This was originally published on the SGR Blog.
Was Out-of-Possession Landlord Liable for the Injury?
Julia M. Frenza sought monetary damages for personal injuries allegedly sustained on September 18, 2018, when she tripped and fell due to a crack in an interior floor of premises owned by Four State Commercial Developers LLC (FSCD). At the time of her accident, Frenza was working as a courier for Federal Express Corporation (FedEx) at the premises, which was leased and operated by FedEx as a warehouse. The accident occurred inside a facility in an area used to house vehicles. Frenza claimed that FSCD was negligent in failing to properly maintain and repair the interior flooring.
FSCD contended that it could not be held liable for Frenza’s injuries, since it was an out-of-possession landlord with no on-going presence at the premises and with limited access to the premises under its lease with FedEx. In addition, FSCD argued that the lease made FedEx solely responsible for the repair and maintenance of the interior ground where the allegedly hazardous condition was located. Finally, FSCD claimed that the crack in the ground did not constitute structural damage for which an out-of-possession landlord would normally be responsible. FSCD moved to dismiss the complaint.
In support of its motion, FSCD noted Frenza’s deposition testimony that she tripped and fell as she was walking diagonally across an empty parking space in the interior of the facility while heading towards a conveyor belt. She identified that crack in certain photographs shown to her. The crack admittedly appeared as a wide, one-to two-foot-long crack. Frenza testified that she had never walked through that spot previously, did not know that the crack was there prior to her fall, had never been warned about the crack, had never heard anyone complain about the crack, and did not know of anyone having previously reported the crack to a supervisor.
In addition, FSCD submitted an affidavit from Gina Kotsar, as well as Kotsar’s deposition testimony. Kotsar was employed as a Portfolio Manager for FSCD and was familiar with the landlord-tenant relationship existing at the premises. In pertinent part, she averred as follows:
“[FSCD] never received any complaints from FedEx or any other person or entity regarding the crack in the floor at the alleged accident site. Regardless, FedEx, as the tenant, was and is solely responsible for maintaining the interior of the premises, including the floor where plaintiff fell.”
“Further, at the relevant time, [FSCD] did not have an automatic right of access to the premises but could request access if needed. Since [FSCD] was unaware of the crack in the pavement at issue in this case, and in any event had no contractual obligation to maintain or repair that part of the interior floor, [FSCD] had no need occasion to request access in connection with that crack.”
FSCD also submitted an affidavit from John T. Snook. Snook worked as a Real Estate Manager for FedEx and was responsible for overseeing a staff which leased buildings and land to operate FedEx’s business. He was familiar with the landlord-tenant relationship existing at the facility. In pertinent part, Snook stated as follows:
“FedEx, as the tenant, was and is solely responsible for maintaining the interior of the premises, including the floor where plaintiff fell, pursuant to Section 9 of the original 1988 lease. Four State is responsible for the structure of the premises, which includes the roof and exterior wall, but which does not include the interior floor where the accident is alleged to have occurred.”
“Four State is and at the relevant time was an out-of-possession landlord of the premises. In this capacity, Four State did not have an automatic right of access to the premises but could request access from FedEx if needed. Four State did not request access from FedEx in connection with the crack on the facility floor underlying this case. Nor did FedEx request that Four State maintain or repair that section of the facility floor, as Four State has no obligation under the lease to do so.”
FSCD also submitted an affidavit from David Behnken, a forensic engineer retained by FSCD to inspect and report on the crack and the ground in the area of the accident. Behnken inspected the area of the accident in the company of Frenza and her own expert witness. Frenza pointed out the crack to the experts. Behnken stated that the crack measured 15 inches in length, with various widths maxing out at 2 ½ inches and depths of 7/8 to ¾ of an inch. The crack did not present a tripping hazard, since the concrete on each side of the crack was flush. Behnken noted that the crack was located on a raised concrete slab measuring 22 feet 10 inches by 19 feet 8 inches, with a 1-inch lip surrounding the slab. Behnken opined that the crack in the ground was not a structural defect in the premises. Specifically, Behnken concludes as follows:
“[T]he floor including the crack along which Ms. Frenza was allegedly caused to fall, was structurally sound, capable of performing its designed and constructed function — i.e., structurally supporting any vehicular and pedestrian loads thereon.”
Finally, FSCD submitted a copy of the lease to the premises and subsequent amendments. FSCD became FedEx’s landlord as assignee of the lease, and FedEx was the only occupant of the premises. FSCD highlighted Section 9 of the lease, which provides for maintenance obligations as follows:
Section 9. Maintenance of Premises. (a) At its expense, Landlord shall maintain in good condition the structure of the building, including the roof, foundation, load-bearing and exterior walls (excluding windows, window glass, plate glass, doors and overhead doors), and Landlord shall also maintain the heating, ventilating and air conditioning systems serving the Premises and the parking lots, drives and sidewalks around the Premises. (b) Landlord shall accomplish all maintenance for which it is responsible as soon as practicable following receipt of notice from Tenant; provided, however, that Landlord shall have the maintenance performed immediately if a hazardous or emergency situation exists. If Landlord does not perform its maintenance timely, Tenant may have it performed and may deduct the cost of doing so from the next installments of the Base rent until Tenant is fully compensated. (c) Tenant shall be responsible for maintaining in good condition at its expense the interior of the Premises and shall perform any and all necessary repairs and maintenance. If following notice from Landlord Tenant fails to make any necessary repairs or perform any necessary maintenance for which Tenant is responsible, Landlord may have such repairs or maintenance performed and Landlord’s costs of doing so shall be payable as Additional Rent with the next due installment of Base Rent.
