESPONSIBLE FOR AF SAFE INGRESS AN EGRESS TO THE PROPERTY, THE QUESTION I WAS ASKED
OF WHERE DOES THE TOOTH END IS A QUESTION OF REASONABLENESS. SIT REASONABLE TO EXTEND IT
TO THE ENTIRE DRIVEWAY THAT'S A QUESTION OF REASONABLENESS. CHIEF JUSTICE
RABNER: AND YOUR POSITION ON THAT IS. MS. KRAUSE: I THINK IT'S REASONABLE
TO PROVIDE SAFE INGRESS AN EE DPRES TO THE PROPERTY. POTENTIALLY IT COULD BE EX
SPANLDED BEYOND THAT BUT IT IS REASONABLE TO HOLD LANDLORDS RESPOND FOR SAFE INGRESS AN
EGRESS. JUSTICE ALBIN: THERE WAS A DUAL DUTY ON THE PART OF BOTH THE TENANT AND
THE LANDLORD, CORRECT? JUSTICE PATTERSON: PLEASE SPEAK A LITTLE SLOWER.
MS. KRAUSE: THE SIDEWALK WAS NOT MENTIONED IN THE LEASE, BUT IN TERMS OF
MY UNDERSTANDING OF THE LAW, THE TENANT WOULD NOT BE ABLE TO ESCAPE RESPONSIBILITY FOR
THE SIDEWALK SIMPLY BECAUSE THE LANDLORD HAD A NONE DEL ABDOMINAL DUTY. JUSTICE
ALBIN: IT WOULD BE A DUAL DUTY. MS. KRAUSE: CORRECT. JUSTICE ALBIN:
YOU'RE ARGUING IT WAS A DOOUL DUTY AT LEAST WITH RESPECT TO THAT PORTION OF THE DRIVEWAY?
MS. KRAUSE: CORRECT. AND AGAIN, IN READING ALL THE CASE LAW AND READING
THE WAY THAT THE COMMON LAW HAS EVOLVED IN THIS STATE IT'S DONE SO IN A WAY TO MAKE THINGS
CLEARER MORE CONCISE AN LESS ARBITRARY AN HERE IF YOU LOOK AT THIS WHOLE PASSAGEWAY, THE
SIDEWALK, THE DRIVEWAY ARE MADE OUT OF CONCRETE SLABS THAT ARE APPROXIMATELY THE SAME
COLOR AND THE SAME SIZE, HAD HE TAKEN TWO MORE STEPS, THE DISTANCE WAS PROBABLE BLEE
ABOUT FROM WHERE I AM AT TO THAT COUNSEL TABLE. JUSTICE PATTERSON: YOU'RE
REALLY ARGUING THAT SIDEWALK LIABILITY SHOULD EXTEND TO SURROUNDING AREAS MADE OUT OF
SIMILAR MATERIAL THAT IS PRIVATE COMMERCIAL PROPERTY THAT IS NOT SIDEWALK; ARE YOU REALLY
HERE ARGUING THAT WE SHOULD HAVE SIDEWALK LIABILITY PLUS SOME OTHER STUFF AROUND IT
THAT MIGHT LOOK THE SAME? MS. KRAUSE: MY ARGUMENT HERE IS THAT THE DISTINCTION
HERE BECOMES ARBITRARY. JUSTICE PATTERSON: SIDEWALKS ARE PUBLIC EGRESS,
HAVE ALWAYS BEEN DEALT WITH SEPARATELY UNDERSTAND THE LAW. YOU'RE NOW SAYING THAT THE
BOUNDARIES OF A SIDEWALK ARE ARBITRARY, WE SHOULD JUST KINDS OF KEEP EXTENDING THE LIABILITIES
BEYOND THE SIDEWALK SFR? KROOUS KROOUS ITS EYES NOT ABOUT AN EXTENSION OF SIDEWALK LIABILITY,
JUST THAT IT'S ARBITRARY THAT HIS SAME PATH, THE SAME LOOKING, YOU KNOW --
JUSTICE PATTERSON: HE COULD HAVE FALLEN ON THE SIDEWALK IS WHAT YOU'RE SAYING AND THERE
WOULD BE A DPIF POTENTIALLY SET OF LIABILITIES AS TO AT LEAST ONE OF THE PARTIES IN THIS
CASE, BUT HE DIDN'T FALL ON THE SIDEWALK. MS. KRAUSE: CORRECT.
