Feldman v. Stein Bldg. & Lumber Co.

• Decision Date: 28 February 1967
• Docket Number: No. 581,No. 1,581,1
• Citation: 148 N.W.2d 544,6 Mich.App. 180
• Parties: Opal FELDMAN, Plaintiff-Appellant, v. STEIN BUILDING & LUMBER COMPANY, a Michigan co-partnership consisting of Herbert Harris, Alan E. Stein and Harry Hooberman, jointly and severally, Defendants-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 544

148 N.W.2d 544

6 Mich.App. 180

Opal FELDMAN, Plaintiff-Appellant, v. STEIN BUILDING & LUMBER COMPANY, a Michigan co-partnership

consisting of Herbert Harris, Alan E. Stein and

Harry Hooberman, jointly and severally,

Defendants-Appellees.

Cal. No. 581.

Court of Appeals of Michigan, Division No. 1.

Feb. 28, 1967.

Leave to Appeal Denied April 26, 1967.

Levine & Benjamin, by Sherwin Tukel and Allan H. Tushman, Detroit, for appellant.

Garan, Lucow & Miller, by Matthew A. Seward and Richard L. Lehman, Detroit, for appellees.

Before LESINSKI, C.J., and GILLIS and HOLBROOK, JJ.

LESINSKI, Chief Judge.

Plaintiff, Opal Feldman, brought an action for negligence against the defendants, and here appeals a summary judgment granted below.

Plaintiff, lessee of an apartment located at 17170 Meyers road in Detroit, sustained injuries as a result of a fall on the parking lot which adjoined the apartment building and which was furnished for the exclusive use of the tenants of said building. Plaintiff alleged that defendants' negligence in failing to remove an accumulation of ice on the parking lot in breach of their legal duty was a proximate cause of her injuries. Defendants' answer contained, inter alia, notice of an affirmative defense, to wit: a paragraph ¹ in the existing leasehold agreement signed by the parties thereto which precluded any liability on the part of the lessor for injuries such as those sustained by the plaintiff. Defendants' motion for summary judgment was grounded, and subsequently granted, on this basis. On appeal, the plaintiff alleges that this 'exculpatory clause' is contrary to public policy.

The recital of the facts above reveals that the issue which must be determined in the instant case is the validity of an 'exculpatory' clause in residential leasehold agreements. We caution at the outset that the question which we decide is limited to residential leases and does not embrace and should not be extended to apply to a determination of the validity of such clauses in commercial leases which are not covered by Michigan statutes relating to dwellings. ²

The initial consideration in resolving this issue is the applicability of the Michigan housing law, C.L.1948, § 125.401 et seq. (Stat.Ann.1958 Rev. § 5.2771 et seq.) to the case at bar. We note that the intent of the legislature in its enactment thereof is clearly specified in the title thereto:

'AN ACT to promote the health, safety and welfare of the people by regulating the light and ventilation, sanitation, fire protection, maintenance, alteration and improvement of dewellings; to define the classes of dwellings affected by the act, to establish administrative requirements and to establish remedies and fix penalties for the violation thereof.'

The section of the statute particularly relevant to the instant case is C.L.1948, § 125.474 (Stat.Ann.1958 Rev. § 5.2846) ³ which deals with the duty of the landlord to keep the premises clean. In the absence of Michigan case law construing this language to either exclude or include snow removal, we turn to construction of analogous statutory language out-of-state. In Greenstein v. Springfield Development Corp. (1960), 22 Misc.2d 740, 204 N.Y.S.2d 518, the New York court determined that an icy pathway on the premises was within the contemplation of similar language. ⁴ We agree. A common sense reading of the language of the Michigan provision must necessarily include snow and ice.

Since we find that ice removal is one of the statutory duties imposed by a penal statute, and since the plaintiff is clearly within the protection thereof, we are brought by this determination to the ultimate issue of this case--the validity of a contractual agreement which would immunize the landlord from liability for breach of this statutory duty.

While affirming the principle of freedom of contract, we note the well-settled rule that where freedom of contract and declared public policy are in conflict, the former necessarily must yield to the latter.

The question of the validity (or invalidity) of exculpatory provisions has fathered progeny in the form of a prolificacy of legal writing--case law, annotations and ultimately statutes have been its offspring.

In four states, Massachusetts, Illinois, Maryland and New York, specific legislation has been enacted which declares such agreements void as against public policy. The New York statute of 1937 (Section 234 of the Real Property Law, McKinney's Consol.Laws, c. 50) as cited in Gordon v. McAfee (1945), 184 Misc. 469, 54 N.Y.S.2d 443 at 445), is an example thereof:

"Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person * * * caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises * * * shall be deemed to be void as against public policy and wholly unenforceable."

It is relevant to inquire into the background of such legislation. Prior to its passage in New York, several decisions ⁵ held that a lease clause exempting the landlord from his statutory duty would not enable said landlord to escape liability. However, prior case law had held such clauses valid. ⁶ The need for a clear-cut statement to resolve this issue was imperative, and the legislation subsequently enacted clarified the intent.

A similar situation was recounted by the Illinois court in Koehler v. Southmoor Bank and Trust Company (1963), 40 Ill.App.2d 195, 189 N.E.2d 22, 24:

'The recent history of the exculpatory clause is well known to the bench and bar. The clause was held valid by the Supreme Court of Illinois in 1957 in O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill.2d 436, 155 N.E.2d 545. Following that decision, the legislature enacted a law which invalidated such clauses in leases. Ill.Rev.Stat., ch. 80, § 15a (1959).'

In Eastern Avenue Corporation v. Hughes (1962), 228 Mc. 477, 180 A.2d 486, 488, the Maryland court of appeals, in upholding an exculpatory clause, listed the jurisdictions which found such exculpatory clauses valid, and followed this listing with the citation of the New York, Massachusetts and Illinois cases which had upheld such provisions as not against public policy, and then concluded with the statement:

'In the latter states the legislatures have subsequently enacted statutes invalidating some types of exculpatory clauses.'

In 1964, the Maryland legislature took similar action. ⁷

New Hampshire, without mention of a specific housing law and without a statute declaring such clauses void as against public policy, did so by court decision in Papakalos v. Shaka (1941), ...