Owner Not Liable for Tenant's Dangerous Condition

Facts: A restaurant that specialized in tea and tea-related merchandise rented space in a building from an out-of-possession owner that had a right under the lease to access the premises for making structural repairs. Prior to the restaurant's tenancy, there had been no service counter or way to access the basement from inside the space. The restaurant tenant paid to construct a service counter with a trapdoor hatch behind it leading to the basement. The service counter and trapdoor were approved by the local building department.

An employee of the tenant injured himself when he fell through the trapdoor after it had been left open. According to the employee, the trapdoor was used constantly by employees for access to the basement, where supplies and some kitchen equipment were located. When the trapdoor was open, there was only a foot-wide margin on either side that employees had to squeeze around. The tenant had established the practice of employees shouting “trapdoor opening” when emerging from and closing the trapdoor. The employee sued the owner for his injuries.

The court ruled in favor of the employee. It found that the premises were unreasonably dangerous because of the location of the trapdoor, and that the owner had been negligent in permitting the trapdoor to be installed and used on the premises. The court found that although the trapdoor itself was not dangerous, it became dangerous because of the way it was used, which required it to be frequently opened and closed.

The court determined that the owner was liable for 100 percent of the employee's damages, despite the fact that the employee had also been negligent in the way that he had used the trapdoor at the time of his accident. The court did not hold the employee liable for his own injuries because his negligence was not a substantial factor in causing them. The owner appealed.

Decision: The appeals court reversed the trial court's ruling.

Reasoning: On appeal, the owner argued that it had not created the dangerous condition for which it was being held liable. The appeals court pointed out that the owner had no role in designing or constructing the service counter and trapdoor, which was done after the commencement of the tenant's lease. The only construction work the owner had done was laying the concrete floor and providing for a hatch at the tenant's request.

The owner also contended that, as an out-of-possession owner, it could not be held liable for a nonstructural defect. The appeals court agreed with the owner that a properly functioning trapdoor left open by someone under the tenant's control was not a structural defect under the lease.

“Implicit in the trial court's finding is that somehow, the owner should have required the tenant to remove the counter and trapdoor, which it built to make its business viable, in order to prevent an employee from accidently falling down because of another employee's negligence,” the appeals court noted. But it disagreed with the trial court's opinion. Rather, it agreed with the owner that there was no basis for the trial court to conclude that the owner had created or was responsible for the dangerous condition.

The appeals court also noted that neither the service counter nor the trapdoor constituted a building code violation or were structurally defective, and the owner maintained no control over the leased premises. In fact, the lease specifically imposed responsibility on the tenant for complying with safety requirements in making alterations to the premises. Therefore, the owner could not be held liable for the employee's injuries from the trapdoor accident.

• Baez v. Barnard College, March 2010