Keystone Specialty Services v. Ebaugh – Pa. Superior Court – non-precedential memorandum decision** – 11-22-21
https://www.pacourts.us/assets/opinions/Superior/out/J-S27045-21o%20-%20104963094152340299.pdf?cb=1
Held: Commercial tenant could not recover for property damage allegedly caused by landlord’s negligence where lease contained exculpatory clause relieving landlord of such liability.
Tenant signed a lease that contained exculpatory clauses that specifically provided, in the same size print as all the other lease terms, that “Landlord shall not be liable for loss of, or damage to, [Tenant’s] stored items” and that “Landlord shall not be liable to Tenant ... for ... any loss, damage or destruction of Tenant’s personal property.” . . . .It was also undisputed that Plaintiff’s claims in this action were for damage to personal property that it stored on the Premises.
Exculpatory clauses in contracts are valid where they do not contravene public policy, are between persons relating entirely to their own private affairs and each party is a free bargaining agent to the agreement. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010); Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993); Kibler, 184 A.3d at 981.
Exculpatory clauses that satisfy these requirements are enforceable and bar negligence claims where the language of the exculpatory clause states that it applies to all claims for injury or damage or to any claim for injury or damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 890-91; Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. 1978) (en banc), aff’d without opinion, 416 A.2d 1010 (Pa. 1980).
Exculpatory clauses in a commercial lease that provide that the landlord is not liable for any damage to the tenant’s personal property on the leased premises are valid and enforceable and bar contract and negligence claims for such property damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Cannon v. Bresch, 160 A. 595, 596-97 (Pa. 1932).
The exculpatory language in the Lease is essentially indistinguishable from the exculpatory clauses in Topp Copy Products and Cannon and was therefore valid and sufficient to bar Plaintiff’s claims for damage to its personal property. The Lease twice expressly stated that Landlord would not be liable for damage to Plaintiff’s personal property and stated that this applied to “any loss, damage or destruction of Tenant’s personal property.” Lease at 1; Lease Addendum at 2 (emphasis added). The word “any” is equally all- encompassing as the word “all” in the leases at issue in Topp Copy Products and Cannon. Zimmer, 385 A.2d at 440; Merriam-Webster’s Collegiate Dictionary 56 (11th Ed. 2003) (defining “any” as including “every” and “all”). Moreover, the Lease further made clear that Plaintiff cannot obtain compensation from Landlord for damage to its personal property by expressly providing that Plaintiff must obtain insurance to protect itself from loss from “theft, damage and/or destruction, from any cause or reason.” Lease Addendum at 2 (emphasis added).
Tenant/plaintiff argues that because the Lease did not use the word “negligence” in its exculpatory clauses, the exculpatory clauses are insufficient to bar claims for damage to Plaintiff’s property that was caused by Landlord’s negligence. That, however, is not the law. Although an indemnification clause does not cover claims arising out of the indemnitee’s negligence unless it expressly refers to indemnification for the indemnitee’s negligence, Topp Copy Products, 626 A.2d at 100-01; Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 4-5 (Pa. 1991), that rule does not apply to exculpatory clauses that bar recovery from the other party and provide no indemnification for claims of third parties. Chepkevich, 2 A.3d at 1193; Topp Copy Products, 626 A.2d at 100-01; Nissley, 913 A.2d at 890-91.
Pennsylvania courts have consistently held that exculpatory clauses may bar suits based on negligence even where the language of the clause does not specifically mention negligence at all.” Chepkevich, 2 A.3d at 1193. In Topp Copy Products and Nissley, our Supreme Court and this Court held that exculpatory clauses that did not reference negligence barred claims for damages caused by the defendant’s negligence. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 888, 890-91.
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This case is also reported in the PLAN Legal Update, which you can access and search—without a password—here.
**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent. See 210 Pa. Code 65.37(B).
