I did everything else for this case briefing, all I need is the Reasoning of this case, facts, dissent and analysis or comments, here is the case:

"240 N.J. 479

Supreme Court of New Jersey.

Baldwin SHIELDS and Tricia Shields, his wife, Plaintiffs-Respondents,

v.

RAMSLEE MOTORS, Defendant,

and

608 Tonnelle Avenue, LLC, Defendant-Appellant.

A-53 September Term 2018

081969

Argued October 7, 2019

Decided January 23, 2020

Synopsis

Synopsis

Background:Mail delivery driver, who slipped and fell on snow and ice while delivering letter to commercial tenant, brought negligence action against tenant and landlord. The Superior Court entered summary judgment for landlord, and appeal was taken. The Superior Court, Appellate Division, reversed and remanded. Landlord filed petition for certification.

Holdings:The Supreme Court,Fernandez-Vina, J., held that:

1whether based on the lease or common law, tenant had duty to remove snow and ice from the premises;

2lease delegated the duty of snow and ice removal from private driveway to tenant;

3fact that landlord had reserved the right to enter the leased premises to perform repairs did not mean that landlord was responsible for driver's injuries;

4the non-delegable duty of commercial landlords to remove snow and ice from public sidewalks abutting their property was not applicable to private driveway; and

5landlord did not owe duty of reasonable care to mail delivery driver.

Reversed.

Albin, J., concurred in the judgment and dissented in part and filed opinion.

West Headnotes (11)

Collapse West Headnotes

Change View

1

Landlord and TenantSnow and ice

Whether based on the lease or common law, commercial tenant had duty to remove snow and ice from the premises since tenant retained complete control over the premises, where mail delivery driver fell due to snow and ice, and thus, tenant was exclusively responsible for driver's injuries; lease stated that tenant was responsible for maintaining the property as if it was the "de facto owner."

2

Appeal and ErrorReview using standard applied below

Appeal and ErrorSummary Judgment

When reviewing grant of summary judgment, appellate court applies the same standard as the trial court and considers whether the competent evidential materials presented, when viewed in the light most favorable to non-moving party, are sufficient to permit rational factfinder to resolve alleged disputed issue in favor of non-moving party.

3

NegligenceElements in general

Fundamental elements of negligence claim are duty of care owed by defendant to the plaintiff, breach of that duty by defendant, injury to plaintiff proximately caused by the breach, and damages.

2Cases that cite this headnote

4

JudgmentPresence of question of law

When key issues in case are questions of law, they may be appropriately suited for summary judgment.

5

Landlord and TenantSnow and ice

Commercial lease's provision, stating that tenant was responsible for maintaining the property as if it was the "de facto owner" of the leased premises, encompassed and delegated the duty of snow and ice removal from private driveway on the leased premises to tenant; term "maintenance," as used in lease, included the responsibility to remove snow and ice based on plain meaning of that term, and removal of snow and ice was general upkeep, which was necessary to keep the property operating and productive.

6

Landlord and TenantLandlord's right of entry to maintain or repair

Landlord's reservation of a right to enter, as found in commercial lease, is not the same as a covenant to make repairs; rather, the right or opportunity to enter the leased premises to perform the covenant to repair is something else since the basis of liability is negligence.

7

Landlord and TenantSnow and ice

Fact that commercial landlord had reserved the right to enter the leased premises to perform repairs did not mean that landlord was responsible for injuries to mail delivery driver, who was delivering letter to tenant and slipped and fell on snow and ice on the premises; lease stated that tenant was responsible for maintaining the property as if it was the "de facto owner," and reservation of right to enter was not the same as covenant to make repairs.

8

Landlord and TenantParking lots, driveways, and alleys

Landlord and TenantSnow and ice

Municipal CorporationsInjuries caused by ice or snow

Because private driveway was distinct from public sidewalk, the non-delegable duty of commercial landlords to remove snow and ice from public sidewalks abutting their property was not applicable to private driveway for purposes of determining if commercial tenant, whom the lease delegated as the one responsible for clearing ice and snow from the premises, or landlord was responsible for injuries that mail delivery driver sustained when he fell on snow and ice on driveway; duty to maintain driveway was never the government's and instead, it was always a private duty, with potential of private recovery, and logic that led to imposition of the duty vis--vis sidewalks did not apply to private property, and driveway was separated from sidewalk by gate and could not therefore be readily accessed by passers-by when not expressly opened by tenant.

