Monday, August 29, 2011

Judge Terrence Nealon of Lackawanna County Addresses Landlord-Tenant Liabilities in Slip and Fall Case

In his recent August 25, 2011 decision in the case of Whitney v. Caputo and Noto, No. 2006 - CV - 3124 (C.P. Lacka. Aug. 25, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the common law maintenance duties of landlords and tenants with respect to snow and ice removal in situations where the landlord leases part of the premises to the tenant but continues to reside in and exercise control over the remainder of the property.

In this case there was no written lease agreement specifying who was responsible for what maintenance.  The landlord owned and lived in the second story of a house where he rented out the first floor to a tenant who used the space as a hair salon. The landlord retained control over the basement, an attached garage, and the parking lot area for the premises as well.

The parking lot was situated in the rear of the property and led to a sidewalk that bordered the front entrance to the building. The tenant's first floor hair salon also had a rear door which exited to the parking lot via five exterior steps

Under the oral lease agreement between the parties, the landlord advised the tenant that he would be responsible for snow removal and maintenance of the parking lot and sidewalk.  In the months leading up up to the Plaintiff's slip and fall incident, the landlord shoveled the rear parking lot, the sidewalk, and the front steps whenever it snowed. The tenant would apply salt to the back steps leading into her salon.

The Plaintiff was a client of the tenant's hair salon. When leaving the premises, the Plaintiff descended the rear steps and, as she placed her right foot on the parking lot pavement and proceeded to move her left foot from the step to the pavement surface, she slipped and fell to the ground.

The court quoted excerpts from the Plaintiff's deposition testimony. A review of that testimony confirmed that defense counsel took painstaking efforts to secure admissions from the plaintiff that she did not slip until after both of her feet had stepped onto the parking lot surface, i.e. after she had entirely separated from the steps leading down from the salon entrance.

In requesting summary judgment, the tenant argued that the landlord retained control over the building except for that portion of the building specifically leased to the tenant, i.e., the first floor hair salon such that the landlord was legally responsible for the condition of the parking lot over which he retained control. The tenant further asserted that she owed no duty to the Plaintiff with respect to the maintenance of the parking lot area. The Plaintiff argued that the tenant was still potentially liable in light of the fact that the tenant took action to maintain the steps.

In this opinion, Judge Nealon reviewed the separate duties owed by a landlord out-of-possession who leases the entire premises to the tenant versus the situation presented in Whitney where the landlord leases a portion of the premises to the tenant yet retains control over a portion of the premises.

Under Pennsylvania law, the issue of which possessor of land owes a duty to third persons is one of control. Generally speaking, a landlord who retains control of a portion of the premises, will remain responsible for that portion. In contrast, an out-of-possession landlord is generally not liable for injuries suffered by third persons on the leased premises unless the owner/landlord retained control over the dangerous portion of the premises involved.

In Whitney, Judge Nealon found that the evidence established that the landlord had leased the first floor to the tenant but retained control of the parking lot which tenant's customers were entitled to use. It was also admitted that the landlord assumed sole responsibility for the maintenance and cleaning of that lot.

Accordingly, Judge Nealon found that, under Pennsylvania law, including the application of the Restatement (Second) of Torts  Section 360 ("Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use"), only the landlord had a common law duty to clear the parking lot surface. Since it was confirmed that the Plaintiff slipped and fell on the parking lot surface, the motion for summary judgment filed by the tenant Defendant was granted.

This decision by Judge Nealon provides a nice recitation of the law applicable to landlord-tenant liabilities in slip and fall cases and also provides a good reminder as to how important it is to pinpoint the exact location and manner of the plaintiff's slip or trip and fall during the plaintiff's deposition.

Anyone desiring a copy of Judge Nealon's decision from the Whitney v. Caputo and Noto case may contact me at

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