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Out of Possession Landlord Liable for Trip and Fall Based on Language in Management Agreement (NY)

December 24, 2009

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In Stevens v. Lincoln Center, the plaintiff tripped and fell in a restaurant located in the owner's premises. Although the restaurant was not open for business at the time of the accident, it was located in the lobby of the building and had openings on each side, allowing visitors to walk through the restaurant to get from one point in the lobby to another. The plaintiff got her foot caught on the leg of chair. The plaintiff claimed that that furniture was randomly spread out in the room and chairs were piled up in the allegedly "darkish" room.
The owner entered into an agreement with the co-defendant to manage the restaurant and provide food and beverage service. While the agreement obligated the management company to maintain the premises in a safe and orderly condition, the owner retained the right to inspect the premises to ensure that it was properly maintained and to clean the premises if the owner was unsatisfied with the level of cleanliness. Moreover, the management company was obligated to remove all table and chairs from the restaurant in order for the owner to perform heavy duty cleaning and scrubbing of the restaurant. The owner's employees cleaned the floor of the restaurant every night. Further, both the owner and the management company had control over the lighting in the restaurant.
Citing the agreement and deposition testimony, the court denied the owner's motion for summary judgment because, even if the owner could be deemed an out-of-possession landlord, it was still liable for negligence based on the contractual obligation requiring the owner to make repairs and maintain the premises. The owner still retained a certain degree of control over the premises and could be held liable for the plaintiff's accident.
<a href="http://www.courts.state.ny.us/reporter/pdfs/2009/2009_32903.pdf">http://www.courts.state.ny.us/reporter/pdfs/2009/2009_32903.pdf</a>
Thanks to Maju Varghese for his contribution to this post.

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