9

Landlord and TenantParking lots, driveways, and alleys

Landlord and TenantSnow and ice

Commercial landlord did not enjoy the sort of control over driveway that would give rise to duty of care for purposes of determining if commercial tenant, whom the lease delegated as the one responsible for clearing ice and snow from the premises, or landlord was responsible for injuries that mail delivery driver sustained when he fell on snow and ice on driveway; tenant's actions showed understanding that it was solely responsible for maintaining the property, particularly with respect to snow and ice removal, driveway was separated from sidewalk by fence, which could be closed by tenant to preclude public access, and tenant, which was used car dealership, used driveway as part of its business to display the cars it offered for sale.

10

Landlord and TenantSnow and ice

Pursuant to test set forth inHopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110, commercial landlord did not owe duty of reasonable care to mail delivery driver, who slipped and fell on snow and ice on the leased premises; landlord had no relationship with driver, tenant ran business on the property and all visitors to that business were the invitees of tenant, it would not be fair to place responsibility for removal of snow and ice on landlord who lacked control over property, landlord did not maintain presence on property and did not have access to information about condition of property, and holding landlord liable for snow and ice on demised property would not serve any public policy interest.

11

NegligenceNecessity and Existence of Duty

NegligenceForeseeability

Nature of the attendant risk, which is one of the factors for determining if person owes duty of reasonable care toward another. pursuant toHopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110, focuses on whether the risk is foreseeable, whether it can be readily defined, and whether it is fair to place burden of preventing the harm upon defendant.

**174On certification to the Superior Court, Appellate Division.

Attorneys and Law Firms

Michael S. Savettargued the cause for appellant (Clark & Fox, attorneys;Michael R. FoxandPatrick J. Reilly, III, on the briefs).

Kristian A. Krauseargued the cause for respondents (Goldstein, Ballen, O'Rourke & Wildstein, attorneys;Kristian A. Krause, on the brief).

Ronald B. Grayzelsubmitted a brief on behalf of amicus curiae New Jersey Association of Justice (Levinson Axelrod, attorneys).

Opinion

JUSTICEFERNANDEZ-VINAdelivered the opinion of the Court.

*483This case calls on the Court to determine whether the owner of a commercial property owes its tenant's invitee a duty to clear snow and ice from the property's driveway while the property is in the sole possession and control of the tenant.

*484Plaintiff Baldwin Shields was delivering a letter at 608 Tonnelle Avenue, Jersey City, when he slipped on ice and fell on the driveway. At the time, 608 Tonnelle Avenue was occupied by a commercial tenant, Ramslee Motors, a used car dealership. The lease agreement between the landlord and Ramslee Motors stated that Ramslee Motors was responsible for maintaining the property as if it were the "de facto owner."

The trial court found that the landlord was not responsible for removing snow and ice from the property and granted the landlord's motion for summary judgment. The Appellate Division disagreed. It found that the lease was silent as to who was responsible for snow and ice removal from the driveway and determined that, in any case, the landlord owed the same non-delegable duty to maintain the driveway that it owed with respect to the sidewalks abutting the leased property.

1

We disagree with those determinations. The lease agreement between Ramslee Motors and the landlord directly addressed the issue of responsibility for maintenance of the property, which includes removal of snow and ice. That duty rested solely with Ramslee Motors, whether based on the lease or common law. Ramslee Motors retained complete control over the premises where plaintiff fell and was exclusively responsible for plaintiff's injuries. Therefore, we reverse the judgment of the Appellate Division and reinstate the trial court's grant of summary judgment.

I.

A.

