NJ Supreme Court Rejects Appellate Division's Attempt at Expanding a Commercial Landlord's Non-delegable Duty
In a recently decided case, the NJ Supreme Court rejected the Appellate Division's attempt at expanding a commercial landlord's non-delegable duty (a duty that cannot be assigned). Over the course of decades, our courts have created certain duties for commercial landlord's which cannot be assigned to a tenant. One such duty is that of maintaining a safe sidewalk for the general public to use. However no court has ever found that same duty exists for any private area of the leased property.
In the case at bar, the plaintiff slipped and fell on a portion of icy driveway which was separated by a fence from the sidewalk. The tenant had been assigned all the duties to maintain the property and was even declared the "de facto owner" per the lease terms. Further, the tenant testified that he was solely responsible for clearing snow and ice from the property. Regardless of the weight of evidence, the Appellate Division still found the commercial landlord had liability in not verifying that the driveway was free of the transient condition of snow and ice prior to plaintiff's fall.
However, the Supreme Court disagreed and prevented such holding from overturning years of precedent. In doing so, the Court held (1) a driveway is private property, open to invitees, and not akin to a sidewalk which is used by the general public, (2) this particular lease assigned complete control of the property to the tenant even where the landlord reserved a right to enter to make repairs or in the case of emergency, and (3) even under alternative analysis of Hopkins v. Fox & Lazo Realtors the landlord here did not have a duty to protect the plaintiff (especially since plaintiff did recover for his injuries from the tenant).
In sum, a commercial landlord has certain duties which it cannot delegate to its tenant. Maintaining a private portion of the leased premises is not one of those items - yet. (Shields v. Ramslee Motors)
Held: NJ Construction Company's Workers Compensation Benefits Must Cover the Costs of Former Employee's Medicinal Marijuana
In a case of first impression in New Jersey, the Appellate Division held that an employer can be ordered to reimburse an injured worker for the costs of purchasing medicinal marijuana in conformity with the workers' compensation act and the medical marijuana act (the "MMA"). In this case the employer argued it could not be ordered to purchase pot for a patient because that would amount to aiding and abetting a crime. However the Appellate Division disagreed and ordered the employer to buy the marijuana for the former employee.
The facts of the matter involved a former construction worker who was injured on the job and suffered some severe spinal injuries. The injuries caused great pain and over the course of a decade and a half, the injured worker had several surgeries to no avail. Eventually the worker was using opioids as the sole form of pain relief. In trying to prevent a cycle of drug abuse, the injured worker sought the assistance of a doctor that specialized in prescribing medical marijuana and received a prescription for same.
Part of the issue is that under Federal Law, marijuana is a Class 1 drug (meaning there is no inherent medicinal benefit through use) and opioids are Class 2 drugs (meaning there is a medicinal benefit with use). New Jersey's MMA creates an affirmative defense to a patient if caught in the State with marijuana. However, the Federal government does not recognize such a defense. In addition, this case turned away a pre-emption challenge (State law vs. Federal law) by the former employer. In doing so the Court weakly pointed to the mere words of this State's Legislature when that body declared that, "compliance with this act does not put the State of New Jersey in violation of federal law." (Vincent Hager v. M & K Construction )
New Jersey's Public bidding laws were enacted to protect the taxpayer by providing an even playing field for public construction projects (such as school construction), and mandating the project be awarded to the lowest responsible bidder. Taken from a recent opinion, a plaintiff submitted the lowest bid for work to be performed at a public school and the defendant submitted the third-lowest bid for the project. However, the school board decided to "review" the bids after bidding closed and subsequently disqualified plaintiff (and the second-lowest bidder) because those bid submissions included certifications from subcontractors which were used in a prior round of bidding for the same project, three weeks prior. Thus the board awarded the defendant the construction project.
Plaintiff filed suit and the trial court judge reversed the school board's decision, and anointed the plaintiff the lowest responsible bidder. The trial judge found that the three-weeks old certifications were not a material defect but were rather a minor defect which did not cause the parties to be on unequal footing when submitting their respective bids. Further, the plaintiff's bid would save the taxpayers nearly $190,000 verses the defendant. An appeal was filed by the defendant seeking to be reinstated as the lowest responsible bidder but the Appellate Division rejected the attempt and adopted the trial judge's reasoning.
This highlights two important reminders to the bidders for public contracts: pay attention to the details in your submissions, and mere technical defects should not override the public policy of saving the taxpayer money. (Thassian Mechanical Contracting, Inc. v. East Brunswick Board of Education and Hanna's Mechanical Contractors, Inc.)
In an unpublished Appellate Division opinion issued last month, an award of lost rents was affirmed in a matter where two neighbors were pitted against each other in a residential construction dispute. One property owner wanted to raze his house and build a brand new two-family house for use as a rental property. However, after neighbor #1 demolished the existing home and completed construction of the new first floor, the owner realized the the next door neighbor's fire-escape protruded onto his property. Therefore, construction of the new home was forced to stop as the second floor would hit the protruding fire escape. Both neighbors had land surveys performed which confirmed the encroachment, but the "stubborn" neighbor refused to modify or remove the fire escape - even after owner #1 offered to pay for such action. After an almost two-year delay to construction, the "stubborn" neighbor relented and repaired the fire escape to conform with the property boundaries. However, since the neighbor caused a two-year delay, the first owner filed suit seeking compensation for weather damage to the new but unfinished construction, as well as the lost rents. The trial court found the "stubborn" neighbor at fault and awarded neighbor #1 those damages, a decision that was upheld on appeal by the Appellate Division. (Rosario v. Pallazhco)
Peter J. Vazquez, Jr.