I. Nature of the Case
Eilеen Ann McDevitt tripped and fell on a recessed irrigation box on the sidewalk outside Sportsman’s Warehouse (“Sportsman’s”), located in a shopping center in Twin Falls, Idaho. She brought suit against Sportsman’s and several other defendants to recover for her injuries. The district court granted summary judgment to Sportsman’s, finding that as a tenant in a multi-tenant shopping center, Sportsman’s owed no duty to invitees to keep the sidewalk that was not part of its leased premises reasonably safe or to warn of hazards. McDevitt appealed to this Court. We affirm.
II. Factual and Procedural Background
McDevitt alleges that on December 21, 2005, she slipped or tripped over a recessed irrigation box on the sidewalk outside of Sportsman’s Warehouse in Twin Falls, Idaho. Sportsman’s is located in the Canyon Park East Shopping Center. Sportsman’s entered into a lease (“the Lease”) with Canyon Park, L.L.C. (“Canyon Park”) on April 17, 2003. The Lease identifies Canyon Park as the landlord and Sportsman’s as the tenant. It also identifies the “Premises” to be leased by referencing Exhibit B attached to the Lease. Exhibits B-l and B-2 to the Lease identify the “Premises” as the 45,475 square feet indicated in that map of the shopping center, contained in Exhibit B-l, as Building 6.
Pursuant to the Lease, the base rent was to be calсulated “in an amount equal to the actual square footage of the Building.” 1 Tina Luper, a representative of Neilson and Company, L.L.C. (“Neilson and Company”) who contracted with Canyon Park to manage the common areas of the shopping center, testified in her deposition that the square *282 footage for Sportsman’s was calculated “within the exterior walls” of the building, because that was the gross leasable area as identified in the Lease. The Lease stated that Sportsman’s was responsible for construction of the building, while Canyon Park was responsible for “Concurrent Site Improvements,” identified in Exhibit F of the Lease to include paving the portions of the “Premises” and “Shopping Center” designated for pedestrian travel. The Lease also designates that Canyon Park assumes the duty to maintain the common areas:
Landlord shall operate, maintain, repair, and manage the Premises and Common Areas, including without limitation (a) repairing and replacing all structural elements of the Building, which specifically, without limitation, includes the roof of the Building, and (b) cleaning, lighting, repairing, painting, maintaining, and replacing all improvements on the Common Areas including snow removal, parking lot improvements and replacement, landscaping and security, such that at all times during the Term of this Lease, the Common Areas are in a good and safe condition, as is customary for other first class shopping centers similarly situated.
The Lease is subject and subordinate to the Declaration of Conditions, Restrictions and Easements recorded by Canyon Park on May 17, 2001 (the “CC & Rs”).
The CC & Rs define a “Common Area” as “all of the land area and improvements thereon which are located outside of the Buildings, including but not limited to, landscaped and hardscape areas, and all Parking Areas.” They go on to state that “Declarant [Canyon Park] shall maintain, repair and replace or cause to be maintained, repaired or replaced all Improvements in the Common Area or portions thereof,” including “maintenance of all Parking Areas, service drives and walkways ... including the paving and repairing or resurfacing or replacement of such areas when necessary.” Under the CC & Rs, Sportsman’s, along with all the other tenants in the shopping center, was granted a nonexclusive easement to use the common areas for pedestrian and vehicular access. Sportsman’s was also permitted to install kiosks, merchandising carts, stands, booths, or other similar enclosures for retail use in the area owned by Canyon Park.
Idaho Scapes, Inc. (“Idaho Scapes”) was hired by Canyon Park to install a sprinkler irrigation system in front of Sportsman’s. It installed a green plastic valve box (the “irrigation box”) in the location where a planter box was allegedly supposed to be installed later by another contractor. However, the planter box was never installed. Glenn Anderson and his company GA Architects prepared all the plans for design of the building. Mr. Anderson testified that “the developer,” who he understood to be the owner of the shopping center, 2 designed the location of the irrigation box in the sidewalk. Canyon Park admitted in answers to interrogatories that the contractor Eckman & Mitchell Construction, L.L.C. (“Eckman & Mitchell”) was responsible for the construction of the sidewalk around the irrigation box. At some point the irrigation box sunk about one inch below the sidewalk level.
