If you own a building which you do not occupy and which you have leased to a tenant, can you be responsible for injury to your tenant’s visitor for an injury because of a defect on the property?
In a recent opinion, the U.S. District Court of the Eastern District of Pennsylvania in Hymes v. Great Lakes Warehouse held that the owner/landlord was not to be held liable where a visitor of its tenant slipped on icy steps and was injured. In this case, the snow had stopped falling only 15 minutes prior to Mr. Hymes’ arrival, and the steps had been swept by the tenant.
The Court found for the owner for several reasons. Primary among them is that a lease in Pennsylvania is treated as a “sale” to the tenant for the term of the lease; and unless the lease imposes the duty of maintenance of the property upon the landlord, responsibility for maintenance falls upon the tenant. It is a rare lease that does not impose the obligation to maintain the property upon the tenant.
Although as a general rule the landlord who is not in possession of a property cannot be held liable for a condition causing injury, the Court noted that there can be exceptions to the rule if: (a) the landlord reserved the obligation of maintenance to itself; (b) if a property when leased has a condition which was a nuisance per se; (c) if the landlord is made aware of a dangerous condition and fails to call it to the attention of the tenant; (d) if the landlord undertakes repairs on the property but does so negligently causing injury; or (e) if a dangerous condition is brought to the landlord’s attention, and the landlord fails either to correct it or call it to the attention of the tenant.
The landlord’s exemption from liability is preserved even though the lease gives the landlord the right to enter the property to inspect (as virtually all leases so provide), and the landlord fails to do so. It is further preserved if the tenant negligently makes improvements to the property, after receiving approval of the landlord to do the work.
Aside from the principles outlined above, the decision in Hymes was made easier by the facts. Not only had the snow barely stopped falling prior to the visitor’s arrival, but the tenant had apparently made a reasonable effort to remove it from the steps.
The paradox created by the lease principles outlined above is that a landlord who does nothing to require a tenant to maintain a property safely is probably less likely to be held responsible for an injury arising from defective maintenance than is the diligent landlord who badgers his tenant to make necessary repairs. “See no evil; hear no evil; and speak no evil?”
– Ken Butera