Out-Of-Possession Landlord Not Liable For Guest’s Injury
Written by: Alan Nochumson
Earlier this year, in Hymes v. Great Lakes Warehouse, 2014 U.S. Dist. LEXIS 34064 (March 17, 2014), U.S. District Judge Petrese B. Tucker of the Eastern District of Pennsylvania explained why it is so difficult for a third party to obtain damages against an out-of-possession landlord due to injuries sustained by the third party on the leased property.
Several years ago, Transportation Investment Group LP (TIG), as landlord, entered into a lease agreement with Team Hardinger Transportation, as tenant, to lease a portion of the building owned by the landlord in Erie.
The lease agreement provided the landlord with the right to inspect the leased property, the opinion said. According to the opinion, TIG never exercised its right to inspect the leased property during the term of the lease through the date of the incident.
TIG did maintain a verbal policy with its tenants that the tenants were solely responsible for keeping the parking areas, walkways and steps leading to the building free from snow and ice, the opinion said.
During the term of the lease, James Hymes III claimed that he suffered serious injuries when he fell on the steps to the building containing the leased property due to the presence of ice and snow outside of the building, the opinion said.
As agreed to by the parties, snow had stopped falling in Erie approximately 15 minutes before Hymes arrived at the building. Prior to him entering the building, the steps to the building had been swept off and he did not notify anyone inside the building that the steps were icy or slippery, the opinion said. After Hymes left the building, his left foot slipped on the bottom step and he fell, hurting himself in the process, the opinion said.
Hymes eventually filed suit against the landlord, amongst others, under a theory of negligence.
After discovery took place between the parties, TIG filed a summary judgment motion in an attempt to dismiss the lawsuit against it.
In the summary judgment motion, TIG argued that it was not responsible for the maintenance of the steps where Hymes fell and the incident did not otherwise fall into any legal exceptions that would establish liability and, even if TIG had control over the steps and was responsible for maintaining them, it was still not liable for his injuries because snow had just fallen and the steps were recently cleared.
Tucker granted the summary judgment motion, essentially finding a lack of a duty of care flowing from the landlord to Hymes.
In its summary judgment motion, TIG contended it did not have any responsibility for what happened to Hymes because it was out of possession of the building containing the leased property.
In Pennsylvania, a landlord is generally not liable to its tenants or to others, including guests, for the physical harm caused by either natural or artificial conditions on the leased property that existed when the leased property was transferred or that arise after the transfer of possession of the leased property to its tenants. This general rule is based upon the principle that “the law regards the lease transaction as the equivalent to the sale of the land for the term of the lease” and liability is, thus, conditioned upon possession and control of the leased property and not merely upon who owns the leased property.
However, the Pennsylvania courts still hold out-of-possession landlords liable under any of the following circumstances: (1) if the landlord has reserved control over the defective portion of the leased property; (2) if the leased property is so dangerously constructed that it is a nuisance per se; (3) if the landlord has knowledge of a dangerous condition existing on the leased property at the time of transferring possession and fails to disclose the condition to the tenant; (4) if the landlord rents the leased property for a purpose involving the admission of the general public and the landlord neglects to inspect for or repair dangerous conditions existing on the leased property before possession is transferred to the tenant; (5) if the landlord undertakes to repair the leased property and negligently makes the repair; or (6) if the landlord fails to make repairs after having been given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased property.
In response to the summary judgment motion, Hymes argued that his situation fell into the first, fifth and sixth exceptions to this general rule.
Tucker first addressed whether the landlord reserved control over the defective portions of the leased property.
Hymes believed TIG did so because, among other things, a section of the lease agreement governing the parties allowed the landlord to enter the leased property to make inspections or repairs or to show the leased property to prospective tenants or purchasers and another section of the lease agreement required the tenant to acquire the landlord’s approval prior to making any improvements to the leased property.
Tucker concluded that Hymes did not provide sufficient evidence to support his argument that the landlord reserved control over the defective portions of the leased property. In doing so, Tucker pointed out that just because the lease agreement contained a provision reserving the right for the landlord to inspect the leased property did not create a situation of reserved control over the leased property.
Furthermore, Tucker noted that the provision in the lease agreement requiring landlord approval for improvements to the leased property was of no legal consequence, as the parties agreed that such approval would not have been necessary to correct snow and ice accumulation before Hymes’ fall.
Tucker was also not convinced that TIG exercised the requisite amount of control over the leased property based upon the mere existence of the provision in the lease agreement allowing the landlord to inspect the leased property. While the landlord possessed the right to inspect the leased property by way of the lease agreement, Tucker noted that TIG had never exercised that right from the execution of the lease agreement through the day Hymes fell on the steps to the building containing the leased premises.
Hymes next argued that TIG had undertaken repairs on the steps and could have repaired the steps in such a negligent fashion that it increased its hazardous nature. Specifically, he contended that “it was possible [the landlord] used an inappropriate or high-gloss product on the grated metal stairs, thus magnifying its potential as a slippery surface in icy conditions.” In support of this contention, he relied upon the testimony of one of the landlord’s employees in which the employee stated the landlord had the steps painted earlier that year.
Tucker quickly rejected his attempt to fall within this exception to the general rule because he “fail[ed] to present any records of repair or analysis of samples from the stairs.” In other words, Tucker concluded that he did not set forth any evidence illustrating negligent behavior on the part of the landlord in the painting of the steps.
Finally, Hymes asserted that the landlord failed to make repairs to the steps after it was given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased property.
In support of this assertion, he relied upon the testimony of one of the landlord’s employees in which the employee stated that “Erie, Pennsylvania, gets snow, quite a lot of snow.”
As to this assertion, Tucker held that Hymes failed to show that TIG maintained significant control over the area of the building in which the incident occurred. Even if Hymes did, however, Tucker pointed out that he admitted that snowfall in Erie had stopped only 15 minutes before he arrived at the building containing the leased property, he used the same steps while entering the building and did not notify anyone that they had been icy or slippery, and had no difficulty navigating those same steps on his way into the building.
In further rejecting his assertion, Tucker cited to the “hills and ridges” doctrine that has been adopted by Pennsylvania courts. Under that doctrine, “Snow and ice upon a pavement create merely transient danger and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition.”
Since the steps were swept off at the time Hymes entered the building, Tucker believed that the landlord acted reasonably under the circumstances.
Hymes did note an exception to the “hills and ridges” doctrine when the dangerous condition was the result of “human intervention.” In doing so, he argued that the way the steps were swept caused his fall.
Yet again, Tucker swiftly discarded his argument because he lacked proof as to how the steps being swept caused his fall.
Reprinted with permission from the September 16, 2014 edition of The Legal Intelligencer © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
