ANTHONY FOTI VS. JG ELIZABETH II, LLC D/B/A THE MILLS AT JERSEY GARDEN MALL (L-3213-17, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1971-19

ANTHONY FOTI and

CRISTINA FOTI, his wife,

Plaintiffs-Appellants/

Cross-Respondents,

v.

JG ELIZABETH II, LLC 1

D/B/A THE MILLS AT JERSEY

GARDEN MALL I/S/H AS

SIMON PROPERTY GROUP, INC.,

and N.J. METROMALL URBAN

RENEWAL, INC. I/S/H AS

ELIZABETH METROMALL, LLC,

Defendants-Respondents/

Cross-Appellants.

and

WE ARE ONE UNITED, improperly

pled as WE ARE ONE UNITED

and NJ STATE AFL-CIO

COMMUNITY SERVICES

AGENCY, INC., UNION

1

We added JG Elizabeth II, LLC to the caption as it was omitted from the

caption of the complaint plaintiffs filed in the Law Division.

COUNTY COLLEGE and

COUNTY OF UNION,

Defendants,

and

CITY OF ELIZABETH,

Defendant-Respondent.

______________________________

Argued May 3, 2021 – Decided July 2, 2021

Before Judges Messano, Hoffman and Smith

On appeal from the Superior Court of New Jersey, Law

Division, Union County, Docket No. L-3213-17.

Yelena Kofman DelGado argued the cause for

appellants/cross-respondents (Vlasac & Shmaruk,

LLC, attorneys; John M. Vlasac, Jr., of counsel and on

the briefs; Ryan P. Getz, on the brief).

Andrew L. Stern argued the cause for respondent/cross-

appellant (Weiner Law Group, attorneys; Donald M.

Garson and Ann Marie F. Kane, on the brief).

Robert F. Varady argued the cause for respondent

(LaCorte, Bundy, Varady & Kinsella, attorneys; Robert

F. Varady, of counsel and on the brief).

PER CURIAM

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Plaintiff Anthony Foti was employed by the County of Union (the County)

as an electrician.2 The County sent plaintiff and fellow employee Steven Faethe

to the Mills at Jersey Garden, a retail mall in Elizabeth owned by JG Elizabeth

II, LLC, d/b/a The Mills at Jersey Garden Mall i/s/h as Simon Property Group,

Inc., and N.J. Metromall Urban Renewal, Inc., i/s/h as Elizabeth Metromall,

LLC (JG). In 2000, the City of Elizabeth (Elizabeth) leased space at the mall

pursuant to a written lease (the Lease) with the Glimcher Group (Glimcher),

developer of the mall. Elizabeth operated a job training center — the Retail

Skills Center — in the leased premises, designated as Space 1158. Elizabeth

paid no rent for the space. JG acquired the mall from Glimcher in 2015.

Although there were no written agreements, it is undisputed that with

Elizabeth's acquiescence, the County agreed to join with a non-profit

organization, We Are One New Jersey (We Are One), and the AFL-CIO to

provide services to "legal[] permanent residents" within Space 1158. The

County issued a work order to install electrical services for new cubicles in the

space, but it never submitted any specifications or plans for the work to JG, and

2

Because plaintiff Cristina Foti's per quod claim is wholly derivative of her

husband's claim, we use the singular "plaintiff" throughout the opinion.

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JG's representatives were unaware that plaintiff and his colleague would be

working in Space 1158.

On August 27, 2015, the County's Director of Facilities Management

visited the space with plaintiff and discussed the work to be performed. The

next day, plaintiff and Faethe arrived in Space 1158. Plaintiff ascended a ladder

and, in the process of pushing electrical wire over ductwork in the space above

the ceiling tiles, he received an electric shock from an exposed wire in an open

junction box. Plaintiff fell from the ladder and was injured.

Plaintiff filed a complaint alleging negligence on the part of Elizabeth and

JG.3 After extensive discovery, both defendants moved for summary judgment.

In an oral decision, the judge concluded plaintiff failed to demonstrate that either

defendant created the dangerous condition or had actual or constructive notice

of its existence. He entered two orders granting the motions and dismissing

plaintiff's complaint.