On February 6, 2014, plaintiff, a Federal Express driver, delivered an envelope to Ramslee Motors, a used car dealership. After delivering the envelope, plaintiff slipped and fell on snow and ice on the driveway leading back to the sidewalk. Ramslee Motors parked cars for sale on that driveway, which is adjacent to the public sidewalk but separated from the sidewalk by a fence. As a*485result of his fall, plaintiff suffered injuries which he alleges continue to cause him pain and limit his activities.

**175Ramslee Motors leased the property for its dealership from 608 Tonnelle Avenue, LLC ("the landlord"). The lease agreement described the parties' responsibilities with respect to maintenance and repair as follows:

Section 3.03. TENANT shall maintain the leased premises and building, structures, fixtures and improvements now or hereafter located thereon or in or on the easements in compliance with all laws and requirements of all governmental authorities applicable thereto and to the use thereof.

Section 3.04. All parties agree that the premises have been inspected by TENANT prior to taking possession of the premises and accepts same in "AS IS" condition thereafter, and during TENANT'S use and occupancy of the premises TENANT shall be solely responsible for the maintenance and repair of the land and any structure placed on the premises at any time and from time to time during the lease, as if TENANT were thede factoowner of the leased premises.

The lease agreement also addressed the circumstances in which the landlord was permitted to enter the property:

Section 11.03. TENANT agrees to permit LANDLORD and the authorized representatives of LANDLORD and of the holder of any fee mortgage to enter the leased premises or the building on one day notice, for the purpose of inspecting the same or exhibiting the same to prospective purchasers of the leased premises or to exhibit the same to persons wishing to rent such premises and building at any time within the year prior to the termination of this Lease. LANDLORD shall have the right to enter onto the leased premises at any time in the event of an emergency.

Section 2L.01 [sic]. The TENANT agrees that the LANDLORD and the LANDLORD'S agents, employees, or other representatives, shall have the right to enter into and upon the said premises or any part thereof, at all reasonable hours, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. This article shall not be deemed to be a covenant by the LANDLORD nor be construed to create an obligation on the part of the LANDLORD to make such inspection or repairs.

The owner of Ramslee Motors testified that he was responsible for clearing snow and ice at the property. He maintained equipment at the property in order to discharge that responsibility including salt and snow shovels. Further, the tenant's owner had removed snow and ice from the property the day before the incident, as confirmed by security camera footage from the property.

*486B.

Plaintiff filed a complaint against Ramslee Motors and the landlord, which his wife joined per quod, alleging that their negligence was the cause of plaintiff's injuries. Plaintiff settled with Ramslee Motors and a stipulation of dismissal was entered. The landlord moved for summary judgment, and the trial court granted its motion. In doing so, the trial court found that the lease agreement placed responsibility for maintenance of the property on Ramslee Motors and that the duty to clear snow and ice is delegable, noting that there were no public policy concerns because plaintiff was able to recover from another party.

The Appellate Division reversed the trial court's grant of summary judgment and remanded the matter. The court found**176that the lease was silent as to who was responsible for snow and ice removal. Then, finding that there was "no legal or public policy distinction between a sidewalk and an open driveway used with regularity," the Appellate Division held that the landlord had a non-delegable duty to "ensure that the driveway abutting the sidewalk was clear of snow and ice."

We granted the landlord's petition for certification.236 N.J. 566, 201 A.3d 684 (2019). We also granted the motion of the New Jersey Association of Justice (NJAJ) to participate as amicus curiae.

II.

The landlord maintains that, both under the lease and the common law, it is not responsible for clearing snow and ice from the property. The landlord emphasizes that its lease placed the responsibility for maintenance on the tenant, which includes the removal of snow and ice. Further, the landlord argues that the law places the general responsibility for removing snow and ice from the property on the tenant as well. The landlord contends that the exception to that common law principle for public sidewalks abutting the property should not be extended to a driveway and that a*487commercial tenant with exclusive control over the property is rightly responsible for maintaining the property.

In response, plaintiff argues that the lease was ambiguous as to which entity is responsible for clearing snow and ice because the issue is not specifically addressed. Plaintiff contends that, in light of that ambiguity, the Appellate Division was correct in applying the factors set forth inHopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), in considering where the duty of care should lie. Plaintiff further reasons that the justification for sidewalk liability applies equally to the driveway in this case, and it is thus appropriate to hold the landlord responsible for the removal of snow and ice.

