Dower v. Dower's Inc.

• Decision Date: 09 March 1966
• Docket Number: No. 10757,10757
• Citation: 100 R.I. 510,217 A.2d 437
• Parties: Walter B. DOWER v. DOWER'S INC. Ex.
• Court: Rhode Island Supreme Court

Page 437

217 A.2d 437

100 R.I. 510

Walter B. DOWER v. DOWER'S INC.

Ex. No. 10757.

Supreme Court of Rhode Island.

March 9, 1966.

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Kenneth P. Borden, Providence, for plaintiff.

Hinckley, Allen, Salisbury & Parsons, Thomas J. Hogan, Thomas D. Gidley, Bowen H. Tucker, Providence, for defendant. JOSLIN, Justice.

This action of assumpsit is here on the plaintiff's exceptions to a decision of a justice of the superior court sustaining the defendant's demurrer to the second amended declaration and to his refusal to grant permission for the filing of an amended declaration.

The essential allegations of the one-count declaration can be briefly summarized. The defendant occupied and had exclusive possession of certain store premises and the adjacent sidewalk under a written lease from plaintiff, the owner. During the term of the lease one Lenihan was injured when she fell on the sidewalk. She sued plaintiff as the owner of the premises and alleged that her fall was caused by his having permitted an artificial accumulation of snow and ice to remain on the sidewalk for an extended period of time and by his having negligently allowed water to be discharged thereon which froze. The suit was prosecuted to judgment and plaintiff here sues to recoup the losses sustained by him as a result of the third-party suit. He concedes his negligence and predicates his declaration on those provisions of the lease wherein defendant covenants to indemnify and save him harmless generally 'against all loss, cost, expenses, and damages under any claim by any person or corporation based on or in any way growing out of the use, maintenance, control or occupation of the said demised premises, the sidewalk adjacent thereto, or the improvements or equipment located thereon by the Lessee, its agents or servants, or any person claiming under them,' and specifically 'on account of any loss, cost or damage arising from his failure' to keep the sidewalk free from snow and ice.

The trial justice refused on policy grounds to enforce these indemnity provisions because in his judgment they purported to immunize plaintiff as a landlord from losses occasioned by reason of his own negligence and he sustained the demurrer to the declaration. We agree with the result but not with the reason. In our judgment, the declaration is defective for the reason that nowhere in the lease does defendant specifically covenant to indemnify and to hold plaintiff harmless from the consequences of his own negligence.

Indemnity provisions in leases are not new. Their inclusion followed the judicial establishment of rules defining the obligations of both a lessor and a lessee to repair and to maintain leased premises and the liabilities which flow from a failure to carry out these obligations. By including exonerating provisions landlords and tenants attempted to nullify the duties and responsibilities fixed by law and sought by a general or specific provision in their agreements of lease to determine where as between themselves the risk of loss should fall.

Typically, a general exonerating clause stipulates that the lessee shall hold the lessor harmless and indemnified 'against any injury, loss or damage to any person or property on said premises,' or 'from any and all claims arising out of the lessee's conduct or management of the demised premises or the sidewalks or the streets adjoining,' or 'from any loss, injury or damage of any nature whatsoever, occurring on or about said demised premises or the sidewalk adjacent to the same, to person or property of said lessee, its agents, employees, servants or others in or about said demised premises.'

Following the rule that indemnity provisions must be strictly construed against the indemnitee, the courts in most of the states have refused to draw inferences from words of general import found in the apparently all-inclusive and catchall language of a general indemnity provision. ¹ Moreover even in those states where exclupatory provisions are enforceable, and they are in the majority, indemnity to a lessor for the consequences of his own negligence has been denied unless the exonerating clause specifically and unequivocally so stipulates. Laskowski v. Manning, 325 Mass. 393, 91 N.E.2d 841; Longi v. Raymond-Commerce Corp., 34 N.J.Super. 593, 113 A.2d 69. See cases collected 175 A.L.R. § 47, p. 89.

We adopted the rule of strict construction almost seventy years ago in Railton v. Taylor, 20 R.I. 279, 38 A. 980, 39 L.R.A. 246. There, the tenant's goods were damaged by the landlord's negligent operation of the heating system. The lease provided that the lessor should have no liability for damage or destruction to the property caused 'by fire, water or otherwise, or by the use or abuse of the Cochituate water, or by the leakage or bursting of water pipes, or in any other way or manner * * *.' We refused to exculpate the landlord, even though the lease by its terms exonerated him from liability for damage or destruction to merchandise caused 'in any other way or manner' saying at page 282, 38 A. page 982 that if the parties had intended to include an...