                        NOT FOR PUBLICATION WITHOUT THE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-2894-16T1

BALDWIN SHIELDS and
TRICIA SHIELDS, his wife,

        Plaintiffs-Appellants,

v.

RAMSLEE MOTORS,

        Defendant,

and

608 TONNELLE AVENUE, LLC,

     Defendant-Respondent.
_______________________________

              Argued February 28, 2018 – Decided August 20, 2018

              Before Judges Fuentes, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-6329-
              14.

              Kristian A. Krause argued the cause for
              appellants (Goldstein, Ballen, O'Rourke &
              Wildstein, attorneys; Kristian A. Krause, on
              the brief).

              Patrick J. Reilly, III, argued the cause for
              respondent (Clark & Fox, attorneys; Michael
           R. Fox and Patrick J. Reilly, III, on the
           brief).

PER CURIAM

      At all times relevant to this case, plaintiff1 Baldwin Shields

was   employed   by   Federal    Express    to   deliver   packages.       At

approximately 10:30 a.m. on February 6, 2014, plaintiff delivered

an envelope to Ramslee Motors, a car dealership located at 608

Tonnelle Avenue in Jersey City.            Plaintiff parked the Federal

Express vehicle on the street next to the sidewalk that abuts the

driveway of the property.       At his deposition, plaintiff testified

that the dealership's driveway was covered with snow and ice and

no salt or other deicing agent had been applied.                  After he

delivered the envelope, plaintiff began to walk back to the vehicle

when he slipped and fell on the ice covered driveway.

      Plaintiff testified that he was "unconscious" immediately

after the fall.       After he regained consciousness, he tried "to

jump up," but noticed he could not move; he felt "excruciating

pain" from his neck down the left side of his back.              Emergency

Medical Technicians who responded to the 911 call transported him

by ambulance to the Jersey City Medical Center.            The fall injured

his neck, lower back, and both shoulders.


1
  Although Tricia Shields has filed a derivative per quod claim as
Baldwin Shields' spouse, we will refer to "plaintiff" in the
singular.

                                     2                              A-2894-16T1
      Plaintiff filed a personal injury suit against both Ramslee

Motors (Ramslee), as the commercial tenant of the premises at the

time of the accident, and 608 Tonnelle Avenue, LLC, (608 Tonnelle),

the owner of the property.        Neither defendant filed a cross-claim

or sought indemnification from the other.             After joinder of issue,

608   Tonnelle   moved    for    summary      judgment    against     plaintiff,

claiming that under the commercial lease agreement it had with

Ramslee, the tenant is contractually obligated to maintain the

property clear of snow and ice.

      At oral argument before the motion judge, counsel for 608

Tonnelle also claimed that one of the owners of Ramslee "admitted

that he was responsible for snow and ice [removal] under [the]

demised premises."        Thus, counsel argued that "[t]here is no

dispute" that 608 Tonnelle was not in possession of the commercial

land and did not retain "any portion of control."                608 Tonnelle

did not include Ramslee in its notice of motion, and Ramslee did

not attend or participate in any way in the oral argument session

before the Law Division Judge.

      In the course of oral argument, the motion judge noted that

the   lease   agreement   does    not       include   a   provision   expressly

allocating the responsibility to clear snow and ice to the tenant.

In response, counsel for 608 Tonnelle acknowledged that "the lease

does not say, snow and ice removal, it says maintain."                   Relying

                                        3                                A-2894-16T1
on this court's holding in McBride v. Port Auth. of N.Y. and N.J.,

295 N.J. Super. 521, 525 (App. Div. 1996), counsel continued to

argue that an "out-of-possession" commercial landlord did not have

a common law duty to a business invitee to maintain its property

clear of snow and ice.

       Plaintiff's   counsel   conceded   the   relevancy      of   the     legal

paradigm advocated by 608 Tonnelle's counsel, but argued that the

lease agreement did not address or allocate which party had the

responsibility for snow and ice removal.          The motion judge found

that Ramslee's admission that the tenant was responsible for the

removal of snow and ice cured this deficiency.               Relying on both

McBride and Milacci v. Mato Realty Co., 217 N.J. Super. 297, 301

(App. Div. 1987), the motion judge found 608 Tonnelle was not

liable to plaintiff.    The judge held that "since the lease in this

case   unquestionably   placed    responsibility       for    maintenance        on

Ramslee, and the condition that caused the injury was both obvious

and [transient] in nature, 608 [Tonnelle] cannot be held liable

for the plaintiff's injuries as a matter of law."

       Plaintiff's   counsel   also   argued    that   even    if   the     lease

agreement provided for this type of allocation of civil liability

between the parties, 608 Tonnelle retained a non-delegable duty

to plaintiff as a business invitee.            The motion judge rejected



                                      4                                   A-2894-16T1
this argument as well.   Plaintiff now appeals asking us to reverse

the Law Division's legal conclusion.

     We review the grant of a motion for summary judgment de novo.

We apply the standard codified under Rule 4:46-2 without according

any deference to the motion judge's legal conclusions.    Nicholas

v. Mynster, 213 N.J. 463, 478 (2013).   After reviewing the record

presented by the parties, we now reverse.   It is well-established

that a commercial landlord has a duty to maintain the sidewalks

abutting its property in a reasonably good condition, Stewart v.

