No Duty to Maintain Common Areas Controlled by Owner

Facts: A customer was injured when he fell on ice in the parking lot of shopping center that consisted of a several businesses in stand-alone buildings, including a national home improvement tenant. The home improvement tenant's lease required the owner and property manager to maintain the common areas of the property, including providing snow and ice removal. Each tenant was required to pay a pro rata share of common area maintenance costs.

Two years later, the customer sued the home improvement tenant for negligent maintenance of the parking lot. The customer argued that regardless of the fact that the owner and property manager controlled the parking lot where he had fallen, customers were entitled to the expectation that they could safely walk from the parking lot to the retail stores in the shopping center, including the home improvement store. The home improvement tenant asked the trial court for a judgment in its favor without a trial. The trial court granted the request, and the customer appealed.

Decision: The appeals court upheld the trial court's decision in favor of the home improvement tenant.

Reasoning: The appeals court disagreed with the customer's argument that a tenant in a multi-tenant shopping center had a duty to maintain the parking lot owned by the landlord. The customer claimed that a “reasonable invitee” could expect the home improvement tenant to maintain the parking area where he fell, regardless of whether the owner or property manager was responsible under the lease for common area maintenance like snow and ice removal.

The customer also asserted that the fact that the home improvement tenant was located in a stand-alone building in the center, with its own parking area designated by its own cart stands and signs, imposed a duty on it to maintain the parking area in a reasonably safe condition, including removing accumulations of snow and ice.

But the appeals court decided that it would not impose a duty on an individual tenant for snow removal from the common areas of a multi-tenant parking lot when the owner and property manager had retained and exercised that responsibility under the lease. Here, the lease required only the owner and property manager to be responsible for maintenance. The appeals court said that the fact that the home improvement tenant and two of the other retail tenants in the center were located in stand-alone buildings instead of in interconnected stores did not negate the shared nature of the parking lot. “To oblige tenants to maintain common areas concurrently with owners and property managers would result in substantially increased costs with little added benefit,” the appeals court noted. It commented that owners and property managers already have a great incentive to keep the parking areas of their centers free of snow, ice, and other hazards: A well-maintained parking lot induces shoppers to patronize the center and motivates tenants to pay their CAM fees.

In this case, it was undisputed that the owner and property manager—who owned, controlled, and were responsible for maintenance of the parking lot—had the duty to the customer. Therefore, the owner and property manager were the proper parties for the customer to sue. However, because the customer failed to do so within the limitations period for filing a negligence lawsuit, he was left without a remedy for his injuries. The appeals court concluded that it would not impose an “unfair and unworkable” duty upon the home improvement tenant as a result of the customer's mistake.

• Holmes v. Kimco Realty Corp., et al., March 2010