When I went to a diner, I slipped and fell in the bathroom. It was raining outside and after I fell, I noticed that there was a drip coming from the ceiling onto the floor. I did not notice the water on the floor and I fell on my back. What claims do I have?

If you slip and fall inside a restaurant, suing both the landlord and tenant is often necessary to recover full compensation.

When you decide to seek compensation for your medical bills, lost wages, and pain, the immediate target seems obvious: the diner. After all, it happened inside their business. But an experienced personal injury attorney will almost certainly name the building owner (the landlord) as a co-defendant in the lawsuit as well.

Why sue both? In commercial premises liability law, naming both parties is a common tactic. Below are the reasons, both entities are target defendants.

Why Suing Both Landlord and Tenant Is Necessary for Divided Legal Duties

A party who owns, leases, or occupies land has a duty to use reasonable care to keep the property in a reasonably safe condition. However, in commercial leases, that duty is often bifurcated:

  • The Tenant (The Diner). Generally holds a duty of reasonable care regarding daily operations, maintaining safe walkways, and taking temporary precautions (like mopping or placing warning signs) when hazards appear.
  • The Landlord (Property Owner). Retains liability for structural integrity, common areas, and building components over which they reserve control—including the roof and exterior walls.

In a ceiling leak scenario, the water on the floor stems from a structural failure or roof failure. In Guzman v. Haven Plaza Housing Development Fund Co., 69 N.Y.2d 559 (1987), the court of appeals found that an out-of-possession landlord who reserves a right under the lease to enter the premises to inspect and make repairs is liable for injuries caused by structural defects that violate specific statutory provisions or common-law duties of care.

Preventing the “Empty Chair” Defense

If you sue only the diner, their legal team will rely on the defense that a tenant is generally not responsible for fixing structural defects outside their control. They will argue: “We didn’t cause the leak, and we don’t own or control the roof.”

Conversely, if you sue only the landlord, they will claim “The tenant had exclusive operational possession and knew about the water, yet failed to place a bucket or warn customers.”

When both parties are named in the lawsuit, this finger-pointing could work to the plaintiff’s advantage under comparative fault rules. The diner and the landlord could produce lease agreements, maintenance logs, and emails blaming one another. This helps establish liability overall. The argument at trial could shift the dispute. The case could change from whether one of the defendants was negligent to how responsibility should be apportioned between them.

“Control” of the Premises

In order to hold a landlord responsible for the accident, the plaintiff must establish that the land owner had control over the premises. The Second Department (Staten Island, Queens and Brooklyn) has held that “control,” refers to an out-of-possession landlord’s ability to remedy dangerous conditions. Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 929 NYS2d 620 (2d Dept 2011). The Alnashmi court held that liability may be imposed on a landlord for injuries resulting from the condition of the demised premises only if a duty to keep the premises reasonably safe is imposed on the landlord by statute or assumed by the landlord by contract or a course of conduct.

In this particular case, you would need a copy of the lease between the land owner and the diner. However, the reservation in a lease of a right of reentry and repair by the lessor does not impose liability for any dangerous condition that subsequently arises. Star v Berridge, 77 NY2d 899, 568 NYS2d 904 (1991).

A plaintiff could prove control through custom and practice between the diner and the landowner. For example, the plaintiff would need an admission from either the land owner or the diner that the landlord had performed structural repairs and maintenance on the building during the time the diner was open.

“Notice” of the Condition

Besides control of the premises, the plaintiff would also have to show that the landlord had notice of the condition. So, just because an out-of-possession owner who retains a right of reentry for repairs and inspection is NOT deemed to have constructive notice of a defective condition. The plaintiff would need to show a specific structural or design defect that is contrary to a specific statutory safety provision, Wayman v Roy Stanley, Inc., 122 AD3d 1119,997 NYS2d 522 (3d Dept 2014), Khan v Bangla Motor and Body Shop, Inc., 27 AD3d 526, 813 NYS2d 126 (2d Dept 2006).

So the Court may find the owner liable where the condition of the premises was subject to statutory regulation AND the lessor in the lease reserved a right of entry to inspect the premises and to repair. Guzman v Haven Plaza Housing Development Fund Co., Inc.,; 69 NY2d 559, 516 NYS2d 451 (1987). However, those situations where there is a statutory obligation to make repairs are not usually found in a commercial lease. Those types of statutory regulations would commonly be found in residential leases. As noted in a prior post, Multiple Dwelling Law covers many of those situations.

Insurance Considerations

Many lease agreements provide that the tenant must have general liability insurance. Furthermore, that policy must name the owner as an additional insured under the policy. If true the insurance company covering both may assign one counsel to represent the diner and land owner. If that is true, the plaintiff can almost treat both of the diner and the landlord as a single entity. The plaintiff would want to prove that the diner or landlord had notice of the leaky roof.

In conclusion, in your case, I would advise you to sue the diner and their landlord. It could be easy to prove the landlord and the diner knew or should have known of this leaky roof. It would depend on your description of the scene in the bathroom.

By James Santner, Esq.

If you have been injured in a similar accident, contact our office for a free consultation. We collect no fee unless we are successful on your behalf.