The NJAJ echoes plaintiff's arguments and adds that theHopkinsfactors dictate that responsibility belongs with the landlord.

III.

A.

2

When reviewing a grant of summary judgment, this Court applies the same standard as the trial court and considers "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party."Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995);see alsoR.4:46-2(c).

3

4

"The fundamental elements of a negligence claim are a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff proximately caused by the breach, and damages."Robinson v. Vivirito, 217 N.J. 199, 208, 86 A.3d 119 (2014). The key issues in this case are questions of law,seeKieffer v. Best Buy, 205 N.J. 213, 222-23, 14 A.3d 737 (2011)(interpretation of contract is question of law);see alsoRobinson, 217 N.J. at 208, 86 A.3d 119(whether duty of care is owed is question of law), and thus appropriately reviewed on summary judgment,see*488Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555, 107 A.3d 1281 (2015)(noting that "[p]urely legal questions" are "particularly suited for summary judgment").

The issue before us is whether New Jersey law imposes a non-delegable duty on commercial landlords to maintain the demised premises free of snow and ice. To**177answer that question, we first consider whether the duty was delegated and then look to whether it is non-delegable.

B.

5

The landlord argues that the lease's provision that "TENANT shall maintain the leased premises" encompassed and delegated the duty of snow and ice removal from the driveway to the tenant. We agree.

The definition of "maintain" is "[t]o care for (property) for purposes of operational productivity or appearance; to engage in general repair and upkeep."Black's Law Dictionary1142 (11th ed. 2019). Further, "maintenance" is defined as "[t]he care and work put into property to keep it operating and productive; general repair or upkeep."Ibid.

Courts have regularly found snow and ice removal to fall within those definitions. For example, inTownship of White v. Castle Ridge Development Corp., the Appellate Division held that the definitions of "maintenance" and "maintain" "inherently include winter maintenance because the removal of snow and ice is necessary to keep [the street] operating and productive."419 N.J. Super. 68, 76, 16 A.3d 399 (App. Div. 2011)(quotation marks omitted). And inMirza v. Filmore Corp., we expressly held that "maintenance" of a public sidewalk includes the removal of snow and ice.92 N.J. 390, 400, 456 A.2d 518 (1983).

The lease in this case was clear as to which party is responsible for maintenance of the premises. The parties agreed to place that responsibility solely on the tenant; the lease provided that the tenant was "responsible for the maintenance and repair of the land ... as if [it] were thede factoowner of the leased premises." We*489conclude that "maintenance" includes the responsibility to remove snow and ice based on the plain meaning of that term. Removal of snow and ice is clearly "general upkeep," which is necessary to keep the property "operating and productive."

6

7

The provision through which the landlord retained the right to enter the property without notice for the purpose of making repairs "necessary for the safety and preservation of the" property does not change our view. First, the lease specifically stated that the right to enter did not create "an obligation on the part of the Landlord to make such repairs." Second, as this Court held over sixty years ago, a reservation of a right to enter is not the same as a covenant to make repairs; rather, the "right or opportunity to enter the leased premises to perform the covenant [to repair] is, of course, something else, since the basis of liability is negligence."Michaels v. Brookchester, Inc., 26 N.J. 379, 385, 140 A.2d 199 (1958). Since that decision, New Jersey courts have distinguished between the right to enter and a covenant to repair.See, e.g.,McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521, 525, 685 A.2d 520 (App. Div. 1996). In light of that distinction, "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 inconsistent with the law of this State."Ibid.

In sum, there is no ambiguity in the lease regarding the responsibility for snow and ice removal. That responsibility falls on the tenant.

C.

Finding that the lease delegated the responsibility to clear ice and snow to the tenant, we next consider whether or not this duty is one that could be delegated.

**1781.

8

We first consider the Appellate Division's determination that the private driveway here is sufficiently analogous to a public*490sidewalk to extend the non-delegable duty to clear sidewalks to the driveway.

