Wade v. Park View, Inc.

• Decision Date: 17 March 1953
• Docket Number: No. 35514,35514
• Citation: 96 A.2d 450,25 N.J.Super. 433
• Parties: WADE v. PARK VIEW, Inc. Law Division, New Jersey
• Court: New Jersey County Court

Page 433

25 N.J.Super. 433

96 A.2d 450

WADE v. PARK VIEW, Inc.

No. 35514.

Camden County Court

Law Division, New Jersey.

March 17, 1953.

Joseph P. Lodge, Camden, for plaintiff.

Samuel P. Orlando, Camden, for defendant (Orlando, Devine & Tomlin, Camden, attorneys).

PALESE, J.C.C.

This matter is before the court on a motion made by the defendant for a summary judgment pursuant to Rule 3:56--1 of the Rules of Civil Practice, and on plaintiff's motion to strike the fifth defense in the answer.

Plaintiff's complaint alleges that the plaintiff as a tenant in apartment 402, in the Ambassador Building, one of the buildings constituting what is known as Park View Apartments, in Collingswood, on December 16, 1951, sustained a fall on snow or ice upon the sidewalk which was a common approach to the building. She alleges negligence on the part of the defendant in its failure to remove the ice and snow, in its failure to exercise reasonable and ordinary care and diligence in that the defendant should have known the existence of the snow and should have removed it from the common approach; that as a result of the fall she sustained serious injuries. To recover damages for such injuries this action was instituted.

The lease between the parties was in writing and dated October 1, 1950. The defendant admits plaintiff's tenancy, but denies the other allegations of the complaint. The defendant asserts as a fifth separate defense the provisions of paragraph 10 of the lease, admittedly signed and executed by the plaintiff, which provides as follows '10. Lessee also agreed to be responsible for and to relieve and hereby relieves lessor from any liability by reason of any damage or injury to any property or to lessee or lessee's guests, servants or employees which may arise from or be due to the use, misuse or abuse of all or any of the elevator hatches, openings, stairways, hallways of any kind whatsoever which may exist or hereafter be erected or constructed on the premises or the sidewalks surrounding the building of which the demised premises is a part or from any kind of damage or injury which may arise from defective construction, failure of water supply, light, power, electric wiring, plumbing or machinery, wind, lightening, storm or any other cause whatsoever on the said premises or the building of which the demised premises is a part, whether such damage, injury, use, misuse or abuse be caused by or result from the negligence of Lessor, its servants or agents or any other person or persons whatsoever.'

The motion for the summary judgment is based upon the argument that this exculpatory release clause is effective and binding upon the plaintiff, if it is, then the motion should be granted.

Plaintiff urges: (1) that the complaint constitutes and avers a valid cause of action; (2) that a clause in a lease of an apartment in a multiple dwelling apartment house, exempting a landlord from all liability for negligence, is contrary to public policy and is null and void, and (3) that even if the release clause is valid, the insertion of that clause in the lease constituted fraud.

By written stipulation the parties agreed that the motion of the defendant for a summary judgment, and the motion of the plaintiff, be submitted to the court for determination on briefs or memoranda, and further that the question of fraud be considered by the court on the depositions of the plaintiff and the law applicable thereto.

It is to be noted that no question was raised nor was it argued that the complaint did not constitute or aver a valid cause of action.

Defendant argues that paragraph 10 of the lease releases defendant from any liability by reason of damage or injury to its lessee which might arise from or be due to the use, misuse or abuse of the premises or sidewalks surrounding them.

The intention of the contracting parties with regard to paragraph 10 of the lease is clear. The words used are unambiguous. Plaintiff's covenant for the release for damages arising from negligence on the part of her landlord was a part of the consideration for the lease itself. It was a writing under seal. Does this writing operate as an exculpatory clause in the lease, and as a release in discharge of any negligence of the landlord?

Our courts have given consideration to contracts containing exculpatory clauses as to negligence. The leading case in this State upon the subject of exculpatory contracts is Globe Home Improvement Co. v. Perth Amboy Chamber of Commerce Credit Rating Bureau, Inc., 116 N.J.L. 168, 182 A. 641, 642, 102 A.L.R. 1068 (E. & A. 1936) wherein the court upheld the validity of these contracts and reiterated the rule that such contracts are valid except in the case of the failure to perform a public duty as in the case of common carriers. Judge Wolfskeil speaking for the court said:

'The plaintiff had a right to make an unlimited contract without restriction if the defendant was willing to furnish the information with the sole liability therein provided that would attach thereto, in which case it is to be assumed that it would have paid a premium consistent with that obligation; or it had a right as it did to make a contract presumably for a much smaller sum in which good faith alone in the performance of the contract would be implied. If parties who make ordinary contracts cannot agree to limit the extent of liability, it is difficult to see where such a ruling would lead us. Contracts against liability for negligence we think are universally held valid except in those cases where a public interest is involved, as in the case of carriers, and in such case the action is not on the contract or its breach, but on the failure to perform a public duty. See Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923 (E. & A. 1908).

As early as 1868, our courts recognized the validity of exculpatory contracts. In Kinney v. Central R.R. Co. of N.J., 32 N.J.L. 407 (Sup.Ct. 1868), affirmed 34 N.J.L. 513 (E. & A. 1869), the court held that a contract between an employee who received a free pass and the common carrier exculpating the latter from liability for the negligence of its agents was a valid defense to an action for injuries. The court held that common carriers cannot exempt themselves from liability to fare paying passengers but distinguished this case on the status of the injured person and likened it to ordinary exculpatory contracts. See also Trenton Pass. R. Co. v. Guarantors' Liability Indemnity Co., 60 N.J.L. 246, 37 A. 609, 44 L.R.A. 213 (Sup.Ct. 1897); Morris v. West Jersey & S.R. Co., 87 N.J.L. 579, 94 A. 593 (E. & A. 1915).

This view is approved by the Restatement of Contracts, sec. 402, comment (b); see also 32 Am.Jur. 614; and generally supported by the great majority of other jurisdictions. See Manius v. Housing Authority of Pittsburgh, 350 Pa. 152, 39 A.2d 614 (Sup.Ct. 1944), where a similar clause operated as an exculpatory clause. See also 175 A.L.R. 83, where the following appears:

'Lessors frequently insist upon insertions into the lease contract of an exculpatory clause, specifically or generally providing that the lessor shall not be liable for damages or injuries to the lessee from all or certain causes, and such clause has been...