Exculpatory Clause May be Valid for Tenant's use of Amenities
Ron Stormoen
Lewis Operating Corp. v. Superior Court (Cal.App. 4 Dist. 2011) 2011 WL 5429554, 1
In this case, the court was asked to determine whether a landlord who rents an apartment for residential use may enforce against the tenant an agreement to waive liability for the landlord's negligence. In general, the answer is clearly “no.” However, where the waiver in question relates to the landlord's operation of a tenant-only health club or exercise facility (that is, use of amenities rather than non-core functions of the property) the waiver may be enforceable and may bar the tenant’s suit against the landlord.
In Lewis, the action was one for personal injuries suffered by the tenant while using a treadmill at a health club or exercise facility operated by the landlord. The facility was offered as an “amenity” related to the tenancy. A person identified as an agent or employee of the landlord rolled a ball into, or under, the treadmill, causing the treadmill to flip upward and throw the tenant off the machine.
A provision in the rental agreement purported to govern the “Use of Health and Recreation Facilities.” By executing the agreement, the tenant agreed that he “assumes all risk of harm resulting from the use of said facilities ... and waives all Claims against the Landlord Group arising from or relating to the use of said facilities or the participation in such activities and programs by RESIDENT and his or her guests, even if caused by the Landlord Group's negligence or gross negligence. The use of said facilities shall be at the sole risk of RESIDENT and his or her guests.”
The court of appeal noted the general rule regarding landlord exculpatory clauses: Civil Code section 1953, subdivision (a)(5), provides that “(a) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] ... [¶] (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.”
While Civil Code section 1953 is essentially a codification of California common law, and its application in general to residential leases, the court said “[t]he issue here is whether public policy prohibits exculpatory clauses in a residential lease that pertain to what might be called noncore functions of the property.”
In other words, a landlord may be held liable in tort under usual rules of duty and negligence even if the dangerous condition does not exist in the tenant's dwelling and does not affect the statutorily required elements of habitability or tenantability. That is, a landlord may not lawfully require the tenant to sign an exculpatory clause relating to injuries that might occur as a result of the tenant's use of the basic or essential common areas—i.e., a parking area, lawns, walkways or corridors. “However,” making a distinction between essential and non-essential functions of rented property, the court held, “we do conclude that a landlord's duty to maintain amenities does not necessarily trigger the application of Civil Code section 1953. Therefore, the exculpatory clause was valid, meaning the landlord was not liable to the tenant for injuries in the health club facilities used by the tenant and maintained by the landlord or its agents.
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Practice Point: A landlord exculpatory clause for other than essential functions of the tenancy may be valid and should be considered for inclusion in the rental agreement.
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