               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1800-18T4

RICHARD UNDERHILL and
LINDA UNDERHILL, his wife,

      Plaintiffs-Appellants,              APPROVED FOR PUBLICATION

v.                                                May 21, 2020

                                             APPELLATE DIVISION
BOROUGH OF CALDWELL,
ELEVADO SUAREZ, APOLONIO
SUAREZ, PETER PETROCHKO,
SUPER FOODTOWN OF CALDWELL,
HAJ SUPERMARKETS REALTY
HOLDINGS, LLC, and 356
BLOOMFIELD AVENUE, LLC,

      Defendants,

and

CAROL DAKIN and SUSAN FIELDS,

     Defendants-Respondents.
________________________________

            Submitted April 20, 2020 – Decided May 21, 2020

            Before Judges Sabatino, Geiger and Natali.

            On appeal from the Superior Court of New Jersey, Law
            Division, Essex County, Docket No. L-1631-17.
             Piro Zinna Cifelli Paris & Genitempo, LLC, attorney
             for appellants (Daniel Robert Bevere, of counsel and on
             the briefs).

             Weiner Law Group LLP, attorney for respondents
             (Adam Kenny, of counsel and on the briefs).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.

      This personal injury case arises from a pedestrian's fall on black ice in a

parking lot leased by private owners to the Borough of Caldwell. The injured

pedestrian and his wife sued both the Borough and the private owners, alleging

negligent failure to maintain the parking lot and the internal driveway connected

to it in a safe condition.

       The written lease between the owners and the Borough expressly

delegates to the Borough the responsibility to clear the premises of ice and snow.

       The Borough and the property owners moved for summary judgment. The

trial court granted the Borough's motion, finding no basis for its liability. It

found plaintiffs had failed to establish actual or constructive notice of a

dangerous condition. Plaintiffs have not appealed that ruling as to the Borough.

    The court also granted summary judgment to the property owners in a

separate ruling apparently predicated on the absence of notice. Plaintiffs now

appeal that ruling, arguing the property owners had a non-delegable duty under

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tort law to keep the premises safe from accumulated ice and snow, or

alternatively, that the language of the lease does not delegate that duty with

sufficient clarity.

     We affirm, albeit for a legal reason not articulated by the trial court. Based

on the Supreme Court's very recent opinion in Shields v. Ramslee Motors, 240

N.J. 479 (2020), the property owners are entitled to summary judgment as a

matter of law. That is because the lease explicitly delegates to the Borough the

exclusive responsibility to remove snow and ice from the premises.

                                         I.

      We summarize the pertinent facts in the record, doing so in a light most

favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

       On March 6, 2015, plaintiff Richard Underhill1 parked his car in a

municipal parking lot known as the Kaplan lot, located near the intersection of

Bloomfield Avenue and Brookside Place in the Borough of Caldwell.




1
  Linda Underhill is a co-plaintiff in this lawsuit solely to assert per quod claims
arising out of her husband Richard's accident. Hence, our references to
"Underhill" and "plaintiff" mean Richard Underhill, unless the context indicates
otherwise.


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Accompanied by his wife and friends, Underhill walked across the street to eat

dinner at a nearby restaurant.

      After the group finished dinner, Underhill and his wife crossed the street

to return to their parked car. Underhill walked up the internal driveway that

connected the street to the Kaplan parking lot. When he reached the top, he

turned left where the driveway continued towards the parking lot. According to

Underhill, as he was turning, he slipped on what he described as "black ice" that

had accumulated on the blacktop pavement.

      The police were notified of the incident, and Underhill was transported to

a local hospital for treatment. As an alleged result of his fall, Underhill suffered

injuries, the most severe of which was a fractured right hip, which later had to

be replaced.

      The Kaplan parking lot and the connecting driveway are owned by

defendants Carol Dakin and Susan Fields. It is undisputed that Dakin and Fields

leased the property to the Borough in September 1998 for a term of

approximately twenty years. The Borough paid Dakin and Fields rent in the

amount "equal to all land taxes for each calendar year."




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      Pursuant to the terms of the lease agreement, the Borough was

contractually responsible for maintenance of the lot, including snow and ice

removal. The relevant provisions of the lease agreement provided:

      ARTICLE 5: MAINTENANCE

             The Lessee, at its sole cost and expense, shall at all times
             during the continuance of this Lease:

             (a) Keep all its improvements, including the pavement, on the
             demised premises in good order, and condition and repair;

             (b) Police and light the demised premises; and

             (c) Keep the demised premises free of obstructions, snow, and
             ice.

