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:
"20. The Landlord shall not be liable for any failure of water supply or electric current, nor for injury or damage to person or property caused by the elements or by other tenants or persons in said building or resulting from falling plaster, or from steam, gas, electricity, water, rain, snow, or dampness which may leak or flow from any part of said building, or from the pipes, appliances or plumbing works of the same, or from any other place, nor for interference with light or other incorporeal hereditaments by anybody other than the Landlord. The Landlord shall not be liable for the presence of bugs, vermin or insects, if any, in the premises, nor shall the Landlord be liable for any latent defect in the building, nor responsible for any package or article left with or entrusted to an employee of the Landlord."
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 willful 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 willful 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 (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 (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:
"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 * * *."
In these times, an exculpation clause in a credit information contract is not to be compared with an exculpatory clause in a lease ...