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Common Sense -- Not Common Area
by Ron Davis

Are the owners of a shopping center at fault for an injury that occurs in a restroom used exclusively by a tenant’s customers? That was a question posed in a recent negligence lawsuit in Texas.

Details of that case show that a shopping center located in Mesquite had leased space to a tenant for the operation of an amusement facility. While attending a birthday party held on the tenant’s premises, a young girl, while washing her hands in a restroom, suffered an injury when the wash basin she was using fell from the wall onto her leg.

Her parents sued both the tenant and the owners of the shopping center, claiming they were at fault for her injury.

A Texas court subsequently ruled that the tenant was solely responsible for the injury. The judge pointed out that the wash basin that caused the injury was totally contained within the premises leased by the tenant and was not for common use by other shopping center tenants or their customers. Also, the judge added, that wash basin was neither controlled, maintained nor inspected by the shopping center’s owners.

The injured girl’s parents appealed that ruling, arguing that the lease between the shopping center and the tenant specifically provides that restrooms are a “common area” over which the center’s owners retain sole management and control.

A Texas appellate court disagreed with that argument, explaining, “The mere fact that restrooms are mentioned in the lease provisions addressing common areas does not transform every restroom at the shopping center into a common area…. As we construe the lease, it is clear only specified facilities provided by the center for the common use of all tenants would qualify as a common area…. There was uncontroverted evidence that the restroom in question was for the exclusive use of the tenant, and no other building tenant had access to the restroom. Moreover, the lease specifically provides that the landlords were not required to make repairs on the premises except those that they deemed necessary for normal maintenance operations.” (Tillery v. Trans Texas Investment Properties-V, Ltd., 2003 WL 1461476 [Tex.App.-Dallas])

Decision: September 2003
Published: December 2003



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