Fuller v. TLC Prop. Mgmt., LLC

Citation402 S.W.3d 101
Decision Date07 June 2013
Docket NumberNo. SD 31931.,SD 31931.
PartiesLindsay FULLER, Plaintiff–Appellant, v. TLC PROPERTY MANAGEMENT, LLC, Defendant–Respondent.
CourtCourt of Appeal of Missouri (US)


Kurt J. Larson, Larson Law Firm, Springfield, MO, Attorney for Appellant.

Rachel A. Riso, Daniel, Powell & Brewer, Springfield, Mo, Attorney for Respondent.


Lindsay Fuller brought a tort claim for personal injury against TLC Property Management, LLC (TLC). Her claim arose out of her slip and fall in the parking lot of Orchard Park Apartments, where she leased an apartment. Fuller alleged in her petition that [a]t all times relevant hereto, Orchard Park Apartments was managed by [TLC].” In its answer, TLC admitted that it was the property manager as Fuller alleged and asserted an affirmative defense that the tort claim was contractuallybarred by paragraph 17 of the Lease Agreement Fuller had signed.1

TLC filed a motion for summary judgment alleging, as its legal basis, that “the exculpatory clause in the Lease Agreement [Fuller] entered into is valid and enforceable. The exculpatory clause effectively notified [Fuller] that she was releasing [TLC] from its own negligence.” Fuller filed her response to TLC's motion for summary judgment, which yielded the following uncontroverted facts:

1. Fuller entered into a Lease Agreement with Orchard Park Apartments, LLC, on May 22, 2010.

2. The term of the Lease Agreement was for thirteen (13) months commencing June 26, 2010, until July 29, 2011.

3. Fuller signed the Lease Agreement on May 22, 2010.

4. Fuller initialed after each numbered paragraph in the Lease Agreement.

5. Fuller initialed after paragraph 17 in the Lease Agreement.

6. Paragraph 17 of the Lease Agreement states:

Tenant(s) agrees that all owners, Landlord and property managers of the Premises, and all their agents, employees, servants, invitees, successors and assigns shall not be liable to Tenant(s) or their family members, guests, invitees, servants, or others for injury to or death of any person or pet, nor for loss of or damage to personal property occurring on or about the Premises from any cause whatsoever, even if said damages, injuries or deaths are alleged to be the fault of or caused or contributed to be caused by the negligence, carelessness or fault of any or all owners, Landlord or property managers of the Premises (regardless of who is designated as Landlord). Tenant hereby agrees to release, indemnify, save, defend and hold harmless, including payment of reasonable attorneys fees, court costs, expenses and expert witness fees, Landlord, all owners and property managers of the Premises from and against any and all lawsuits, liabilities, or claims for damages, personal injury, death or property damage made by Tenant(s) or any person on or near the Premises at the invitation or allowance of Tenant(s) arising from Tenant's use of Premises, or from any activity, work or thing done, permitted or suffered by Tenant(s) on or about the Premises, even if such person injury, death or property damages are alleged to be caused or contributed to be caused by the fault of Landlord, property owner or manager. If Landlord furnishes smoke detectors it shall test same and provide initial batteries at Lease commencement, and thereafter Tenant shall pay for and replace smoke detector batteries, if any, as needed.

7. Fuller slipped and fell on ice in a parking lot at Orchard Park Apartments on February 7, 2011.

8. Fuller was a resident of Orchard Park Apartments on February 7, 2011.

9. As a result of Fuller's fall, she injured her left ankle.

Fuller filed suggestions in opposition to TLC's motion for summary judgment arguing that “the purported exculpatory language set forth in [TLC's] Lease Agreement fails to meet the stringent standard set forth in Alack[ 2” for three reasons: (1) the “waiver is expressly limited to incidents occurring inside Unit M303”; (2) [t]he attempt at exculpatory language in the Lease Agreement is not clear, not conspicuous, and therefore cannot clearly and unmistakably waive [Fuller's] claims [sic]; and (3) [TLC's] exculpatory language attempts to waive any imaginable claim including intentional torts, and for that reason, is duplicitous, indistinct, uncertain and ambiguous, and therefore void under Missouri law.” Finally, Fuller argued that [t]his exculpatory language, and attempted broad use in Apartment leases throughout the community, should be held void as against sound public policy.”

The trial court sustained TLC's motion for summary judgment and entered a judgment in its favor on Fuller's claim. This appeal timely followed.