JUSTICE PATTERSON: SO WHERE ARE YOU GOING WITH THAT? MS. KRAUSE: JUST, AGAIN,
TO STATE THAT THE LANDLORD HAS A NONE DEL ABDOMINAL DUTY BECAUSE IT OWNS THAT PROPERTY.
JUSTICE LA VECCHIA: NONE DEL ABDOMINAL DUTY TO DO WHAT, TO MAINTAIN IS
THAT WHAT YOU'RE ARGUING BECAUSE IT'S NOT REPAIR. YOU'RE TALKING MAINTENANCE, AREN'T YOU?
MS. KRAUSE: I AM TALKING ABOUT THE SNOW AND ICE ROOUFL, SO YES. Q. HOW?
JUSTICE ALBIN: HOW DO YOU RESPOND TO THE TRANSIENT ARGUMENT BECAUSE THE
SIDEWALK IS DIFFERENT FROM THE DRIVEWAY BECAUSE THEN THE SIDEWALK YOU HAVE GENERAL MEMBERS
OF THE PUBLIC TRAVERSING THE SIDEWALK. THE ONLY PEOPLE GOING INTO THE DRIVEWAY ARE GOING
TO BE EMPLOYEES OR BUSINESS INVITED TEES, CORRECT? THAT'S ONE VERY BIG
DISTINCTION, DO YOU AGREE? MS. KRAUSE: RIGHT. YES. JUSTICE
ALBIN: SO WITH RESPECT TO -- AND WITH RESPECT TO THE DRIVEWAY AND SNOW AND ICE, THAT IS
A TRANSIENT CONDITION AND CAN YOU EXPECT A LAND WHO HAS DEMISED THE PREMISES UNDERSTAND
A LEASE, UNDER THE PRETTY MUCH EXCLUSIVE CONTROL OF THE TENANT TO BE RESPONSIBLE FOR THAT
WHEN THE LEASE SAYS THAT THE TENANT IS RESPONSIBLE FOR THE MAINTENANCE OF THE
PROPERTY? GO HAETD? MS. KRAUSE: WELL, ANYONE IN SENSE OF SNOW
AND ICE CAN BE TRANSITORY , BUT THIS IS SOMETHING THAT HAS TO BE TAKEN INTO CONSIDERATION
FOR EVERY SINGLE WINTER THERE HAS TO BE A PLAN TO ADDRESS SNOW AND ICE REMEDIATION.
JUSTICE PATTERSON: THEY HAD ONE, A MAINTENANCE OBLIGATION ON THE TENANT.
JUSTICE ALBIN: LET'S SAY THE LEASE HAD SNOW AND ICE, WOULD YOU BE ARGUING BEFORE US.
MS. KRAUSE: I STILL BELIEVE THEY HAD THE DUTY TO ACT REASONABLY. THEY'RE
IN THE POSITION WHERE THEY HAD TO CLEAR THE SIDEWALK. JUSTICE ALBIN: SO
THE CONTRACT LANGUAGE DOESN'T MEAN ANYTHING BECAUSE YOU'RE SAYING THE DUTY SUPERSEDES
IT; IS THAT WHAT YOU'RE ARGUING? MS. KRAUSE: IT CAN BE CONSIDERED AS PART
OF THE FACTORS BUT IT'S NOT THE CONTROLLING FACTOR. CHIEF JUSTICE RABNER:
YOU DON'T DISPUTE THAT YOU'RE ASKING FOR AN EXPANSION OF THE LAW AS IT CURRENTLY EXISTS?
