ANTHONY FOTI VS. JG ELIZABETH II, LLC D/B/A THE MILLS AT JERSEY GARDEN MALL (L-3213-17, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1971-19
ANTHONY FOTI and
CRISTINA FOTI, his wife,
Plaintiffs-Appellants/
Cross-Respondents,
v.
JG ELIZABETH II, LLC 1
D/B/A THE MILLS AT JERSEY
GARDEN MALL I/S/H AS
SIMON PROPERTY GROUP, INC.,
and N.J. METROMALL URBAN
RENEWAL, INC. I/S/H AS
ELIZABETH METROMALL, LLC,
Defendants-Respondents/
Cross-Appellants.
and
WE ARE ONE UNITED, improperly
pled as WE ARE ONE UNITED
and NJ STATE AFL-CIO
COMMUNITY SERVICES
AGENCY, INC., UNION
1
We added JG Elizabeth II, LLC to the caption as it was omitted from the
caption of the complaint plaintiffs filed in the Law Division.
COUNTY COLLEGE and
COUNTY OF UNION,
Defendants,
and
CITY OF ELIZABETH,
Defendant-Respondent.
______________________________
Argued May 3, 2021 – Decided July 2, 2021
Before Judges Messano, Hoffman and Smith
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3213-17.
Yelena Kofman DelGado argued the cause for
appellants/cross-respondents (Vlasac & Shmaruk,
LLC, attorneys; John M. Vlasac, Jr., of counsel and on
the briefs; Ryan P. Getz, on the brief).
Andrew L. Stern argued the cause for respondent/cross-
appellant (Weiner Law Group, attorneys; Donald M.
Garson and Ann Marie F. Kane, on the brief).
Robert F. Varady argued the cause for respondent
(LaCorte, Bundy, Varady & Kinsella, attorneys; Robert
F. Varady, of counsel and on the brief).
PER CURIAM
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Plaintiff Anthony Foti was employed by the County of Union (the County)
as an electrician.2 The County sent plaintiff and fellow employee Steven Faethe
to the Mills at Jersey Garden, a retail mall in Elizabeth owned by JG Elizabeth
II, LLC, d/b/a The Mills at Jersey Garden Mall i/s/h as Simon Property Group,
Inc., and N.J. Metromall Urban Renewal, Inc., i/s/h as Elizabeth Metromall,
LLC (JG). In 2000, the City of Elizabeth (Elizabeth) leased space at the mall
pursuant to a written lease (the Lease) with the Glimcher Group (Glimcher),
developer of the mall. Elizabeth operated a job training center — the Retail
Skills Center — in the leased premises, designated as Space 1158. Elizabeth
paid no rent for the space. JG acquired the mall from Glimcher in 2015.
Although there were no written agreements, it is undisputed that with
Elizabeth's acquiescence, the County agreed to join with a non-profit
organization, We Are One New Jersey (We Are One), and the AFL-CIO to
provide services to "legal[] permanent residents" within Space 1158. The
County issued a work order to install electrical services for new cubicles in the
space, but it never submitted any specifications or plans for the work to JG, and
2
Because plaintiff Cristina Foti's per quod claim is wholly derivative of her
husband's claim, we use the singular "plaintiff" throughout the opinion.
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3
JG's representatives were unaware that plaintiff and his colleague would be
working in Space 1158.
On August 27, 2015, the County's Director of Facilities Management
visited the space with plaintiff and discussed the work to be performed. The
next day, plaintiff and Faethe arrived in Space 1158. Plaintiff ascended a ladder
and, in the process of pushing electrical wire over ductwork in the space above
the ceiling tiles, he received an electric shock from an exposed wire in an open
junction box. Plaintiff fell from the ladder and was injured.
Plaintiff filed a complaint alleging negligence on the part of Elizabeth and
JG.3 After extensive discovery, both defendants moved for summary judgment.
In an oral decision, the judge concluded plaintiff failed to demonstrate that either
defendant created the dangerous condition or had actual or constructive notice
of its existence. He entered two orders granting the motions and dismissing
plaintiff's complaint.