104 Wallace Street, Inc., 87 N.J. 146, 149 (1981), including the

removal of snow and ice, Mirza v. Filmore Corp., 92 N.J. 390, 400

(1983).    Here, the lease agreement between the landlord and the

commercial tenant is silent on which one has the duty to maintain

the driveway leading to the building on the property clear of snow

and ice.   This is not an area of the property where the landlord

does not have access without the tenant's consent.

     In Vasquez v. Mansol Realty Assocs., Inc., 280 N.J. Super.

234, 238 (App. Div. 1995), this court held "a commercial landowner

is liable to an innocent third party injured as the result of the

negligent failure of its tenant to exercise due care in removing

or reducing the hazard of snow and ice accumulations on an abutting

public sidewalk, even though the landowner has allocated that



                                 5                          A-2894-16T1
responsibility by contract to its tenant."           In reaching this

conclusion, we explained:

          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.]

     We discern no legal or public policy distinction between a

sidewalk and an open driveway used with regularity by plaintiff

and other business invitees of Ramslee's car dealership.         The two

cases from this court relied on by the motion judge are materially

distinguishable from the facts of this case.       In McBride:

          The dispositive issue . . . [was] whether an
          employee of a commercial tenant in exclusive
          possession may hold the tenant's landlord
          responsible for personal injuries suffered on
          the leased premises, due to a lack of proper
          maintenance   or  repair,   when  the   lease
          unquestionably places responsibility for such
          maintenance or repair solely upon the tenant.

          [McBride, 295 N.J. Super. at 522 (emphasis
          added).]

     The landlord in McBride was the Port Authority of New York

and New Jersey (Port Authority).       The tenant, Hudson Refrigerating

Company, leased from the Port Authority approximately sixty acres

of land and a 300,000 square foot warehouse.         Id. at 523.      The

                                   6                             A-2894-16T1
parties   entered     into   a     lengthy,     meticulously         detailed      lease

agreement that unambiguously delegated the responsibility for

maintaining the demised premises to this sophisticated commercial

tenant.     Id. at 524.      The plaintiff, an employee of the tenant,

was injured on the job site "when the vehicle he was operating on

his employer's loading dock at the leased premises struck a hole

which caused the vehicle to jerk, throwing him to the ground and

seriously    fracturing      his    heel."         Ibid.        In   rejecting        the

plaintiff's argument seeking to invalidate the Port Authority's

delegation     of     responsibility         via        contract,     we    expressly

distinguished       the   line     of   cases      that      precluded     commercial

landlords from avoiding responsibility for sidewalk liability.

Id. at 526.

     The same legal and public policy considerations were applied

by this court in Milacci where we upheld the Law Division's order

granting summary judgment to the commercial landlord that had

leased the entire premises to the State of New Jersey.                       Milacci,

217 N.J. Super. at 301.          The plaintiff in Milacci sought to hold

the State's landlord liable as a result of her falling on an

"'accumulation      of    sand   and    dirt'      on    a   floor    in   the     State

unemployment office as she 'was going to step down onto the first

step' to exit the building . . . ."             Id. at 299.          We rejected the



                                         7                                       A-2894-16T1
plaintiff's argument to impose a non-delegable duty to the landlord

based on the following uncontested facts:

             All parties appear to agree that the State had
             exclusive control of the premises even though
             no copy of the lease between the State and
             [the landlord] was offered for the record.
             The State's contract for custodial services
             reinforces the State's apparent exclusive
             control over the premises. Plaintiff does not
             contend that the dangerous condition existed
             at the time of the original possession by the
             State . . . .

             [Id. at 301.]

       Here, the material facts are sufficient to distinguish the

legal reasoning that drove our decisions in McBride and Milacci,

the two cases relied on by the motion judge to grant summary

judgment in favor of 608 Tonnelle.         The lease agreement entered

into by the tenant and the landlord here does not mention which

party has the responsibility for the removal of snow and ice from

areas of the property commonly used by third parties such as

plaintiff.      Snow accumulation and icy conditions are common,

recurrent conditions in this State.        It is also well-established

that   our   Supreme   Court   has   imposed   a   non-delegable   duty    on

commercial landlords to protect the public from this seasonal

hazard by keeping public sidewalks clear.

       Our Supreme Court has made clear that "[w]hether a person

owes a duty of reasonable care toward another turns on whether the


                                      8                             A-2894-16T1
imposition of such a duty satisfies an abiding sense of basic

fairness under all the circumstances in light of considerations

of public policy."     Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,

439 (1993); see also Monaco v. Hartz Mountain Corp., 178 N.J. 401,

418 (2004).   "The imposition of a duty requires the balancing of

several factors, including 'the relationship of the parties, the

nature of the attendant risk, the opportunity and ability to

exercise care, and the public interest in the proposed solution.'"

Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251, 257 (App.

Div. 2013) (quoting Hopkins, 132 N.J. at 439).

     The lease agreement upon which both the landlord and the

motion judge rely on to support this immunity does not address

this critical issue.        The tenant's post hoc acknowledgement of

this responsibility is, at the very least, an issue of fact for

the jury to decide, or legally inconsequential given its omission

in the lease agreement.       Under these circumstances, we hold that

608 Tonnelle owed a duty to plaintiff, and other third-party

business   invitees,   to   ensure   that   the   driveway   abutting   the

sidewalk of its property was clear of snow and ice.

     Reversed and remanded.      We do not retain jurisdiction.




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