For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For reversal -- Justice Hall. The opinion of the Court was delivered by Schettino, J. Hall, J. (dissenting).
In this negligence action, instituted by the tenants against the landlord for damage to personalty caused by leakage from a steam pipe, the trial court granted summary judgment in favor of the landlord. On appeal, in an unreported per curiam opinion, the Appellate Division affirmed. We granted certification. 57 N.J. 290 (1970).
In granting the landlord's motion for summary judgment despite the specific allegations of negligence set forth in the complaint, the trial court found that the following exculpatory language included in the commercial lease immunized the landlord from liability for negligence.
It is expressly agreed and understood by and between the parties to this agreement, that the Landlord shall not be liable for any damage or injury to person or property caused by or resulting from steam, electricity, gas, water, rain, ice or snow, or any leak or flow from or into any part of said building, or from any damage or injury resulting or arising from any other cause or happening whatsoever. (Emphasis added.)
In the context of a commercial lease, an exculpatory clause should not be construed to exculpate a landlord for his negligence unless the clause expressly so states, Bauer v. 141-149 Cedar Lane Holding Co., 42 N.J. Super. 110, 118 (App. Div. 1956), aff'd on other grounds, 24 N.J. 139 (1957); Freddi-Gail v. Royal Holding Corp., 34 N.J. Super. 142, 143-144 (App. Div. 1955) (and cases cited therein), or the intent to do so is evident from the arrangement of the parties, Mayfair Fabrics v. Henley, 48 N.J. 483, 489 (1967).
In Freddi-Gail v. Royal Holding Corp., supra, 34 N.J. Super. at 143-144, where the commercial lessee sued its lessor for water damage allegedly caused by the lessor's negligence, the court, in finding the exculpatory clause raised by the lessor as a bar to recovery by the lessee to be unavailing, said:
According to the weight of authority at the common law, an exculpatory clause exempting a landlord from liability for damage by water or some other cause, without clearly adverting to the matter of negligence on the landlord's part, does not absolve him from his own negligence, at least from negligence of an affirmative sort. It is said that the minds of both parties probably never intended such absolution. The strict construction thus given to the clause is in part to be laid to the disfavor with which these authorities look upon any possible attempt by a landlord to secure exoneration from his own wrongdoing.
The opinion assembles a wealth of authority in support of its text. See also, Bauer v. 141-149 Cedar Lane Holding Co., supra, 42 N.J. Super. at 118.
We agree with that view. The exculpatory clause in the instant case does not clearly advert to the landlord's negligence. We hold that it does not plainly indicate that the parties did intend to immunize the landlord from liability for its own negligence; and there being no indication elsewhere in the instant lease of any such understanding, Mayfair Fabrics v. Henley, supra, 48 N.J. at 485-489, it cannot be said the parties intended to exonerate the landlord from such liability.
Accordingly, we conclude that the courts below erred in holding as a matter of law that this provision was a complete defense to the allegations of negligence made in the complaint. The judgment is reversed, and the cause is remanded for a trial on the merits of the issues raised in the pleadings.
HALL, J. (dissenting). This court is here called upon for the first time to decide the meaning to be attributed to a broad and bald exculpatory clause common in ...