Before us, plaintiff contends the judge abused his discretion by entering
interlocutory orders barring his expert's second report as untimely and denying
plaintiff's motion for reconsideration. Plaintiff argues that even without the
3
All other defendants were dismissed from the litigation in the Law Division
and have not participated in this appeal.
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second report he established a prima facie case of negligence against Elizabeth
under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. He further contends
that it was error to grant JG summary judgment because plaintiff established that
JG breached the duty owed to him as a business invitee by failing to make
reasonable inspection and discovering the dangerous electrical condition above
the ceiling.
Elizabeth and JG oppose all these arguments. Additionally, JG cross-
appeals, contending that summary judgment was appropriately granted on two
additional grounds which the Law Division judge did not address. Specifically,
JG argues plaintiff was a "licensee," and it only owed him a duty to warn of
dangerous conditions of which it had actual knowledge. JG also argues that
plaintiff's injuries were caused by a condition incidental to the work he was
performing.
We have considered these arguments in light of the record and applicable
legal standards. We affirm on the appeal and dismiss the cross-appeal as moot.
I.
We first consider the interlocutory orders that resulted in the exclusion of
plaintiff's supplemental expert report, mindful that "[a]n appellate court applies
'an abuse of discretion standard to decisions made by [the] trial courts relating
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to matters of discovery.'" C.A. by Applegrad v. Bentolila, 219 N.J. 449, 459
(2014) (second alteration in original) (quoting Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 371 (2011)). "It 'generally defer[s] to a trial court's
disposition of discovery matters unless the court has abused its discretion[,] or
its determination is based on a mistaken understanding of the applicable law.'"
Ibid. (first alteration in original) (quoting Pomerantz Paper Corp., 207 N.J. at
371).
Similarly, "[w]e review the denial of a motion for reconsideration to
determine whether the trial court abused its discretion." Triffin v. SHS Grp.,
LLC, 466 N.J. Super. 460, 466 (App. Div. 2021) (citing Cummings v. Bahr, 295
N.J. Super. 374, 389 (App. Div. 1996)).
[R]econsideration should only be granted in "those
cases which fall into that narrow corridor in which
either 1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or 2) it is
obvious that the [c]ourt either did not consider, or failed
to appreciate the significance of probative, competent
evidence . . . ."
[Ibid. (alterations in original) (quoting Cummings, 295
N.J. Super. at 384).]
"[T]he magnitude of the error cited must be a game-changer for reconsideration
to be appropriate." Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div.
2010).
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In September 2018, the judge managing the litigation entered an order
requiring plaintiff to serve his initial liability expert's report by a certain date,
and his final experts' reports by December 3, 2018; the order also extended
discovery to January 29, 2019. In October 2018, plaintiff served the expert
report of John Laiosa, an electrical contractor. Laiosa opined that "a dangerous
condition existed in the ceiling of Space 1158, namely an open, uncovered
junction box containing live wires with no wire nuts covering the open ends of
the unused wires."
After more than 550 days of discovery and after the date his final experts'
reports were due, plaintiff moved to compel the deposition of Elizabeth's
witnesses and extend discovery. A second judge assumed management of the
case, granted the motion, and extended discovery until April 29, 2019. Plaintiff
deposed Elizabeth's witnesses on February 22, 2019. On the last day of
discovery, plaintiff served a second report from Laiosa dated April 26 as an
amendment to interrogatory answers.
In addition to the opinion reached in his earlier report, Laiosa said "the
most likely cause for this dangerous condition was the . . . prior work left in an
uncompleted state. . . . [T]his work was not completed in the proper manner ,
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leaving an open junction box and exposed, uncapped wires above the ceiling of
Space 1158." There was little else added to the initial report.
The judge heard argument on JG's motion to bar Laiosa's second report.
In an oral decision, the judge granted the motion, noting that plaintiff failed to
serve the report within twenty days of the discovery end date as required by Rule
4:17-7. The judge further concluded that plaintiff had not advised opposing
counsel a second report was forthcoming, nor did plaintiff seek a further
extension of discovery. In summary, the judge said: "[H]ow it's unfolded I don't
think is fair[,] and it has to be met with the sanction of this order[,] which is[,]
that report is going to be barred."
