O'CONNELL v. NJ SPORTS & EXPO. AUTH.

• Citation: 766 A.2d 786,337 N.J. Super. 122
• Parties: Walter J. O'CONNELL, Jr., Plaintiff-Appellant, v. NEW JERSEY SPORTS AND EXPOSITION AUTHORITY and New York Giants, Defendants-Respondents, and The National Football League, Defendants.
• Decision Date: 14 February 2001
• Court: Superior Court of New Jersey

766 A.2d 786

337 N.J. Super. 122

Walter J. O'CONNELL, Jr., Plaintiff-Appellant, v. NEW JERSEY SPORTS AND EXPOSITION AUTHORITY and New York Giants, Defendants-Respondents and The National Football League, Defendants.

Superior Court of New Jersey, Appellate Division.

Argued January 23, 2001.

Decided February 14, 2001.

Harold J. Ruvoldt, Jr., Asbury Park, argued the cause for appellant (Wolf, Block, Schorr and Solis-Cohen, attorneys; Mr. Ruvoldt, of counsel; Jordana Serebrenik, on the brief).

Paul J. Soderman, Fairfield, argued the cause for respondents (Zucker, Facher & Zucker, attorneys; Mr. Soderman, on the brief).

Before Judges CONLEY, WECKER and LESEMANN.

The opinion of the court was delivered by CONLEY, J.A.D.

During a New York Giants' (Giants) football game, plaintiff alleges in this personal injury litigation that he slipped and fell in the Giants Stadium stands because of snow and ice that had not properly been removed from the stadium stands' interior steps. His action against the National Football League was dismissed by consent. In two separate summary judgment orders, the complaints against the Giants and the New Jersey Sports and Exposition Authority (NJSEA) were dismissed. Plaintiff appeals the summary judgments; we reverse as to the Giants but affirm as to NJSEA.

Using his season ticket purchased from the Giants, plaintiff attended a football game at Giants Stadium on December 23, 1995. Several days before the game it had snowed. According to plaintiff's certification, accepted for the purposes of the motions,

When I arrived at the stadium, it appeared as though the aisles had, at some point, been cleared of some snow, however, accumulations of snow remained in the aisles. It appeared as well that in some areas snow had melted, and refroze, resulting in accumulations of ice in the aisles as well. In addition, snow was packed under the seats in the stands.

....

At approximately 2:45 p.m., during the 3rd quarter of the game, I got up to go to the bathroom, and while walking up the stairs, a fight broke out in the nearby seats. The aisles were covered with snow and ice. While I was walking up the stairs, a fight broke out in the seats. As I waited to pass, the fight spilled out into the aisle. I was pushed, slipped on the snow and ice on the steps, and was knocked down. Upon righting myself, I was again pushed by the crowd, slipped on the snow and ice, fell into the seating area, striking the seats and I fell to the ground.

It is undisputed that Giants Stadium is owned by NJSEA. The governing lease between NJSEA and the Giants identifies NJSEA as the "Lessor" and the Giants as the "Lessee." The lease specifies that the Giants leased from NJSEA "the premises described in Annex A hereof, except for portions of areas thereof which are reserved by Lessor for its exclusive use as set forth in Article VIII hereof." Annex A is not included in the appellate record. However, and at least for the purposes of the motions for summary judgment, we assume the stadium seats and steps are part of the premises leased by the Giants and are not included in the areas "reserved by [NJSEA] for its exclusive use...."

As to the agreement between NJSEA and the Giants concerning their respective maintenance obligations under the lease, Article XI of the lease provides in pertinent part:

Section 11.1. Lessor, at its own cost and expense, will keep the demised premises in good order and repair and will make all reasonable replacements thereto necessary to keep the same in good condition for the intended use thereof by Lessee, and will provide the personnel necessary to supervise and operate the Football Stadium. Without intending hereby to limit the generality of the foregoing, Lessor will, at its own cost and expense:

....

(c) have seats clean and in working order at least three hours before the start of each football game held by Lessee at the Football Stadium;

....

(f) at least three hours prior to the start of each football game held by Lessee at the Football Stadium, have removed all refuse and garbage from the Football Stadium, stands and pedestrian areas;

....

(h) with respect to the areas of the Football Stadium occupied exclusively by Lessee, clean daily and remove refuse and garbage daily, as needed paint and furnish air-conditioning, electric power, hot and cold water, toilet supplies and window washing.

In addition, section 5.4 of Article V provides in part:

Lessor, at its own cost and expense, will... keep all such parking areas and pedestrian walks ... in good order, condition and repair at all times, and ... [will] sand or treat chemically when icy, remove snow and other debris (continuous snow removal on game days)....