Before us, plaintiff contends the judge abused his discretion by entering

interlocutory orders barring his expert's second report as untimely and denying

plaintiff's motion for reconsideration. Plaintiff argues that even without the

3

All other defendants were dismissed from the litigation in the Law Division

and have not participated in this appeal.

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second report he established a prima facie case of negligence against Elizabeth

under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. He further contends

that it was error to grant JG summary judgment because plaintiff established that

JG breached the duty owed to him as a business invitee by failing to make

reasonable inspection and discovering the dangerous electrical condition above

the ceiling.

Elizabeth and JG oppose all these arguments. Additionally, JG cross-

appeals, contending that summary judgment was appropriately granted on two

additional grounds which the Law Division judge did not address. Specifically,

JG argues plaintiff was a "licensee," and it only owed him a duty to warn of

dangerous conditions of which it had actual knowledge. JG also argues that

plaintiff's injuries were caused by a condition incidental to the work he was

performing.

We have considered these arguments in light of the record and applicable

legal standards. We affirm on the appeal and dismiss the cross-appeal as moot.

I.

We first consider the interlocutory orders that resulted in the exclusion of

plaintiff's supplemental expert report, mindful that "[a]n appellate court applies

'an abuse of discretion standard to decisions made by [the] trial courts relating

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to matters of discovery.'" C.A. by Applegrad v. Bentolila, 219 N.J. 449, 459

(2014) (second alteration in original) (quoting Pomerantz Paper Corp. v. New

Cmty. Corp., 207 N.J. 344, 371 (2011)). "It 'generally defer[s] to a trial court's

disposition of discovery matters unless the court has abused its discretion[,] or

its determination is based on a mistaken understanding of the applicable law.'"

Ibid. (first alteration in original) (quoting Pomerantz Paper Corp., 207 N.J. at

371).

Similarly, "[w]e review the denial of a motion for reconsideration to

determine whether the trial court abused its discretion." Triffin v. SHS Grp.,

LLC, 466 N.J. Super. 460, 466 (App. Div. 2021) (citing Cummings v. Bahr, 295

N.J. Super. 374, 389 (App. Div. 1996)).

[R]econsideration should only be granted in "those

cases which fall into that narrow corridor in which

either 1) the [c]ourt has expressed its decision based

upon a palpably incorrect or irrational basis, or 2) it is

obvious that the [c]ourt either did not consider, or failed

to appreciate the significance of probative, competent

evidence . . . ."

[Ibid. (alterations in original) (quoting Cummings, 295

N.J. Super. at 384).]

"[T]he magnitude of the error cited must be a game-changer for reconsideration

to be appropriate." Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div.

2010).

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In September 2018, the judge managing the litigation entered an order

requiring plaintiff to serve his initial liability expert's report by a certain date,

and his final experts' reports by December 3, 2018; the order also extended

discovery to January 29, 2019. In October 2018, plaintiff served the expert

report of John Laiosa, an electrical contractor. Laiosa opined that "a dangerous

condition existed in the ceiling of Space 1158, namely an open, uncovered

junction box containing live wires with no wire nuts covering the open ends of

the unused wires."

After more than 550 days of discovery and after the date his final experts'

reports were due, plaintiff moved to compel the deposition of Elizabeth's

witnesses and extend discovery. A second judge assumed management of the

case, granted the motion, and extended discovery until April 29, 2019. Plaintiff

deposed Elizabeth's witnesses on February 22, 2019. On the last day of

discovery, plaintiff served a second report from Laiosa dated April 26 as an

amendment to interrogatory answers.

In addition to the opinion reached in his earlier report, Laiosa said "the

most likely cause for this dangerous condition was the . . . prior work left in an

uncompleted state. . . . [T]his work was not completed in the proper manner ,

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leaving an open junction box and exposed, uncapped wires above the ceiling of

Space 1158." There was little else added to the initial report.

The judge heard argument on JG's motion to bar Laiosa's second report.

In an oral decision, the judge granted the motion, noting that plaintiff failed to

serve the report within twenty days of the discovery end date as required by Rule

4:17-7. The judge further concluded that plaintiff had not advised opposing

counsel a second report was forthcoming, nor did plaintiff seek a further

extension of discovery. In summary, the judge said: "[H]ow it's unfolded I don't

think is fair[,] and it has to be met with the sanction of this order[,] which is[,]

that report is going to be barred."

