Many personal injury cases in our legal system involve slips and falls on ice or snow in shopping centers or malls. In a recent case, a court refused to extend the duty of removing that ice and snow to a tenant in a multi-tenant shopping center where the tenant had no contractual duty to do so.

Generally, in any case involving a negligent or dangerous condition of real property in common areas of a shopping center, the owner of the property would be legally responsible for injuries sustained as a result of same. In this regard, the owner has a non-delegable duty to users of the property to either make the dangerous conditions safe or appropriately warn the users of the property of the condition's existence. This basically means that they will not be absolved of liability if they hire someone such as a management or maintenance company to fulfill their duty. They also cannot absolve themselves of liability by placing such responsibility on their tenants in a lease. As the owner of the property, they will ultimately be responsible. However, depending upon the circum stances, others may also be responsible to the injured party for their breach of a duty. For instance, if a landowner hires a snow removal contractor to remove ice and snow from a parking lot, the snow removal contractor will also be responsible if they failed to properly remove same.

Despite the fact that the landowner will always be legally responsible for the conditions of their property in a common area, there are many strategic reasons that attorneys bring suit against others when their client's injuries arise in a common area of a shopping center. Such considerations include availability of insurance, who has day-to-day control of the property and the status of the injured user of the property.

In the recent Third Circuit Court of Appeals case of Holmes v. Kimco Realty, the plaintiff slipped and fell in a common area parking lot of a shopping center. Plaintiff's counsel sued Lowe's, which was the tenant closest to the area of the plaintiff's fall. In fact, a sign in the area of the fall indicated that Lowe's customers regularly and routinely used the area exclusive to all other tenants. The lease between Lowe's and the landowner did not require Lowe's to remove ice or snow from common areas although they were responsible for the cost of same through a CAM charge (Common Area Maintenance charge). For some reason unclear in the decision, the plaintiff's attorney was unable to properly identify the landowner before the statute of limitations expired. Thus, it was important that liability be placed upon the tenant for the plaintiff's case to survive.

Under these facts the court held that a tenant has no duty to remove ice or snow or to warn its patrons of its presence despite the fact that its patrons exclusive used the area. The court relied on prior case law and the fact that the lease agreement between Lowe's and the landlord did not require Lowe's to take any action with regard to snow or ice removal. Prior case law suggested that a tenant would not have responsibility to remove ice or snow from a common area sidewalk regardless of how close it was to the tenant's front door.

Despite current case law, we would suggest a different result. A tenant in possession such as a Lowe's is in the best position to determine the condition of the property around them. Thus, they are also in the best position to warn of or rectify any dangerous ice or snow conditions. Despite the fact that a landlord and tenant may make their own contract as to who has the responsibility between them as to the removal of ice and snow, the general public has no protection if the contractually responsible party fails to uphold their contractual duty. Thus, under the court's holding, a tenant who has no contractual responsibility to remove ice and snow from common areas around its store including its parking lot and sidewalks may open its doors for business regardless of the site conditions with no repercussions.

In light of the above, it is important to see a competent attorney as early as possible after such an incident so that the proper investigation can be done and all of you rights can be preserved.

In a recent blog we discussed the fact that a person injured by a drunk driver may have a cause of action for damages against the bar or licensed establishment that actually served the alcohol to the drunk driver. As a follow up to that blog, the New Jersey Appellate Division recently decided a case having to do with the drunk driver's ability to sue a bar for injuries suffered when their alcohol consumption led to a motor vehicle accident causing bodily injury.

In Voss v. Tranquilino, a driver of a motorcycle was injured in a motor vehicle collision with an automobile and sustained serious personal injuries. At the time of the accident, the motorcycle operator's Blood Alcohol Content (BAC) was almost twice the legal driving limit. He was charged with driving while intoxicated and pled guilty to that charge. He then filed a lawsuit against the bar that served him he liquor as well as the driver of the other vehicle involved in the crash.

Importantly, A New Jersey statute (N.J.S.A. 39:6A-4.5(b)) provides that a driver who is convicted of driving while intoxicated "shall have no cause of action for the recovery [for personal injury damages] sustained as a result of the accident." Based on the language of that statute, the bar moved to have the case dismissed against it. The court had to decide whether the above-cited statute was meant to protect licensed establishments from a lawsuit brought against them by the individuals to who they negligently served alcohol. (Please see our prior blog as to what constitutes the negligent service of alcohol). A literal plain reading of the statute's language would lead one to conclude that the case should not be allowed.

The court, in a lengthy opinion, concluded that drunk driver may bring a cause of action against a bar or licensed establishment. The reasoning of the court was twofold. First, the Legislative history of the above statute made clear that the statute was enacted for the purposes of attempting to control automobile insurance rates and, as such, allowing a cause of action against the bar would not violate this goal. In fact that statute is found in the motor vehicle section of New Jersey Statute. Second, and perhaps more importantly, the court made a public policy determination that allowing the bar to escape liability in this situation could lead to less diligence in the bar's monitoring of its patron alcohol consumption thus, in turn, leading to an increase in drunk driving.

Although at first glance it may seem improper to allow a drunk driver to pursue personal injuries in that it does not have a deterrent effect upon driving while intoxicated, we applaud the court for its decision. In this regard, while we all have personal responsibility as to the amount of alcohol we drink and whether we drive thereafter, a licensed establishment is sometimes in a better position to protect its patrons from their own behavior of overindulging. This is because as one commences alcohol consumption their reasoning and judgment may become impaired and their decision to continue drinking or driving may be flawed. The alcohol server, however, has the ability to monitor the patron's alcohol consumption and cut them off at the appropriate time. An opposite conclusion in this case could lead to a decreased vigilance on the bar's part in this regard. This is why a skilled attorney is needed to determine the best course of action for a claim.

