57 A.3d 1121
N.J. Super. Ct. App. Div.2013Background
- Nielsen was injured on April 27, 2006, while walking around the exterior of Walmart’s unit at Nassau Park Shopping Center as part of an extermination job hired by Walmart.
- The area where Nielsen fell was owned and maintained by the Nassau Shopping Center Condominium Association (the developer), not by Walmart.
- The master deed required the developer to supervise, repair, replace and maintain the common elements, including the area where the accident occurred.
- Plaintiff sued Walmart and fictitious defendants in 2008; the developer moved for summary judgment on statute of limitations and won; Walmart did not oppose.
- After a five-day trial, the jury apportioned 80% negligence to Walmart and 20% to Nielsen, awarding damages of $400,000 to Nielsen and $125,000 to Nielsen’s wife.
- Walmart appealed on issues including whether it owed a duty to Nielsen outside its unit, and whether plaintiff’s contractor employee status affected liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn or protect beyond unit boundaries | Walmart owed duty to invitees to maintain or warn about hazards beyond its unit. | Duty should be limited to areas Walmart controls or contracts to maintain. | Duty owed to perimeter hazards beyond unit; imposition of duty affirmed. |
| Independent contractor employee exception | Olivo duty includes warning for hazards not part of the contracted work; exception limited. | Olivo’s exception applies; no duty to warn for hazards incidental to the contractor’s work. | Exception too narrow; Walmart still bears duty to warn about hazards Nielsen encountered. |
| Ownership/control as sole determinant of duty | Control or ownership is not required to owe a duty when obvious danger exists to invites. | Lack of ownership/control should relieve Walmart of duty. | Ownership/control not dispositive; duty extends to perimeter hazards foreseeably encountered. |
| Relation of contract terms vs. tort duty | Contractual allocation of maintenance does not bar tort duty to invitees. | Contract terms limit the duty to repair and maintain area. | Contractual terms do not preclude imposing a tort duty; policy favors liability to invitees. |
Key Cases Cited
- Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) (duty factors include relationship, risk, ability to exercise care, public policy)
- Monaco v. Hartz Mountain Corp., 178 N.J. 401 (2004) (expands liability beyond property boundaries for abutting areas)
- Stewart v. 104 Wallace Street Inc., 87 N.J. 146 (1981) (public policy toward compensation and deterrence in sidewalk/abutting areas)
- Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) (warning/inspection duties to independent contractor employees; work-site safety standards)
- Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super. 309 (1996) (limits of independent contractor exception to warning duties)
- Antenucci v. Mr. Nick’s Mens Sportswear, 212 N.J. Super. 124 (1986) (to sidewalks and related duties of commercial tenants/owners)
- Mirza v. Filmore Corp., 92 N.J. 390 (1983) (landowner liability for sidewalk maintenance)
- Kandrac v. Marrazzo’s Market at Robbinsville, 429 N.J. Super. 79 (2012) (tenant vs. owner allocation of duty for common areas)