Court: Landlord can't try to pass buck to commercial tenant when customer trips in the parking lot

If a doctor's patient injures herself on a new curb outside her doctor's office and she sues both the doctor and the landlord, the landlord can't just wash its hands of the matter, even if the lease says it can, the Supreme Judicial Court ruled today.

At the same time, though, the court also ruled that lease provisions requiring tenants to pay for insurance for such occurrence are legal.

On July 19, 2007, one of Dr. Beverly Shafer's patients arrived for an appointment at Shafer's office in a Beverly office park owned by Cummings Properties, LLC. The patient says she tripped and fell on a newly-constructed curb. Naturally, she sued - both Shafer and Cummings. Cummings' insurance company in turn demanded that Shafer and her insurance company take over its defense (and be responsible for any judgment), in court (the patient's suit is still ongoing).

The company made the demand based on a lease provision that makes tenants responsible for lawsuits even involving common areas unless the tenant can show the landlord was completely negligent.

The court, however, sided with Shafer's insurance company, saying such a provision just goes too far:

On its face, this language appears to shift to the tenant responsibility for injuries and damage that might arise from negligent acts for which Cummings may be partially, but not solely, responsible. Cummings has not explained how this language is consistent with the statutory prohibition against shifting "any or all liability" for the landlord's negligence to the tenant. G.L. c. 186, § 15. In the absence of such of an explanation, we conclude that it is violative of the statute and therefore void.

The court, however, did uphold an "indemnification" clause under which a landlord can require a tenant to pay for insurance against such lawsuits.

Complete decision.