InStewart v. 104 Wallace St., Inc., this Court held that "commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so."87 N.J. 146, 157, 432 A.2d 881 (1981). In so holding, we overturned a longstanding rule placing responsibility for the maintenance of sidewalks on the government.Id.at 153-54, 432 A.2d 881. We set aside that rule, which was the "product of early English common law," based on its obvious unfairness.Id.at 154-55, 432 A.2d 881. We explained that the rule "left without recourse many innocent parties who suffered serious injuries because of sidewalk defects,"id.at 155, 432 A.2d 881(quotingKrug v. Wanner, 28 N.J. 174, 180, 145 A.2d 612 (1958), and gave "abutting property owners no incentive to repair deteriorated sidewalks,"ibid.

InMirza, we extended the duty to maintain sidewalks recognized inStewartto include the removal of snow and ice,92 N.J. at 400, 456 A.2d 518, and, inVasquez v. Mansol Realty Associates, Inc., the Appellate Division declared that duty non-delegable, meaning it cannot be allocated to a tenant via a lease or contract.280 N.J. Super. 234, 238, 655 A.2d 82 (App. Div. 1995).

The Appellate Division determined thatVasquezgoverns here, reasoning that the driveway was not distinct from the sidewalk and that the same non-delegable duty should therefore apply. We do not agree. The duty to maintain the driveway was never the government's -- it was always a private duty, with the potential of private recovery; the logic that led to the imposition of the duty vis--vis sidewalks does not apply to private property. Nor do the physical characteristics of the property support the appellate court's conclusion: the driveway is separated from the sidewalk by a gate and cannot therefore be readily accessed by passers-by when not expressly opened by Ramslee Motors. In fact, theVasquezpanel itself suggested that the duty it prescribed would*491not apply under the circumstances presented here when it stated that

[t]his is not a situation where the owner has vested a tenant with exclusive possession and no longer has the power of entry into the premises to make repairs. In such case, to hold the owner liable for injuries to a passerby due to a condition of disrepair over which it has relinquished access is unfair.

[Id.at 237, 655 A.2d 82.]

Here, the landlordhasvested the tenant with exclusive possession. In this case, it would be "unfair," as theVasquezpanel held, to hold the landlord responsible for "a condition of disrepair over which it had relinquished access."Seeibid.

2.

9

Having found that the non-delegable duty to remove snow and ice from a sidewalk does not apply here, we consider whether the question of control favors a different outcome.

InMichaels, we began by noting that "[h]istorically a lease was viewed as a sale of an interest in land."26 N.J. at 382, 140 A.2d 199. As such, the landlord was not responsible for maintenance of the premises.Ibid.Over time, however, exceptions to that principle developed. Most important to this case is the exception that "the landlord owes a duty of reasonable care**179with respect to the portions of a building which are not demised andremain in the landlord's control."Ibid.(emphasis added).

Recently, inJ.H. v. R & M Tagliareni, LLC, this Court emphasized the importance of control in imposing a duty on a landlord, finding that "[a] landlord has a duty to exercise reasonable care to guard against foreseeable dangers arising from use of those portions of the rental property over which the landlordretains control."239 N.J. 198, 218, 216 A.3d 169 (2019)(alteration in original) (quotingScully v. Fitzgerald, 179 N.J. 114, 121-22, 843 A.2d 1110 (2004)). That view is also reflected in the Restatement.Restatement (Second) of Torts 360 (Am. Law Inst. 1965)(providing that, under certain circumstances, "[a] possessor of land who leases a part thereof andretains in his own controlany other part which the lessee is entitled to use as appurtenant to the part*492leased to him, is subject to liability to his lessee and others lawfully upon the land" (emphasis added)).

