                        NOT FOR PUBLICATION WITHOUT THE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-2275-16T4

TANISHA C. LANE,

        Plaintiff-Respondent,

v.

WHOLE FOOD,

        Defendant-Appellant,

and

SILBERT REALTY AND MANAGEMENT
COMPANY, INC.,

     Defendant-Respondent.
________________________________

              Argued May 1, 2018 – Decided July 10, 2018

              Before Judges Carroll and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. SC-
              1393-16.

              Danielle E. Gonnella argued the cause for
              appellant (Greenberg Traurig, LLP, attorneys;
              Danielle E. Gonnella, of counsel and on the
              brief).

              Respondents have not filed briefs.


PER CURIAM
    Defendant      Whole   Foods     Market    Group,     Inc.1   (Whole    Foods)

appeals from a Special Civil Part judgment awarding damages to

plaintiff Tanisha C. Lane, its employee, for vandalism to her car

when it was parked in a shopping center parking lot while she was

at work.   We reverse and remand.

                                       I.

    The    following   facts    are    derived     from    the    trial    record.

Plaintiff is employed by Whole Foods at its store in Clark.                     The

store is located in Clark Commons, a 240,000-square-foot retail

shopping center owned by Clark Commons, LLC.                Whole Foods is one

of approximately twenty-eight tenants at the shopping center.

    The    lease    between    Whole    Foods     and     Clark   Commons,      LLC

unequivocally   provides      that    the     landlord    is   responsible      for

maintenance and security of the shopping center parking lot:

           (a) Definition of Common Area. The "Common
           Area" shall include (1) the vehicle parking
           and other areas of the [shopping center]
           generally available for the use of all tenants
           and occupants in the [shopping center],
           including, without limitation, any common
           roadways, service areas, driveways, areas of
           ingress and egress, sidewalks and other
           pedestrian ways . . . .

           (b) Landlord's Obligations. Landlord, at its
           sole cost and expense . . . shall be
           responsible  for  installing,   maintaining,
           repairing and keeping the Common Area in a

1
   Plaintiff incorrectly identified defendant as "Whole Food" in
her complaint.

                                       2                                   A-2275-16T4
           neat, clean, safe, good, and orderly condition
           and repair according to the highest reasonable
           standard for first-class shopping centers in
           the metropolitan area where the [shopping
           center is] located . . . . [T]o the extent
           that    Landlord     reasonably     determines
           appropriate, Landlord shall provide security
           guards for the Common Area.

     The property owner contracted with defendant Silbert Realty

and Management Company, Inc. (Silbert) to fulfill its obligation

to maintain and secure the common areas of the shopping center,

including the parking lot.       There are no security personnel

assigned to the parking lot.    Municipal police drive through the

parking lot periodically.

     It is undisputed that Whole Foods instructs its employees to

park in an area of the shopping center parking lot distant from

the entrance to the store.   Written materials distributed to Whole

Foods employees include a map of the shopping center parking lot

with a shaded area considered appropriate for employee parking.

Parking outside of the designated area by a Whole Foods employee

may result in discipline, up to and including termination.

     The parking area to which Whole Foods directs its employees

is in the vicinity of a retail bank branch equipped with security

cameras.     The area is not delineated with signs, painted lines,

or other markings.    Nor is use of the area limited to Whole Foods

employees.    Instead, the area is part of the common space at the


                                  3                          A-2275-16T4
shopping center, open to any user, including the customers and

employees   of   all   of   the   shopping   center's   tenants.      A

representative of Whole Foods testified that Silbert asked Whole

Foods, and the other shopping center tenants, to instruct employees

to park away from the front of all stores at the shopping center

to permit easy access for customers.

     When plaintiff arrived for work on November 8, 2016, she

parked in the area of the parking lot designated as employee

parking by Whole Foods.     At the conclusion of her shift, plaintiff

discovered that the side view mirror of her vehicle had been

removed.    Plaintiff reported the damage to a supervisor, who

suggested she contact Silbert.2

     On December 19, 2016, plaintiff filed a complaint in the

Special Civil Part against Whole Foods and Silbert seeking $1001.50

in damages incurred to repair her car.




