Premises liability; Fall through the upper floor of a mezzanine structure; Possession & control over the structure; Nuisance in fact

The court held that defendant-WOKO could not be directly liable to plaintiff for his injuries, and that the trial court properly dismissed his claims of premises liability as to WOKO and defendant-Tommy’s. His nuisance in fact claims also failed. Plaintiff was injured “when he fell through the upper floor of a mezzanine structure that had been constructed by” his employer, nonparty-Skiers Pier. It “occurred on the last day of Skiers Pier’s operation, and contemporaneously with a sale of Skiers Pier’s assets to Tommy’s. The building itself was owned by WOKO.” The mezzanine structure was constructed “more than a decade before WOKO and Skiers Pier entered into the lease agreement.” The evidence established that it “was constructed at the behest of, paid for by, and entirely used by, Skiers Pier.” The court noted that “WOKO owned the showroom building. However, the terms of the lease and the course of conduct by the parties clearly shows that only Skiers Pier, not WOKO, was in actual possession and control of the mezzanine structure[.]” Plaintiff argued that, “as landlord, WOKO was nevertheless legally liable, either because a latent defect existed in the mezzanine structure when the lease was entered into in 2013, or because lessors are generally liable to employees of tenants for defects in the premises.” But he misread the applicable case law. He was correct that “landlords are obligated to warn their tenants of latent defects in the premises that exist at the time a lease is executed.” However, that rule did not apply here, because he was not WOKO’s tenant. Further, there was “no evidence that the mezzanine structure had a design defect from the outset, there is no evidence the mezzanine structure had any flaws or deterioration in 2013, and, in any event, the mezzanine structure was constructed by Skiers Pier rather than WOKO.” Plaintiff was also correct that “landlords may have duties to their tenants’ employees or invitees under certain circumstances. However, those circumstances all involve the landlord retaining or exercising actual possession and control over the particular premises at issue.” The court held that “WOKO was not in actual possession and control over the mezzanine structure at the time plaintiff was injured, there is no evidence that [it] was defective in 2013 when WOKO formally leased the premises to Skiers Pier, and because [it] was constructed by Skiers Pier, WOKO may never have had possession and control over” it. Affirmed.