             [(Emphasis added).]

      Underhill and his wife filed suit in the Law Division alleging negligence

and loss of consortium. Their complaint named as defendants the Borough,

Dakin, Fields, and several other individuals and businesses whom plaintiffs

believed may have maintained ownership or control of the Kaplan lot at the time

of Underhill's fall.

      The parties do not dispute that it had been snowing intermittentl y during

the five days leading up to Underhill's fall. It is also undisputed that the Borough

engaged in extensive snow removal on all of the Borough's roadways and

properties, both leased and owned, between March 1 and March 6, 2015. During

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this time, nine employees of the Borough's Department of Public Works worked

for more than one hundred overtime hours, plowing, removing snow, salting,

and sanding on Borough properties and roads, as the winter storm actively

continued during that period. The Kaplan lot was included in these snow and

ice removal activities.

      Plaintiffs retained a liability expert who issued a written report for the

litigation. The expert asserted in his report that "there are several low spots [in

the access driveway] that [caused] water to remain in puddles after precipitation

events." According to the expert, these "low spots may have been present at the

initial installation of the asphalt, may have developed over time . . . or may have

developed from vehicular turning movements in the area." Therefore, "the

failure to eliminate the depressions at the rear [of the] access driveway allowed

the stormwater runoff caused by the [snow and rain] of the five days prior to the

March 6, 2015 [incident] to remain and then to form into ice and remain frozen

on the date of the incident." Consequently, Underhill "slipped on the ice and

thus caused his injuries."

      Plaintiffs learned during discovery that the parking lot was owned by

Dakin and Fields and was leased to and maintained by the Borough. As a result

of this information, all named defendants other than the Borough, Dakin, and


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Fields were dismissed from the case, either through voluntary dismissal or

summary judgment.

      Represented by common counsel, the Borough, Dakin, and Fields moved

for summary judgment. Following oral argument, the court granted summary

judgment to these movants in two successive decisions, thereby dismissing

plaintiffs' case in its entirety.

      With respect to the Borough, the court found that plaintiffs' expert report,

which concluded that depressions in the driveway had caused the buildup of ice,

did not establish when those depressions were created or how long they had been

there. Hence, plaintiffs were unable to establish that the Borough had adequate

notice of the accumulation of ice in the driveway depressions. Because of the

lack of notice, the court declined to reach the Borough's defense of common law

immunity for snow and ice removal. See Rochinsky v. State, Dept. of Transp.,

110 N.J. 399 (1988); Miehl v. Darpino, 53 N.J. 49 (1968).

      Although its reasoning was less clear with respect to the property owners,

the trial court appears to have likewise concluded there was no proof they had

notice of the dangerous condition. The court did not rest upon the delegation

clause in the lease. Accordingly, the court granted summary judgment to Dakin

and Fields.


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      Plaintiffs moved for reconsideration as to the court's dismissal of the

property owners. The trial court denied their motion.

      Plaintiffs then filed the present appeal, confined to the property owners

only. After their merits briefs were submitted, the Supreme Court issued its

decision in Shields, and we requested and considered supplemental briefs from

counsel addressing that precedent.

                                       II.

      In order to prove a claim of negligence, a plaintiff must demonstrate: "(1)

a duty of care, (2) that the duty has been breached, (3) proximate causation, and

(4) injury." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty.

of Essex, 196 N.J. 569 (2008)).      A plaintiff bears the burden of proving

negligence, see Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004),

and must prove that unreasonable acts or omissions by the defendant

proximately caused his or her injuries, Camp v. Jiffy Lube No. 114., 309 N.J.

Super. 305, 309-11 (App. Div. 1998).

      Here, we focus on the necessary predicate of whether a duty of care was

owed by the defendant property owners to remove ice and snow from the parking

lot and internal driveway they leased to the Borough. We need not discuss the




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other elements of negligence, because, applying Shields, those defendants owed

no such duty to plaintiffs.

      In Shields, the Court framed the issue before it as "whether the owner of

a commercial property owes its tenant's invitee a duty to clear snow and ice from

the property's driveway while the property is in the sole possession and control

of the tenant." 240 N.J. at 483. The Court's six-member majority answered that

query in the negative.