FSCD also cited the following lease provisions to demonstrate that it had a limited right of access to the premises:
Section 12. Landlord’s Right of Access. (a) Landlord and its authorized representatives shall have the right to enter the premises following notice to Tenant during Tenant’s regular business hours and at all other reasonable times for the purpose of (i) determining whether the Premises are in good condition and whether Tenant is complying with its obligations under this Lease, (ii) performing any maintenance or repairs for which Landlord is responsible under this Lease or (iii) posting “for sale” signs at any time during the Initial Term or any Renewal Term or posting “for rent” signs during the last three months of the Initial Term or the last Renewal Term. (b) Landlord shall conduct its activities in the Premises in a manner that will cause the least possible interference with Tenant’s business operations, and Base Rent shall abate for any period in excess of 48 hours during which Tenant is deprived of beneficial occupancy of the Premises as a result of Landlord’s presence in the Premises.
With this evidence, the Court found that FSCD satisfied its initial burden to show the absence of any material factual issues and entitlement to judgment as a matter of law. The admissible evidence submitted by FSCD demonstrated that responsibility for the maintenance of the area where Frenza fell and repair of the crack that caused her to fall lay with FedEx, not with FSCD. FedEx and FSCD agreed on their respective maintenance and repair obligations under the lease, with FedEx clearly assuming liability for the condition of the flooring where Frenza fell. Kotsar and Snook agreed that FSCD had no obligation to maintain or repair the premises’ interior, but only the premises’ roof and building exterior. They agreed that FedEx had a duty of repair with respect to the subject crack. Behnken’s expert opinion confirmed that the crack did not present the type of condition that required FSCD to attend to its repair because it did not threaten the structural integrity of the premises. Finally, there was no evidence that FSCD created the crack.
In opposition to the motion, Frenza submitted her own affidavit. She averred that she had returned to the facility around 7:45 p.m. after having completed her route. She parked her vehicle inside the building in an area designated for parking. The flooring in that area was made of cement and/or concrete. She exited her van and was taking a bin from her truck to a conveyor belt located at the back of the building when her right foot tripped in a large crack. The area of her accident was an empty spot where a vehicle would normally park. She was carrying the bin directly in front of her when she tripped. She stated that she tripped on a large crack, which she noticed for the first time only after her fall. She had never seen it before. The crack was located within parking space #52. There were no signs warning about the crack. Frenza also submitted several photographs which depicted the crack and the parking area.
Frenza also submitted an affidavit from Harold Krongelb, an engineer whom she retained to inspect and report on the crack. Krongelb inspected the accident site and measured the crack as approximately 16 inches by 2 ½ inches and was somehow “part” of a larger crack that was over 12 feet long. The crack’s “elevation” was from ½ inch to ¾ inch. The crack was located in a concrete floor ramped with a pitch. Krongelb cited the New York State Building Code for the proposition that premises owners shall maintain structures in compliance with the requirements set forth in the Code. However, Krongelb cited no specific building code section that was violated by the existence of the crack. While he concluded that the crack presented a tripping hazard, he did not state that the crack impacted the floor’s loading capacity. Krongelb opined in conclusory fashion that the crack was a structural defect.
To defeat the initial showing made by FSCD, Frenza was required to demonstrate the existence of a material issue of fact that would preclude summary judgment. Frenza contended that questions remained whether FSCD, in fact, retained some control over the facility and whether the crack was structural in nature. However, an owner’s right to re-enter leased premises did not impose liability where the hazardous condition did not constitute a significant structural or design defect. Frenza did not submit any evidence, expert or otherwise, that the crack constituted a structural defect or somehow affected the premises’ foundation or structural soundness, a condition that FedEx, as the tenant, would not be expected to disavow. Krongelb merely surmised that the crack was structural in nature and, therefore, the owner’s responsibility, a supposition in direct contradiction not only of FSCD’s expert, but of the premises’ only tenant.
Frenza also argued that the clause in Section 9 of the lease should be read to hold FSCD responsible for maintaining HVAC systems serving the premises, in addition to the parking lots, drives, and sidewalks around the premises. FSCD read that provision to mean the HVAC systems for which it is responsible included those systems servicing the facility’s parking lots, drives, and sidewalks, and not the parking lots, drives, and sidewalks themselves. Clearly, the sworn testimony revealed that the parties to the lease agreed on the latter reading, rendering Frenza’s reading unavailing. Even if Frenza’s interpretation was correct, the clause would only apply to parking lots “around” the premises, not within the premises as was the case here.
Finally, Frenza’s speculation that FSCD and FedEx had somehow colluded in order to defeat her claims was unavailing. It cannot be said that Snook’s affidavit was self-serving, since it essentially exposed FedEx to liability for injuries caused by the existence of the crack. That this result may legally operate to prevent Frenza from certain recovery, since FedEx was her employer, does not defeat FSCD’s entitlement to judgment under the circumstances presented here. With FedEx in agreement that FSCD had no responsibilities with respect to the crack, it could not be said that FSCD owed and breached a duty of care to Frenza. For these reasons, the motion by FSCD to dismiss the complaint was granted.