Kuzmiak v. Brookchester, Inc.
| Decision Date | 12 January 1955 |
| Docket Number | No. A--698,A--698 |
| Parties | Eleanor KUZMIAK and Joseph Kuzmiak, Plaintiffs-Appellants, v. BROOKCHESTER, Inc., Section Four, Defendant-Respondent. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Michael J. Monaghan, Jr., Englewood, for plaintiffs-appellants (Monaghan & Monaghan, Englewood, attorneys).
Arthur A. Sullivan, East Orange, for defendant-respondent.
Before Judges GOLDMANN, FREUND and SCHETTINO.
The opinion of the court was delivered by
FREUND, J.A.D.
The plaintiffs, husband and wife, are tenants in an apartment building under a written lease with the defendant builder and landlord. They brought this suit to recover damages for personal injuries suffered by the wife when she fell down a stairway in the apartment building, due, according to the complaint, to the 'negligent construction and maintenance by defendant of the top step of the stairway in the building, and the maintenance by defendant of a nuisance in connection with the stairway.' In its answer the defendant set up as an affirmative defense a provision in the lease exculpating it from any liability. Before trial the defendant moved for dismissal of the plaintiffs' complaint. The court granted the motion and 'ordered that the complaint be dismissed by reason of the provisions of said lease which exculpates the defendant from any liability for injuries to the tenant resulting from the use of said premises.' From the summary judgment entered, the plaintiffs appeal.
The record on appeal consists of an agreed statement in lieu of record, without the pleadings. It does not set forth any facts particularizing the allegation-- actually the conclusion--of negligence and nuisance. There are no details before us from which we can in fact determine whether the fall resulted from nonfeasance, active wrongdoing or nuisance. However, by reason of the defendant's motion for summary judgment, we do assume for the purposes of this proceeding the truth of the plaintiffs' allegations.
The exculpatory clause, paragraph 20 of the lease, consists of three sentences. The first two read as follows:
The plaintiff's personal injuries were not caused through any of the means specified in the foregoing sentences and, accordingly, they are not pertinent here. The third sentence, however, is pertinent and reads as follows:
'The Landlord shall in no event and under no circumstances be or become liable for any loss or damage which may occur to the tenant, his family, servants or guests or the property of either or any of them, however such damage or loss may arise and whether such property be contained in the demised premises, in the storage room, or in any other portion of said building or any place appurtenant thereto.'
The foregoing provision is assuredly broad and comprehensive. It purports to release the defendant in advance of occurrence from liability for damage or loss, which would include personal injury and property damage, howsoever caused, whether the result of nonfeasance or misfeasance, active wrongdoing or wilful and deliberate act. If the effect of the provision is to be restricted, it is not because of ambiguity. The question here is whether the provision does immunize the landlord from liability to his tenants for negligence and the maintenance of a nuisance.
Generally, the law does not favor a contract exempting a person from liability for his own negligence, as it induces a want of care. Although in disfavor, a promise not to sue for future damage caused by simple negligence may be valid; but an attempted exemption from liability for future intentional tort or wilful act or gross negligence is generally declared to be void. 6 Williston on Contracts (rev. ed.), sec. 1751(b), page 4964; 6 Corbin on Contracts, sec. 1472, page 872; 12 Am.Jur., Contracts, sec. 183, page 683; 17 C.J.S., Contracts, § 262, page 644.
The use of exculpatory clauses in commercial and business transactions as a device for release from liability is widespread, and the validity of a particular contract depends upon many factors. Where the public interest is involved, stipulations purporting to relieve from liability for negligence are usually held to be invalid. Thus, a common carrier may not exempt itself from liability to a passenger for hire, but may as to a non-paying rider. Kinney v. Central Railroad Co., 32 N.J.L. 407 (Sup.Ct.1866), affirmed 34 N.J.L. 513 (E. & A.1869); Sheridan v. New Jersey & N.Y.R. Co., 104 N.J.L. 622, 141 A. 811 (E. & A.1928).