Plaintiff sought reconsideration. Essentially, he argued defendants were

on notice from the September 2018 case management order and Laiosa's initial

report that it would be supplemented as discovery progressed. Plaintiff cited

defendants' alleged dilatory discovery responses. Plaintiff claimed exclusion of

Laiosa's second report would be "fatal to [his] case," and he urged the court to

reconsider its earlier order. The judge's oral decision reflected his conclusion

that plaintiff had presented nothing new; he denied the reconsideration motion.

Before us, plaintiff contends he served the second expert report before the

close of discovery, and, that the prejudice its exclusion wrought on plaintiff

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outweighed any prejudice visited on defendants. Plaintiff also argues that the

judge's denial of his reconsideration motion reflected a misunderstanding of the

governing Court Rules. We find no merit to either argument.

Plaintiff clearly failed to comply with Rule 4:17-7, which prohibits a party

from amending interrogatory answers within twenty days of the discovery end

date unless the party "certifies . . . that the information requiring the amendment

was not reasonably available or discoverable by the exercise of due diligence

prior to the discovery end date." Plaintiff relies on Rule 4:17-4(e), which

provides an exception to Rule 4:17-7. It permits a party to compel an expert's

report by a court-ordered date certain and allows the proponent of the expert's

report to rely upon the court's order. See Fanfarillo v. E. End Motor Co., 172

N.J. Super. 309, 313 (App. Div. 1980) (reversing order barring defense expert

from testifying for failure to serve report because trial was set prior to date court

ordered the defendant to furnish the report under Rule 4:17-4(e)).

However, Rule 4:17-4(e) has no application here. The only court order

that set a date for plaintiff's final liability expert's report was the September 2018

case management order; that date was December 3, 2018, and plaintiff failed to

meet that date.

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Although plaintiff moved for a discovery extension to depose certain

witnesses, vague assertions of dilatory discovery by defendants fail to overcome

the fact that plaintiff never sought a further extension of discovery. See R. 4:24-

1(c) (requiring motions to extend discovery to be made prior to the conclusion

of discovery). Moreover, an arbitration date had been set, and plaintiff was

required to establish "exceptional circumstances" justifying a further extension.

Ibid.

It is difficult to see how any information supplied by the depositions that

took place during the last discovery extension was critical to Laiosa's ultimate

opinion, i.e., that "prior work" left the wiring in the junction box in a dangerous

condition, accidently accessible to a tradesman like plaintiff. Even with the

benefit of this additional discovery, Laiosa never said which party performed

the "prior work," nor, as we discuss below, was plaintiff ever able to establish

that fact.

Plaintiff's reliance on Tucci v. Tropicana Casino & Resort, Inc., 364 N.J.

Super. 48 (App. Div. 2003), is misplaced. We need not review the facts

surrounding our decision there to reverse the order barring an expert's report

except to add that critical to our determination was the plaintiffs' counsel's

certification attesting he was preoccupied at the time because his mother was

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fatally ill. Id. at 51. That was "good cause, if not extraordinary circumstances,

mandating a reasonable modicum of judicial indulgence." Id. at 54.

Here, plaintiff did not move to compel the deposition of Elizabeth's

witnesses until after his final expert report was due under the September 2018

case management order. Plaintiff secured an extension of discovery after

successfully moving to compel depositions and had ample time to move for a

further extension of discovery if those depositions were truly necessary for

Laiosa's supplemental report. Nothing in the record indicates there were

personal problems that delayed the furnishing of the report.

In short, we find no mistaken exercise of discretion in barring Laiosa's

second report. Plaintiff's arguments regarding the denial of his motion for

reconsideration lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

II.

We review the grant of summary judgment de novo, applying the same

standard used by the trial court, which

mandates that summary judgment be granted "if the

pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact challenged and that the moving party is entitled to

a judgment or order as a matter of law."

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[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.

Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.

4:46-2(c)).]

A dispute of material fact is "genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact." Grande v. Saint Clare's

Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38

(2014)). "'If there is no genuine issue of material fact,' then we must 'decide

whether the trial court correctly interpreted the law.'" Richter v. Oakland Bd.

of Educ., 459 N.J. Super. 400, 412 (App. Div. 2019) (quoting DepoLink Ct.

