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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1992-11T2
DAVID AYALA,
Plaintiff-Appellant,
v.
WEST FIRST ROSELLE, LLC,
Defendant/Third-Party
Plaintiff-Respondent,
v.
TLMORE, INC. d/b/a TOP LINE,
Third-Party Defendant.
August 27, 2012
Submitted August 22, 2012 - Decided
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Before Judges J. N. Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Essex County,
Docket No. L-7233-10.
Brad S. Schenerman, attorney for appellant.
Lamb, Kretzer, Reinman & Roselle, attorneys for respondent (John A. Fearns, on
the brief).
PER CURIAM
Plaintiff appeals from a November 29, 2011 order granting summary judgment dismissing his
complaint arising out of injuries he sustained when he fell in a parking lot of property owned by defendant
West First Roselle, LLC (WFR), and leased to plaintiff's employer, third-party defendant TLMORE, Inc.,
d/b/a Top Line (Top Line). We affirm.
The record contains the following relevant facts, which we view in a light most favorable to plaintiff.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Top Line operated an appliance business and employed plaintiff as a deliveryman. Top Line leased
the building and parking lot (the Premises) from WFR "as is"; however, pursuant to paragraph six of the
Lease, WFR continued to occupy the following areas:
the back office including the "safe" storage closet; the storage room on the
second floor; the northeast corner of the parking lot[,] which measures one
hundred thirty-five (135) feet long by fifty (50) feet wide; and one-half (1/2) of
the entire width of the southern portion of the parking lot from the property line
to a depth of forty (40) feet.
Plaintiff certified that he "was walking in [the] parking lot of the [P]remises [and] was pulling a large
refrigerator when he fell in the driveway." It is undisputed that the accident occurred in that part of the
parking lot leased by Top Line. The accident occurred six months after the Lease became effective, and
there are no facts to suggest that during the lease term WFR caused or contributed to any unsafe
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conditions in the parking lot leased by Top Line.
In September 2011, plaintiff filed a motion seeking declaratory relief that the Lease "does not insulate
[WFR] from liability." Plaintiff argued that WFR owed him a duty of care because the Premises were not
"wholly demised." In October 2011, WFR filed its motion for summary judgment.1 WFR contended that it
was entitled to summary judgment because the accident occurred on property occupied by Top Line
pursuant to a "triple net" lease.2
On November 18, 2011, Judge Rachel N. Davidson conducted oral argument, denied plaintiff's motion, and
granted summary judgment to WFR. On November 29, 2011, Judge Davidson issued a six-page oral
opinion and stated:
It is established, for purposes of this motion, that [Top Line] leased the premises
in question under a triple net lease. [WFR] alleged that the contract in question
was a triple net lease in its statement of material facts, which was not disputed
by plaintiff.
In addition, [WFR] presented [Top Line] with a request that it admit that
the contract in question was a triple net lease, which was admitted by default.
There are no facts in dispute.
The only question for the [c]ourt to resolve is whether the terms of the triple net
lease in this case shield [WFR] from liability.
The judge then identified "two key cases": McBride v. Port Authority of New York and New Jersey, 295 N.J.
Super. 521 (App. Div. 1996), and Geringer v. Hartz Mountain Development, Corp., 388 N.J. Super. 392
(App. Div. 2006), certif. denied, 190 N.J. 254 (2007).
Judge Davidson correctly recognized that a landlord is not liable for personal injuries sustained by an
employee of a commercial tenant "due to a lack of proper maintenance or repair, when the lease
unquestionably places responsibility for maintenance or repair solely upon the tenant." McBride, supra, 295
N.J. Super. at 522; Geringer, supra, 388 N.J. Super. at 401. The judge then stated:
Plaintiff also seeks to distinguish the facts in McBride by pointing to the fact that
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the lease retained for [WFR] some small portion of the demised premises.
However, plaintiff presents no material facts suggesting that the personnel from
[WFR] were located at the retained premise, or any other facts suggesting that
[WFR] had an opportunity to discover what the plaintiff
. . . describes as a latent defect[.] Nor has plaintiff suggested that it requires any
more discovery to uncover any more facts on this issue. Indeed, plaintiff felt
that the issue was ripe for judgment as [he] filed [his] motion first.
Judge Davidson then held that WFR owed no duty of care to plaintiff and dismissed the complaint. This
appeal followed.
On appeal, plaintiff argues that the judge erred by concluding (1) that the Lease is a "triple net"
lease, and (2) that WFR is therefore insulated from liability. Although we owe no special deference to the
trial court's legal interpretations because the issues here involve questions of law, see Manalapan Realty v.
Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we affirm substantially for the reasons expressed by
Judge Davidson in her oral opinion. We add the following comments.
We reject plaintiff's argument that the judge erred by concluding that the Lease is a "triple net"
lease. A "triple net" lease is a lease in which a commercial tenant is responsible for "maintaining the
premises and for paying all utilities, taxes and other charges associated with the property." N.J. Indus.
Props. v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985). That is what occurred here.
