Day on Torts
Where a grocery store lessee was not responsible for maintaining its parking lot under its lease, but it had repeatedly exercised control over the parking lot area where plaintiff fell, the Court of Appeals found that it had “assumed a duty to maintain the parking lot[.]”
In Jones v. Earth Fare, Inc., No. E2019-00450-COA-R3-CV (Tenn. Ct. App. April 15, 2020), plaintiff slipped and fell in a puddle of antifreeze in defendant grocery store’s parking lot. Another customer had previously fallen in the same puddle and informed the manager on duty, who came out to see the puddle. The manager then went back inside the store to get cat litter to put on the puddle, but she stopped to help another employee. During this time, plaintiff exited the store and slipped in the large puddle of antifreeze.
Plaintiff filed this premises liability case against several defendants, including defendant grocery store. The grocery store filed a motion for summary judgment, asserting that “it had no legal or contractual duty to maintain the area where [plaintiff] fell” and that parking lot maintenance was the responsibility of its landlord. The trial court granted the motion for summary judgment, but the Court of Appeals reversed.
While it was undisputed that the lease agreement stated that the landlord was responsible for maintaining the parking lot, the store manager’s deposition told a different story. When asked what her employees did in the parking lot, she stated that they retrieved carts, cleaned up spills and glass to “the best of [their] ability,” and generally addressed conditions in the parking lot that customers told them about. When talking about cleaning things customers had dropped or spilled in the lot, she stated: “We do not call [the property manager…] on that, we’ll go out and get it up ourself.”
As part of a premises liability case, a plaintiff must show that the defendant owed a duty of care to him or her. With regards to parking lots and lessees, Tennessee case law states:
Although the landlord had the duty to keep common areas safe and in good repair, a lessee also has a duty to see that the leased premises and its approach is in a reasonably safe condition. However, a lessee does not have a duty to a customer, injured in the common parking area of a shopping center, when the lessee has not exercised control over the parking lot and the lessee’s lease provides that the lessor is responsible for maintaining the safety of the common area.
(internal citation and quotation omitted). Based on the facts of this case, plaintiff argued that defendant had a duty because it had exercised control of the parking lot, and the Court of Appeals agreed.
The Court ruled that the store’s previous actions in maintaining the parking lot “without even notifying the facility manager” for the landlord meant that it had “assumed a duty to maintain the parking lot in the area where the injury occurred.” The Court also noted that plaintiff’s injury was foreseeable “when another patron [had] alerted Defendant to the dangerous condition.” The Court pointed out that “[t]he alternative conduct that would have prevented the harm, e.g., alerting patrons by either remaining in the area until another employee could assist with the spill or crafting a barrier with shopping carts, [was] not overly burdensome.” Accordingly, summary judgment based on the lack of a duty was overturned.
This is a well reasoned and correctly decided opinion. Where a tenant has repeatedly cleaned spills in its parking lot without even notifying its landlord of issues, it should not be permitted to escape liability for a slip and fall caused by a spill it had notice of by arguing that the lease relieved it of responsibility.