Opinion
No. 91-809.
March 3, 1992.
Appeal from the Circuit Court, Dade County, Bernard Shapiro, J.
James L. Ferraro, and Marjorie N. Salem, Miami, for appellant.
Gunther Whitaker, and Robert H. Schwartz, Fort Lauderdale, for appellee.
Before FERGUSON, LEVY and GERSTEN, JJ.
Appellant, Luis Diaz, appeals from a final summary judgment in a negligence action against Appellee, Southeast Bank. We reverse.
Appellant, who was injured in the parking lot of a building leased by appellee asserts that his injuries were a result of appellee's negligence. Appellant also asserts that even though appellee was a lessee of the property, it is liable because the lease between appellee and the owner of the property contained several provisions assigning the risk of damages to appellee.
Appellee denies liability because appellant was injured in an area that was under the control of the property's owner. Appellee argues that, as a matter of law, there is no liability where there is no duty.
The trial court granted a final summary judgment in favor of appellee based on the authority of Federated Department Stores, Inc. v. Doe, 454 So.2d 10 (Fla. 3d DCA 1984). We must reverse because Federated mandates a contrary result.
In Federated this court adopted the law and reasoning in Morgan v. Bucks Associates, 428 F. Supp. 546 (E.D.Penn. 1977):
[W]here the owner of real estate leases parts thereof to several tenants, but retains control of the common areas which are to be used by the business invitees of the various tenants, the obligation of keeping the common areas safe for such business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the leases. [Emphasis added.]Federated Department Stores, Inc. v. Doe, 454 So.2d at 12.
In this case, the lease contained provisions in which appellee assumed the risk of damage to persons or property:
INDEMNITY LIABILITY: . . . Lessee assumes all risks of damage to persons or property.
LOSS OR DAMAGE: Lessor shall not be liable or responsible for any loss or damage to any property or person occasioned by theft, fire, water, act of God, public enemy, injunction, riot, . . . .
LAWS-COMPLIANCE BY LESSEE: The lessee will at its own cost and expense obey and comply with all laws, ordinances, rules, requirements and regulations . . . appertaining to the demised premises and to the protection and maintenance thereof. . . .
Therefore, since Federated applies, and since the lease between lessor and appellee contains provisions which imposed the risk upon appellee, the summary judgment was incorrect as a matter of law.
Reversed and remanded.
LEVY and GERSTEN, JJ., concur.
I concur in the result to the extent the holding is that the appellee was not entitled to a summary judgment. There remains a factual issue whether the site of the injury was an area under control of the lessee by the terms of the lease agreement.