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Holmes v. Kimco Realty Corp.

March 17, 2010

WALTER HOLMES; LISA HOLMES, HUSBAND AND WIFE, APPELLANTS
v.
KIMCO REALTY CORPORATION; AND LOWE'S HOME CENTER INCORPORATED, A CORPORATION OF THE STATE OF NORTH CAROLINA, AUTHORIZED TO DO BUSINESS IN NEW JERSEY; DEFENDANT/THIRD PARTY PLAINTIFF,
v.
PRICE LEGACY CORPORATION, AS LANDLORD SUCCESSOR BY MERGER TO PRICE ENTERPRISES, INC., A MARYLAND CORPORATION, THIRD PARTY DEFENDANT/FORTH PARTY PLAINTIFF,
v.
DAVID FLACK, DOING BUSINESS AS BOUNTIFUL ACRES; GENERAL CASUALTY INSURANCE COMPANIES, FOURTH PARTY DEFENDANTS.



On Appeal from the United States District Court for the District of New Jersey (D.C. Number: 07-cv-00961) District Judge: Honorable Robert B. Kugler.

The opinion of the court was delivered by: Hardiman, Circuit Judge

PRECEDENTIAL

Argued December 16, 2009

Before: FISHER, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

This diversity action requires us to predict whether the State of New Jersey would impose a common law duty on a tenant in a multi-tenant shopping center to maintain the parking lot owned by the landlord.

I.

On January 20, 2005, Walter Holmes drove to a shopping center near Route 73 in Maple Shade, New Jersey (the Shopping Center), consisting of a parking lot and several businesses in stand-alone buildings, including Lowe's Home Center, Bally's Total Fitness, and Mattress Giant.*fn1 The businesses were some distance apart, with the entrance to Bally's located several hundred feet from the main entrance of Lowe's, and the entrance to Mattress Giant even farther away. Holmes parked in the area of the parking lot closest to Lowe's. This area contained shopping cart corrals displaying signs stating: "Please keep our parking lots safe by returning your cart. Thank you for shopping at Lowe's."

After making a purchase at Lowe's, Holmes was pushing his shopping cart to his car when he fell on "ice and/or snow" in the parking lot. Another customer came to Holmes's aid and helped him return to Lowe's to report the accident and obtain medical assistance. Shortly after the accident, Lowe's third party insurance administrator, Specialty Risk Services (SRS), contacted Holmes and his attorney, seeking information about the accident and Holmes's theory of Lowe's liability. There was some additional correspondence between SRS and Holmes and his attorney during the eighteen months following the accident. On January 10, 2007, Holmes sued Lowe's for negligent maintenance of the parking lot.*fn2 After the statute of limitations had expired, Lowe's informed Holmes that it was a tenant of the Shopping Center, not the owner of the real estate where Holmes slipped and fell.

Almost four years before Holmes slipped and fell, Lowe's had entered into a lease agreement (Lease) with Price Legacy Corporation for the use of a retail facility within the Shopping Center. Under the terms of the Lease, all tenants in the Shopping Center were demised the interior space of their individual buildings and enjoyed a non-exclusive right to use the parking lot and other common areas. Under the Lease, "Common Area" was defined as "the Primary Parking Area, the remainder of the parking areas in the Shopping Center, service drives, access roads . . . the entrances and exits of the Shopping Center, and all other areas that may be provided by Landlord for the general use in common of the tenants of the Shopping Center and their . . . invitees." Lease § 8(a)(iii). The Lease also provided that "Tenant, its . . . invitees and customers shall have the right to use, in common with all other occupants of the Shopping Center and their respective . . . invitees and customers, without charge, all Common Areas and Common Facilities of the Shopping Center." Lease § 8(f).

Section 8(i) of the Lease required the landlord to maintain the Common Areas, including snow removal. In turn, each tenant was required to pay a pro rata share of common area maintenance costs. Lease § 8(j). Finally, the Lease required the landlord to "carry or cause to be carried commercial general liability insurance . . . upon all Common Areas and Common Facilities (not including the Demised Premises), naming Tenant as an additional insured . . . ." Lease § 10(c).

In October 2004, Price Legacy contracted with Bountiful Acres to remove snow from the Common Areas of the Shopping Center. The agreement provided for "monitor[ing of] the site 24 hours a day, 7 days a week during the snow season for snow and/or ice conditions," and for dispatch of equipment to the site to "control these conditions." During the winter season, Bountiful Acres kept equipment at the site, and dedicated a full-time foreman to the Shopping Center, with responsibility for all snow maintenance activities. On January 19, 2005, the day before Holmes's accident, Bountiful Acres had plowed and salted the parking lot and shoveled the sidewalks.

When Holmes learned that Lowe's did not own the real estate upon which he fell, he amended his complaint to add two entities suspected of owning the parking lot: Price Legacy and Kimco Realty Corporation.*fn3 This amendment came too late, however, so the District Court granted summary judgment for both entities because the statute of limitations had expired. The District Court also granted summary judgment for Lowe's, finding that New Jersey would not impose a duty on a tenant for maintenance of a multi-tenant parking lot. The District Court ruled from the bench:

In this situation under the Erie doctrine I have to predict what the New Jersey Supreme Court would do with this. And although the Supreme Court of New Jersey has extended liability in some very specific situations beyond the actual premises, I don't think they would do so in this case because of the multi-tenant use of this lot and, therefore, I'm going to grant the motion for summary judgment for Lowe's. I do not find that Lowe's had any duty whatsoever.

I further don't find under the facts presented to the Court that Lowe's assumed any duty over this parking lot to maintain it free of ice and snow.

(Mot. Hr'g Tr. 53, Dec. 5, 2008.)

Holmes appeals only the grant of summary judgment to Lowe's. The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We exercise de novo review over the District Court's summary judgment and view the facts in the light most favorable to Holmes, the nonmoving party. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). The existence of a duty is generally a matter of law. Carvalho v. Toll Bros. & Developers, 675 A.2d 209, 212 (N.J. 1996). Because the question of a tenant's common law duty to maintain a multi-tenant parking lot has not been addressed by the New Jersey Supreme Court, we must "predict how the New Jersey Supreme Court would rule if presented with this case." Repola v. Morbark Indus., Inc., 934 F.2d 483, 489 (3d Cir. 1991). In predicting how the highest state court would decide an issue, we look to analogous state court cases and "[i]n the absence of an authoritative pronouncement by a state's highest court, we may give serious consideration to the opinion of an intermediate appellate court." Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir. 1988) (citations omitted). We may also look to "scholarly treatises, the Restatement of Law, and germane law review ...


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