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Penney Saved in Slip and Fall
by Ron Davis

All costs incurred by an Ohio shopping center tenant in defending itself from a recent lawsuit must be borne by the center’s owner. That’s because, an Ohio appellate court has ruled, the tenant–J.C. Penney Company–is fully protected in such cases by the language of its lease.

The shopping center is Tri-County Mall in Cincinnati, and the lawsuit results from an injury suffered by a woman who was shopping there. She tripped and fell on the sidewalk in front of the Penney store that is a major tenant of the shopping center, and she sued both Tri-County Mall and Penney, contending that they were negligent in maintaining the sidewalk.

Penney’s lease with the shopping center states, in part, that the center’s owners agree to protect Penney, as tenant, from all “claims, and all costs, expenses, and liabilities incurred in connection with such claims, including any [legal] action or proceeding brought thereon, arising from or as a result of any accident, injury loss, or damage...as shall occur about the site....”

An exception to that agreement occurs when an accident or injury results from any act, omission, or negligence of the tenant Penney. But the shopping center’s owners assume all responsibility for maintaining the common areas, including the sidewalk where the accident occurred at the center.

So when Penney had to defend itself in the resulting lawsuit, legal costs became an issue, especially after an Ohio court dismissed the legal action against Penney. Penney then sued the center’s owners, seeking payment for its legal costs. The Ohio court rejected Penney’s claim, however, finding that the center’s owners were not obligated to pay Penney’s legal costs.

Penney appealed, and the Ohio appellate court reversed the lower court, explaining, “The injured woman’s alleged injury occurred on a part of Tri-County Mall controlled by the landlord, who had a duty under the lease to maintain the common areas, including the sidewalk. There was no claim that Penney or any of its employees had caused the defective condition of the sidewalk. All the claims arose out of the alleged negligence in maintaining the sidewalk. This was exactly the type of situation that the Penney lease was designed to cover.... The judgment denying Penney the set fees and expenses is reversed.” (Chapman v. Tri-County Mall, Slip Copy, 2007 WL 703162 [Ohio App. 1 Dist.])

Decision: March 2007
Published: April 2007



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