Here, there is no doubt that Ramslee Motors, not the landlord, controlled the driveway where plaintiff fell based both on relevant provisions in the lease and on the physical characteristics of the property. Several provisions of the lease stated that Ramslee Motors was solely responsible for the demised property. Ramslee Motors' actions also show an understanding that it was solely responsible for maintaining the property, particularly with respect to snow and ice removal. The owner of Ramslee Motors stated that this was part of his responsibility in maintaining the property and that he had fulfilled this responsibility in the past. Indeed, the record reveals that the owner of Ramslee Motors had cleared the driveway of snow on the eve of the incident. The layout of the driveway reinforces the language of the lease: as noted above, the driveway is separated from the sidewalk by a fence, which can be closed by Ramslee Motors to preclude public access. And Ramslee Motors used the driveway as part of its business to display the cars it offered for sale. In short, we find the undisputed evidence in the record shows that the landlord did not enjoy the sort of control over the subject driveway that would give rise to a duty of care.

3.

10

Plaintiff contends that the element of control is insufficient to determine whether or not the landlord owed a non-delegable duty of care to remove snow and ice, and argues that we should instead apply the test expounded inHopkins. InHopkins, we departed from the traditional, categorical approach to liability based on the status of the plaintiff and reasoned that "[w]hether 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."132 N.J. at 439, 625 A.2d 1110. We provided four factors to consider in making this inquiry, now*493referred to as the "Hopkinsfactors" -- "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."Ibid.On the facts of this case, we reach the same result by application of theHopkinsfactors that we did considering control.

First, we consider the relationship between the parties. InHopkins, the parties were realtors and a potential purchaser of a home who attended an open house. In our analysis, we recognized the potential purchaser's "cognizable relationship with the broker."132 N.J. at 440, 625 A.2d 1110. Explaining that relationship, we specified that it "confers certain specific benefits on the broker and creates expectations on the part of the customer with**180respect to the broker's professional services."Id.at 441, 625 A.2d 1110. By contrast, the landlord here had no relationship with plaintiff. Ramslee Motors ran a business on the property and all visitors to that business were the invitees of Ramslee Motors. The landlord had no knowledge of who visited the property and offered no services to them. Visitors had no reason to know that Ramslee Motors was not itself the owner of the property. The firstHopkinsfactor does not favor the imposition of a duty.

11

Second, we consider the nature of the attendant risk. "This aspect of the inquiry focuses the Court on the issue of whether the risk is foreseeable, whether it can be readily defined, and whether it is fair to place the burden of preventing the harm upon the defendant."Davis v. Devereux Found., 209 N.J. 269, 296, 37 A.3d 469 (2012). Although hazards posed by winter weather are generally readily foreseeable, they are also transient. It would not be fair to place responsibility for removal of snow and ice on a commercial landlord that lacks control over the property. Fairness dictates that Ramslee Motors, with control over the driveway, and the tools on hand to eliminate the risk, should be held solely responsible for the safety of its invitees. The secondHopkinsfactor thus favors Ramslee Motors.

*494Third, "the opportunity and ability to exercise care" analysis is similar to our analysis of control. InHopkins, "the Court articulated workable guidelines by which realtors could minimize the risk of harm."Id.at 297, 37 A.3d 469. Further, we "note[d] that what precautions are reasonable depends in part on the practicability of preventing the harm."Hopkins, 132 N.J. at 443, 625 A.2d 1110. It would be impractical to require the landlord here to prevent the harm accompanying temporarily slippery conditions caused by weather on property that it does not control. The landlord does not maintain a presence on the property and does not have access to information about the condition of the property. By contrast, the tenant kept tools for resolving the problem and regularly did so. The thirdHopkinsfactor thus favors a determination that there is no duty.

Lastly, we consider the public interest in the proposed solution. Holding a landlord liable for snow and ice on demised property would not serve any public policy interest. There is no concern that plaintiff is left without redress; he can recover from Ramslee Motors. In short, an analysis of theHopkinsfactors against the factual backdrop of this case leads to the conclusion that fairness precludes the landlord's liability for plaintiff's injuries -- just as our application of the classic control-based liability analysis specific to the landlord-tenant context dictates that, in fairness, the entity with control over the property is the entity that should be held responsible. We decline to hold the landlord responsible for property over which it had relinquished control.

IV.

We reverse the judgment of the Appellate Division and reinstate the trial court's grant of summary judgment.

