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Case Weighs Hearsay
by Ron Davis

A tenant of a Delaware shopping center must prove to the satisfaction of the courts that he asked the center’s owner to repair a faulty step prior to an accident at that spot.

The shopping center, located in Rehoboth Beach, leased space to the tenant for the operation of a restaurant. And the accident occurred when a patron of the restaurant fell before entering a restroom on the premises. She either misjudged the height of a step leading to the restroom entrance or she slipped on a substance on the step. She sued both the restaurant owner that leased the space and the owner of the shopping center.

Both the tenant and the shopping center owner refused to take the blame for the accident. The shopping center owner pointed out that the terms of the lease clearly exonerated him. One provision of that lease stated, for example, that “the landlord shall not be called upon to make any other improvements or repairs of any kind in, around, or under the premises, and said premises shall at all time be kept in good order, condition, and repair at tenant’s expense.”

The tenant, on the other hand, cited the testimony of the injured woman’s daughter. She testified that she discussed her mother’s injury with the restaurant owner, who, she said, commented that “I’ve been asking the landlord to fix that step for years” and that “other people had fallen on [the step].”

The tenant also pointed out that the lease requires that before any capital repair, improvement, or modification, he must gain approval of the shopping center owner. But other than the hearsay statement by the injured woman’s daughter, there was no evidence that the tenant did in fact ask the shopping center owner to repair the step.

A Delaware court determined that the tenant lacked sufficient evidence to shift the fault for the accident to the shopping center’s owner. Nevertheless, the court refused to hold the owner blameless. Explained the judge, “Delaware courts generally disfavor contract provisions that purport to exonerate a party from liability in matters involving the party’s own negligence.”

As a result of that finding, the court ruled, “The lease provision relating to repair requires the consent [of the center’s owner] prior to any work being done. It is unclear at this time if such consent was sought and if so what response was given. For this reason, the court cannot rule, as a matter of law, that the center’s owner was negligent, and consequently, cannot determine whether the lease provisions would release him from liability.”

A jury will obviously hear the case and resolve the matter. (Axel v. Damar, Inc., 2007 WL 2446839 [Del.Super.])

Decision: September 2007
Published: October 2007



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