During the grand opening of Sportsman’s, there was a hot dog stand located on the sidewalk. Sportsman’s also occasionally used the sidewalk for displays. Canyon Park entered into a contract with Neilsen and Company for the management of the common areas of Canyon Park East Shopping Center. 3 Tinа Luper, Neilson and Company’s representative, testified that in order for Sportsman’s to have a display or a sale on the sidewalk, the manager of Sportsman’s was required to contact Ms. Luper, identify the dates that he wanted to use the sidewalk *283 and receive final approval from Ms. Luper, which was typically granted. Diane Stevens, another employee of Neilsen and Company, confirmed that Sportsman’s was required to seek approval before using the sidewalk for displays. She also confirmed that there was nothing specified in the Lease that made Sportsman’s responsible for the sidewalk outside of its store. Canyon Park owned the sidewalk, and Neilsen and Company, having contracted with Canyon Park to manage the common areas of the shopping center, was responsible for maintenance of the sidewalk. Ms. Luper and Ms. Stevens conducted several inspections of the common areas before MeDevitt’s fall. Ms. Stevens stated that during one of her inspections she noticed that the box was lower than the sidewalk.
McDevitt filed a Complaint and Demand for Jury Trial on December 20, 2007, against several defendants, including three Canyon Park entities (Canyon Park Management I, Canyon Park, L.L.C. and Canyon Park Development, L.L.C., collectively referred to herein as “Canyon Park”), Eckman & Mitchell, Neilson and Company, and Sportsman’s, seeking to recover damages for her personal injuries. Sportsman’s moved for summary judgment on September 25, 2009, arguing that McDevitt had not presented sufficient evidence to show that Sportsman’s had a duty to McDevitt to make the sidewalk safe or to warn of dangerous conditions on the sidewalk. The district court granted summary judgment to Sportsman’s, finding that it did not owe a duty to keep the sidewalk safe or to warn of dangers, and that even if it created the hazard on the sidewalk, any duty regаrding that hazard terminated when the lease period commenced or when Canyon Park became aware of the hazard and failed to repair it. McDevitt filed a motion for reconsideration, and after oral argument, the district court issued a ruling from the bench denying the motion. The court entered an order dismissing all other defendants pursuant to a settlement with McDevitt. Final judgment was entered by the court dismissing the complaint against the only remaining defendant, Sportsman’s, and McDevitt timely appealed from that judgment.
III.Issues on Appeal
1. Whether the district court erred in finding as a matter of law that Sportsman’s, a tenant in a multi-tenant shopрing mall, did not owe its invitees a duty to keep the sidewalk abutting its property safe or to warn of hazards on it.
2. Whether either party is entitled to attorney fees on appeal.
IV.Standard of Review
This Court reviews a motion for summary judgment using the same standard employed by the district court in deciding the motion.
Stoddart v. Pocatello Sch. Dist.
#
25,
Interpretation of unambiguous language in a contract is an issue of law.
Cannon v. Perry,
V.Analysis
The elements of a negligence action are: (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.
McKim v. Horner,
*284 A. The District Court Did Not Err in Granting Summary Judgmеnt to Sportsman’s Because as a Matter of Law Sportsman’s Did Not Owe a Duty to McDevitt
1. Sportsman’s Did Not Owe a Duty to McDevitt Because The Sid,ewalk Was Not Part of the Leased Premises and Sportsman’s Did Not Have Control of It
a. The sidewalk was not a part of the leased premises
Generally, “owners and occupiers of land will be under a duty of ordinary care under the circumstances towards invitees who come upon their premises.”
Harrison v. Taylor,
The interpretation of an unambiguous lease is an issue of law freely reviewed by this Court.