CHIEF JUSTICERABNERand JUSTICESLaVECCHIA,PATTERSON,SOLOMON, andTIMPONEjoin in JUSTICE FERNANDEZ-VINA'S opinion. JUSTICEALBIN, concurring in the judgment and dissenting in part, filed a separate opinion.

JUSTICEALBIN, concurring in the judgment and dissenting in part.

*495I concur with the majority that, based on the summary-judgment record, defendant**181608 Tonnelle Avenue, LLC (the landlord) had no common law duty to clear the commercial tenant's driveway of thetransientcondition of snow and ice, which caused plaintiff Baldwin Shields to slip and fall. Given the facts here, the tenant had the duty and sole responsibility to render the driveway safe.

Unlike the majority, however, I believe this landlord has a duty to make reasonable efforts to repair a dangerous condition on the property that it knows or should know places at risk the lives and safety of people visiting or frequenting the premises. Imposing this common law duty on the landlord is both fair and in accord with public policy. First, in the lease, the landlord reserved the unqualified right to enter the property to make safety repairs and therefore did not cede exclusive control of the property to the tenant. Second, the landlord is profiting from the lease of the premises. Ownership of land over which a landlord retains sufficient control to ensure the safety of the public carries certain responsibilities that cannot be cast aside.

Accordingly, I disagree with any seeming pronouncement that absolves the landlord of the duty to make reasonable efforts to repair a dangerous condition on the property when the landlord knows or should know of the danger, when the landlord retains authority to remove the danger, and when the tenant fails to make the necessary repairs and the lives and safety of people are imperiled by negligent inaction.

I.

The lease in this case does not support the majority's assertion that "Ramslee Motors retained complete control over the premises where plaintiff fell."Seeanteat 484, 223 A.3d at 174. Indeed, the lease provides that the landlord and its agents "have the right to enter ... the said premises ... at all reasonable hours, for the*496purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof." In addition, the landlord reserved "the right to enter onto the leased premisesat any timein the event of an emergency." (emphasis added). Those provisions make clear that the landlord did not cedeexclusivecontrol over the property to the tenant.

The landlord attempts to absolve itself of any legal duty to make safety repairs by pointing out certain lease terms: (1) the tenant is "solely responsible for the maintenance and repair of the land" and structures on it, and (2) the landlord's reservation of the right to inspect and repair the property does not "create an obligation on the part of the [landlord] to make such inspection or repairs." But parties to a lease cannot contract away a common law duty intended to benefit the public.SeeHenningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 403-04, 161 A.2d 69 (1960)(stating that courts "do not hesitate to declare void as against public policy contractual provisions which clearly tend to the injury of the public in some way").

A landlord that retains sufficient control over its property to make safety repairs should not be able to extinguish its common law duty to exercise reasonable care to guard against foreseeable dangers.That is because a landlord's duty to exercise reasonable care is a question of law that a court decides.SeeJerkins v. Anderson, 191 N.J. 285, 294, 922 A.2d 1279 (2007). Whether to impose a common law duty depends on an analysis of such factors as "the relationship of the parties," the foreseeability and nature of the risk of harm, "the opportunity and ability to exercise care" to avoid the harm, "the public interest," and ultimately "notions of fairness"**182and "common sense."Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 443, 625 A.2d 1110 (1993). Generally, a landlord's duty to repair a dangerous condition on its property "arises when the harm is foreseeable and the landlord has sufficient control to prevent it."SeeScully v. Fitzgerald, 179 N.J. 114, 121-23, 843 A.2d 1110 (2004).

*497Given the landlord's right to enter its property to make safety repairs, theHopkinsfactors certainly should give rise to a common law duty under the appropriate circumstances. For example, if the landlord in this case had reasonable notice of a developing sinkhole in the driveway or of a roof overhang ready to collapse on an interior walkway, threatening the lives and safety of visitors, surely common sense and notions of fairness would dictate that the landlord has a duty to act in the absence of the tenant making the necessary repairs.