2
   Plaintiff testified that the November 8, 2016 incident was the
third time her car was damaged in the Clark Commons parking lot.
In February 2016, the bumper of plaintiff's car was removed. In
May 2016, the paint on the side of plaintiff's car was scratched.
Plaintiff conceded that she did not notice the paint damage until
she arrived home from work and that it could have occurred
elsewhere. Plaintiff reported these incidents to a representative
of Whole Foods. After the November 8, 2016 incident, Whole Foods
allowed plaintiff to park in a space near the entrance to the
store.   The record contains no evidence of any other acts of
vandalism in the Clark Commons parking lot.

                                   4                          A-2275-16T4
       On January 10, 2017, at the conclusion of the trial, the

court issued a bench opinion concluding that both Whole Foods and

Silbert had a duty to protect plaintiff's vehicle while it was

parked in the shopping center parking lot.                    The court determined

that Silbert's duty was based on its contractual obligation to

secure the common areas of the shopping center.                   The trial court

held   that    Whole    Foods      created    a   duty   to    plaintiff   when    it

instructed her to park in a particular area of the parking lot.

The judge also concluded that both Whole Foods and Silbert were

aware of prior incidents of vandalism to plaintiff's vehicle and

breached      their    duty   to    plaintiff     when   they     failed   to   take

appropriate steps to protect her property.                     Finally, the court

found that defendants' failure to act was the proximate cause of

the damage to plaintiff's vehicle.

       The court concluded that Silbert was seventy percent liable

and Whole Foods thirty percent liable for the damage to plaintiff's

vehicle.      Plaintiff was awarded damages against Silbert in the

amount of $701.05, along with $38.50 in costs, and against Whole

Foods in the amount of $300.45, along with $16.20 in costs.

       This appeal followed.

                                        II.

       In order to prove negligence, a plaintiff must establish: (1)

a duty of care to plaintiff; (2) a breach of that duty; (3)

                                         5                                  A-2275-16T4
proximate cause; and (4) actual damages.          See Polzo v. Cty. of

Essex, 196 N.J. 569, 584 (2008); Townsend v. Pierre, 221 N.J. 36,

51 (2015).

            Whether a person owes a duty of reasonable
            care toward another turns on whether the
            imposition of such a duty satisfies an abiding
            sense of basic fairness under all of the
            circumstances in light of considerations of
            public   policy.     That   inquiry   involves
            identifying, weighing, and balancing several
            factors – 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.

            [Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
            439 (1993) (citing Goldberg v. Housing Auth.,
            38 N.J. 578, 583 (1962)).]

     Whether a party owes a legal duty to another is a question

of law.    Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572

(1996).    We review the trial court's interpretation of the law de

novo.     State v. Parker, 212 N.J. 269, 278 (2012).

     We    have   previously   examined   the   question   of   whether    a

commercial tenant in a multi-tenant shopping center owes a duty

to business invitees in the common areas of the shopping center

in two recent decisions.       Those precedents guide the resolution

of this appeal.

     In Kandrac v. Marrazzo's Market at Robbinsville, 429 N.J.

Super. 79 (App. Div. 2012), the defendant was a commercial tenant

in a thirty-six-store shopping center.          The lease provided that

                                    6                              A-2275-16T4
the property owner was responsible for maintenance of the common

areas of the shopping center, including the parking lot.    Id. at

82.   The plaintiff, a patron of the tenant, tripped on a raised

area of the parking lot surface as she was walking from the

tenant's store to her vehicle.   She was injured in the fall, which

happened about two feet outside of a crosswalk in a roadway that

separates the tenant's store from the parking lot.      Ibid.    The

plaintiff filed a complaint against both the tenant and the

property owner, seeking damages for her injuries.

      The trial court granted summary judgment in favor of the

tenant.   The court concluded that a commercial tenant in a multi-

tenant facility owes no duty of care to its invitee for an injury

that occurred in the common area of the shopping center.    Id. at

83.   We affirmed the trial court's decision.

      After a review of the legal precedents expanding commercial

property owners' duty of care to business invitees, we held that

           as a general rule, when a commercial tenant
           in a multi-tenant shopping center has no
           control or contractual obligation to maintain
           a parking lot shared with other tenants, the
           common law does not impose a duty upon the
           tenant to do so.

