Lupo
Vine Street, LP owns a multi-unit commercial building. In 2011 Lupo entered
into a five-year lease with Wild Card Boxing Club for two units, consisting of
5,000 square feet of space. Wild Card started business operations there as a
Boxing Club / Athletic Club.
Lupo never had any ownership
interest in Wild Card’s business.
On January 30, 2016, Omorishanla
Olayinka was working out with a trainer at Wild Card when he suffered a fatal heart
attack. Wild Card did not have an AED on the premises.
Olayinka’s surviving spouse Maryam
Day and their daughter, Ayodele Omotolani Ifatosin Olayinka and Olayinka’s
estate filed a lawsuit against Wild Card, its owner Freddie Roach, and Lupo.
The petition alleged negligence based upon the failure to maintain an AED.
Lupo claimed it had no duty to
furnish the premises with an AED or to ensure the gym owner did so. The trial
court agreed, and entered judgment in favor of Lupo.
Plaintiffs appealed.
Olayinka’s family contend on appeal
that Lupo was required to either provide an AED at the premises it leased to
Wild Card, or to require that Wild Card obtain and maintain an AED as a
condition to the lease. Plaintiffs believe that Lupo’s failure to do so meant
that Lupo was negligent and should be responsible in damages to Plaintiffs.
The Appellate Court reviewed cases
obligating commercial landlords to be sure that the premises are reasonably
safe at the beginning of the tenancy. The analysis of when or if a duty arises
has several elements: (1) foreseeability of harm; (2) degree of certainty that
an injury was suffered; (3) closeness of the connection between the defendant’s
conduct and injury suffered; (4) blame attached to the defendant’s conduct; (5)
policy to prevent future harm; (6) extent of the burden to the defendant of
imposing a duty to exercise care; (7) consequences to the community of imposing
a duty to exercise care; and (8) availability, cost, and prevalence of
insurance for the risk involved.
The Court also concluded that the
chief element in determining whether defendant owes a duty is the
foreseeability of the risk. And the second critical factor is the relative
burden of imposing that duty. If the burden of providing a safety or security
measure is onerous, a heightened or high degree of foreseeability of the danger
is required.
Lupo reminded the Court that merely
providing an AED does not end the duty, if indeed a duty exists. Rather, the
AED must be constantly maintained, charged, recharged and tested, and personnel
must be trained not only to properly utilize and service the AEDs, but also to
administer CPR.
Further, as a landlord Lupo has
relinquished possession of the premises to Wild Card. Requiring Lupo to
constantly enter the premises to inquire if the AED had been used, charged,
recharged, tested, and examine Wild Card’s AED and CPR training of its
personnel far exceeds the typical obligations of a commercial landlord.
The Appellate Court concluded that a
landlord cannot be held responsible for all damages inherent in a dangerous
business. Lupo wins. See Maryam Day v.
Lupo Vine Street, LP.; No
B282996; California Court of Appeal; 2nd District; Division Four, April
11, 2018: https://scholar.google.com/scholar_case?case=9455571524955534461&q=maryam+day+v.+lupo+vine+street&hl=en&as_sdt=6,44.
Lessons
Learned / Questions Asked:
Stuart A. Lautin, Esq.*
* Board Certified,
Commercial (1989) and Residential (1988) Real Estate Law,
Texas
Board of Legal Specialization
Licensed
in the States of Texas and New York
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