MS. KRAUSE: I DON'T BELIEVE THAT IT WOULD BE AN EXPANSION, IF YOU LOOK AT
HOP KINS AN MONDAY KNACK COMPANY, MON IN PARTICULAR IS CLEAR THAT THE LAND LORD HAS A
DUTY TO INSPECT THE PROPERTY. THAT WAS A CASE WHERE THERE WAS TALK ABOUT CONTROL?
JUSTICE ALBIN: SO LET'S SAY THERE IS A DUTY, LIKE EVERY MINUTE, EVERY SECOND, EVERY
TIME IT RAIN,ER TIME IT SNOWS. MS. KRAUSE: WE JUST NEED TO LOOK AT THE
FACTS OF THIS CASE TO ANSWER THAT QUESTION. THE SNOWFALL HAD OCCURRED THE NIGHT BEFORE.
THE TENANT HAD TESTIFIED THAT THEY HAD CLEARED THE LIGHT AT ABOUT 5:30 THE NIGHT BEFORE.
THIS ACCIDENT HAPPENED JUST AFTER 10:00 THE NEXT MORNING. THERE IS PLENTY OF TIME AN
OPPORTUNITY FOR THAT LAND TO HAVE DONE THE WORK INFORM CLEAR THAT SIDEWALK, THE LAND DIDN'T
SHOW UP TO CLEAR THE SIDEWALK. THE LEASE DOESN'T TALK ABOUT THE SIDEWALK. THERE IS NO
PLAN TO DEAL WITH IT. JUSTICE ALBIN: YOU DON'T KNOW WHAT THE ARRANGEMENT
IS WITH RESPECT TO CLEARING THE SIDEWALK. MS. KRAUSE: I DIDN'T HEAR THAT.
JUSTICE ALBIN: DO YOU KNOW WHAT ARRANGEMENT THE TENANT AN LAND HAD IN TERMS
OF CLEARING THE SIDEWALK IN FRONT OF THE PREMISES? MS. KRAUSE: THERE IS
NOTHING IN THE LEASE ABOUT IT. JUSTICE PATTERSON: THERE IS NO DISCOVERY
ON IT BECAUSE THIS WASN'T A SIDEWALK CASE. MS. KRAUSE: THERE IS NOTHING
IN THE RECORD. JUSTICE ALBIN: SO FOR ALL WE KNOW THE CUSTOM AND PRACTICE
MAY HAVE BEEN FOR THE TENANT TO CLEAR THE SIDEWALK? MS. KRAUSE: IT
MAIFBL, BUT THE LANDLORD STILL HAD THE DUTY TO BE THERE. JUSTICE ALBIN: THAT,
I UNDERSTAND. CHIEF JUSTICE RABNER: ANYTHING YOU WOULD LIKE TO ADD?
MS. KRAUSE: I WILL JUST CLOSE BY, YOU KNOW, THIS COURT HAS LONG DISFAVORED EXCULPATORY
AGREEMENTS AND MY PERSPECTIVE IS THAT TO READ TERMS LIKE DE FACTO OWNER, MAINTENANCE
REPAIR, THERE IS NO TALK ABOUT THE EXACT SNOW AND ICE ROOUFL IN THE LEASE, BUT, WHAT THIS
COURT IS ENDORSING IS AN EXCULPATORY AGREEMENT. JUSTICE PATTERSON: ON THE
ONE HAND YOU'RE SAYING THAT IT IS NOT ADDRESSED IN THE AGREEMENT AND IN THE OTHER YOU'RE
SAYING IT IS AN EXCULPATORY AGREEMENT, WHICH IS IT KRAUSZ KRAUSE I AM SAYING IN INTERPRETING
THIS LEASE TO MEAN SNOW AND ICE REMEDIATION WHEN IT IS NOT IN THE LEASE THIS COURT IS
ESSENTIALLY DRAFTING AN EXCULPATORY AGREEMENT BETWEEN THESE PARTIES. JUSTICE
ALBIN: IT WILL BE EASIER IN THE FUTURE FOR PEOPLE TO PUT SNOW AND ICE IN THE CONTRACT
SO JUST IMAGINE THAT IT'S THERE; OKAY? ARE YOU SAYING THAT IN EVERY CASE
WHERE COMMERCIAL PREMISES ARE LEASED, AND THERE IS A PROVISION IN THE CONTRACT THAT REQUIRES
THE TENANT TO ROOUF THE SNOW AND ICE THAT THE LANDLORD IS GOING TO BE RESPONSIBLE FOR
EVERY PERSON WHO FALSE ON THE DRIVEWAY IF THE TENANT DOES NOT ADHERE TO THE PROVISIONS
OF THE CONTRACT? MS. KRAUSE: IT HAS TO BE LOOKED AT WHETHER OR NOT THEY
COULD HAVE REASONABLY ACTED AND IN THIS CASE, IT HAD BEEN HOURS SINCE THE SNOW FALL.
