c. Tenant and Tenant's officers, concessionaires, agents, employees, contractors, vendors, suppliers and other invitees of Tenant shall park their automobiles and other vehicles ("Tenant's Automobiles") only in those portions of the parking area designated for that purpose by Landlord from time to time. Tenant shall have the exclusive use for parking of Tenant's Automobiles in the existing parking lot to the west of the Main Building and the new parking lot described in Exhibit C hereto; provided, however, if Tenant ever terminates this Lease as to Suite D as provided herein for any Option Period, then, during such Option Period and any future Option Period, Tenant and Tenant's Automobiles shall be excluded from an appropriate prorata number of parking spaces in said parking lots in area(s) as selected by Landlord in Landlord's reasonable discretion.
We will refer to the "existing parking lot to the west of the Main Building" as the "south lot." We will refer to the "new parking lot described in Exhibit C" as the "north lot."
Based upon the terms of the lease, we make the following findings. The lease granted employer exclusive parking use of the north and south lots. "Exclusive," means "excluding or having power to exclude (as by preventing entrance or debarring from possession, participation, or use)...limiting or limited to possession, control, or use (as by a single individual or organization or by a special group or class)."3 "Use," means "the act or practice of using something." We find that by the lease the landlord granted to employer the power to exclude all non-employees from using (i.e., parking vehicles in) the north and south lots, including the landlord, other tenants of the complex, and visitors to the complex.
Employees of the landlord, employees of other tenants, and visitors to the complex sometimes parked in the north and south lots. This was regularly true for other workers in the complex because the only restroom in the entire complex was in the building that housed employer's leased offices. Workers from other businesses in the complex would frequently drive from their workplaces and park in the south lot when they visited the sole restroom. Individuals working for landlord or other complex occupants, as well as, visitors to the complex often drove through the north lot to get to other locations in the complex.
Because the landlord granted exclusive parking use of the north and south lots to employer, we find that the lots were not for the "common or joint use and benefit of" the landlord, other tenants, and invitees. Consequently, we find the south lot does not fall within the lease definition of "Common Facilities." Our finding is consistent with the understanding of
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[^0]: ${ }^{3} WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 793 (2002).
{ }^{4}$ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2523 (2002).
employer's operations manager who testified that employer had the power to direct uninvited vehicles to leave the parking lot and had, in fact, exercised that power.
Through the lease, landlord agreed to perform some responsibilities in relation to the north and south lots such as repairs, resurfacing, striping, and snow removal. These maintenance responsibilities were similar to landlord's lease obligations as regards the outside of the building that housed employer's leased offices. A February 25, 2010, email from employer's facilities manager to the landlord's vice president reveals that shortly after employee's accident, employer's facilities manager contacted the landlord to express displeasure that the lots had not been cleared of snow and ice. The e-mail indicates that the vice president agreed that the landlord would modify the way the lots were cleared in response to employer's displeasure.
A fence enclosed the real property upon which the commercial complex sits. There were three gates providing access to the complex from Robertson Road. One gate considered the "main gate" - was on a driveway/roadway which ran east and west between the south lot and the north lot. ${ }^{5}$ Employee always entered the complex by heading east through the main gate on the driveway.
Several of employer's supervisory and management employees had a key to the lock on the main gate. Employer's operations manager was typically the first person to arrive for work at the commercial complex each day. The main gate was usually locked when the operations manager arrived so he used the gate key assigned to him to unlock the gate. The gate remained open and unlocked throughout the workday. Employer's call center employees were generally the last workers to leave the commercial complex at night. A call center supervisor would lock the main gate upon leaving the complex with a key assigned to the supervisor for that purpose unless one of the security guards provided by the landlord was at the gate to do so.
Upon arriving at the main gate to the commercial complex for a work shift employee would:
- enter the commercial complex heading east on the driveway through the main gate at Robertson Road;
- turn south off the driveway and enter the south lot through another gate, which we will refer to as the "south lot gate;"
- park and exit his vehicle;
- walk east across a north-south roadway and then along a sidewalk to the entrance of the building containing employer's leased offices.
Upon entering the building, employee reported to his desk and clocked in through his computer. At the end of his shift, employee clocked out through his computer system. Employee would then exit the building and return to his vehicle along the same route by which he arrived.
When employee arrived for work on February 18, 2010, snow and ice was on the south lot. Employee concluded his work shift on that day at 9:00 p.m. and clocked out through
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[^0]: ${ }^{5}$ The other two gates provided ingress to and egress from the complex via the north lot.
his computer system. As was his custom, employee left the building, walked west along the sidewalk and across the roadway into the south lot, which was dimly lit. Although the south lot had been plowed or bladed to provide pathways upon which vehicles could travel, snow and ice remained on portions of the lot, including the plowed pathways and the parking spaces. The remaining snow and ice rendered the south lot in an unsafe condition by the time employee left work. Although employee was walking on a plowed portion of the south lot, employee slipped on the snow and ice and fell. Employee sustained a torn later