It is clear that private parties to a transaction lacking public interest are bound by their agreements relieving against liability for negligence. Globe Home Improvement Co. v. Perth Amboy, etc., Inc., 116 N.J.L. 168, 182 A. 641, 642, 102 A.L.R. 1068 (E. & A.1936), was a suit against a credit bureau for negligently omitting a mortgage from its report. The defendant asserted an agreement releasing it from liability. In upholding the contract, Judge WolfsKeil said:
In these times, an exculpation clause in a credit information contract is not to be compared with an exculpatory clause in a lease for an apartment in an apartment building. The duties and rights of parties to a contract, as in the Globe case, are created by and arise solely from the contract. The State has no interest in it. On the other hand, the State, because of its interest in the welfare of its citizens, regulates and supervises apartment buildings through the Board of Tenement House Supervision, N.J.S.A. 55:9 et seq. Additionally, the landlord is under a common law duty for the maintenance of the premises under his control. Hussey v. Long Dock Railroad Co., 100 N.J.L. 380, 126 A. 314 (E. & A.1924). Hence, the principle stated in the Globe case has no application to the facts in the instant case.
The first reported case in this State involving an exculpatory clause in an apartment house lease is the recent case of Wade v. Park View, Inc., 25 N.J.Super. 433, 96 A.2d 450 (Cty.Ct.1953), affirmed sub nom. Wade v. Six Park View Corp., 27 N.J.Super. 469, 99 A.2d 589, 590 (App.Div.1953). There, suit was brought by a tenant to recover for injuries sustained from a fall upon snow and ice on the sidewalk which constituted the common approach to the apartment building, and the cause of action was based on the landlord's failure to remove the snow and ice. The trial court sustained the validity of the clause relying on the Globe case, supra, and held there was no distinction between the exculpatory clause in the Globe case and one in an apartment building lease. Upon appeal, the Appellate Division, in a Per curiam opinion, affirmed for the reasons stated in the opinion below, but then seemed to qualify the effect of this by stating:
'This is a case of nonfeasance, not as plaintiff contends upon the appeal, one of affirmative negligence on the part of the landlord. * * * the public has not sufficient concern in such a clause to declare it invalid.'
The court cited Kirshenbaum v. General Outdoor Adv. Co., 258 N.Y. 489, 180 N.E. 245, 84 A.L.R. 645 (Ct.App.1932). However, it may not have been brought to the attention of the court that the Kirshenbaum case was expressly overruled by legislative enactment, Real Property Law, McKinney's Consol.Laws, c. 50, sec. 234, N.Y.Laws 1937 c. 907, providing that any clause in a lease whereby a landlord attempts to exonerate himself from liability to a tenant because of the landlord's negligence is void and against public policy, and wholly unenforceable. We must, therefore, reexamine the question of the validity of exculpatory clauses in apartment house leases. Indeed, a comprehensive article, entitled Exculpatory Clauses in Leases reported in 15 Ga.Bar J. 389 (1953), states at page 402:
'A large majority of the courts continue to approach the subject De novo each time a case involving an exculpatory clause becomes a subject of litigation.'
Generally, the clause is strictly construed against the lessor. Sun Copper & Wire Co. v. White Lamps, Inc., 12 N.J.Super. 87, 79 A.2d 93 (Law.Div.1951); Zimmerman, Inc. v. Daggett & Ramsdell, Inc., 34 N.J.Super. 81, 111 A.2d 448 (Super.Ct., Essex Co. 1954). The subject is extensively discussed in an excellent Note in 175 A.L.R. 8; 42 Yale L.J. 139, Exculpatory Clause in Lease Exempting Landlord from Liability for Negligence (1932--3); 15 Temple U.Quart. 427, Exculpatory Clauses and Landlord's Liability for Negligence (1940--1); 15 U. of Pitt.L.Rev. 493, Exculpatory Clauses in Leases of Realty in Pennsylvania (1954); 6 Williston on Contracts (rev.ed.), sec. 1951(c), page 4968. From a study of these various sources and of decisions in various jurisdictions, we find that there is a sharp division of opinion on the secific subject. Some jurisdictions adhere strictly to the freedom of contract...
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