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013), aff'd as mod., ___ N.J. ___ (2021)).

Additionally, "[w]e review the judge's interpretation of 'the law de novo

and owe no deference to the trial court . . . if [it has] wrongly interpreted a

statute.'" Warren v. Muenzen, 448 N.J. Super. 52, 62 (App. Div. 2016) (second

alteration in original) (quoting Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)).

We limit our review to the record before the motion judge. See Ji v. Palmer,

333 N.J. Super. 451, 463–64 (App. Div. 2000) (holding appellate review of the

grant of summary judgment is limited to the record that existed before the

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motion judge (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188

(1963))).

A.

In addition to what we have already set forth, the motion record revealed

that Elizabeth first entered into the Lease with Glimcher in 2000. The Lease

forbade Elizabeth from making "any changes to the . . . electrical . . . systems

without the prior written approval of [the l]andlord." Elizabeth was obligated

to maintain the "electrical systems . . . exclusively serving the [l]eased

[p]remises . . . walls, floors and ceilings." Pursuant to section 1.01(b) of the

Lease, JG retained an easement above the finished ceiling of Space 1158:

The exterior walls, roof and the area beneath the

Leased Premises are not demised hereunder and the use

thereof together with the right to install, maintain, use,

repair, and replace pipes, ducts, conduits, wires, lines,

flues, drains, access panels, sprinkler mains and valves,

refrigerant lines, tunnels, sewers and structural

elements leading through the Leased premises in

locations which will not materially interfere with

Tenant's use thereof and serving other parts of the

regional development are hereby reserved unto

Landlord. Landlord reserves an easement above

Tenant's finished ceiling or light line to the roof, or to

the bottom of the floor deck above the Leased Premises,

for general access purposes and in connection with the

exercise of Landlord's other rights under this Lease.

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Glimcher and Elizabeth executed amendments and renewals to the Lease

thereafter with the last extension terminating on October 31, 2016.

At the inception of the Lease, Union County College provided training at

the Retail Skills Center for individuals to obtain employment at the mall. The

County's Deputy Manager, William Reyes, Jr., who at the inception of the Lease

was employed by Elizabeth, testified at deposition that the County decided to

partner with We Are One and the AFL-CIO to help "documented individuals

obtain their citizenship." These organizations were going to use some space in

Space 1158, which Reyes acknowledged would be "cut out of existing space."

In February 2015, Reyes sent the general manager of the mall, Denise

Palazzo, a letter advising that "[w]orking with . . . Elizabeth, Union County

College, and We Are One," the County wanted a five-year extension of the

Lease, set to expire in October 2016, which "would allow [it] the opportunity to

invest in the physical space." Reyes said there were no agreements in place prior

to plaintiff's accident regarding the sharing of space, and he had no idea how all

these organizations were operating in Space 1158.

Palazzo acknowledged receiving the letter but could not recall ever

responding. Nonetheless, Reyes arranged through the County's Director of

Public Works to make improvements in Space 1158 to accommodate We Are

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One and the union's occupancy; as noted, no plans were submitted to JG for

approval prior to plaintiff commencing work. In August 2017, the County

executed a lease for Space 1158 with JG. The commencement date in the lease

was November 1, 2016.

On the day in question, plaintiff and Faethe were to install two electrical

receptacles and tie them into junction boxes above the drop ceiling. They did

not turn off the electricity at the main electrical panel. Faethe ran the wire to

the first junction box on one side of the space; plaintiff climbed the ladder to do

the second on the other side of the room. As he did so, plaintiff testified the

wire he snaked through to make the connection must have contacted a "live"

wire inside a junction box obscured by ductwork in the ceiling.

Faethe broke plaintiff's fall from the ladder. Faethe then mounted the

ladder and, with the aid of his flashlight, saw the uncapped wire in the uncovered

junction box. Faethe donned rubber gloves and capped the wires, but the men

did not have the necessary sized cover to put on the junction box.

B.

On this record, plaintiff contends he established a prima facie case of

negligence against Elizabeth under the TCA because the exposed wire in the

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uncapped junction box was a dangerous condition on public property , and

plaintiff satisfied all provisions of N.J.S.A. 59:4-2. We disagree.

