A recent unreported New Jersey Appellate Division decision reveals that a breach of a duty of care does not always give rise to liability in a negligence claim. In Ocampo v. Famco, the Appellate Division rejected a plaintiff's case wherein a sleepwalking 16 year old fell out of a 2nd story window with a nonfunctioning lock, finding that it was not reasonable for a jury to conclude that such an accident was foreseeable under the circumstances.

A viable cause of action based in negligence requires the following elements: 1. a duty to the plaintiff; 2. the breach of a duty; 3. proximate causation; and 4. damages. In the case involving the 16 year old, there is no doubt that the defendant landlord had a duty to properly maintain the subject apartment, including the window lock. Further, there was no question that the defendant landlord failed to comply with this duty by failing to ensure that the lock was functioning. Unfortunately, the plaintiff was unable to show proximate causation. Basically, under New Jersey law, proximate causation is based, in part, on the foreseeability. In this regard, an injury or damages will not be considered "proximately caused" by another's breach of duty unless a jury can conclude that such damages are "reasonably foreseeable" under the circumstances.

In the above referenced case, the Appellate Division found that because the youngest person residing in the apartment was 16 years old, a jury could not possibly conclude that one would fall out a second story window due to a nonfunctioning lock. In other words, the Appellate Division concluded that it was not foreseeable that someone 16 years older would fall out of 2nd story window due to a nonfunctioning lock.

We disagree with the Appellate Division's holding in this regard! It is just as foreseeable that an "incapacitated" 16 year old could fall out of a 2nd story window as a two or three year old child. "Incapacitated" could include a sleepwalker, a mentally incapacitated person, or someone on prescription or over the counter medication, or under the influence of alcohol or illegal drugs. Is it not foreseeable that 16 year old, who is the youngest resident in the apartment, could be incapacitated under one of the above theories? We think so. Would the landlord be responsible if the neighbor's 3 year old had fallen out of the window instead? We think so. In our view, what is and is not foreseeable, as far as issues of proximate cause are concerned, should be left to the sound discretion of a jury, and as such, we believe the appellate division erred in dismissing this plaintiff's case.

In these types of cases, only an expert, experienced attorney should be retained in order to protect your rights and pursue your interests to the fullest extent the law allows, and to get the justice you deserve.

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.