LUIS DIAZ, APPELLANT,
v.
SOUTHEAST BANK, N.A., APPELLEE
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Luis Diaz appeals a summary judgment dismissing his negligence claim against Southeast Bank for injuries sustained in a parking lot. The court reverses, holding that the lease provisions assigning risk of damages to the lessee (Southeast Bank) create a duty and preclude summary judgment.
The court held that the summary judgment was incorrect as a matter of law. Under Federated Department Stores, v. Doe, lease provisions assigning risk of damages to the lessee impose a duty on the lessee to maintain the safety of common areas, creating a basis for negligence liability.
[1] A lessee may be liable for injuries occurring in common areas if the lease agreement assigns the risk of damages to the lessee.
[2] A landlord's obligation to keep common areas safe for business invitees is imposed upon the landlord, not the tenants, unless the lease contains a contrary provision.
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Join FLexlaw to unlock all legal intelligence“[W]here the owner of real estate leases parts thereof to several tenants, but retains control of the common areas which are to be used by the business invitees of the various tenants, the obligation of keeping the common areas safe for such business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the leases.”
Establishes the foundational rule that landlords bear the duty to maintain common areas safe, unless the lease contains contrary provisions
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Join FLexlaw to unlock all legal intelligenceDiaz was injured in the parking lot of a building leased by Southeast Bank. The lease between Southeast Bank (lessee) and the property owner (lessor) …
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PER CURIAM.
Appellant, Luis Diaz, appeals from a final summary judgment in a negligence action against Appellee, Southeast Bank. We reverse.
Appellant, who was injured in the parking lot of a building leased by appellee asserts that his injuries were a result of appellee’s negligence. Appellant also asserts that even though appellee was a lessee of the property, it is liable because the lease between appellee and the owner of the property contained several provisions assigning the risk of damages to appellee.
Appellee denies liability because appellant was injured in an area that was under the control of the property’s owner. Ap-pellee argues that, as a matter of law, there is no liability where there is no duty.
The trial court granted a final summary judgment in favor of appellee based on the authority of Federated Department Stores, Inc. v. Doe, 454 So. 2d 10 (Fla. 3d DCA 1984). We must reverse because Federated mandates a contrary result.
In Federated this court adopted the law and reasoning in Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Penn.1977):
[Wjhere the owner of real estate leases parts thereof to several tenants, but retains control of the common areas which are to be used by the business invitees of the various tenants, the obligation of keeping the common areas safe for such business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the leases. [Emphasis added.]
Federated Department Stores, Inc. v. Doe, 454 So. 2d at 12. In this case, the lease contained provisions in which appellee assumed the risk of damage to persons or property:
INDEMNITY LIABILITY: ... Lessee assumes all risks of damage to persons or property.
LOSS OR DAMAGE: Lessor shall not be liable or responsible for any loss or damage to any property or person occasioned by theft, fire, water, act of God, public enemy, injunction, riot,....
LAWS-COMPLIANCE BY LESSEE: The lessee will at its own cost and expense obey and comply with all laws, ordinances, rules, requirements and regulations ... appertaining to the demised premises and to the protection and maintenance thereof....
Therefore, since Federated applies, and since the lease between lessor and appellee contains provisions which imposed the risk upon appellee, the summary judgment was incorrect as a matter of law.
Reversed and remanded.
LEVY and GERSTEN, JJ., concur.
FERGUSON, Judge
(concurring).
I concur in the result to the extent the holding is that the appellee was not entitled to a summary judgment. There remains a factual issue whether the site of the injury was an area under control of the lessee by the terms of the lease agreement.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Publix Super Mkts., Inc. v. Jeffery, 650 So. 2d 122 (Fla. 3d DCA 1995)…law in cases of this nature. Levy v. Home Depot, Inc., 518 So. 2d 941, 942 (Fla. 3d DCA 1987); Rodgers v. Miami Dolphins, Ltd., 469 So. 2d 852, 854 n. 1 (Fla. 3d DCA), rev. dismissed, 475 So. 2d 695 (Fla.1985); see also Diaz v. Southeast Bank, N.A, 595 So. 2d 228, 229 (Fla. 3d DCA 1992). In the instant case, as in Federated, we deal with (1) a criminal attack by a third party against a shopping center patron in a parking lot adjoining the leased premises of a tenant of a shopping center, and (2) a lease bet…
Authorities Cited
- Federated Dep't Stores, Inc. v. DOE, 454 So. 2d 10 (Fla. 3d DCA 1984)