The "guiding principle" of the TCA is "that immunity from tort liability

is the general rule and liability is the exception." Polzo v. Cnty. of Essex, 196

N.J. 569, 578 (2008) (Polzo I) (quoting Coyne v. State Dep't of Transp., 182

N.J. 481, 488 (2005)). "[A] public entity is 'immune from tort liability unless

there is a specific statutory provision' that makes it answerable for a negligent

act or omission." Polzo v. Cnty. of Essex (Polzo II), 209 N.J. 51, 65 (2012)

(quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)).

A public entity may be "liable for injury caused by a condition of its

property" if a plaintiff can establish all the elements of N.J.S.A. 59:4 -2.

[I]n order to impose liability on a public entity pursuant

to [N.J.S.A. 59:4-2], a plaintiff must establish the

existence of a "dangerous condition," that the condition

proximately caused the injury, that it "created a

reasonably foreseeable risk of the kind of injury which

was incurred," that either the dangerous condition was

caused by a negligent employee or the entity knew

about the condition, and that the entity's conduct was

"palpably unreasonable."

[Vincitore v. N.J. Sports & Exposition Auth., 169 N.J.

119, 125 (2001) (quoting N.J.S.A. 59:4-2); accord

Polzo I, 196 N.J. at 579.]

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"Th[e]se requirements are accretive; if one or more of the elements is not

satisfied, a plaintiff's claim against a public entity alleging that such entity is

liable due to the condition of public property must fail." Polzo I, 196 N.J. at

585.

"The [TCA] defines a 'dangerous condition' as 'a condition of property

that creates a substantial risk of injury when such property is used with due care

in a manner in which it is reasonably foreseeable that it will be used.'" Garrison

v. Twp. of Middletown, 154 N.J. 282, 286–87 (1998) (quoting N.J.S.A. 59:4-

1(a)). "The first consideration is whether the property poses a danger to the

general public when used in the normal, foreseeable manner." Vincitore, 169

N.J. at 126. Plaintiff contends he satisfied this prerequisite because it was

foreseeable that work would have to be done in the space above the drop ceiling.

While that may be true, we doubt access by a skilled tradesman to an area

invisible and inaccessible to the general public meets this requirement.

But assuming arguendo plaintiff established a dangerous condition on

public property, he failed to demonstrate Elizabeth had actual or constructive

notice of the condition. There was no proof of actual notice. Nor was there any

evidence that Elizabeth or its agents or employees created the dangerous

condition. See N.J.S.A. 59:4-2(a). Even if Laiosa's second report was admitted,

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it failed to demonstrate Elizabeth's employees or agents had left the live wire

uncapped in an uncovered junction box.

Plaintiff argues that Elizabeth had constructive notice of the dangerous

condition.

A public entity shall be deemed to have constructive

notice of a dangerous condition . . . only if the plaintiff

establishes that the condition had existed for such a

period of time and was of such an obvious nature that

the public entity, in the exercise of due care, should

have discovered the condition and its dangerous

character.

[N.J.S.A. 59:4-3(b).]

Initially, we note that "the mere '[e]xistence of an alleged dangerous condition

is not constructive notice of it.'" Polzo I, 196 N.J. at 581 (alteration in original)

(quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).

Plaintiff argues, however, that because the dangerous wiring may have existed

since Elizabeth first entered into the Lease, and because the Lease required

Elizabeth to maintain the electrical services to Space 1158, it was on

constructive notice of the dangerous condition on its property.

Of course, those cases where a plaintiff established constructive notice

based on the passage of time usually involved openly visible conditions on

public property, not a condition in a crawl space hidden by ceiling tiles. See,

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e.g., Chatman v. Hall, 128 N.J. 394, 399–400 (1992) (large hole in public street

that existed for many months prior to the plaintiff's accident); Lodato v.

Evesham Twp., 388 N.J. Super. 501, 511–12 (App. Div. 2006) ("open and

obvious" tree roots and raised sidewalk, along with similar conditions on

sidewalks of two adjacent homes presented jury question constructive notice).

