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Right is Right…But Not an Obligation
by Ron Davis

Would strict enforcement of a shopping center lease have prevented an injury suffered by an employee of one of the center’s tenants?

The injured employee sure believed that it would have. She was at work at the District of Columbia shopping center when the accident occurred. A piece of ceiling tile, heavily soaked with water from a malfunctioning air-conditioning unit located above the ceiling, fell on her, requiring extensive medical treatment.

Her employer, Payless Shoe Store, had leased space from the shopping center owner since 1985. But under the terms of that lease, Payless assumed responsibility for the regular maintenance and repair of the premises.

That required Payless to obtain a full-service contract for the heating, ventilating and air-conditioning equipment. Payless then had to furnish copies of that contract to the shopping center owner. Moreover, the shopping center owner had the right to make repairs and perform maintenance if Payless did not do so.

Payless apparently failed, however, to obtain the required contract. And the injured employee pointed out that shopping center owner took no action against Payless to force compliance with the lease. Nor, she added, did the center’s owner handle any repairs or maintenance at the Payless store.

The injured Payless employee therefore argued that the shopping center owner allowed Payless to violate the terms of the lease. Had the shopping center owner enforced that lease, she noted, then the air-conditioning maintenance might have been performed and her injury would not have occurred. She therefore sued the shopping center owner.

A District of Columbia appellate court ruled in favor of the shopping center, however, explaining, “The landlord of leased premises is not required to make repairs; that obligation shifts to the tenant with the transfer of possession. It is settled law that where the owner of premises, by lease, parts with the entire possession and control of the premises, and the tenant, either by express provision of the lease or by the silence of the lease on that subject, assumes liability for the keeping of the premises in proper repair, the tenant, and not the owner, will be liable in cases of an accident due to negligence in allowing the premises, or any portion thereof, to get out of repair.” (Settles v. Redstone Development Corp., 797 A.2d 692 [D.C. 2002])

Decision: May 2002
Published: August 2002



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