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W.F. Zimmerman Inc. v. Daggett & Ramsdell Inc.

Decided: January 17, 1955.

W.F. ZIMMERMAN, INC., PLAINTIFF,
v.
DAGGETT & RAMSDELL, INC., DEFENDANT



Foley, J.c.c. (temporarily assigned).

Foley

This is a motion by the defendant for summary judgment.

The complaint, as amplified by the pretrial order, sets forth the following described claim for relief. Plaintiff, a cosmetic manufacturer and a sub-lessee of the defendant, in a building occupied in part by both parties, suffered damage to the contents of its premises by reason of an explosion in parts of the building occupied by the defendant, which, it is charged, resulted from the negligence of the defendant, also a cosmetic manufacturer, in the care of tanks of volatile fluid. Specifically it is alleged that an employee of the defendant negligently lighted a match in close proximity to one of these tanks and thereby caused the explosion and an ensuing fire.

The motion presents the single question of whether or not the leasehold agreement of the parties granted the defendant immunity from the asserted liability.

It appears that on January 21, 1952 the defendant leased in writing from the G.L. Industries two entire buildings and the third and fourth floors of two others. This instrument provided, among other things:

"7. The Landlord shall not be responsible or liable for any loss, damage, harm or injury to person or property on account of any condition or defect in the structure of the demised premises, and the Tenant agrees to hold the Landlord harmless from any such liability.

"11. The Landlord (Industries) shall not be liable to the Tenant for any loss or damage to the personal property or business of the Tenant by theft, explosion, water, fire, rain, windstorm * * *."

On the same day the defendant sub-let a portion of the premises to plaintiff by an agreement which in part provided:

"5. All of the terms, provisions, covenants and conditions contained in said lease between G.L. Industries, as landlord, and Daggett and Ramsdell, Inc., as tenant, dated January 31, 1952, a copy of which is hereby annexed, marked 'Exhibit B' and made a part hereof, are hereby made a part of this agreement (except as herein otherwise expressly provided), and such rights and obligations as are contained in said 'Exhibit B,' are during the term of this sub-letting, hereby imposed upon the respective parties hereto, the Landlord herein being substituted for the Landlord in said agreement, and the Tenant herein (sic) in said agreement; provided, however, that the Landlord herein shall not be liable for any defaults of its Landlord, G.L. Industries."

That contracts of this kind are not invalid as being contrary to public policy is beyond dispute. In this state Judge Wolfskeil, speaking for the Court of Errors and Appeals, in Globe Home Improvement Co. v. Perth Amboy Chamber of Commerce, etc. , 116 N.J.L. 168 (1936), said:

"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."

This holding was reiterated in Wade v. Park View, Inc. , 25 N.J. Super. 433 (Cty. Ct. 1953), affirmed 27 N.J. Super. 469 (App. Div. 1953), citing Williston on Contracts (rev. ed.), sec. 1751 C; 6 Corbin on Contracts (1951), sec. 1472. See ...


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