Recently, the Appellate Division affirmed a lower court’s decision granting summary judgment to a landlord after a Plaintiff slipped and fell on his property. Alvarez v. Termini Pizzeria et al., (A-5949-08T2). The landlord, Antonio Sanfilippo, owned a two story building that has a pizzeria on the bottom floor and two rental apartments on the second floor. The landlord sold the pizzeria to the tenant, Termini Pizzeria. Termini Pizzeria signed a lease agreement with the landlord, in which the tenant assumed all responsibility for repairs to the premises and also held the landlord harmless from any injuries or damages that could occur on and to the premises.
Plaintiff was exiting the pizzeria when she slipped and fell on the step down from the door of the pizzeria. She suffered a fracture to her leg which required surgery. She sued the landlord and the tenant.
Plaintiff’s engineering expert found that the step on which the Plaintiff fell was in disrepair due to excessive wear and tear and not a design defect. The landlord did not make any repairs to the pizzeria, including the step (although, he did maintain the second floor apartments which had a separate entrance on the side of the building), nor did the landlord perform any inspections of the pizzeria.
The trial court granted the landlord’s motion for summary judgment and the Plaintiff appealed. On appeal, Plaintiff argued, among other things, that the Public Use Exception applies to commercial property open to the public and that the Plaintiff was a business invitee. Plaintiff also argued that the landlord has a non-delegable duty to the Plaintiff to use reasonable care to ensure the premises are reasonably safe.
The Public Use Exception is the imposition of a duty to protect the public from dangerous conditions that should be detected and remedied by those with the resources to do so. A non-delegable duty requires an owner of a property to use reasonable care to see that portions of a general premises are reasonably safe for use of those who are impliedly invited to come upon the premises, and such duty cannot be delegated or transferred.
The court rejected the Plaintiff’s arguments, citing to Geringer v. Hartz Mountain Development Corp. 388 N.J. Super. 392 (App. Div. 2006). In Geringer, the court reviewed the application of a lease in which the landlord leased an entire floor to the Plaintiff’s employer. The plaintiff fell on an interior stairway. She filed a Complaint against the landlord and other parties. The Court examined the lease agreement between the landlord and the Plaintiff’s employer and found that the lease imposed the maintenance of the staircase upon the tenant.
Similarly in this case, the court found that the landlord did not owe a duty to the Plaintiff based upon the terms of the lease and the relationship between the landlord and the Plaintiff. The Court found that the landlord was an “out of possession” or an “absentee” landlord whose only contact with the pizzeria was to collect rent. Further, the Court found that the landlord did not create the defective or hazardous condition from which a duty to maintain the premises may have arisen prior to leasing the pizzeria to the tenant.
The Court further found that the landlord was not bound by the non-delegable duty owed to the Plaintiff. The out of possession landlord could rely on the terms of the lease delegating the duty to repair and to keep the premises reasonably safe for its customers. Vasquez v. Mansol Realty Assoc. Inc., 280 N.J. Super. 234 (App. Div. 1995). The Court held that since the accident did not occur on a public sidewalk, as it did in Vasquez, the duty was not considered non-delegable.
The importance of this decision cannot be understated in the area of premises liability law. A clearly worded lease assigning responsibility of maintenance of the property upon the tenant, and not the landlord, will protect the landlord against claims of negligence involving failure to maintain the property.

Ayesha T. Rashid, Esq.