A Tenant’s Exposure
Q: I rent and operate a liquor store in New York City. In front of my store, a customer tripped and fell. She says that a portion of the sidewalk was uneven. Later in the day, her friend took some photos of the scene. Am I exposed to a lawsuit?
A: Most likely, there is nothing in the lease that makes you responsible for making structural repairs to the sidewalk. Rather, the terms of the lease place that obligation upon the landlord, and limit your obligations to removal of debris, snow and ice. Apparently, the customer tripped and fell due to a structural defect in the sidewalk. Accordingly, liability would stem from the landlord’s own negligence, not yours.
Nevertheless, your landlord may seek to show that you are contractually obligated to indemnify it, pursuant to the terms of the lease. The right to contractual indemnification depends upon the specific language. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. The language must be unmistakable.
Moreover, a court is permitted to enforce an indemnity clause here only if the lease is a commercial one that includes an ‘insurance procurement’ requirement. Where the parties freely use insurance to allocate the risk of liability, public policy is more tolerant of indemnity provisions. Your attorney is likely early-on to want to read that lease.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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