Cannon,
We find that McDevitt’s interpretation of the Lease is not reasonable given the language of the Lease and the depiction of the Premises in Exhibit B-l, and that the Lease unambiguously does not include the sidewalk as a part of the leased premises. However, even if the discrepancy in square footage is enough to create an ambiguity as a matter of law, there was no genuine issue of material fact in interpreting the Lease, and thus the district court did not err in granting summary judgment. If the Lease “is determined to be ambiguous, the interpretation of the document is a question of fact which focuses on the intent of the parties.”
Page v. Pasquali,
b. Sportsman’s did not have control over the sidewalk
Idaho ease law has also suggested that a tenant has a duty to make reasonably safe an area over which it has control.
Harrison,
This comports with the general rale in landlord-tenant law that the landlord and not the tenant has the duty to ensure the safety of the common areas in an apartment building such as halls, lobbies, stairs and elevators.
See, e.g., Samson v. Saginaw Prof'l Bldg., Inc.,
The Court of Appeals has previously rejected the idea that a landowner’s common-law duty should be expanded to cover the adjacent premises when the owner or occupier does not control those adjacent premises.
Heath,
It is undisputed here that Sportsman’s did not have control of the sidewalk. The Lease imposed the duty to maintain the common areas on the landlord Canyon Park. McDevitt argues that the fact that Sportsman’s had parked hot dog stands and display trailers on the sidewalk means that Sportsman’s had control over the sidewalk. Ms. Luper stated in her deposition that the only way Sportsman’s was allowed to use the sidewalk for its business, by placing a hot dog cart оr display in it, was if it first obtained approval from the landlord Canyon Park. Canyon Park also entered into a contract with Neilsen and Company to manage the common areas, including the sidewalk. The CC & Rs further designate all areas outside the buildings as “Common Areas” and state that Canyon Park “shall operate, manage, maintain, repair and/or replace the Common Area.” The fact that under the terms of the Lease Sportsman’s had no ability to alter or change the sidewalk that Canyon Park owned without Canyon Park’s permission further indicates that Sportsman’s did not have control over it.
Acosta v. City of Santa Fe,
2. We Decline to Expand, Idaho’s Negligence Law to Apply to a Common Area in a Multi-Tenant Shopping Center That Is Also a Potential Path of Ingrеss and Egress
McDevitt argues that Sportsman’s had a duty to warn invitees of hazards located near an entrance to the tenant’s business. McDevitt only cites one case in support of this argument, the New Jersey Superior Court case
Jackson v. K-Mart Corp.,
In 2010, the Third Circuit had occasion to review New Jersey’s line of cases on sidewalk liability, particularly in a multi-tenant shopping center.
Holmes,
Thus, this Court declines to expand Idaho’s current negligence law to impose a duty on the tenant who has no duty to maintain the sidewalk to keep it, as a potential path of ingx’ess and egress, safe or warn of dangers on it.
3. There Is No Issue of Fact That Sport-man’s Did Not Create the Hazard
Finally, MсDevitt argues that Sportsman’s owed McDevitt a duty to make the alleged hazard on the sidewalk safe because it created the hazard by “constructing] the sidewalk pux’suant to its lease.” Paragraph 6 of the Lease states that “[t]he Construction [of the Building upon the Pi’emises] shall be pei’formed by Tenant’s contractor, Eekman Mitchell Consti’uetion L.L.C. (the “Contx’actoi’”).” That paragraph goes on to direct that the consti’uetion “will result in a building to be constnxcted on the Premises with exterior architectui’al features as set forth on Exhibit F.” Exhibit F to the Lease shows sevei’al architectui’al featux-es of the building itself, including a рei’gola, metal roof, pillai’s, cornice, and pai’apet.
Imposition of a duty due to ex’eation of a hazard is an exception to the general rule that a landowner or occupant of land does not, solely by reason of being an abutter, owe
*288
to the public a duty to keep it in a safe condition. 86 Am.Jur. Proof of Facts 3d 327, § 4 (2005) (There is a “widely-recognized exeeption[ ] to the general rule of nonliability of an abutting owner or occupier. If an abutting owner or occupier creates a dangerous sidewalk condition, a duty arises to use reasonable care to warn рedestrians of its existence or to otherwise protect them against injury therefrom.”). Idaho has recognized this exception at least in the context of a landlord’s responsibility for a dangerous condition it created on a public sidewalk abutting its property.