To the extent that the case law of this Court, more than a half-century old, suggests that the landlord can evade a duty of care because a lease divests it of "control" of the property, even when it has reserved the right to enter its premises to make safety repairs,seeMichaels v. Brookchester, Inc., 26 N.J. 379, 384-85, 140 A.2d 199 (1958), the time has come to adopt a more progressive approach to our common law. Rigid and legalistic definitions of the term "control" should give way to the reality that the landlord has authority under this lease to exercise control. However "control" is defined does not diminish the fact that the landlord has the right to enter the premises to make safety repairs. The common sense of the situation should dictate whether the landlord owes a duty to act with reasonable care toward the public.

Some jurisdictions have held that when a landlord retains a right of entry on leased property to make repairs, the landlord owes a duty of care to the public.See, e.g.,Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246, 252 (1969)(finding "retention of control" where the lease did not expressly resolve the issue of control and there was "evidence that the lessor was granted general access to the apartment for the purpose of inspection and repair");Adamson v. Port of Bellingham, 193 Wash.2d 178, 438 P.3d 522, 526 (2019)(noting that although landowner may not be held liable for injuries in some cases when it "givesexclusivecontrol of a property over to a lessee," when the "landlordreservesa duty to repair the premises, the landlord is liable for its*498own negligence if it fails to do so, even if both the landlord and the lessee know of the dangerous condition").

Other jurisdictions have rejected "control" of property as a decisive factor altogether and hold that landlords simply have a duty to exercise reasonable care under the circumstances.See, e.g.,Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41, 50 (1984)(deciding that "the common-law rule and its exceptions" are no longer relevant and that "questions of hidden danger, public use, control, and duty to repair ... will now be relevant only inasmuch as they pertain to the elements of negligence, such as foreseeability and unreasonableness of the risk");Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 534 (1973)(rejecting the doctrine of landlord immunity and holding that "[a] landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk");Miller v. David Grace, Inc., 212 P.3d 1223, 1230 (Okla. 2009)(rejecting the doctrine of landlord immunity and imposing on landlords a general duty of care that "requires a landlord to act reasonably when the landlord knew or reasonably should have known of the defective condition**183and had a reasonable opportunity to make repairs");Favreau v. Miller, 156 Vt. 222, 591 A.2d 68, 72 (1991)(holding that "landlords too may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain 'control' of the dangerous condition");Pagelsdorf v. Safeco Ins. Co. of Am., 91 Wis.2d 734, 284 N.W.2d 55, 61 (1979)(holding that "a landlord owes his tenant or anyone on the premises with the tenant's consent a duty to exercise ordinary care" and that "notice of the defect, its obviousness, control of the premises, and so forth are all relevant only insofar as they bear on the ultimate question" of whether the landlord exercised "ordinary care in the maintenance of the premises under all the circumstances").

The right of a landlord to make repairs on its property under the terms of a lease should implicate the landlord's duty to exercise reasonable care. If a landlord has retained authority to*499enter the premises to make safety repairs that would prevent a person from being seriously harmed, it should have a duty to do so if reasonable under the totality of the circumstances.

I disagree with the majority that imposing on the landlord the duty to remove even snow and ice on a commercial driveway -- a condition that could subsist for a period of weeks if not more -- "would not serve any public policy interest."Seeanteat 494, 223 A.3d at 180. Although this plaintiff may have secured redress from the tenant, as the majority notes, the next plaintiff may not be so fortunate.Seeanteat 493-94, 223 A.3d at 180. After all, the tenant could be insolvent or underinsured. Moreover, one of the purposes of tort law is to give a party an incentive to prevent accidents from happening in the first place.SeeHopkins, 132 N.J. at 448, 625 A.2d 1110. It is better that a party exercise reasonable care to avoid causing injury than that an injured party be left to seek recovery for a preventable accident.

II.

Here, although the landlord had the authority to enter the property to repair any dangerous condition of which it was aware, given the transient condition of the ice and snow in the driveway in this case, the landlord had no practicable way to know that the tenant would not clear the driveway in a timely way and therefore no reasonable opportunity to remedy the situation.

I therefore concur in the judgment.

All Citations

240 N.J. 479, 223 A.3d 172"