Have a Nice Trip: Can a Landlord Waive the Duty of Care?

Landlords often assign responsibility for keeping leased premises free of snow and ice to tenants. But if a non-tenant slips and falls on ice, can they sue the landlord? The New Hampshire Supreme Court addressed this question in Robinson v. 1 Bouchard Street Realty, LLC, 2024 N.H. 59 (October 11, 2024).

Background

In February 2020, D’Kwon Robinson (plaintiff) was injured when he slipped and fell on ice while working outdoors at his employer, New Hampshire Plastics (NHP). NHP had leased the property from 1 Bouchard St. Realty, LLC (defendant) in April 2018, with terms of the lease requiring the tenant, NHP, to “keep the premises free of dirt, snow, and ice.” The plaintiff sued the landlord for negligence for failing to properly maintain its facilities in a safe condition.

Superior court decision

The superior court ruled that, since the lease assigned snow and ice removal to the tenant, the landlord had no duty to maintain the property. The plaintiff appealed.

Supreme Court opinion and rationale

Although the lease delegated snow and ice removal to the tenant, the Supreme Court held that this did not relieve the landlord of its duty of care to non-tenants. The court relied on precedent establishing that in commercial real estate, a landowner is not shielded from liability to non-tenants, even if the lease assigns maintenance responsibilities to the tenant. Premises owners must exercise reasonable care under all the circumstances in the maintenance and operation of their premises. “Although a possessor of business premises is free to delegate the duty of performance to another . . . he cannot thereby avoid or delegate the risk of non-performance of the duty”—Valenti v. NET Property Management, 142 N.H. 633, 636 (1998).

The defense cited a case from 1938, decided at a time when landlords had limited tort immunity and were not liable for most injuries caused by conditions of premises. The Supreme Court pointed out it had “relegated to the history books” landlords’ limited tort immunity in favor of the modern rule that landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm.

The Court reversed and remanded the superior court’s decision, calling for proceedings consistent with its opinion.

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