In the recent matter of Nielsen v. Wal-Mart, the New Jersey Appellate Division extended a commercial property owner?s liability past the boundaries of its property. In fact, not only did the event occur past the boundary lines, it also occurred in an area which the property owner had not been contractually obligated to maintain. The plaintiff, William Nielsen, was injured on April 26, 2006 when he slipped and fell at a shopping center in Princeton. Mr. Nielsen was at the shopping center to perform extermination services for Wal-Mart.
The shopping center was structured as a condominium with Wal-Mart owning a specifically designated unit. Areas beyond their unit were owned by the developer of the shopping center association. In the Master Deed governing the relationship between Wal-Mart and the developer, the developer had agreed to ?supervise, administer, operate, manage, insure, repair, replace and maintain? all of the common elements, including the area upon which plaintiff had fallen.
Mr. Nielsen claimed that he was walking about the exterior of the Wal-Mart unit setting pest traps, when he encountered an area of loose sand and gravel that caused him to slip and fall. He initially filed suit against Wal-Mart alone. It is significant that after the two-year Statute of Limitations had run, he attempted to amend the Complaint to add the developer as a party to the lawsuit. The developer was thereafter successful in having the claims dismissed on summary judgment based upon a Statute of Limitations defense. This, once again, left Wal-Mart as the only viable direct defendant.
The matter proceeded to trial, and a verdict in the gross amount of $525,000.00 was entered in against Wal-Mart. Wal-Mart appealed the verdict arguing that it would be unfair to attach liability to Wal-Mart over an area for which it lacked ownership and control. The Appellate Division responded by quoting prior common law noting that:
Whether a person owes a duty of reasonable care towards another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all the circumstances in light of considerations of public policy.
The Appellate Court then clearly demonstrated its disagreement with Walmart?s position by opining that:
The notion that a land occupier?s duty of care extends only as far as the boundaries of its property ? the ostensible central thesis of Wal-Mart?s argument ? is simply out of step with the modern course of the common law.
The court then cited testimony from the trial which supported an argument that Wal-Mart had directed Mr. Neilsen to access the various building entrances by walking outside of the building, rather than through the building?s interior, suggesting that it somehow was controlling his movements on the perimeter area. Although this conclusion is arguably dubious, the Appellate Division gave it significant weight. It went on to conclude that Wal-Mart had an obligation to be aware of any dangerous conditions located on the perimeter of their properties, and as a result, should have either imparted this information to Mr. Neilsen or directed his movements elsewhere.
In justifying its extension of liability past property line boundaries in the context of a ?fall down? claim, the court made reference to the extensive case law concerning abutting sidewalk liability for commercial property owners. The courts have previously held that public policy justifies that responsibility. However, one can argue that those cases are distinguishable. Among other distinguishing facts, the area in which Mr. Nielsen fell was owned by another commercial enterprise and not a public entity.? In fact, the Appellate Division curtly dismisses the reality that the non-party developer/owner had also contractually retained the sole obligation of maintenance to the areas exterior to the Wal-Mart store.
In the end, and given the totality of the circumstances, the Appellate Division felt that it was not unfair to attach liability to the Wal-Mart and affirmed the judgment. One is left to wonder how the matter was influenced by the fact that Mr. Neilsen failed to sue the developer before the Statute of Limitations ran. If Wal-Mart had been dismissed from the case because the developer was the only responsible party, Mr. Neilsen?s best case would have been a malpractice claim against his own attorney.