Plaintiff sought reconsideration. Essentially, he argued defendants were
on notice from the September 2018 case management order and Laiosa's initial
report that it would be supplemented as discovery progressed. Plaintiff cited
defendants' alleged dilatory discovery responses. Plaintiff claimed exclusion of
Laiosa's second report would be "fatal to [his] case," and he urged the court to
reconsider its earlier order. The judge's oral decision reflected his conclusion
that plaintiff had presented nothing new; he denied the reconsideration motion.
Before us, plaintiff contends he served the second expert report before the
close of discovery, and, that the prejudice its exclusion wrought on plaintiff
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outweighed any prejudice visited on defendants. Plaintiff also argues that the
judge's denial of his reconsideration motion reflected a misunderstanding of the
governing Court Rules. We find no merit to either argument.
Plaintiff clearly failed to comply with Rule 4:17-7, which prohibits a party
from amending interrogatory answers within twenty days of the discovery end
date unless the party "certifies . . . that the information requiring the amendment
was not reasonably available or discoverable by the exercise of due diligence
prior to the discovery end date." Plaintiff relies on Rule 4:17-4(e), which
provides an exception to Rule 4:17-7. It permits a party to compel an expert's
report by a court-ordered date certain and allows the proponent of the expert's
report to rely upon the court's order. See Fanfarillo v. E. End Motor Co., 172
N.J. Super. 309, 313 (App. Div. 1980) (reversing order barring defense expert
from testifying for failure to serve report because trial was set prior to date court
ordered the defendant to furnish the report under Rule 4:17-4(e)).
However, Rule 4:17-4(e) has no application here. The only court order
that set a date for plaintiff's final liability expert's report was the September 2018
case management order; that date was December 3, 2018, and plaintiff failed to
meet that date.
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Although plaintiff moved for a discovery extension to depose certain
witnesses, vague assertions of dilatory discovery by defendants fail to overcome
the fact that plaintiff never sought a further extension of discovery. See R. 4:24-
1(c) (requiring motions to extend discovery to be made prior to the conclusion
of discovery). Moreover, an arbitration date had been set, and plaintiff was
required to establish "exceptional circumstances" justifying a further extension.
Ibid.It is difficult to see how any information supplied by the depositions that
took place during the last discovery extension was critical to Laiosa's ultimate
opinion, i.e., that "prior work" left the wiring in the junction box in a dangerous
condition, accidently accessible to a tradesman like plaintiff. Even with the
benefit of this additional discovery, Laiosa never said which party performed
the "prior work," nor, as we discuss below, was plaintiff ever able to establish
that fact.
Plaintiff's reliance on Tucci v. Tropicana Casino & Resort, Inc., 364 N.J.
Super. 48 (App. Div. 2003), is misplaced. We need not review the facts
surrounding our decision there to reverse the order barring an expert's report
except to add that critical to our determination was the plaintiffs' counsel's
certification attesting he was preoccupied at the time because his mother was
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fatally ill. Id. at 51. That was "good cause, if not extraordinary circumstances,
mandating a reasonable modicum of judicial indulgence." Id. at 54.
Here, plaintiff did not move to compel the deposition of Elizabeth's
witnesses until after his final expert report was due under the September 2018
case management order. Plaintiff secured an extension of discovery after
successfully moving to compel depositions and had ample time to move for a
further extension of discovery if those depositions were truly necessary for
Laiosa's supplemental report. Nothing in the record indicates there were
personal problems that delayed the furnishing of the report.
In short, we find no mistaken exercise of discretion in barring Laiosa's
second report. Plaintiff's arguments regarding the denial of his motion for
reconsideration lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
II.
We review the grant of summary judgment de novo, applying the same
standard used by the trial court, which
mandates that summary judgment be granted "if the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact challenged and that the moving party is entitled to
a judgment or order as a matter of law."
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[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).]
A dispute of material fact is "genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact." Grande v. Saint Clare's
Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38
(2014)). "'If there is no genuine issue of material fact,' then we must 'decide
whether the trial court correctly interpreted the law.'" Richter v. Oakland Bd.
of Educ., 459 N.J. Super. 400, 412 (App. Div. 2019) (quoting DepoLink Ct.
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013), aff'd as mod., ___ N.J. ___ (2021)).
