Milligan v. Chesterfield Village Gp, LLC.
| Decision Date | 12 September 2007 |
| Docket Number | No. 28179.,28179. |
| Citation | 239 S.W.3d 613 |
| Parties | Deanna MILLIGAN, Appellant, v. CHESTERFIELD VILLAGE GP, LLC, d/b/a Chesterfield Village Apartments, LP, and McCormack Baron Ragan Management Services, Inc., Respondents. |
| Court | Missouri Court of Appeals |
David W. Ansley and Steven J. Blair, Springfield, for appellant.
Randy Scheer and Jacob Sappington, Springfield, for respondent.
On July 16, 2007, this court adopted an opinion in this case. On July 18, 2007, this case was transferred to the Missouri Supreme Court pursuant to Rule 83.03. On August 22, 2007, the Missouri Supreme Court retransferred the case to this court. This court's original opinion now is readopted.
We consider in this case whether an exculpatory clause is effective, and if so, who can claim its protection.
Plaintiff was injured when she fell two stories while saving herself and her children from a fire that destroyed their apartment building.1 She sued the apartment's owner (Chesterfield) and management company (McCormack), alleging negligence as to fire and city codes and ordinances, apartment rules and policies, smoke alarm inadequacies, and other matters.
Defendants asserted an affirmative defense of release, and eventually moved for summary judgment, based on the exculpatory clause plaintiff read and initialed when she signed her apartment lease:
27. WAIVER OF LIABILITY
Lessee hereby agrees that Lessor shall not be liable to Lessee, his family, guests, invitees, servants, or others for injury to or death of any person or pet, nor for loss or damage to property (including the property of Lessee) occurring in or about the Leased Premises from any cause whatsoever, even if the cause or damages or injuries are alleged to be the fault or caused by the negligence or carelessness of the Lessor. /s/DM (Lessee(s) initials) (Language taken from Warren vs. Paragon Technologies Group, Inc.)
Plaintiff cross-moved for a partial summary judgment declaring Paragraph 27 unenforceable. The trial court ultimately granted defendant's motion for summary judgment and denied plaintiff's cross-motion.2
Our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A liability limitation's validity is a question of law. Warren v. Paragon Technologies Group, 950 S.W.2d 844, 845 (Mo. banc 1997). This court is not bound by the trial court's contract interpretation. Wallace, Saunders, Austin, Brown & Enochs, Chartered v. Rahm, 963 S.W.2d 419, 422 (Mo.App. 1998).
Public policy disfavors but does not prohibit releases of future negligence. Warren, 950 S.W.2d at 845; Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. banc 1996). Alack, Missouri's lead case, demands that exculpatory language "effectively notify a party that he or she is releasing the other party from claims arising from the other party's own negligence." 923 S.W.2d at 337. Our traditional notions of justice are so fault-based that we require "clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence." Id. Consumer contracts3 must conspicuously employ "negligence," "fault" or equivalent words so that a clear and unmistakable waiver and shifting of risk occurs. Id.
Lease Paragraph 27, titled "WAIVER OF LIABILITY," releases injury claims at or about the apartment "from any cause whatsoever, even if the cause or damages or injuries are alleged to be the fault or caused by the negligence or carelessness of the Lessor." Plaintiff, a high school graduate, read the lease before she signed it. She read and initialed, in particular, Paragraph 27's "WAIVER OF LIABILITY." Absent other evidence — and plaintiff cites none — this demonstrates the parties agreed upon this release. Warren, 950 S.W.2d at 846.
Given these circumstances, Plaintiff's Point I makes a narrow claim. It asserts, as a matter of law, Paragraph 27 is unenforceable because "from any cause whatsoever" does not expressly exclude intentional torts, gross recklessness, or activities involving the public interest. Plaintiff is not claiming the Lessor did not effectively notify her she was releasing it from its own negligence. Alack, 923 S.W.2d at 337. Plaintiff also is not claiming Paragraph 27 does not clearly, unambiguously, unmistakably, and conspicuously release future negligence liability. Id. Plaintiff does not challenge Paragraph 27 about "negligence" — plaintiff's claim in this case — at all. Instead, plaintiff contends Paragraph 27 is ambiguous and invalid because its language arguably is broad enough to include non-releasable liabilities not involved in this case. To illustrate, consider two hypothetical conversations that start similarly but end differently:
First conversation:
Second conversation:
The first conversation represents the trial court's basis for summary judgment. The second illustrates plaintiff's Point I. Plaintiff cites as support passages from Alack and Lewis v. Snow Creek, Inc., 6 S.W.3d 388 (Mo.App.1999). Defendants reply that Paragraph 27 is modeled on a release they say Warren approved. 950 S.W.2d at 845-46.4 We begin by reviewing Alack.
Alack's principal and dissenting opinions focused almost exclusively on enforceability of its future negligence release. See 923 S.W.2d at 334-38; 339-46. The majority's analysis, titled "Release From Future Negligence," was in four sections.
Section 1, citing Missouri cases, reiterated that exculpatory clauses are not prohibited by our public policy, but are disfavored, never implied, and must be clearly and explicitly stated. Clear and explicit language is required to absolve a person from future negligence, and is strictly construed against the party claiming its benefit. Id. at 334 (citations omitted).
Section 2 examined decisions of our sister states, most of which "have enforced exculpatory clauses when they include specific references to the negligence or fault of the drafter." Id. The court cited Minnesota, Maine, North Dakota, and Delaware cases, and considered at greater length Texas and New York opinions, to the effect that exculpatory clauses must expressly mention the drafter's negligence or fault. Id. at 334-35. Section 2 also cited minority-view cases, including those holding that "any" and "all" language alone can be sufficient without specifically mentioning "negligence." Id. at 335-36.
Section 3 returned to Missouri cases. "Historically, Missouri appellate courts have required that a release from one's own future negligence be explicitly stated." Id. at 336. The court cited six examples, but focused on Vergano v. Facility Management of Missouri, Inc., 895 S.W.2d 126 (Mo.App.1995), which upheld an exculpatory clause, and Hornbeck v. All American Indoor Sports, 898 S.W.2d 717 (Mo. App.1995), which did not. Id. at 336-37. Significantly as to plaintiff's Point I, both cases involved "any" and "all" language that plaintiff claims invalidates any exculpatory clause. Thus, we will discuss these cases again, infra.
Section 4 began by summarizing the lessons of sections 1-3:
We are persuaded that the best policy is to follow our previous decisions and those of other states that require clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 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. Our traditional notions of justice are so fault-based that most people might not expect such a relationship to be altered, regardless of the length of an exculpatory clause, unless done so explicitly. General language will not suffice.
Id. at 337. This announced no new law. Nor did these pronouncements, or to our knowledge the cases cited in sections 1-3, suggest plaintiff's Point I argument, let alone elevate it to equal billing with Alack's future negligence analysis.
Alack's mention of ambiguity was in reply to defendant Tanny's claim that its clause was adequate (Id.), basically arguing the minority view that "any" or "all" covers negligence without using that word or its equivalents. "Any" and "all" seem unambiguous and all-encompassing, but not so under the law governing exculpatory clauses. The court perceived a "latent ambiguity" since Tanny's clause, while extensive, did not specifically release Tanny's negligence. Id. The court illustrated its point with other claims (intentional torts, gross...
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