The Law

Out-Of-Possession Stairs by Ron Davis A tenant of a New York shopping center has failed in an attempt to blame the center’s owners for an injury that occurred at the tenant’s leased premises. The shopping center, located in New York’s Clinton County, is owned by Champlain Centre North LLC. That location is where the tenant has leased space since the late 1980s to operate a business named DND Unisex Hair Design. And the injury occurred when a customer of the tenant fell after slipping on a loose vinyl or rubber stair tread while in the tenant’s leased premises. The customer later sued the tenant. In response to that lawsuit, the tenant refused to take any blame for the injury. The tenant argued that as an “out-of-possession landlord,” he was not responsible for maintaining the stairs where the fall occurred. To counter that argument, the center’s owners cited a similar previous lawsuit whose result seemed controlling. The outcome in that lawsuit held that “generally, an out-of-possession landlord who relinquishes control of the premises is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises.” But there are exceptions to that directive. They include situations where the landlord retains control of the premises. Also, there’s this potential situation seemingly favoring the tenant: “If the landlord assumes a responsibility to maintain or repair the property or assumes or created a dangerous condition.” The tenant contended that the shopping center’s owners did in fact assume a duty to make repairs, thereby contributing to any dangerous troubles or problems that might arise. Finally, the center’s owner had reserved the right “at reasonable times” to examine the tenant’s leased premises and customer stairways for purposes of inspection and to make necessary repairs. The tenant, however, was responsible for maintenance and repair in the area where the accident occurred. And apparently that pronouncement was persuasive. A New York court subsequently ruled in favor of the shopping center’s owners. Explained the judge, “An out-of-possession landlord that has a right to enter the premises may be liable if it has assumed a duty to make repairs and it has notice of a dangerous condition. Here, [the tenant president] acknowledged responsibility for maintenance and repair in the relevant area of the store. The fact that employees of [the center’s owner] used the subject stairs when conducting fire inspections did not give rise to a duty to repair.” The tenant appealed that ruling, but a New York appellate court upheld the lower court decision, noting, “[the tenant] failed to present proof that the center’s owner assumed a duty to repair the stair tread in [the tenant’s] store by a course of conduct or otherwise.” (Whittington v. Champlain Centre North LLC, N.Y.S. 2d, 2014 WL 6978328 [N.Y.A.D. 3 Dept.), 2014 N.Y. Slip Op. 08691]) Decision: December 2014 Published: December 2014