The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit’s Experience
By Gregory L. Acquaviva.
The facts of Holmes v. Kimco Realty Corp. are straightforward. On January 20, 2005, Walter Holmes drove to a shopping center in Maple Shade, New Jersey to shop at Lowe’s Home Center (“Lowe’s”). Lowe’s, like the other businesses in the shopping center, was in a stand-alone building but was some distance from the other businesses in the shopping center. Holmes, accordingly, parked in the area of the parking lot closest to Lowe’s, an area that included shopping cart corrals reading, in part, “[t]hank you for shopping at Lowe’s.” While returning to his vehicle, Holmes fell on ice in the parking lot. He sued Lowe’s for negligent maintenance of the parking lot. Although the complaint was initially filed in New Jersey Superior Court, the defendants removed the case to the United States District Court for the District of New Jersey, based on diversity jurisdiction.
Lowe’s then informed Holmes that it was a tenant of the shopping center, not the owner of the shopping center or parking lot where he fell. In fact, four years prior to Holmes’s accident, Lowe’s entered into a lease agreement with Price Legacy Corporation (“Price”), pursuant to which Price, as landlord, was required to maintain common areas, including the parking lot, by, among other things, providing for snow removal, and was required to carry “commercial general liability insurance . . . upon all [c]ommon [a]reas.” Holmes attempted to amend his complaint to include Price, as well as another entity suspected of owning the parking lot, Kimco Realty Corporation. But, because the statute of limitations had expired, the District Court granted summary judgment in favor of the potentially liable landlords. The District Court also granted summary judgment in favor of Lowe’s, predicting that the Supreme Court of New Jersey would not extend liability for injuries occurring in common areas to a commercial tenant in a multi-tenant shopping center.
On appeal, the United States Court of Appeals for the Third Circuit was presented with one issue: “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.”
This Article explores the United States Court of Appeals for the Third Circuit’s discretionary use of state certification procedures to obtain authoritative determinations of unsettled questions of state law by state high courts. Specifically, this Article focuses on the willingness of the high courts in New Jersey, Pennsylvania, and Delaware—the three states comprising the Third Circuit—to exercise their discretion and grant the Third Circuit’s petitions for certification.
keep reading.