McKinley v. Fanning,
The district court here found that under this Court’s decision in
Boise Car & Truck Rental Co. v. Waco, Inc.,
In
Boise Car,
the Court held that the defendant-tenant did not “create” the unsafe airport hangar it contracted to have built while it was in possession of the land it was built on, because “the hangar was created by the non-party construction contractor and engineer who actually designed and built it.”
Similarly here, there is undisputed evidence in the record that the irrigation box was installed by Idaho Scapes and the sidewalk was poured around it by Eckman & Mitchell. The architect who designed the plans also testified that he was under the direction of “the developer,” who he described as the owner of the shopping center. McDevitt points to the provision in the Lease listing Eckman & Mitchell as Sportsman’s’ contractor. However, it is clear that under the Lease, Sportman’s was responsible for constructing the building it was to lease, while Canyon Park was responsible for “Concurrent Site Improvements” that included paving “[a]ll portions of the Premises and the Shopрing Center designated for vehicular or pedestrian use,” as well as “[a]ll landscaping for the Premises and the Shopping Center.” It is unclear from the record who Eckman & Mitchell was taking direction from in regard to its pouring of the sidewalk. However, even assuming that Sportsman’s directed Eckman & Mitchell, under the reasoning of Boise Car, it was Idaho Scapes and Eckman & Mitchell who created the hazard on the sidewalk, not Sportsman’s. Further, the responsibility was on Canyon Park under the Lease to pave the sidewalk and do the landscaping.
Because Sportsman’s did not create the potential hazard, it is unnecessary for the Court to determine whether the district court erred when it determinеd that Sportsman’s’ responsibility for any potential creation of the hazard was extinguished by Canyon Park’s control of the premises pursuant to the Lease.
For the reasons above, the decision of the district court is affirmed.
B. Neither Party Is Entitled to Attorney Fees on Appeal
McDevitt seeks an award of attorney fees on appeal pursuant to I.C. § 12-121. Because the Court affirms the decision of the district court granting summary judgment against McDevitt, she also is not the prevailing party under I.R.C.P. 54. Thus no fees are awarded to McDevitt.
Kelley v. Yadon,
VI. Conclusion
The decision of the district court granting summary judgment to Sportsman’s is affirmed. Sportsman’s, as a tenant in a multitenant shopping center, does not owе its invitees a duty to keep the sidewalk reasonably safe or to warn of conditions on the sidewalk when the sidewalk is not a part of the leased premises and Sportsman’s does not exercise control over it. Sportsman’s did not create the hazard on the sidewalk because Idaho Scapes installed the irrigation box, and Eckman & Mitchell later poured the sidewalk around it, and under the Lease it was Canyon Park’s responsibility to construct the common areas. No attorney fees are awarded on appeal. Costs to Sportsman’s.
Notes
. Exhibit C to the Lease also contained a Schedule of Base Rent, which states that the Annual Base Rent is "to be amended to reflect actual square footage of the Building.”
. Mr. Anderson, the principal architect on the project, was asked in his deposition: "Who are you referring to when you refer to the word 'developer’?” He answered "I can’t say who that was at this point. Whoever was the owner of the property and the owner of the center.”
. As a note of clarification, Canyon Park I, L.L.C., and not Canyon Park, entered into this contract. As explained by Tina Luper in her deposition, Canyon Park L.L.C. transferred its ownershiр interest to Canyon Park Development, L.L.C. and Canyon Park I, L.L.C. around 2004. The Canyon Park entities are referred to collectively as "Canyon Park” in this Opinion, as they were in the parties’ briefing.
. The Court has confronted a somewhat similar situation in the context of a landowner, the landlord, rather than the tenant.
McKinley v. Fanning,
.
See also
footnote 4 of the opinion, citing ten cases from different jurisdictions supporting this rule.
Holmes,