           [Id. at 90-91.]

      We recognized, however, that the "determination whether a

duty exists remains a fact-sensitive issue," id. at 90, and


                                 7                          A-2275-16T4
identified the factors to be considered when determining whether

a duty of care should be imposed on a commercial tenant:

          (1) a recognition of the "considerable
          interest in and rights" the commercial
          landowner had regarding the property in
          question;   (2)   whether   imposing   a   duty
          associated   with   those   rights   would   be
          arbitrary; (3) whether a failure to impose the
          duty would leave innocent victims without
          recourse;   (4)   a   recognition    that   the
          imposition   of   liability   would   give   an
          incentive to landowners to care for the
          property   in   question;   (5)   whether   the
          proximity of the place where the injury
          occurred to the business establishment would
          render a failure to impose a duty arbitrary;
          and (6) a recognition that the commercial
          landowner would treat the costs associated
          with   additional   insurance   premiums    and
          maintenance as one of the necessary costs of
          doing business.

          [Id. at 87-88 (quoting Stewart v. 104 Wallace
          St., Inc., 87 N.J. 146 (1981)).]

     Applying those factors to the facts in Kandrac, we noted that

the plaintiff fell in an area distant from the entrance to the

tenant's store that was not in the tenant's control.    Id. at 88.

In addition, we held that the assignment of responsibilities in

the lease limited the tenant's ability to address conditions in

the parking lot not abutting the entrance to the tenant's store.

Id. at 88-89.   We also found that because it was clear that the

property owner was liable for any negligence in the parking lot,

the plaintiff would not be left without recourse if a duty of care


                                8                           A-2275-16T4
was not imposed on the tenant.   Id. at 90.   Finally, we noted that

the assignment of "a duty on individual tenants in a multi-tenant

commercial property might well be counter-productive," as it might

"encourage shotgun litigation . . . where the customer sued every

store at which he had browsed or purchased an item prior to his

fall."    Ibid. (quotations omitted).

     We concluded that, although a contractual obligation of the

property owner to maintain the common areas of the parking lot

"does not relieve [the tenant] of all duties to its customers

regarding ingress and egress," id. at 88, the facts did not support

imposing a duty of care on the tenant in that case.

     Two months later, in Nielsen v. Wal-Mart Store #2171, 429

N.J. Super. 251 (App. Div. 2013), we examined the question of

whether the owner of a commercial condominium retail store unit

at a multi-unit shopping center had a duty of care to a business

invitee injured on the threshold of the owner's store.      In that

case, the unit owner's property included only the structure housing

the retail store, and a small outside area designed for the sale

of garden materials.     Id. at 254, n.1.     The developer of the

shopping center, a condominium association, was contractually

obligated to repair and maintain the common areas of the shopping

center.   Id. at 254.



                                 9                           A-2275-16T4
     The   plaintiff,    an     independent    contractor   hired   by    the

condominium unit owner to exterminate pests, was directed by the

unit owner to access the various entrances to the store from the

exterior of the unit.         Ibid.   While setting rodent traps in an

area outside of, but immediately adjacent to, the unit owner's

property, the plaintiff was injured when he slipped on loose sand

and gravel.     Id. at 254, n.2.       It was undisputed that the fall

happened on the common area of the condominium association.               Id.

at 254-55.

     The plaintiff sued the condominium unit owner for damages.

More than two years later, he amended his complaint to include

claims against the condominium association.               The trial court

granted summary judgment in favor of the association on statute

of limitations grounds.        Id. at 255.

     A   jury   found   the    unit   owner   eighty   percent   liable   for

plaintiff's injuries.         Ibid.   The unit owner appealed, arguing,

among other things, that it did not have a duty to plaintiff to

maintain the common areas of the condominium association.

     Applying the Hopkins factors noted above, we concluded that

the unit owner owed its business invitee a duty to maintain the

common area immediate abutting its property, to which it directed

the invitee to perform his work.           We departed from the rationale

of Kandrac and gave the contractual allocation of responsibilities

                                      10                             A-2275-16T4
between the unit owner and the condominium association "little

weight," so as not to encourage the unit owner to "blithely turn

a blind eye to any defects or hazards in common areas . . .

foreseeably used by [its] invitees and passersby."            Nielsen, 429

N.J. Super. at 260.        In addition, we noted that imposition of a

duty on the unit owner would not interfere with its right to seek

indemnification     from    the   condominium   association    under    the

contract.   Id. at 261.     We also held that in the absence of a duty

on the part of the unit owner, an injured party would be left to

ascertain the applicable contractual terms, including the identity

of the condominium association, rather than simply seeking relief

against the unit owner, whose identity, presumably, would be more

readily apparent.    Ibid.

