3.9-7 Status of Parties - Business Invitee of Tenant
Revised to January 1, 2008
In this case, the landlord,
<name of landlord>, leased the property to <name of tenant>, the
tenant. If you find that the plaintiff was on the premises as an invitee
(as previously defined) of the tenant, it was the legal duty of the tenant
to use reasonable care to keep the premises reasonably safe for invitees. A
question raised in this case is whether the lessor (landlord) also had a
duty to the tenant's invitee. A landlord is liable if all of the following
if the landlord knows, or
should know in the exercise of reasonable care, that conditions exist on the
premises that are likely to cause injury to persons entering upon the
that the purpose for which the
premises are leased involves the fact that people will be invited upon the
premises to do business with the tenant as patrons or customers, and
that the landlord knows or
should know that the tenant cannot reasonably be expected to remedy or guard
against injury from the defect.
If the defect is in the structure
of the building, it might take a substantial structural change to make it
reasonably safe for use, and the tenant might have no right to make such a
change. If the defect is one which obviously endangers the tenant's patrons
and one which the tenant can easily make, then the landlord might reasonably
expect that the tenant would take steps to guard patrons and customers from
danger. This question of what the landlord may reasonably expect is a
question of fact to be decided not only from the nature of the defect but
from all the circumstances in the case.
A landlord is not liable for a
defect arising from ordinary wear and tear during the term of the lease.
However, if the lease expires and the landlord renews it, when the landlord
knows or should know of such a defect which is the result of ordinary wear
and tear, the landlord is liable if those three conditions which I have
already defined for you co-exist.
Even if the landlord has an
express or implied agreement with the tenant to make repairs, the landlord
is not liable for failure to make a repair on the leased premises unless the
landlord has knowledge or has been given notice (actual or constructive)
that the repair was necessary.
In determining between the
landlord and the tenant which of them owed a duty to the plaintiff, the
general rule is that the tenant takes the premises as (he/she) finds them
and bears the risk of any defective conditions that are within the area
under the tenant's exclusive possession and control. This rule, however,
does not apply to defects which are the result of faulty design or disrepair
and which existed at the beginning of the tenancy, were not discoverable by
the tenant on reasonable inspection, and were known, either actually or
constructively, to the landlord. Such defects are the responsibility of the
landlord, provided the three tests outlined earlier have been met.