Where a Tenant is in Sole Possession and Control of a Property, the Landlord Has No Duty to the Tenant’s Invitee to Clear Snow and Ice

Shields v. Ramslee Motors, 240 N.J. 479 (2020). The Supreme Court always seems to have a snow and ice removal case on its docket. The latest one resulted in an opinion by Justice Fernandez-Vina. All other Justices joined that opinion, except that Justice Albin concurred in part and dissented in part.

Plaintiff, a Federal Express driver, was delivering a letter at the property owned by defendant 608 Tonnelle Avenue, LLC and leased to defendant Ramslee Motors. Plaintiff slipped and fell on ice on the property’s driveway. He sued both the landlord and the tenant, Ramslee, for his injuries. Plaintiff settled with Ramslee. The landlord moved for summary judgment, which the Law Division granted. The Appellate Division reversed. The Supreme Court granted review, applied the accepted standard of review for summary judgment decisions, reversed the Law Division, and reinstated the summary judgment for the landlord.

The lease between Ramslee and the landlord obligated Ramslee to “maintain the leased premises and building, structures, fixtures and improvements now or hereafter located thereon.” The lease further provided that Ramslee was “solely responsible for the maintenance and repair of the land and any structure placed on the premises at any time and from time to time during the lease, as if [Ramslee] were the de facto owner of the leased premises.”

Finally, the lease allowed the landlord to enter the property for certain reasons, one of which was relevant here. The landlord was permitted to enter “for the purpose of examining the [property] or making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” But that same clause went on to state that nothing in it “create[d] an obligation on the part of the LANDLORD to make such inspection or repairs. ”

Justice Fernandez-Vina noted that “[t]he owner of Ramslee Motors testified that he was responsible for clearing snow and ice at the property. He maintained equipment at the property in order to discharge that responsibility including salt and snow shovels. Further, the tenant’s owner had removed snow and ice from the property the day before the incident, as confirmed by security camera footage from the property.”

Justice Fernandez-Vina first looked at whether the duty to clear ice and snow had been delegated by the lease to Ramslee. He found that that the lease language quoted above clearly did so. “We conclude that ‘maintenance’ includes the responsibility to remove snow and ice based on the plain meaning of that term.”

The provision that allowed the landlord to enter the property to make repairs did not require a different result, since it expressly did not obligate the landlord to make repairs. Justice Fernandez-Vina cited precedent recognizing a distinction between “the right to enter and a covenant to repair.”

The remaining question was whether the duty to remove snow and ice was one that could be lawfully delegated. The Appellate Division, Justice Fernandez-Vina said, erroneously relied on caselaw that had made clearing snow and ice from a public sidewalk by a commercial landowner a non-delegable duty. But the driveway on private property was not the same as an abutting public sidewalk.

Moreover, the driveway here was “separated from the sidewalk by a gate and cannot therefore be readily accessed by passers-by when not expressly opened by Ramslee Motors,” thus accentuating the private nature of the driveway as compared to a sidewalk. Finally, the key case that the Appellate Division had relied on expressly observed that that case was “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.”

All of the above contributed to the Court’s bottom line: control over the property was what mattered, and Ramslee unquestionably had sole control. Plaintiff had argued that the four factor inquiry of Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), should have been applied instead of a control test, but Justice Fernandez-Vina concluded that the Hopkins factors produce the same result in favor of the landlord.

In his separate opinion, Justice Albin agreed that the facts here put the responsibility for snow and ice removal on the tenant alone. But he “disagree[d] with any seeming pronouncement that absolves the landlord of the duty to make reasonable efforts to repair a dangerous condition on the property when the landlord knows or should know of the danger, when the landlord retains authority to remove the danger, and when the tenant fails to make the necessary repairs and the lives and safety of people are imperiled by negligent inaction.” That may be an issue for another day.