Holmes v. Kimco Realty Corp., No. 08-4834.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtHARDIMAN
Citation598 F.3d 115
Docket NumberNo. 08-4834.
Decision Date17 March 2010
PartiesWalter 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.

598 F.3d 115

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.

No. 08-4834.

United States Court of Appeals
Third Circuit.

Argued Dec. 16, 2009.
Filed: March 17, 2010.


[598 F.3d 116]

Robert G. Devine (Argued) White & Williams, Cherry Hill, NJ, Attorneys for Appellees Kimco Realty Corp. and Lowe's Home Ctr., Inc.

Benjamin Goldstein (Argued) Stanley N. Drinkwater, Drinkwater & Goldstein, Atco, NJ, Attorneys for Appellants Walter Holmes and Lisa Holmes.

F. Herbert Owens, III, Sweeney & Sheehan, Westmont, NJ, Attorneys for Third Party-Appellee Price Legacy Corp.

Mauro C. Casci, Law Offices of Mauro C. Casci, Leonardo, NJ, Attorneys for Not Party-Appellee David Flack, DBA Bountiful Acres.

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

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

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.1The 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 acci-

[598 F.3d 117]

dent, 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.2 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 Com mon Areas and Common Facilities of the Shopping Center." Lease § 8(1).

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 "monitorfing oil 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.3 This amendment came too late, however, so the District Court granted summary judgment for both entities because the statute of limitations had ex-

[598 F.3d 118]

pired. 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 multitenant 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, 143 N.J. 565, 675 A.2d 209, 212 (1996). Because the question of a tenant's common law duty to maintain a multitenant 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 articles." McKeinia v. Oiiho Plinrm. Corp., 622 F.2d 657, 6(52-63 (3d Cir.1980) (footnotes omitted). "[R]elevant state precedents must be scrutinized with an eye toward the broad policies that informed those adjudications, and to the doctrinal trends which they evince." Id. at 662.

A.

The threshold inquiry in a negligence action is whether the defendant owed the plaintiff a duty of care. Under New Jersey law, "whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Monaco v. Hartz Mountain Corp., 178 N.J. 401, 840 A.2d 822, 833 (2004) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993)). This inquiry requires the balancing of several factors including "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. (internal quotations omitted).

Holmes correctly notes that New Jersey places a relatively broad duty on commercial landowners to ensure the safe ingress and egress of their patrons. In

[598 F.3d 119]

the landmark case of Stewart v. 10i Wallace Street, Inc., 87 N.J. 146, 432 A.2d 881, 887 (1981), New Jersey reversed its "no liability" rule and extended a commercial landowner's duty of care to include the sidewalk abutting its property, even when the sidewalk is neither owned nor controlled by the landowner. The court identified a number of public policy considerations supporting the imposition of liability, including: (1) commercial landowners receive considerable benefits from and rights to use the sidewalks, over and above those of the public; (2) the "no liability" rule undermines the goals of tort law by "lefaving] without recourse many innocent parties who suffered serious injuries because of sidewalk defects"; (3) the "no liability" rule provides no incentive to abutting property owners to repair deteriorated sidewalks and prevent injuries; (4) landowners are in an ideal position to inspect and repair sidewalks abutting their property; and (5) a New Jersey statute authorizes...

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    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
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    ...regarding a state law issue, a federal court must predict how that Court would resolve that issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). A federal court must look to the holdings of the state's lower courts and accord their decisions due deference. U.S. Underwri......
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    ...Supreme Court would reach the exact same legal conclusion if it were confronted with this appeal. See, e.g., Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). Initially, we consider how tickets to sporting and other entertainment events have been treated in the past. As the Dis......
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    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
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    ...regarding a state law issue, a federal court must predict how that Court would resolve that issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). To do so, a federal court must look to the holdings of the state's lower courts and accord their decisions due deference. U.S......
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50 cases
  • Lynn v. Yamaha Golf–Car Co., Civil Action No. 2:10–cv–01059.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 16, 2012
    ...regarding a state law issue, a federal court must predict how that Court would resolve that issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). A federal court must look to the holdings of the state's lower courts and accord their decisions due deference. U.S. Underwri......
  • Papurello v. State Farm Fire & Cas. Co., Civ. A. No. 15–1005.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • November 16, 2015
    ...holding, the court predicts the Pennsylvania Supreme Court would adopt the reasoning set forth in Kane. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010) (“ ‘[I]n the absence of an authoritative pronouncement by a state's highest court, [the court] may give serious considera......
  • Mayer v. Belichick, No. 09-2237.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 19, 2010
    ...Supreme Court would reach the exact same legal conclusion if it were confronted with this appeal. See, e.g., Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). Initially, we consider how tickets to sporting and other entertainment events have been treated in the past. As the Dis......
  • SanSom v. Crown Equip. Corp., Civil Action No. 2:10–cv–0958.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • July 24, 2012
    ...regarding a state law issue, a federal court must predict how that Court would resolve that issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). To do so, a federal court must look to the holdings of the state's lower courts and accord their decisions due deference. U.S......
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