Mediation Necessary to Determine Sidewalk Liability

Facts: A shopper tripped and fell on a two-tiered sidewalk in front of two retail stores. The sidewalk was marked with red paint to warn pedestrians about the drop-off from the upper to the lower level. Still, various employees of the tenants noted that they had witnessed pedestrians trip on the sidewalk “at least once a day.”

The shopper sued the building’s owner. The owner then cross-claimed for indemnification against both tenants, asserting that under the terms of their identical leases, they were responsible for keeping the sidewalk in good repair and safe for pedestrians and that they were required to reimburse the owner for the expenses associated with a lawsuit arising from issues with the sidewalk. The tenants both claimed that under their leases, the owner was responsible for “structural repairs,” which would have been necessary to level the sidewalk and eliminate the hazard.

The owner and tenants each asked a trial court for a judgment in its favor without a trial.

Decision: A New York court denied the owner’s and tenants' requests and ordered mediation.

Reasoning: The court noted that a judgment in a party’s favor without a trial is appropriate when there are no issues of material fact that remain to be determined. Here, there were several issues that weren’t clear-cut.

First, it was unclear whether the shopper fell in front of one of the tenants or between the tenants. There was also an issue as to whether the tenants owed a duty of care to a third party like the shopper. The court pointed out that while state law imposes a non-delegable duty on the owner to maintain and repair the sidewalk, when the tenant didn’t create the condition or make special use of the sidewalk, provisions of a lease obligating a tenant to repair the sidewalk don’t impose on the tenant a duty to a third party. There’s no evidence that the tenants created the condition of the sidewalk or made special use of the sidewalk, and their respective leases don’t give rise to a duty owed to a third person, said the court.

However, because the stores are open to the public, the tenants owe a duty to provide customers with a safe means of egress or ingress. The court said that mediation was necessary to determine whether they breached this duty, particularly in light of evidence that the tenants had noticed daily tripping incidents on the sidewalk, said the court.

It was also questionable whether the owner had breached its duty to provide a safe means of ingress and egress based on evidence that it had actual and/or constructive notice of the defect—the owner had been sued twice in the past for injuries resulting from the same sidewalk.

• Perkins v. 85 Kenmare Realty Corp., April 2014