THEY SHOULD HAVE KNOWN, THEY SHOULD HAVE BEEN IN THE POSITION TO CLEAR THAT SIDEWALK WHICH
WOULD HAVE GIVEN THEM THE OPPORTUNITY TO JUST LOOK OVER THEIR SHOULDER AND SEE THAT THE
ENTIRE DRIVEWAY WAS A SHEET OF ICE THERE WAS NO SAFE INGRESS OR EGRESS. CHIEF
JUSTICE RABNER: THANK YOU. MS. KRAUSE: THANK YOU. CHIEF
JUSTICE RABNER: MR. SAVETT VIT, BRIEF REBUTTAL? MR. SAVETT: THANK YOU, YOUR
HONOR. A COUPLE OF BRIEF POINTS, WHAT MR. KRAUSE IS ARGUING ESSENTIALLY FLIES
IN THE FACE OF THE WHOLE IDEA OF AN OUT OF POSSESSION LANDLORD VMENT YOU'RE EITHER OUT
OF POSSESSION AN THERE IS A CONTRACT TO -- IN THIS CASE, AS WE HAVE HERE THAT THE TENANT
HAS ASSUMED THE OBLIGATION TO MAINTAIN THE REPAIR OR YOU DON'T OR YOU HAVE A LANDLORD
WHO IS HANDS ON AND AFFIRMATIVELY TAKES THAT OBLIGATION, THAT'S NOT WHAT WE HAVE HERE.
LET ME ADDRESS A COUPLE OF BRIEF POINTHS. COUNSEL MENTIONED THE
MON CASE AND THE HOP KINS CASE. THE JIM MEN NEZ CASE WHICH I MENTIONED AT THE OUTSET
TO THE COURT, THAT HAS BEEN DISTINGUISHED MULTIPLE TIMES BY THE APPELLATE DIVISION IN
CASES, FACTUALLY SIMILAR TO WHAT WE HAVE HERE. IN JIM, IT SAYS MON DOES NOT HOWEVER,
ADDRESS THE PRECISE ISSUE PRESENTED HERE, WHICH IS WHETHER A COMMERCIAL LAND HAS A DUTY
OF CARE TO INVITEES OF ITS TENANT WHEN THE LEASE AGREEMENT BETWEEN THE LAND AND TENANT
PLACES RESPONSIBILITY FOR ORDINARY MAINTENANCE AN REPAIR OF THE PREMISES UPON THE TENANT;
THAT IS ALMOST VERBATIM FROM THE QUESTION THAT THIS COURT HAS CERTIFIED. MON
IS A SIDEWALK CASE WHERE THERE WAS A SIGN THAT, I BELIEVE, FLEW OUT OR WAS BLOWN OUT,
SOMEHOW LEFT THE SIDEWALK AND THE LAND WAS OBLIGATED TO STILL HAVE A DUTY TO HAVE
MAINTENANCE OVER THE SIDEWALK OR THINGS ON THE SIDEWALK; THAT'S NOT WHAT WE HAVE HERE.