In a recent New Jersey Supreme Court case, the Court addressed the issue of whether a realtor who was involved in the rental of a property could be sued for injuries sustained by a tenant in the property as a result of a dangerous condition. Interestingly, the New Jersey Supreme Court Justices were equally divided on the issue which means that the decision of the Appellate Division was affirmed.

The facts of the case, Reyes v. Egner, are rather simple. The owner of the subject property, a vacation home in Stone Harbor, recently had purchased the property for purposes of renting it on short-term vacation property rentals. In this regard, the owner hired the defendant realtor to list the property for such rentals and authorized them to take various actions in performance of this task. These actions included showing the property to potential renters and another included making emergency repairs as needed. In exchange, the realtor received a 12% commission of any rental obtained.

The plaintiff's family rented the subject property for a two-week period after viewing same. Specifically, the plaintiff's daughter entered into the lease and the family commenced their vacation in the home without incident. After nine days, the plaintiff, a seventy-year-old man, opened a sliding glass door leading from his bedroom onto a deck. It was the first time in the nine days that he had opened this door. Because of an improper step down, he was caused to fall and sustain injury as he attempted to enter the deck.

On those facts, the Appellate Division and half of the Supreme Court concluded that the realtor had no liability for the plaintiff's injury. While this appeared to be a departure from the current state of the law, the courts explained that their holding was limited to the facts of the case before it. In a prior case, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) the Supreme Court of New Jersey held that a realtor would be responsible where a persons suffered an injury as a result of a defective condition of a property where an open house was taking place. This case has been read and interpreted to mean that a realtor has a duty to inspect for and either correct or warn of dangerous conditions that exist on properties that they are showing to prospective tenants or purchasers.

The Justices on the present court that agreed with the Appellate Division's holding distinguished the facts before it from the Hopkins case by indicating that, unlike the injured parties in the cases that have come down since Hopkins but before the present case, the plaintiff's family was actually in possession of the premises for nine days prior to the incident and would have been in a better position than the realtor to discover and be aware of dangerous conditions such as the one complained of by the plaintiff. The Justices that disagreed with the Appellate Division and would have held the realtor responsible cited to the realtor's duties under the contract with the homeowner and concluded that the realtor was in the best position to know of and either warn or correct the dangerous condition. They felt that the case was analogous to Hopkins.

Our reading of this case leads us to conclude that there has not really been a change in the law concerning realtor liability. We believe that the holding of Hopkins is alive and well and that realtors still have a duty to perform inspections and either warn of or correct dangerous conditions when showing properties to the public. The plaintiff here lost the case on the facts. That is we believe the courts would have concluded differently if the plaintiff were injured on the initial walkthrough of the property as opposed to after having possession for nine days. As it was before, each case must be decided on its specific facts.

A lawsuit recently filed in Texas on behalf of a woman killed by a drunk driver alleges that a local bar improperly served drinks to a patron until he was inebriated, and then allowed him to leave the premises in his own vehicle. The suit reportedly alleges that the establishment should have either stopped the service of alcohol earlier in time or prevented him from driving his vehicle. Cases of this type are recognized in the State of New Jersey where a licensed establishment fails to properly monitor the amount of alcohol served to its patrons.

New Jersey is among the majority of states that allows a cause of action against a bar or other food or beverage establishment licensed to serve alcohol when one of its patrons causes an injury to an innocent third party. In such cases, a litigant or plaintiff must established that improper actions by the patron were the result of inebriation and that the entity that served the alcohol did so in an improper manner. Thus, in New Jersey, the first appropriate legal inquiry is whether or not the person that caused the injury was intoxicated to the extent that would alter his or her behavior, and inhibit his or her ability to properly and reasonably act under the circumstances. In order to establish this intoxication and resulting inhibition, an expert may determine the level of alcohol in the person at the time of the accident or injury, and may explain the effect of that level of alcohol on the reflexes and reasoning of the individual.

The second legal inquiry that must be made is whether the establishment served alcohol to the individual at a time when it was unreasonable to so. How do we know when it is unreasonable to serve alcohol to any individual? New Jersey cases hold that the server of alcohol will be responsible for any injuries caused by an intoxicated person when that person was served alcohol even though that person was "visibly intoxicated." Many factors go into the definition of "visible intoxication," including but not limited to the number of drinks served to a person, the slurring of the person's speech, the existence of bloodshot eyes, and the demeanor of the person. Of course, because each person acts differently when consuming alcohol, the number of drinks and the blood alcohol level for each "visibly intoxicated" person may vary. Once again, an expert will needed to establish a person's blood level at varying points of service of the alcohol. Generally, an expert accomplishes this by utilizing a known blood alcohol level and the time of consumption, and extrapolating back in time from that point based on a person's metabolism and alcohol burn rate.

In all such cases, it is imperative to perform an investigation as soon as possible, at the earliest possible point after the incident or accident, to establish the existence of witnesses and obtain other evidence. Witnesses can be utilized to testify as to the actions of the intoxicated person immediately prior to the accident and during the time that the establishment continued to serve that person alcohol, in order to prove the above referenced requirements.

Importantly, the New Jersey Supreme Court has extended such cases to the social host context in a lawsuit handled by our law firm. Basically, this case made it a law that any person serving alcohol to another, whether in a bar or club setting, or at a backyard barbeque, should take steps to monitor the consumption of alcohol of their guests and cut them off form further drinking when the person first exhibits signs of intoxication. Regardless of which side of this incident you may find yourself on, it is crucial to contact a skilled, experienced attorney immediately.