      The plaintiff in Shields was delivering mail to a used car dealership when

he slipped and fell on ice on the car dealerships' driveway. Id. at 484. The

dealership was leasing the property from a landlord. The trial court granted the

landlord's motion for summary judgment, finding the landlord was not

responsible for removing snow and ice from the property. Ibid. This court

reversed, holding that the lease was silent as to who was responsible for snow

and ice removal from the driveway, and in any event, the landlord owed what

we considered to be the same "non-delegable" duty to maintain the driveway

that it owed with respect to the sidewalks abutting a leased property. Ibid.

      The Supreme Court reversed. Ibid. The majority opinion first determined

that the language in the parties' lease agreement implicitly delegated snow and




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ice removal duties to the tenant. Id. at 488-89. The Court then found that duty

could in fact be lawfully delegated. Id. at 490.

      The Court found significant in Shields the fact that the defendant landlord

had relinquished control of the premises to the tenant car dealership. "The

landlord has vested the tenant with exclusive possession. In this case, it would

be 'unfair,' . . . to hold the landlord responsible for 'a condition of disrepair over

which it had relinquished access.'" 240 N.J. at 491 (quoting Vasquez v. Mansol

Realty Associates, Inc., 280 N.J. Super. 234, 237 (App. Div. 1995)).

      In Vasquez, the owner of an office building had leased the premises to a

commercial tenant. 280 N.J. Super. at 235. The tenant agreed in the lease to

maintain and clear snow and ice from the premises, including the abutting public

sidewalk. Ibid. An employee of the tenant slipped and fell on the public

sidewalk in front of the building due to an accumulation of snow and ice. Ibid.

The trial court dismissed the employees' claims against the landlord, and this

court reversed. Id. at 237. Relying on Supreme Court precedent, see Stewart v.

104 Wallace Street, Inc., 87 N.J. 146 (1981) (holding a commercial landlord has

a well-established duty to maintain an abutting sidewalk in reasonably good

condition); Mirza v. Filmore Corp., 92 N.J. 390 (1983) (extending that duty to

include the removal of snow and ice), we ruled that the commercial landlord had


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a non-delegable duty to remove snow and ice from the property's abutting

sidewalk. In addition, we noted, "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." Vasquez, 280 N.J. Super. at 237.

      By factual contrast in Shields, several provisions of the car dealership's

lease with the landlord stated that the dealership was solely responsible for the

demised property. Id. at 492. Moreover, the dealership's conduct reflected it

was responsible for clearing snow and ice, as it had done so the night before the

incident. Ibid. Additionally, the driveway was separated from the sidewalk by

a fence, which could be closed by the dealership to restrict access to the public.

Ibid. In sum, the Court found in Shields "the undisputed evidence in the record

shows that the landlord did not enjoy the sort of control over the subject

driveway that would give rise to a duty of care." Ibid.

      The Court further analyzed in Shields whether the landlord owed the

plaintiff a duty of care by considering the factors established in Hopkins v. Fox

& Lazo Realtors, 132 N.J. 426 (1993). In Hopkins, the Court departed from the

"traditional categorical approach to liability based on the status of the plaintiff."

Shields, 240 N.J. at 492. Instead, it reasoned that "[w]hether a person owes a

duty of reasonable care toward another turns on whether the imposition of such


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a duty satisfies an abiding sense of basic fairness under all of the circumstances

in light of considerations of public policy." Hopkins, 132 N.J. at 439. The four

Hopkins factors courts should consider are "[1] the relationship of the parties,

[2] the nature of the attendant risk, [3] the opportunity and ability to exercise

care, and [4] the public interest in the proposed solution." Ibid.

      The majority in Shields reached "the same result by application of the

Hopkins factors that [it] did [by] considering control." Shields, 240 N.J. at 493.

Applying the first of the Hopkins factors, the Court found the landlord had no

ongoing relationship with the plaintiff. The landlord had no knowledge of who

visited the property and offered no services to them. Visitors had no reason to

know that the dealership was not itself the owner of the property. Ibid.

      The second factor, the nature of the attended risk, favored not imposing a

duty on the landlord in Shields. The majority stated, "[a]lthough hazards posed

by winter weather are generally readily foreseeable, they are also transient. It

would not be fair to place responsibility for removal of snow and ice on a

commercial landlord that lacks control over the property." Ibid. Instead, the

dealership, with control over the driveway and tools at hand to eliminate the

risk, "should be held solely responsible for the safety of its invitees." Ibid.




