By Airst, Randall
Journal of Property Management , Vol. 72, No. 5
Slip-and-fall cases have left property managers justifiably concerned about premise liability, imposed when a property manager is found liable for negligence. Plaintiffs must establish the existence of four elements, including duty, breach of duty, direct and proximate causation, and damages to prove negligence and hold a manager legally responsible for premise liability.
The duty element, however, is at the forefront of premise liability disputes. Duty is the extent to which property managers are obligated to protect those on their premises. Property managers have a duty to protect tenants and visitors from dangers that are not obvious, like a slippery floor without a caution sign. They do not have a duty, however, to protect people from clear or evident dangers, which people are reasonably expected to discover. Still, it is wise to provide clients with a program to eliminate obvious dangers.
Neither property owners nor managers owe a duty to every person who enters every part of a property. Commercial leases typically make tenants responsible for the maintenance of leased premises. A lease then operates as a demise or conveyance of the property for the term of the lease. If the manager is not under duty to maintain the demised premises, the manager cannot be held negligent.
In contrast, property managers often have a duty concerning common area maintenance and business invitees using common areas. Property management agreements should clearly identify whether the property owner or manager is responsible for common area maintenance. If the property manager is not responsible, the owner should indemnify it against liability for slip-and-fall cases. Some property managers insist on indemnification even when they are responsible for common area maintenance. …