Conflicting Decisions Regarding Premises Liability Create Uncertainty for Commercial Shopping Center Tenants

By Louis Pashman, Esq.
lpashman@pashmanstein.com

You are a tenant in a commercial shopping center.  Someone visiting your store is injured in a fall outside your store.  As is common in shopping center leases, the landlord is responsible to maintain all common areas.  Are you responsible for the injury to the person who visited your store?  Two recent appellate decisions reached different results.

In Kandrac v. Marrazzo’s Mkt., a 2012 decision, a customer who had been at defendant’s store fell on a hump in the parking lot.  The court found the tenant not liable.  While refusing to rule that such a tenant is automatically relieved of liability, it cited three reasons for its decision.  First, the accident did not occur on a route fixed by the tenant.  Second, it was not in close proximity to the defendant’s store and, third, the area where the accident occurred was not in defendant’s control.  The lease provision imposing maintenance responsibility on the landlord was a “significant” factor.

In a 2013 decision, Nielsen v. Wal-Mart Store # 2171, an independent contractor at Wal-Mart to perform exterminating services alleged he slipped and fell in loose sand and gravel in an area outside the store.  The lease imposed on the landlord the same duty to maintain the common areas, which included the area where the plaintiff fell.  The court could have distinguished the Kandrac case.  The route the independent contractor took was prescribed by Wal-Mart.  It was in closer proximity than Kandrac.  Neilsen, however, did not rest on any of those distinctions.  Rather, the court in Nielsen disagreed with Kandrac.  Although Wal-Mart had no contractual obligation to maintain the area, nothing prevented them from doing so.  While in Kandrac the court found that the duty imposed on the landlord was a “significant” factor, in Nielsen it carried little weight.  Neither ownership nor control, the Nielsen court said, is determinative.  The language used by the parties is not of great import.  Basic fairness and public policy considerations are paramount.

If this leaves you uneasy about your responsibility if you are a tenant in a commercial shopping center—it should.

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