     We noted that the unit owner directed the plaintiff to use

the common areas to access the entrances to the unit, and had

"every opportunity to recognize and exercise care with regard" to

the area immediately adjacent to its premises.         Id. at 262.        We

concluded that the unit owner "is fairly chargeable with a duty

to be familiar with the perimeter outside its unit and other common

areas that its invitees and passersby might foreseeably use."           Id.

at 263.

     After considering these precedents, we are convinced that the

trial court erred in concluding that Whole Foods had a duty to

                                    11                             A-2275-16T4
protect plaintiff's vehicle from vandalism.           We agree with the

holding in Kandrac that, as a general rule, when a commercial

tenant   in   a   multi-tenant   shopping   center   has   no   control    or

contractual obligation to maintain a parking lot shared with other

tenants, the common law does not impose a duty upon the tenant to

do so.   This is especially true where, as is the case here, the

property owner assumes responsibility to maintain and secure the

common areas of the shopping center in its lease with the tenant.

     We disagree with the trial court's conclusion that Whole

Foods assumed control of a portion of the Clark Commons parking

lot by directing its employees to park in a specified area.           While

it is true that Whole Foods directed plaintiff to park in a

designated area of the parking lot, it had no contractual right

or apparent ability to control that portion of the parking lot.

The designated area was delineated only in printed materials

distributed by Whole Foods to its employees.          No signs, painted

lines, or other markings designated the area as limited to Whole

Foods employees.     Instead, the area was available for parking to

all employees and customers of the shopping center's many tenants.

Although the trial court made no factual findings on this point,

the record contains evidence that Silbert requested Whole Foods

and the other tenants to instruct employees to park away from

spaces near the shopping center's stores to permit customer access.

                                   12                               A-2275-16T4
     The area in which plaintiff was instructed to park was not

immediately adjacent to Whole Foods' leased space.          The distant

area of the parking lot was not "the perimeter outside its unit

and other common areas that its invitees and passersby might

foreseeably use." Nielsen, 429 N.J. Super. at 263. It was instead

a somewhat remote area, selected because it was far from the

entrances to the retail stores, and available to employees and

customers of all of the tenants.       Moreover, unlike the condominium

unit owner in Nielsen, Whole Foods was not readily able to remedy

known dangers in the area in which plaintiff's vehicle was damaged.

Silbert had a contractual obligation and right to provide security

in the parking lot at its discretion.            It is unrealistic to

conclude that Whole Foods could have provided security in the

limited area of the lot to which it directed its employees.

     Additionally,   in   light   of    plaintiff's   successful    claims

against Silbert, a finding that Whole Foods did not have a duty

to protect plaintiff's vehicle from vandalism will not leave her

without a remedy.    The trial court found Silbert liable for the

damage to plaintiff's vehicle based on its clear contractual

obligation to provide security in the parking lot, its knowledge

of past incidents of vandalism, and its failure to remedy the

situation.



                                  13                               A-2275-16T4
     We therefore vacate the judgment against Whole Foods.            As a

result of this finding, we also conclude that the trial court's

allocation of seventy percent liability to Silbert was erroneous.

We remand the matter for the trial court to mold the judgment to

allocate   all   liability   for   plaintiff's   damages   and   costs    to

Silbert.   N.J.S.A. 2A:15-5.2(d).3

     Reversed and remanded for proceedings consistent with this

opinion.   We do not retain jurisdiction.




3
  Having determined that the trial court erred in concluding that
Whole Foods owed a duty of care to plaintiff, we do not reach
defendant's argument that plaintiff failed to establish that Whole
Foods breached that duty, or that any acts or omissions of Whole
Foods were the proximate cause of the damage to plaintiff's
vehicle.

                                    14                             A-2275-16T4
