Can I sue a landlord of the commercial building where I work if i am injured on the job?
What if there is a defect in the building where I work? Can is sue the building owner?
Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
Soriano v. 70 Hudson St. Realty, LLC , N.J. Super. App. Div. Decided February 27, 2019.
In this case the Plaintiff appealed the dismissal of her wrongful death action arising from her husband’s fatal work accident. Husband, who worked as a cook, sustained fatal head injuries when he fell down an unsafe, illegal hatch ladder system accessing the basement of the restaurant on the premises owned by another party. The deceased’s wife sued the building owners arguing they “knew or should have known” of the dangerous defect on the property and as a result, should be held responsible. This court ruled: ” We recognize that, as a general proposition, “‘there is no landlord liability’ for personal injuries suffered by a commercial tenant’s employee on the leased premises ‘due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for such maintenance or repair solely upon the tenant.‘” Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 401 (App. Div. 2006) (quoting McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521, 522 (App. Div. 1996)). This is essentially a ‘triple net lease’ defense which places all liability, responsibility and maintenance obligations on the tenant. In Geringer, an employee of the tenant was injured after falling on an interior stairway within an office building. 388 N.J. Super. at 394. The tenant leased the entire seventh floor of the building via a “triple net” lease, which delegated the duty of maintenance and repairs to the tenant. Id. at 400. We found the property owner had no duty to maintain or repair the stairway. Id. at 402. We further found knowledge of a hazard is not sufficient to impose a duty upon the owner to repair. See Id. at 401 (declining to find “the deposition statements of [the] property manager . . . acknowledging hypothetically that he or she might alert [the tenant] upon noticing a loose handrail, a hole in the floor or some other similar problem while walking through the seventh floor, as sufficient to confer an ongoing duty upon [the owner] to inspect, maintain or repair the stairway.”).
THe only exception to this “absolute landlord triple net lease bar” is when the landlord creates by design a dangerous condition whcih was subsequently leased to the the tenant. This court goes on to state: “However, we found the owner in Geringer did have a duty to design the stairway free of defects in the first place. Id. at 402. We found that because the owner reviewed construction plans, inspected during construction, and communicated with the tenant regarding construction, the owner owed “a duty of care in the design and construction of the stairway . . . .” Id. at 403. As a result, this corut sent this part of the deceased case back to the trial court to address the factual question of the landlord’s knowledge of the defective trap door hatch and its design. It concluded: ” We therefore reversed summary judgment on the limited issue of whether the owner breached its duty of reasonable care in designing the stairway”. Id. at 404-05.
Plaintiff argues the trial court erred in finding the owners had no actual knowledge of the hazard that caused decedent’s accident, and therefore erred in granting summary judgment. In support of this argument, plaintiff cites Gallucci’s deposition testimony that Hudson granted Hazel Rock permission to install the hatch ladder system at issue, and told Hazel Rock that construction could proceed without securing a building permit because they had “permits out on the building.” As a result, Gallucci claims he understood that no permit was required and proceeded to install the hatch ladder system without a construction permit, without design plans, and without any inspections by any construction code officials. Gallucci further testified that the owners of Hudson were aware of the hatch ladder system because “they’ve been down there.”
In fact this appellate panel did find that: “From our review, the record does not support the trial court’s finding that the owners had no actual knowledge of the hazard that caused decedent’s accident. The court could only make this finding by accepting the deposition testimony of Hudson’s principal owners as true and ignoring Gallucci’s deposition testimony. Nor does the record support the trial court’s finding that “[t]he record is completely devoid of any evidence” that the hatch ladder system created “a danger.” To the contrary, the results of the OSHA investigation presented compelling evidence that the hatch ladder system created “a danger,” considering the five “serious” violations of OSHA safety regulations identified, with three of the violations exposing workers to risk of death. In addition, photographs in the record provide strong support for the OSHA findings. Ultimately, this court addressed the landlord’s culpability when it announced for the trial court, “The glaring deficiencies noted by OSHA indicate negligent design, not negligent maintenance or repair.” Apparently, this placed a presumption on the landlords’ of their awareness of the design defect to which they should and will now be held responsible.