In addition, plaintiff cites no authority for the proposition that the Lease

provisions that required Elizabeth to maintain the electrical service to the space

establish constructive notice. After all, Elizabeth was not doing the work inside

the space, nor was the condition in the space above the ceiling tiles "of such an

obvious nature" that had the city been doing the work it would have discovered

the condition. Plaintiff, a skilled electrician, never saw the exposed wire before

the incident.

We need not address other arguments raised by the parties regarding

additional provisions of N.J.S.A. 59:4-2. Summary judgment was properly

granted to Elizabeth because plaintiff failed to establish the prerequisite of

actual or constructive notice for liability to attach under the TCA.

C.

Although JG argued that plaintiff was not its business invitee, the motion

judge reasoned plaintiff was "there to fix the property. He's there to help the

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tenant which helps [JG] continue to operate." However, without definitively

deciding whether plaintiff was a licensee or a business invitee, the judge held

that "[r]egardless . . . a property owner has a general tort obligation to avoid

foreseeable harms to others." He granted JG summary judgment because

plaintiff could not prove JG had notice of the alleged dangerous condition and

therefore breached no duty to plaintiff.

Before us, plaintiff contends it established a prima facie case of

negligence because as an invitee, JG as the landlord owed him a duty to make

the premises safe, which included a duty to make reasonable inspection to

discover defective conditions otherwise not obvious to its tenant. Plaintiff

argues JG breached this duty because they failed to inspect the space above the

ceiling tiles, and, had they done so, they would have discovered the dangerous

wiring. We are unpersuaded.

These "common law categories" — invitee or licensee — "are a

shorthand" that informs the analysis for the duty owed by the landowner. Rowe

v. Mazel Thirty, LLC, 209 N.J. 35, 45 (2012). "The invitee comes by invitation,

express or implied, generally for some business purpose of the owner. The

licensee is permitted to come upon the property, and does so for his own

purposes." Id. at 43 (first citing Lordi v. Spiotta, 133 N.J.L. 581, 584 (Sup. Ct.

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1946); and then citing Prosser and Keeton on Torts § 60, at 412 (5th ed. 1984)).

It is difficult to see how plaintiff could be characterized as an invitee of JB. Any

electrical work he intended to perform was not for JG's business purposes. JG

did not even know he was there and never approved the work. Moreover,

plaintiff was performing the work for his employer, the County, not JG's tenant,

Elizabeth.

Assuming arguendo plaintiff was a business invitee, JG owed him a

greater duty of care than that owed to a licensee. See id. at 44 (noting a

landowner "does not have a duty actually to discover latent defects when dealing

with licensees." (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433

(1993))).

Only to the invitee or business guest does a landowner

owe a duty of reasonable care to guard against any

dangerous conditions on his or her property that the

owner either knows about or should have discovered.

That standard of care encompasses the duty to conduct

a reasonable inspection to discover latent dangerous

conditions.

[Ibid. (quoting Hopkins, 132 N.J. at 434).]

It is undisputed that the space above the ceiling tiles was part of the

demised premises. Plaintiff contends that pursuant to the Lease, JG retained an

easement to that space specifically to make improvements and repairs to the

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electrical system as necessary. Plaintiff contends the retention of this easement

imposed a duty on JG to make periodic inspections of the space, and its failure

to do so breached the duty it owed to plaintiff as invitee.

However, "plaintiff['s] thesis that a commercial landlord should be held

responsible to a tenant's employee injured on the leased premises because it

reserved the right to enter the leased premises to perform repairs is inconsisten t

with the law of this State." McBride v. Port Auth. of N.Y. & N.J., 295 N.J.

Super. 521, 525 (App. Div. 1996) (citations omitted); accord Shields v. Ramslee

Motors, 240 N.J. 479, 489 (2020) (citing McBride and noting, "New Jersey

courts have distinguished between the right to enter and a covenant to repair.").

In short, the reservation of an easement in the Lease in favor of the landlord to

make repairs and improvements did not establish JG owed a duty to its tenant,

or plaintiff, to periodically inspect the space above the ceiling tiles.

Plaintiff also failed to establish that JG through its employees or agents

created the dangerous condition. Laiosa's second report stated the obvious; the

uncapped wires in the open junction box resulted from incomplete electrical

work. Neither Laiosa nor any other witness testified when the "incomplete"

work was done or by whom.

Affirmed. The cross-appeal is dismissed as moot.

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