In a recent decision by the Second Department of New York’s Appellate Division in July, the Court ruled in favor of mall shop owners in a premises liability matter. Athenas v. Simon Prop. Group, LP, 185 A.D. 3d 884 (2d Dept. 2020). In this matter, the Court found that shopping mall tenants were entitled to summary judgment, wherein a patron was injured after slipping on a liquid cleaner spilled on the floor because the location where the accident occurred was within the common area of the mall, and the tenants had no contractual or common law duty to maintain it.
The plaintiff in this matter was allegedly injured when she slipped on cleaner in the interior common area of the mall, causing her to fall and sustain injuries. The cleaner had been spilled by a janitor whom the defendant tenants had employed to clean their shops once a week as the janitor was making her way towards them. Both the mall owner, Simon Properties, and the defendant tenants filed summary judgment motions independently.
In the defendant tenants’ motion, they asserted that they owed no duty to plaintiff as the accident occurred in the common area of the mall; as such, they were under no obligation (contractual or common law) to maintain it. According to New York law, “a tenant’s common law duty to maintain premises in a reasonably safe condition is limited to those areas which it occupies and controls, or makes a special use of.” See Knight v. 177 W. 26 Realty, LLC, 103 N.Y.S.3d 503 (2d Dept. 2019). Here, because plaintiff allegedly fell in the common area, the defendant tenants demonstrated they neither owned, nor had any control over the area where the plaintiff allegedly fell.
Moreover, the tenant defendants were able to dispute any liability as to the actions of the janitor under the theory of respondent superior because the janitor was an independent contractor. Per the Court, “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means to achieve the results. Control over the means is the more important consideration” See Abouzeid v. Grgas, 743 N.Y.S. 2d 165 (2d Dept. 2002). The court also considers five factors in making this determination: whether the worker (1) worked at his or her convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer’s payroll; and (5) was on a fixed schedule. Bynog v. Cipriani Group, 770 N.Y.S.2d 692 (2003).
The tenant defendants presented evidence that the janitor did not have fixed hours or days on which she worked. Further, the janitor had several other clients for whom she performed cleaning services; she was paid cash without any tax withholdings and received no benefits or compensation. Nor did the tenant defendants exert any supervision or control on the janitor and she independently decided which cleaning agents to use and where to use them.
The Appellate Division was convinced by the tenant defendants’ arguments and ruled that these tenant defendants had demonstrated their prima facie entitlement to summary judgment, dismissing the plaintiff’s complaint as to them by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of it.