Bedrosky v. Hiner

• Decision Date: 21 October 1988
• Docket Number: No. 87-071,87-071
• Parties: Deloris BEDROSKY and Ted Dunlap, Appellants, v. Douglas E. HINER, doing business as Hiner Properties, Appellee.
• Court: Nebraska Supreme Court

Page 535

430 N.W.2d 535

230 Neb. 200

Deloris BEDROSKY and Ted Dunlap, Appellants, v. Douglas E. HINER, doing business as Hiner Properties, Appellee.

No. 87-071.

Supreme Court of Nebraska.

Oct. 21, 1988.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In appellate review of summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Leases: Contracts. A lease is to be construed as any other contract; thus, principles of contract construction will be applied to ascertain the meaning of a lease.

4. Contracts. Courts are not free to interpret contracts which are couched in clear and unambiguous language.

5. Contracts. A determination as to whether ambiguity exists in a contract is to be made on an objective basis, not by the subjective contentions of the parties; the fact that the parties urge opposing interpretations does not necessarily indicate that the contract is ambiguous.

6. Contracts. A party may not pick and choose among the clauses of a contract, accepting only those that advantage it; the contract's meaning is to be ascertained by reading the contract as a whole.

7. Contracts. A provision of a contract is ambiguous when, considered with other pertinent provisions as a whole, it is capable of being understood in more senses than one.

8. Contracts: Presumptions: Intent. There is a strong presumption that a written instrument correctly expresses the intention of the parties to it.

9. Contracts: Intent. Parties are bound by the terms of the contract even though their intent may be different from that expressed in the agreement.

10. Contracts. Words used in a contract must be given their plain and ordinary meaning, as ordinary, average, or reasonable persons would understand them.

11. Contracts. A written contract which is expressed in clear and unambiguous language is not subject to interpretation or construction.

12. Contracts: Leases. The practical construction put upon a lease contract cannot control the express, unambiguous provisions of the instrument itself.

13. Summary Judgment: Contracts. When it is established that a contract is ambiguous, the meaning of its terms is a matter of fact to be determined in the same manner as other questions of fact; in such a situation, summary judgment is improper.

14. Contracts: Public Policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.

Mary Cannon Veed and Thomas L. Steele, of Matthews & Cannon, P.C., Omaha, for appellants.

Gerald L. Friedrichsen, of Fitzgerald & Brown, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

HASTINGS, Chief Justice.

Plaintiffs have appealed from the judgment of the district court which sustained the motion of the defendant for summary judgment. This was an action resulting from a fire in a building owned by the defendant, a portion of which was leased to the plaintiffs. Plaintiffs sought damages for destruction of their property.

In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988); Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988).

Moreover, summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. J.J. Schaefer Livestock Hauling v. Gretna St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988).

In November 1976, plaintiff Bedrosky leased the first floor of a building from defendant to house her art gallery. Plaintiff Dunlap became associated with Bedrosky in March 1984, and became a full partner in the gallery in September 1984. According to Bedrosky, the defendant orally assured her before she signed the lease that the sprinkler system was in working order. The lease contained the following language:

5. Lessee has examined said premises prior to his acceptance and the execution hereof and is satisfied with the physical condition thereof, including all equipment and appurtenances, and his taking possession thereof shall be conclusive evidence of his receipt thereof in satisfactory order and repair, except as otherwise specified hereon, and Lessee agrees and admits that no representation as to the condition or repair hereof has been made by the Lessor or his agent which is not herein expressed or indorsed hereon; and likewise agrees and admits that no agreement or promise to decorate, alter, repair, or improve said premises including all equipment and appurtenances, either before or after the execution hereof, not contained herein, has been made by Lessor or his agent.

....

10. All personal property in the leased premises shall be at the risk of the Lessee only and the Lessor shall not be or become liable for any damage to said personal property, to said premises or to said Lessee or to any other persons or property caused by water leakage, steam, sewerage, gas or odors or for any damage whatsoever done or occasioned by or from any boiler, plumbing, gas, water, steam or other pipes or any fixtures, equipment or appurtenances whatsoever, or for any damage occasioned by water, snow or ice, being upon or coming through the roof, sky-light, trap door, or otherwise, or for any damage arising from any act or neglect of other tenants, occupants, or employees of the building in which the leased premises are situated or arising by reason of the use of, or any defect in, the said building or any of the fixtures, equipment or appurtenances therein, or by the act or neglect of any other person or caused in any other manner whatsoever.

On January 19, 1985, as alleged in plaintiffs' second amended petition, "a fire of uncertain origin began in the upper two floors of the six story building." The fire spread to the elevator shaft, as plaintiffs allege, fell to the basement, and spread to the first floor, which was the space leased to the plaintiffs.

The essence of plaintiffs' claim is that defendant, in violation of certain regulations of the State Fire Marshal's office, failed to enclose the elevator shaft and to install fire doors, and, in contravention of his representation, the defendant failed to keep the sprinkler system in proper working order. Plaintiffs also alleged a failure to secure the building against trespassers.

Defendant's answer denies generally the allegations in the plaintiffs' petition and alleges further that the provisions of the lease exclude recovery for loss of personal property.

Plaintiffs assign as error: (1) The court ruled that there were no genuine issues of fact; (2) the court ruled that the defendant's acts were within the scope of the lease's exculpation clause; and (3) the court upheld the validity of the exculpation clause as not opposed to public policy.

The sole issue for this court to determine is whether the exculpatory clause of the lease is effective to relieve the defendant from all liability in this instance.

Plaintiffs' arguments focus on paragraph 10 of the lease. Essentially, plaintiffs argue that the exculpatory language cannot be construed to relieve the defendant of liability and that even if such a construction was warranted, an unconscionable result would ensue.

Defendant, on the other hand, argues that the exculpation clause was plain and unambiguous. Therefore, he argues, there is no need to resort to between-the-lines interpretations or public policy to ascertain the true intent of the parties when they agreed upon and signed the lease contract.

Of particular concern to the plaintiffs is the language in paragraph 10 of the lease providing that the lessor shall not be liable for damage to personal property caused "by the act or neglect of any other person or caused in any other manner whatsoever." This language follows a long list of other events, mostly natural hazards and damage caused by occupants, for which the lessor is not liable. The plaintiffs argue that the final clause must be read "to include only the general categories of injury previously enumerated" (brief for appellants at 11), and not negligence or intentional misrepresentation on the part of the defendant. Otherwise, argue plaintiffs, if the clause is read literally and includes a release from liability for damage occurring in any manner (including negligence or misrepresentation by the defendant), "the clause would negate every obligation or commitment of the landlord altogether, and entirely destroy the mutuality of the lease contract." Id.

A lease is to be construed as any other contract. Newman v. Hinky Dinky, 229 Neb. 382, 427 N.W.2d 50 (1988); Chadd v. Midwest Franchise Corp., 226 Neb. 502, 412 N.W.2d 453 (1987); Omaha Country Club v. Dworak, 186 Neb. 336, 183 N.W.2d 264 (1971). Thus, we apply principles of contract construction to ascertain the scope and meaning of the lease. The plaintiffs urge us to adopt a nonliteral, nonstrict construction of the lease. However, before we determine how to...