Appeal from the Superior Court of the District of Columbia (CA-4831-99) (Hon. Rafael Diaz, Trial Judge)
Before Schwelb, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Telisa Settles, an employee of Payless Shoe Store (Payless), brought this action against Redstone Development Corporation (Redstone), Payless' landlord, alleging that Redstone was liable to her for personal injuries suffered when a ceiling tile fell on her at the Payless store. The trial court granted Redstone's motion for summary judgment, concluding that Redstone owed Ms. Settles no legal duty. Ms. Settles appeals; we affirm.
The accident which gave rise to this action occurred on July 28, 1996. The wet piece of ceiling tile that struck Ms. Settles caused injuries to her head, left arm, and knee. The parties agree that the ceiling tile fell because it was heavily soaked with water, and that the source of the water was a malfunctioning air conditioning unit located above the ceiling tiles. Ms. Settles' theory in the trial court and on appeal is that Redstone knew or should have known of the potential danger from the air conditioning unit, that Redstone did nothing about that danger, and that Redstone was negligent and proximately caused Ms. Settles' injuries. Redstone's position throughout this litigation has been that the responsibility to maintain and repair the air conditioning unit was assigned solely to Payless by the terms of the lease and by controlling legal authority, and that Redstone therefore owed no duty of care to Ms. Settles. In a written order in which he summarized applicable law, the trial judge agreed with Redstone's contentions and granted summary judgment in Redstone's favor upon the ground that Redstone owed Ms. Settles no duty.
On January 11, 1985, Redstone and Payless entered into a Lease Agreement which was in effect (with amendments and extensions not here relevant) when the accident happened. Under the terms of the lease, it was the tenant's responsibility to carry out a program of regular maintenance and repair of the leased premises. With respect to air conditioning, Section 7.06 of the lease provided as follows:
Prior to first opening for business, Tenant shall obtain, and thereafter maintain throughout the Main Term, a so-called full-service contract for the regular maintenance, servicing, and repairs of the heating, ventilating and air conditioning equipment serving the Demised Premises with a reputable air conditioning contractor acceptable to Landlord and shall furnish copies of such contract to Landlord. Landlord shall have the right and option, at any time(s) during the Lease Term upon not less than thirty (30) days prior notice to Tenant, to take over the regular maintenance, servicing, and repair of the heating, ventilating and air conditioning equipment serving the Demised Premises and Tenant shall thereafter, monthly in advance, pay to Landlord an amount equal to what Tenant, on a competitive basis, would have otherwise paid a third party for a full-service contract.
Under Section 7.07 of the lease, the landlord also retained the right to make repairs at the tenant's expense if the tenant failed to do so:
If Tenant shall fail to make any such repairs or replacements or to perform any such maintenance as it is obligated to do under Section 7.06 within fifteen (15) days after written notice from Landlord . . . Landlord may make or perform the same for the account of Tenant, without liability to Tenant for any loss or damage that may accrue to Tenant's merchandise, fixtures, or other property or to Tenant's business by reason thereof . . . Nothing herein contained shall imply any duty on the part of the Landlord to perform any such work which under any provision of this Lease Tenant may be required to do, nor shall it constitute a waiver of Tenant's default in failing to do the same.
So far as the record reveals, Payless never obtained or maintained the full-service contract for maintenance of the air conditioning unit required by Section 7.06 of the lease. There is likewise no evidence that Redstone approved a contractor selected by Payless, as provided in the lease. On June 29, 1993, Redstone's property manager wrote a letter to Payless in which she reminded Payless "that it is your responsibility, as a Tenant, to maintain your Heating, Ventilating and Air Conditioning Unit (HVAC)." The property manager further wrote that by adopting a good maintenance program,
you will be preventing major overhaul work on neglected general repairs. Every HVAC system should be checked at least four (4) times a year to guarantee proper furnace efficiency, fan operation, cleanliness of filters, and to stop air conditioning coil(s) from clogging. Preventative [sic] maintenance is often the best way to help stop problems before they start.
The letter concluded with a request that Payless "forward to us a copy of your service agreement for our records." There is nothing in the record to suggest that Payless complied with this request, or that Redstone took any ...