WITH REGARD TO HOP KINS, SEVERAL COURTS HAVE DISTINGUISHED HOP DEPENDING ON
THE PANEL. MOST NOTABLY IN GAR RENG JER, THE COURT SAID EVEN IF THE HOP -- LET ME BACK
UP ONE SECOND. IT'S OUR POSITION THAT HOP HAS NO MRIK ABILITIES TO THIS BECAUSE IN HOP
WE HAD A REAL ESTATE BROKER, THAT WAS THE ISSUE BEFORE THIS COURT, KWL THE REAL ESTATE
BROKER HAD A DUTY TO SOMEONE WHO WAS VISITING THE PROPERTY. JUSTICE PATTERSON:
HOPS SETS UP DUTY FRAKT TORS GENERALLY THAT GOVERN HERE SO YOU WIN UNDER THEM BUT YOU
WOULD AGREE THAT HOPS DUTY TEE FACTORS SET THE FRAMEWORK. MR. SAVETT: IT IS
MY READING OF HOPS THAT IT SETS UP THE GUIDANCE FOR WHETHER THERE IS A DUTY WHEN IT HASN'T
BEEN ESTABLISHED BEFORE, FOR EXAMPLE, A REAL ESTATE BROKER, BUT NOTABLY IN HOPS, THE COURT
DID NOT APPLY THE STANDARD TO THE HOME HONE IN HER. IT EVEN SAID THAT THE OEM HOMEOWNER
HAD A PREEXISTING DUTY TO PEOPLE WHO WERE COMING ON TO VISIT THE HOUSE. JUSTICE
LA VECCHIA: YOU SAID THE HOPS FACTORS ARE USEFUL IN THOSE SETTINGS BUT THEY DON'T ENCOMPASS
BUSINESS INVITEE AND ALL THE TYPICAL LABELS THAT WE USE IN SHORTHAND WAY TO DESCRIBE THE
NATURE OF A RECOGNIZED RELATIONSHIP BETWEEN SOMEBODY COMING ONTO THE PREMISES AN THE
PARTY THAT IS RESPONSIBLE. MR. SAVETT: CORRECT, YOUR HONOR. I WAS GETTING
BACK TO GAR JER, THE COURT SAID EVEN IF THE HOPS FACTORS WERE TO BE APPLIED IN LIGHT OF THE
UNDISPUTED NATURE OF THE RECORD GERMANE TO THE MAINTENANCE AN REPAIR OF THE AREA WHERE
THE PLAINTIFF FELL SUCH A RESULT COMPORTS WITH THE FACTORS IN HOPS AN THE COURT SAID THERE
IS NO PUBLIC INTEREST TO IMPOSE A DUTY, NO RELATIONSHIP BETWEEN THE PARTIES. THERE IS
NO RELATIONSHIP BETWEEN THE LANDLORD AND MR. SHIELDS, THERE IS NO ATTENDANT RISK, NO
OPPORTUNITY OR ABILITY TO EXERCISE REASONABLE CARE. THE ONLY OTHER POINT, I
KNOW WE TALKED ABOUT SECTION 21. I WOULD JUST POINT OUT AGAIN THAT THE RIGHT OF ENTRY,
WHICH IS WHERE SECTION 21 TALKS ABOUT IS SEPARATE AN APART FROM THE RIGHT OF CONTROL WHICH IS
THE OPERATIVE ISSUE THAT THIS COURT NEEDS TO LOOK AT, WHO HAD EXCLUSIVE CONTROL OF THE
PREMISES, WHO HAD THE ABILITY AND THE OBLIGATION TO MAINTAIN AND REPAIR AND DO THE SNOW
ROOUFL AND THAT FALSE EXCLUSIVELY WITHIN THE TENANT'S RESPONSIBILITY. CHIEF
JUSTICE RABNER: THANK YOU. BOTH COUNSEL, WE WILL TAKE THE MATTER UNDER
ADVISEMENT,