Standard of Review

“Appellate review of summary judgment is de novo. Roberts v. BJC Health Sys., 391 S.W.3d 433, 437 (Mo. banc 2013) (citing ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).


While Fuller brings six points on appeal, her first point is dispositive. In it, she claims TLC was not entitled to judgment as a matter of law because the exculpatory clause in the Lease Agreement for injuries “occurring on or about the Premises” does not apply to her injury that occurred in the parking lot, in that the Lease Agreement defines “Premises” as her apartment unit M303, and her injury did not occur “on or about” that unit. We agree.

“Releases of future negligence are not void as against public policy, though they are disfavored and strictly construed.” Warren v. Paragon Techs. Grp., Inc., 950 S.W.2d 844, 845 (Mo. banc 1997) (citing Alack v. Vic Tanny Int'l of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. banc 1996)). [C]lear and explicit language in the contract is required to absolve a person from such liability.’ Alack, 923 S.W.2d at 334 (quoting Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo.App. W.D.1995)); see Vergano v. Facility Mgmt. of Missouri, Inc., 895 S.W.2d 126, 128 (Mo.App. E.D.1995) (enforced release where “its terms were simple and clear”). In addition, the language in an exculpatory clause must be unambiguous, unmistakable, and conspicuous. Alack, 923 S.W.2d at 337. ‘An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.’ Id. (quoting Rodriguez v. Gen. Accident Ins. Co. of America, 808 S.W.2d 379, 382 (Mo. banc 1991)); accord Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009). ‘Language is ambiguous if it is reasonably open to different constructions.’ Ritchie, 307 S.W.3d at 135 (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). “The exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party's own negligence.” Alack, 923 S.W.2d at 337. “The determination of the sufficiency and validity of an exculpatory agreement on the basis of the clarity and simplicity of its terms is a question of law[.] Id. at 338.

“A lease in Missouri acts as both a conveyance and a contract[.] Campus Lodge of Columbia, Ltd. v. Jacobson, 319 S.W.3d 549, 552 (Mo.App. W.D.2010). [A] contract must be construed as a whole. It must be viewed from end to end and corner to corner.’ Id. (quoting Parker v. Pulitzer Publ'g Co., 882 S.W.2d 245, 249 (Mo.App. E.D.1994)); accord Alack, 923 S.W.2d at 343.

The Lease Agreement here expressly defines the term “Premises” as apartment unit “M303.” 3 Therefore, by definition, the word “premises” as used every place in the Lease Agreement, in and of itself, cannot include any geographical area other than that occupied by apartment unit M303.

The Lease Agreement then proceeds to use that defined term thirty-eight times, almost exclusively in the context of describing Fuller's duties and obligations under the Lease Agreement. While most instances refer to “the Premises,” “of the Premises,” or “to the Premises[,] other qualifying terms are used. For example, Fuller was required to give the landlord written notice “when any portion of the Premises is out of repair”; Fuller was required to service, maintain, and repair all electrical and mechanical equipment “which is apart of the Premises”; Fuller was required to pay “all utilities used in or about Premises”; Fuller could have no pets on the Premises” without a separate pet agreement; in addition to a separate pet agreement, Fuller had to obtain written permission from the office before the pet could “be in or around the Premises”; any vehicles Fuller had on or near the Premises” had to “be in good condition and working order, properly licensed and roadworthy, must not have significant oil or fluid leaks”; and, Fuller was “allowed to park one vehicle per bedroom in the Premises[.] (Emphasis added).

In contrast, the Lease Agreement refers to one of the Landlord's duties as common area maintenance[.] (Emphasis added.) Similarly, in mandating Fuller's compliance with the current “Community Policies” by incorporating that document by reference, the Lease Agreement refers to the entire apartment complex as the “apartment community[.]

It is in this context that we now turn to paragraph 17—the exculpatory clause—in the Lease Agreement. As relevant here, this paragraph releases “all owners, Landlord and property managers of the Premises” from liability for future negligence on any claim by Fuller for personal injury “occurring on or about the Premises[.] (Emphasis added).4 The question for our resolution is whether the description of the geographical area identifying the location of the injury of those released claims—“occurring on or about the Premises”—clearly, explicitly, unambiguously, and unmistakably includes the parking lot, where Fuller's injury occurred. We find that it does not.

Under the plain and ordinary language used in the exculpatory clause, the prepositional phrase “on or about the Premises” modifies the word “occurring” by describing the geographical...

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