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, lightning, 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 ...