Additionally, "[w]e review the judge's interpretation of 'the law de novo
and owe no deference to the trial court . . . if [it has] wrongly interpreted a
statute.'" Warren v. Muenzen, 448 N.J. Super. 52, 62 (App. Div. 2016) (second
alteration in original) (quoting Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)).
We limit our review to the record before the motion judge. See Ji v. Palmer,
333 N.J. Super. 451, 463–64 (App. Div. 2000) (holding appellate review of the
grant of summary judgment is limited to the record that existed before the
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motion judge (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188
(1963))).
A.
In addition to what we have already set forth, the motion record revealed
that Elizabeth first entered into the Lease with Glimcher in 2000. The Lease
forbade Elizabeth from making "any changes to the . . . electrical . . . systems
without the prior written approval of [the l]andlord." Elizabeth was obligated
to maintain the "electrical systems . . . exclusively serving the [l]eased
[p]remises . . . walls, floors and ceilings." Pursuant to section 1.01(b) of the
Lease, JG retained an easement above the finished ceiling of Space 1158:
The exterior walls, roof and the area beneath the
Leased Premises are not demised hereunder and the use
thereof together with the right to install, maintain, use,
repair, and replace pipes, ducts, conduits, wires, lines,
flues, drains, access panels, sprinkler mains and valves,
refrigerant lines, tunnels, sewers and structural
elements leading through the Leased premises in
locations which will not materially interfere with
Tenant's use thereof and serving other parts of the
regional development are hereby reserved unto
Landlord. Landlord reserves an easement above
Tenant's finished ceiling or light line to the roof, or to
the bottom of the floor deck above the Leased Premises,
for general access purposes and in connection with the
exercise of Landlord's other rights under this Lease.
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Glimcher and Elizabeth executed amendments and renewals to the Lease
thereafter with the last extension terminating on October 31, 2016.
At the inception of the Lease, Union County College provided training at
the Retail Skills Center for individuals to obtain employment at the mall. The
County's Deputy Manager, William Reyes, Jr., who at the inception of the Lease
was employed by Elizabeth, testified at deposition that the County decided to
partner with We Are One and the AFL-CIO to help "documented individuals
obtain their citizenship." These organizations were going to use some space in
Space 1158, which Reyes acknowledged would be "cut out of existing space."
In February 2015, Reyes sent the general manager of the mall, Denise
Palazzo, a letter advising that "[w]orking with . . . Elizabeth, Union County
College, and We Are One," the County wanted a five-year extension of the
Lease, set to expire in October 2016, which "would allow [it] the opportunity to
invest in the physical space." Reyes said there were no agreements in place prior
to plaintiff's accident regarding the sharing of space, and he had no idea how all
these organizations were operating in Space 1158.
Palazzo acknowledged receiving the letter but could not recall ever
responding. Nonetheless, Reyes arranged through the County's Director of
Public Works to make improvements in Space 1158 to accommodate We Are
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One and the union's occupancy; as noted, no plans were submitted to JG for
approval prior to plaintiff commencing work. In August 2017, the County
executed a lease for Space 1158 with JG. The commencement date in the lease
was November 1, 2016.
On the day in question, plaintiff and Faethe were to install two electrical
receptacles and tie them into junction boxes above the drop ceiling. They did
not turn off the electricity at the main electrical panel. Faethe ran the wire to
the first junction box on one side of the space; plaintiff climbed the ladder to do
the second on the other side of the room. As he did so, plaintiff testified the
wire he snaked through to make the connection must have contacted a "live"
wire inside a junction box obscured by ductwork in the ceiling.
Faethe broke plaintiff's fall from the ladder. Faethe then mounted the
ladder and, with the aid of his flashlight, saw the uncapped wire in the uncovered
junction box. Faethe donned rubber gloves and capped the wires, but the men
did not have the necessary sized cover to put on the junction box.
B.
On this record, plaintiff contends he established a prima facie case of
negligence against Elizabeth under the TCA because the exposed wire in the
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uncapped junction box was a dangerous condition on public property , and
plaintiff satisfied all provisions of N.J.S.A. 59:4-2. We disagree.