The basis for the Giants' motion for summary judgment was its contention that, in light of the above lease provisions, NJSEA alone has control over maintenance and snow removal at the stadium, including removal of snow and ice from the stadium seats and steps. Factually, that is not necessarily clear from the lease provisions that appear in the record before us. While section 5.4 of Article V reposes sole responsibility in NJSEA over maintenance and snow removal, Article V concerns "parking area and pedestrian walks." The pedestrian walks referred to in Article V are the exterior pedestrian walks. While Article XI concerns maintenance responsibilities for the interior of the stadium, including seats and steps, the closest mention of snow removal is the "removal of all refuse and garbage." Whether that was intended to include snow and ice is at best ambiguous.

Construing the lease to repose in NJSEA exclusive maintenance responsibility over the stadium seats and the interior steps, the motion judge concluded that, therefore, the Giants owed no duty of care to plaintiff. In this respect, the judge said:

Now the issue here is whether the New York Giants owed a duty to Mr. O'Connell as a matter of law because they were lessees and had exclusive control of the stadium on the day in question. O'Connell has to prove that a duty was owed and that breach of that duty caused his injury, Starchan [Strachan] v. John F. Kennedy, 109 N.J. 523, 538 A.2d 346 (1988).

There is a recent Appellate Division decision which was attached to the papers, Slater v. Mundial Sports Group, [No. A-23-94T2 (App. Div. June 6, 1995) ].... The Appellate Court held that the sponsor in that case—and that's important according to Ms. Fleming between being a sponsor and a lessee—nor the promoter of the Soccer cup—I think it was a World Soccer Cup—owed any duty to a security guard who was injured while working at Giants Stadium. The Trial Court ... and the Appellate Division both found that the promoter and sponsor did not owe a duty because the NJSEA had reserved responsibility for security to itself in the agreement between the parties.

... I believe the competent evidentiary materials presented show that the NJSEA is the party who controls the premises and, as they have reserved to themselves, control to provide appropriate maintenance at the stadium in East Rutherford.

... it's clear that the NJSEA has reserved to itself maintenance of the ... stadium,

....

They provide ushers, ticket sellers— they have seats clean. They have to have refuse and garbage removed. They have to have continuous snow removal three hours before. I don't think that any reasonable juror would ... ever find—if they have to have three hours of snow removal of pedestrian walkways—that ... the NJSEA would allow any lessee, Giants, Jets, Paylay [sic], or whoever plays there ... to come in with shovels and ... work around the steps. It's not logical on top of everything else.

I think that as a matter of law, the New York Giants did not owe a duty of care to Mr. O'Connell. I think that your cause of action is against the NJSEA and you may very well have a good cause of action there.

We disagree. To begin with, the lease provisions may arguably place, vis-a-vis lessor NJSEA and lessee Giants, snow removal responsibility upon NJSEA. But they most assuredly do not give to NJSEA exclusive control over the interior of the stadium, in particular stadium seats and steps. To the contrary, under Article VIII of the lease, the Giants "shall have the exclusive right and privilege ... to use and occupy the Football Stadium during each Football Season...." While the lease reserves to NJSEA "administrative and general maintenance space" located within the stadium, the stadium seats and steps are nowhere in the lease reserved to the exclusive control of NJSEA but would, rather, seem to be part of the premises subject to the Giants' control during the football season. And, while sections 8.3 and 8.4 of Article VIII permit certain uses of the stadium by NJSEA during the Giants football season, neither section covers the seats or steps during a Giants game.¹ To the contrary, the lease mandates that the Giants will "not discontinue its use of any major part of the Football Stadium which is intended or contemplated for use by stadium patrons unless the Lessor shall consent in writing to such discontinuance." Most certainly this includes the stadium seats and steps. Finally, while Article XI, section 11.1 might be read to place responsibility upon NJSEA for snow and ice removal in the stadium seats and steps, that section expressly provides that "[w]henever after notice reasonable in the circumstances, Lessor shall fail to comply with any of its obligations provided in this Section 11.1, Lessee may ... cure the default...." Clearly then while the lease provisions may allocate the maintenance responsibilities and costs between the Giants and NJSEA, they do not divest the Giants of control over the areas within its leasehold, including the stadium seats and steps. Compare McBride v. Port Auth. of New York and New Jersey, 295 N.J.Super. 521, 522, 526-27, 685 A.2d 520 (App.Div. 1996) (commercial landlord which leased warehouse to injured employee's...