New York Bar exam (essay) July 2008 (Q1)

Owen, the owner of a shopping plaza, leased a store in the plaza to Art, for the operation of an art gallery. The lease described only the interior of the store as the demised premises. It gave Art the right to use the common areas in the plaza, including the sidewalks and parking lot, for himself, his employees, vendors and customers, jointly with other tenants in the plaza. The lease was silent regarding the obligation to maintain or repair common areas.

On October 29, 2006, Payne visited the art gallery and purchased a large sculpture. After exiting the gallery carrying the sculpture that partially obstructed his view, Payne tripped and fell on the sidewalk outside the gallery. The accident occurred in daylight hours on a clear day. Payne was a regular customer of the gallery and had walked across the same sidewalk many times before. Payne suffered a broken hip in the accident, and thereafter commenced an action against both Owen and Art to recover damages for his injuries. Last week, Payne’s action against Owen and Art proceeded to trial. At trial, due proof of the above relevant facts was presented. In addition, Owen testified that he lives out of state, had not visited the plaza in several years, and
was unaware of any defect in the sidewalk. Art testified that a portion of the sidewalk outside the gallery had uplifted with the freezing and thawing cycle the winter prior to Payne’s fall, so that one slab of the sidewalk was three inches higher than the adjoining slab. Art admitted that he was aware of the condition but never reported the condition to Owen and did not warn Payne of it. At the close of all the proof, both Owen and Art moved for judgment as a matter of law. Owen contended that the proof established that the defect in the sidewalk was open and obvious, and, in any event, he could not be held liable because he did not cause the condition and was not aware of it. Art contended that he owed no duty to Payne as a matter of law to repair the condition or warn Payne of its existence.

(1) How should the motions of (a) Owen and (b) Art be decided?

(2) If Payne is successful in the action, what impact, if any, may Payne’s
conduct have on any verdict he may recover?
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