The "guiding principle" of the TCA is "that immunity from tort liability
is the general rule and liability is the exception." Polzo v. Cnty. of Essex, 196
N.J. 569, 578 (2008) (Polzo I) (quoting Coyne v. State Dep't of Transp., 182
N.J. 481, 488 (2005)). "[A] public entity is 'immune from tort liability unless
there is a specific statutory provision' that makes it answerable for a negligent
act or omission." Polzo v. Cnty. of Essex (Polzo II), 209 N.J. 51, 65 (2012)
(quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)).
A public entity may be "liable for injury caused by a condition of its
property" if a plaintiff can establish all the elements of N.J.S.A. 59:4 -2.
[I]n order to impose liability on a public entity pursuant
to [N.J.S.A. 59:4-2], a plaintiff must establish the
existence of a "dangerous condition," that the condition
proximately caused the injury, that it "created a
reasonably foreseeable risk of the kind of injury which
was incurred," that either the dangerous condition was
caused by a negligent employee or the entity knew
about the condition, and that the entity's conduct was
"palpably unreasonable."
[Vincitore v. N.J. Sports & Exposition Auth., 169 N.J.
119, 125 (2001) (quoting N.J.S.A. 59:4-2); accord
Polzo I, 196 N.J. at 579.]
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"Th[e]se requirements are accretive; if one or more of the elements is not
satisfied, a plaintiff's claim against a public entity alleging that such entity is
liable due to the condition of public property must fail." Polzo I, 196 N.J. at
585.
"The [TCA] defines a 'dangerous condition' as 'a condition of property
that creates a substantial risk of injury when such property is used with due care
in a manner in which it is reasonably foreseeable that it will be used.'" Garrison
v. Twp. of Middletown, 154 N.J. 282, 286–87 (1998) (quoting N.J.S.A. 59:4-
1(a)). "The first consideration is whether the property poses a danger to the
general public when used in the normal, foreseeable manner." Vincitore, 169
N.J. at 126. Plaintiff contends he satisfied this prerequisite because it was
foreseeable that work would have to be done in the space above the drop ceiling.
While that may be true, we doubt access by a skilled tradesman to an area
invisible and inaccessible to the general public meets this requirement.
But assuming arguendo plaintiff established a dangerous condition on
public property, he failed to demonstrate Elizabeth had actual or constructive
notice of the condition. There was no proof of actual notice. Nor was there any
evidence that Elizabeth or its agents or employees created the dangerous
condition. See N.J.S.A. 59:4-2(a). Even if Laiosa's second report was admitted,
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it failed to demonstrate Elizabeth's employees or agents had left the live wire
uncapped in an uncovered junction box.
Plaintiff argues that Elizabeth had constructive notice of the dangerous
condition.
A public entity shall be deemed to have constructive
notice of a dangerous condition . . . only if the plaintiff
establishes that the condition had existed for such a
period of time and was of such an obvious nature that
the public entity, in the exercise of due care, should
have discovered the condition and its dangerous
character.
[N.J.S.A. 59:4-3(b).]
Initially, we note that "the mere '[e]xistence of an alleged dangerous condition
is not constructive notice of it.'" Polzo I, 196 N.J. at 581 (alteration in original)
(quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).
Plaintiff argues, however, that because the dangerous wiring may have existed
since Elizabeth first entered into the Lease, and because the Lease required
Elizabeth to maintain the electrical services to Space 1158, it was on
constructive notice of the dangerous condition on its property.
Of course, those cases where a plaintiff established constructive notice
based on the passage of time usually involved openly visible conditions on
public property, not a condition in a crawl space hidden by ceiling tiles. See,
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e.g., Chatman v. Hall, 128 N.J. 394, 399–400 (1992) (large hole in public street
that existed for many months prior to the plaintiff's accident); Lodato v.
Evesham Twp., 388 N.J. Super. 501, 511–12 (App. Div. 2006) ("open and
obvious" tree roots and raised sidewalk, along with similar conditions on
sidewalks of two adjacent homes presented jury question constructive notice).
In addition, plaintiff cites no authority for the proposition that the Lease
provisions that required Elizabeth to maintain the electrical service to the space
establish constructive notice. After all, Elizabeth was not doing the work inside
the space, nor was the condition in the space above the ceiling tiles "of such an
obvious nature" that had the city been doing the work it would have discovered
the condition. Plaintiff, a skilled electrician, never saw the exposed wire before
the incident.
