Wade Clark Mulcahy LLP

<p style="text-align: justify;">In settled law, an out-of-possession landlord is not responsible for any injuries which occur on its premises unless the landlord has retained control over the premises, and (i) has a duty imposed by law or statute, (ii) has a duty imposed pursuant to a contract; or (iii) takes up that duty through course of conduct. But this rule is not infallible.</p>
<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2020/04/Broughal-v.-Tae-J.-Kwon.pdf">Broughal v. Tae J. Kwon</a></em>, the plaintiff was injured in a slip and fall on ice located on the walkway of a strip mall owned by defendant landlord. Plaintiff, in this case, was also the tenant/lessor of the premises, slipping on the icy sidewalk of his own business. In a summary judgment motion, the landlord established that the lease agreement held the tenant responsible for removing any snow and ice from the walkway where the accident occurred. Plaintiff never rebutted owner’s argument on this issue. The Second Department, however, found that the landlord failed to provide any evidence that they had no duty to maintain the drainage system, that they adequately maintained the drainage system, and/or that the drainage system was not the proximate cause of the slip and fall (a drainage malfunction could have prevented an accumulation of water which froze into ice). The Second Department agreed that landlord defendant failed to prove that the drainage system was not a possible cause of the ice on the sidewalk and found it to be an issue to be determined at trial.</p>
<p style="text-align: justify;">This case highlights an important element in applications for summary judgment under the guise that a lease agreement absolves a landlord from liability for injuries occurring on the premises. The Second Department does not look favorably to releasing a landlord from any liability, leaving an injured plaintiff with no recourse at law, simply because the lease language places the responsibility on the tenant for maintaining the premises free from snow and ice. If the landlord does not prove that his maintenance of the building was not the proximate cause of a slip and fall by keeping detailed maintenance records and performing regular check-ups on the premises, then he will need to prove the same trial.</p>
Thanks to Raymond Gonzalez for his contribution to this post.  Please contact <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi</a> with any questions or comments