Who is responsible for clearing the ice and snow on a leased commercial property? The answer depends on several factors, including the language of the lease agreement, the location of the fall, and the level of control over the premises retained by the landlord.

This past January, the New Jersey Supreme Court considered whether a commercial property owner owes its tenant?s guests a duty to clear snow and ice from a driveway while the property is in the sole possession and control of the tenant. The Court ruled that when the lease agreement places the responsibility for the removal of snow and ice upon a tenant that retains complete control over the premises, the duty rests solely with the tenant.

The case, Shields v. Ramslee Motors, involved a FedEx driver who slipped and fell on ice and snow in the driveway of a used car dealer who leased the premises. The lease agreement between the tenant, Ramslee Motors, and its landlord stated that the tenant was ?responsible for the maintenance and repair of the land as if it were the de facto owner of the leased premises.? The landlord retained the right to enter the premises to make necessary repairs and to enter at any time in the event of an emergency, but the Court found that these limited rights did not create an obligation on the part of the landlord to inspect for and remedy dangerous conditions such as snow and ice.

After Shields filed a lawsuit against both the landlord and the tenant, he settled with the tenant, Ramslee Motors. The landlord sought to dismiss the case and the trial court granted the application, finding that the lease agreement placed the responsibility for property maintenance on the tenant. An appeals court disagreed with the trial court claiming that the landlord?s responsibility to maintain the driveway clear of snow and ice was an obligation that could not be completely passed on to a tenant (similar to the landlord?s obligation with respect to public sidewalks).  The Supreme Court ultimately upheld the trial court?s dismissal of the case.

The Supreme Court noted that there is no ambiguity in the lease agreement because ?maintenance? includes the duty to remove the ice and snow and that landlord?s right to enter the premises to perform repairs did not create an obligation to make such repairs. Next, the Court noted that the landlord?s non-delegable duty to maintain sidewalks in reasonable good condition does not apply to driveways because they are based on different public policies and, in this case, the driveway is clearly separated from the public sidewalk by a gate, giving the tenant exclusive possession.

Addressing the issue of control, the Court found that the tenant had exclusive control over the commercial property based on the relevant provisions in the lease agreement, on the layout of the property, and on tenant?s exercise of control over the property.

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