We need not address other arguments raised by the parties regarding
additional provisions of N.J.S.A. 59:4-2. Summary judgment was properly
granted to Elizabeth because plaintiff failed to establish the prerequisite of
actual or constructive notice for liability to attach under the TCA.
C.
Although JG argued that plaintiff was not its business invitee, the motion
judge reasoned plaintiff was "there to fix the property. He's there to help the
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tenant which helps [JG] continue to operate." However, without definitively
deciding whether plaintiff was a licensee or a business invitee, the judge held
that "[r]egardless . . . a property owner has a general tort obligation to avoid
foreseeable harms to others." He granted JG summary judgment because
plaintiff could not prove JG had notice of the alleged dangerous condition and
therefore breached no duty to plaintiff.
Before us, plaintiff contends it established a prima facie case of
negligence because as an invitee, JG as the landlord owed him a duty to make
the premises safe, which included a duty to make reasonable inspection to
discover defective conditions otherwise not obvious to its tenant. Plaintiff
argues JG breached this duty because they failed to inspect the space above the
ceiling tiles, and, had they done so, they would have discovered the dangerous
wiring. We are unpersuaded.
These "common law categories" — invitee or licensee — "are a
shorthand" that informs the analysis for the duty owed by the landowner. Rowe
v. Mazel Thirty, LLC, 209 N.J. 35, 45 (2012). "The invitee comes by invitation,
express or implied, generally for some business purpose of the owner. The
licensee is permitted to come upon the property, and does so for his own
purposes." Id. at 43 (first citing Lordi v. Spiotta, 133 N.J.L. 581, 584 (Sup. Ct.
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1946); and then citing Prosser and Keeton on Torts § 60, at 412 (5th ed. 1984)).
It is difficult to see how plaintiff could be characterized as an invitee of JB. Any
electrical work he intended to perform was not for JG's business purposes. JG
did not even know he was there and never approved the work. Moreover,
plaintiff was performing the work for his employer, the County, not JG's tenant,
Elizabeth.
Assuming arguendo plaintiff was a business invitee, JG owed him a
greater duty of care than that owed to a licensee. See id. at 44 (noting a
landowner "does not have a duty actually to discover latent defects when dealing
with licensees." (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433
(1993))).
Only to the invitee or business guest does a landowner
owe a duty of reasonable care to guard against any
dangerous conditions on his or her property that the
owner either knows about or should have discovered.
That standard of care encompasses the duty to conduct
a reasonable inspection to discover latent dangerous
conditions.
[Ibid. (quoting Hopkins, 132 N.J. at 434).]
It is undisputed that the space above the ceiling tiles was part of the
demised premises. Plaintiff contends that pursuant to the Lease, JG retained an
easement to that space specifically to make improvements and repairs to the
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electrical system as necessary. Plaintiff contends the retention of this easement
imposed a duty on JG to make periodic inspections of the space, and its failure
to do so breached the duty it owed to plaintiff as invitee.
However, "plaintiff['s] thesis that a commercial landlord should be held
responsible to a tenant's employee injured on the leased premises because it
reserved the right to enter the leased premises to perform repairs is inconsisten t
with the law of this State." McBride v. Port Auth. of N.Y. & N.J., 295 N.J.
Super. 521, 525 (App. Div. 1996) (citations omitted); accord Shields v. Ramslee
Motors, 240 N.J. 479, 489 (2020) (citing McBride and noting, "New Jersey
courts have distinguished between the right to enter and a covenant to repair.").
In short, the reservation of an easement in the Lease in favor of the landlord to
make repairs and improvements did not establish JG owed a duty to its tenant,
or plaintiff, to periodically inspect the space above the ceiling tiles.
Plaintiff also failed to establish that JG through its employees or agents
created the dangerous condition. Laiosa's second report stated the obvious; the
uncapped wires in the open junction box resulted from incomplete electrical
work. Neither Laiosa nor any other witness testified when the "incomplete"
work was done or by whom.
Affirmed. The cross-appeal is dismissed as moot.
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