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      The Court found the third Hopkins factor, "the opportunity and ability to

exercise care," weighed in favor of not imposing a duty on the landlord. Id. at

494. The majority reasoned that it would be impractical to require the landlord

to prevent the harm accompanying temporarily slippery conditions caused by

weather on property that it does not control. Ibid. In such settings, the landlord

does not maintain a presence on the property and does not have access to

information about the condition of the property. Ibid. By contrast, the tenant

kept tools for resolving the problem of removing snow and ice and regularly did

so. Ibid.

      Finally, as to the fourth Hopkins factor, the Shields majority determined

that "[h]olding a landlord liable for snow and ice on demised property would not

serve any public policy interest." Ibid. The Court presumed the plaintiff could

pursue redress by potentially recovering from the dealership. Ibid.

      In sum, the Court's majority in Shields concluded that an analysis of the

Hopkins factors, as well as its "application of the classic control-based liability

analysis specific to the landlord-tenant context dictates that, in fairness, the

entity with control over the property is the entity that should be held

responsible." Ibid.




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      Justice Albin authored a concurrence in part. Id. at 495. He agreed that

the tenant in Shields, and not the landlord, had the sole responsibility to clear

the driveway of snow and ice. Ibid. Justice Albin did express his view, however,

that a landlord that retains sufficient control over its property to make safety

repairs should not be able to extinguish its common law duty under tort law to

exercise reasonable care to guard against foreseeable dangers.          Ibid.     He

disagreed that the tenant maintained exclusive control, as the lease terms

permitted the landlord to enter the premises for the purpose of examining and

making repairs. Id. at 496.

      Justice Albin observed that if a landlord has retained authority to enter the

premises to make safety repairs that would prevent a person from being seriously

harmed, it should have a duty to do so if reasonable under the totality of the

circumstances. Id. at 499. Ultimately, however, he concluded that although the

landlord in Shields had the authority to enter the property to repair any

dangerous conditions of which it was aware, "given the transient condition of

the ice and snow in the driveway in this case, the landlord had no practicable

way to know that the tenant would not clear the driveway in a timely way and

therefore no reasonable opportunity to remedy the situation." Ibid.




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      Plaintiffs argue this case is distinguishable from Shields for two reasons.

First, they note the lease agreement in Shields explicitly stated that the

dealership "shall be solely responsible for the maintenance and repair of the land

and any structure placed on the premise at any time and from time to time during

the lease, as if TENANT were the de facto owner of the leased premises." Id. at

485. Here, Article 5 of the lease agreement states the Borough will bear the

"cost and expense" of maintenance.          Plaintiffs contend this difference in

verbiage is significant because the lease does not place upon the tenant the sole

responsibility for performing these functions on the Borough, unlike in Shields.

      We disagree. To the contrary, the language in the lease agreement in this

case more clearly delegates to the tenant the duty to remove snow and ice. The

lease broadly states that "[t]he Lessee . . . shall at all times during the

continuance of the Lease . . . [k]eep the demised premises free of obstructions,

snow and ice." The lease in Shields referred only to "maintenance," and was

silent on which party bore the specific responsibility of snow and ice removal.

The lease here also does not contain any provisions that permit the landlords to

reenter and make repairs, unlike in Shields.

      Second, plaintiffs contend this case is distinguishable from Shields

because here we are dealing with a "public" driveway and parking lot, as


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                                       15
opposed to the "private" driveway in Shields.         Therefore, it was not only

anticipated, but expected, that members of the public would traverse the parking

lot and driveway to use the stores and businesses in the area. Plaintiffs argue

this makes the driveway in this case akin to the sidewalk in Vasquez, as opposed

to the driveway in Shields, and therefore defendants, as the property owners,

bore a non-delegable duty to remove snow and ice.

      We reject this argument as well. The Court's majority in Shields made no

distinction between the private or public status of the tenant. Instead, the Court

held that "in fairness, the entity with control over the property is the entity that

should be held responsible." Id. at 494. (Emphasis added).              The Court

accordingly declined to hold "the landlord responsible for property over which

it had relinquished control." Ibid.

      Here, it is not disputed that the Borough maintained control over the

Kaplan lot and driveway during the term of its lease. The lease delegated to it

snow and ice removal, and there is undisputed evidence in the record that the

Borough had performed snow and ice removal for several days in a row leading

up to Underhill's fall.

      Like the driveway in Shields, the Kaplan lot and connecting driveway

where Underhill fell were within the exclusive control of the tenant Borough.


