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Say “Cheese”
by Ron Davis

Shopping center owners shouldn’t count on a janitorial service contract to shield them from lawsuits resulting from slip-and fall injuries on their property.

Consider a recent lawsuit in New Jersey, for example. There, a customer at Ocean County Mall, located just north of Atlantic City, was injured after slipping on a “cheese-like” substance on the floor of one of the center’s common areas. And the defense of the center’s owners that their janitorial service contract protected them from having to pay the fall victim’s medical bills proved ineffective.

Yet their contract seemed protective enough. The janitorial service promised to “defend [Ocean County Mall] and hold it harmless from and against any claim, liability, damage or expense that it may incur relating to, arising out of or existing by reason of the contractor’s performance.”

In other words, the janitorial service agreed to take the blame for accidents resulting from its failure to perform its job adequately. And since cleaning the shopping center is a janitorial function, the center’s owners argued, any claims against them were unjustified.

The janitorial service responded, however, that its contract with the shopping center was “limited” in scope and did not completely absolve the center’s owners from negligence on their part. In this case, the service added, the center’s personnel should have discovered the cheese-like substance on the center’s floor and removed it.

In the ensuing lawsuit, a New Jersey court decided that the janitorial service contract was a “broad form” that afforded total injury-lawsuit protection to the shopping center owners. The janitorial service appealed.

The New Jersey Supreme Court disagreed with the lower court, explaining, “Even if the ‘broad form’ notion retained some vitality, the service contract provision in this case would not pass muster. The provision focused on the service, thus eliminating the possibility of construing it to include the shopping center’s negligence.” (Azurak v. Corporate Property Investors, 814 A2d 600 [N.J. 2003])

Decision: January 2003
Published: March 2003



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