Regarding utilities, taxes, and other expenses associated with the property, paragraph five of the
Lease provided in pertinent part:
This Lease is absolutely "triple net." During the Term, [Top Line] agrees to pay
all Operating Expenses (as hereafter defined).
5.1. "Operating Expenses" shall mean all expenses and costs of any
nature whatsoever relating to the Premises, whether general or
special, ordinary or capital in nature, including:
(i) all real estate taxes assessed against the Premises for land,
building, and improvements;
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(iii) water and sewer charges;
(v) costs of upkeep of all existing exterior areas of the Premises,
including the repair and/or replacement of the parking areas[.]
Additionally, paragraph six of the Lease provided, in part, that "[Top Line] shall pay the utility charges for
the entire building including gas, electric, and water." Regarding maintenance obligations, paragraph ten of
the Lease provided that Top Line shall, "at its sole cost and expense":
(i) keep the Premises clean, neat and safe and maintain the same in good order,
repair and condition;
(ii) make all necessary or appropriate repairs and alterations to the Premises[.]
We reject plaintiff's suggestion that WFR's use of a small section of the Premises, or WFR's obligation
to pay for its own telephone or internet services, somehow changed the triple net lease into something
else. It is undisputed that Top Line is responsible for "maintaining the premises and for paying all utilities,
taxes and other charges associated with the property."
Next, we conclude that WFR owed no duty to maintain or repair the location of plaintiff's fall. In
Geringer, supra, 388 N.J. Super. at 400, we addressed the duty owed by a landlord to a plaintiff injured on
the premises subject to a triple net lease. We noted that the approach to resolving premises liability issues
no longer exclusively focuses upon traditional common law classifications of injured persons as trespassers,
invitees, licensees, and the like:
Rather, the question of whether a duty is owed to a person injured on the
premises and the extent of that duty, turns upon a multiplicity of factors,
including a consideration of the relationship of the parties, the nature of the
attendant risk, defendant's opportunity and ability to exercise reasonable care
and the public interest in the proposed solution.
[Ibid. (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).]
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As we have previously held, a landlord is not liable for personal injuries sustained by an employee of a
commercial tenant "due to a lack of proper maintenance or repair, when the lease unquestionably places
responsibility for maintenance or repair solely upon the tenant." McBride, supra, 295 N.J. Super. at 522; see
also Geringer, supra, 388 N.J. Super. at 401 (applying McBride in concluding that a building owner owed no
duty to maintain or repair an interior stairway because the lease unambiguously imposed exclusive
responsibility for such repairs on the commercial tenant).
Plaintiff relies on Vazquez v. Mansol Realty Associates, Inc., 280 N.J. Super. 234, 237 (App. Div.
1995), arguing that the "facts of the present case are closer in proximity with Vazquez than McBride." We
disagree. In Vazquez, the plaintiff fell and was injured on a public sidewalk abutting property that the
defendant property owner had leased to the plaintiff's employer. Id. at 235. We specifically emphasized the
distinction between public and private areas:
This is not a situation where the owner has vested a tenant with exclusive
possession and no longer has the power of entry into the premises to make
repairs. In such case, to hold the owner liable for injuries to a passerby due to a
condition of disrepair over which it has relinquished access is unfair. The same,
however, cannot be said about a public sidewalk.
[Id. at 237.]
Vazquez is therefore distinguishable, as there is no dispute that plaintiff's injury occurred on the premises.
This case falls within the ambit of the rule in McBride, supra, 295 N.J. Super. at 522.
The lease contains no ambiguity that Top Line is responsible for the "costs of upkeep of all existing
exterior areas of the Premises, including the repair and/or replacement of the parking areas," and obligated
to "make all necessary or appropriate repairs and alterations to the Premises." Because Top Line agreed to
undertake all maintenance and repair responsibilities associated with the leased premises, the lease
agreement absolved WFR of any duty of care towards plaintiff.
Moreover, such a result comports with the factors identified in Geringer, supra, 388 N.J. Super. at 400
(citing Hopkins, supra, 132 N.J. at 439). Plaintiff does not offer any proof that WFR supervised Top Line's
maintenance of the parking lot, or that its own personnel were routinely involved in such activities. Nor is
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there evidence that WFR had any reason to believe that Top Line or its maintenance workers would be
careless by maintaining the area of the accident. As Judge Davidson stated, "plaintiff presents no material
facts suggesting that the personnel from [WFR] were located at the retained premise, or any other facts
suggesting that [WFR] had an opportunity to discover what the plaintiff . . . describes as a latent defect[.]"
Affirmed.
1 WFR also sought summary judgment against Top Line, but later withdrew that request after the motion
judge dismissed plaintiff's complaint.
2 Although plaintiff disputes on appeal that the Lease is a "triple net" lease, in position papers to the
motion judge, plaintiff's counsel referred to the Lease as a "triple net" lease.
This archive is a service of Rutgers School of Law - Camden.
This archive is a service of Rutgers School of Law - Camden.
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