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The lease agreement sufficiently and expressly delegated snow and ice removal

duties to it, and the Borough thereafter consistently performed those duties. See

Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392, 400-01

(App. Div. 2006) (holding, outside the context of a snow and ice removal case,

that a commercial landlord owed no duty to repair or maintain interior stairway

within the leased premises on which tenant's employee slipped and fell because

tenant agreed to undertake all repairs in the lease agreement).

      The factual circumstances here are distinguishable from those in Vasquez,

in which we held a property owner had a non-delegable duty to remove snow

and ice from the public sidewalk abutting its premises. 280 N.J. Super. at 237-

38. The location of the present accident was not a public sidewalk. Instead, it

was a parking lot and an internal driveway connected to it. We reject plaintiffs'

attempt to analogize the parking lot, because it was used by the tenant as a

municipal facility, to a public sidewalk that abuts a public street. The Borough's

decision to use the premises for public parking did not thrust upon the landlords

a non-delegable duty of care to clear snow and ice within the interior perimeter

of the premises. That duty was assumed by the Borough when it entered into

the lease.




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      At least three of the four Hopkins factors lead analytically to the same

result. The first factor, the relationship between the parties, does not fav or the

imposition of a duty on Dakin and Fields. As in Shields, there was no ongoing

relationship between the landlords and the tenant. Dakin and Fields had no

knowledge of who visited the property and offered no services nor derived any

benefit from them. Visitors "had no reason to know" the Borough "was not itself

the owner of the property." Shields, 240 N.J. at 493.

      The second Hopkins factor, the nature of the attendant risk, focuses on

"whether the risk is foreseeable, whether it can be readily defined, and whether

it is fair to place the burden on preventing the harm upon the defendant." Ibid.

(quoting Davis v. Devereux Found., 209 N.J. 269, 296 (2012)). This factor

favors Dakin and Fields as well. As the Court in Shields articulated, "[a]lthough

hazards posed by winter weather are generally readily foreseeable, they are also

transient. It would not be fair to place responsibility for removal of snow and

ice on a commercial landlord that lacks control over the property." Ibid.

      The third Hopkins factor is "the opportunity and ability to exercise care."

Id. at 494. This analysis is similar to the analysis of control. Ibid. The Shields

majority commented as to this factor, "[i]t would be impractical to require the

landlord here to prevent the harm accompanying temporarily slippery conditions


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                                       18
caused by weather on property that it does not control." Ibid. The landlord

"does not maintain a presence on the property and does not have access to

information about the condition of the property. By contrast, the tenant kept

tools for resolving the problem and regularly did so." Ibid.

      As we have already noted, the Borough regularly performed snow and ice

removal on the parking lot and driveway. Although Dakin and Fields had access

to the property by virtue of it being open to members of the public (including

them), the third Hopkins factor favors a determination that they do not owe the

duty advocated by plaintiffs.

      The fourth Hopkins factor concerning the public interest can be

reasonably debated.    Because of the Borough's non-liability, including the

common law snow and ice immunity, persons who are injured on hazardous

leased premises could be left without recourse. However, that also would have

been true if the Borough had owned and operated the premises. 2




2
  We note the limited exception in Bligen v. Jersey City Hous. Auth., 131 N.J.
124 (1993), for public entities that operate public housing projects, is not
applicable here. In his concurring opinion in Lathers v. Twp. of W. Windsor,
308 N.J. Super. 301 (App. Div. 1998), Judge Dreier questioned the wisdom of
the breadth of the snow and ice immunity, but neither the Court nor the
Legislature have limited the immunity nor extended the Bligen exception any
further to date.
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                                      19
      In addition, there may be public policies that favor allowing

municipalities to lease properties from private owners on advantageous terms to

taxpayers that do not require the payment of rent or substantial rent.            If,

hypothetically, the duty to clear ice and snow within the internal boundaries of

the premises were held to be non-delegable, private would-be landlords might

be reluctant to lease to public entities or require greater consideration. We leave

that ultimate policy assessment to the Court or the Legislature.

      Given this analysis, we are guided by Shields and conclude the trial court

appropriately granted summary judgment to the property owners, albeit for

different reasons than the motion judge expressed. See Hayes v. Delamotte, 231

N.J. 373, 387 (2018) (applying the well-settled principle that appeals are taken

from orders and not opinions, and that orders may be affirmed for reasons

different from those set forth by the trial court).

      Affirmed.




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