*1 we area that statement, respect “Somewhere discussed.” try
We are that did unethically convinced respondent obtain that he could representation improperly money mis- influence administration justice. Respondent’s of is, course, committee, finding conduct of serious. The while 29, of violation Canon said it respondent thought of guilty “way behavior could be his respondent’s explained by record version repels and mannerisms.” The speaking al- adds that has matter. The Committee respondent Bar been high held members ways respect his 40 Committee’s years practice. accept the during also Commit- in that and we appraisal regard, accept has respondent substantially tee’s statement that contributed activities. all the cir- to bar association civic Under is our cumstances, respondent suspended law from the for two and until further years practice order of this Court. ordered. Weintratjb two years For Justice suspension —Chief Proctor, Jacobs, Erancis, Hail
and Justices and Sohet- tino —6.
Opposed—None. CARBONE, AL., PLAINTIFFS-APPELLANTS, ET DAN CORP., REALTY CORTLANDT DEFENDANT-RESPOND- ENT, HEATING, AND ORDOWER PLUMBING & THIRD- PARTY DEFENDANT.
Argued February 8, May 24, 1971 Decided 1971. *2 Mr. C. Chashin for Harry argued the cause appellants Gelzer, Chashin, Iaria and Mr. of coun (Messrs. attorneys; sel and on the brief).
Mr. Aaron Dines the cause for argued respondent (Messrs. Lustbader, Dines, & Lustbader Mr. attorneys; brief). by of the Court was delivered action, In instituted this negligence
Schettino, for caused personalty tenants the landlord sum- granted from steam the trial court pipe, leakage landlord. On in an favor mary judgment appeal, curiam Division af- per opinion, unreported 57 N. J. 290 certification. granted firmed. for
In the landlord’s motion summary judgment granting set forth specific allegations despite trial court found that ex- following complaint, included in the commercial lease im- culpatory language the landlord from negligence. munized expressly agreed It understood between the agreement, the Landlord shall not be liable person Tiy resulting injury *3 water, rain, steam, gas, snow, electricity, any or ice or or leak flow building, any damage any part of said or from or from or into injury resulting arising any happening from other cause or what- added.) (Emphasis soever. We disagree. lease, a commercial an
In the context of exculpatory not be construed to landlord for exculpate clause should Bauer v. 141-149 states, clause his unless the expressly negligence Co., 110, Lane 42 N. J. 118 Holding Super. Cedar J. other 24 N. 139 grounds, Div. 1956), (App. aff’d N. J. Royal 34 Holding Corp., Freddi-Gail v. (1957); 143-144 Div. cases cited 142, (App. 1955) (and Super. from intent to do so is evident the arrange the therein), Fabrics 48 J. Henley, v. N. parties, ment of the 489 483, supra, v. 34 N. J. Royal Holding Corp.,
In Freddi-Gail the 143-144, where commercial lessee sued its at Super. the allegedly by water lessor’s negli lessor court, in clause finding exculpatory raised gence, bar to lessee be unavail recovery by ás lessor ® said: ing,
369 According weight authority law, to the of the common an exculpatory exempting liability clause a landlord from cause, clearly adverting water some other without to the matter negligence part, of on the landlord’s does not absolve him from his an own at least of affirmative sort. parties probably said that the minds of both never intended such given absolution. strict construction The thus to the clause is in part upon to be laid to the disfavor with which these authorities look possible attempt a landlord to secure exoneration from his wrongdoing. own of in The assembles wealth authority support also, Co., Bauer v. its text. See dar Lane Holding 141-149 Ce N. J. at 118. supra,
We with that agree view. The clause in instant case does advert to the landlord’s negli hold that does not gence. plainly indicate that the par ties did intend to immunize the landlord from for its own and there no negligence; being indication elsewhere the instant such understanding, Mayfair Henley, 485-489, Fabrics N. J. at supra, it cannot be said the intended to exonerate the landlord from such liability. we conclude
Accordingly, courts below erred in as law holding matter this was a com- provision plete allegations defense to the negligence made reversed, complaint. and the cause is re- for a manded trial on the merits the issues raised in the pleadings.
Hall, (dissenting). This court is here called upon for time to decide the first to be meaning attributed to a *4 broad and bald common exculpatory clause in commercial- industrial leases. The clause reads: expressly agreed parties It is and understood and between the agreement, any that the Landlord shall not liable for be injury person resulting or to or or from steam, electricity, gas, water, rain, snow, any or ice or leak or flow any part building, any damage from jury resulting into of said or from or in- any happening (Em- from other cause or whatsoever. phasis supplied). a a floor of loft build- one
The context is that Although a bargain. obviously fully negotiated It was ing. and used, numerous changes a form basically was printed and de- explored a transaction thoroughly additions indicate with an adhesion contract imposed cided no element of upon, knowledge tenant either lacking business upon partnership re- the to Other power. provisions place duty bargaining and the tenant “interior” the pair premises upon in- any it to speedily specifically require repair cost thereto, expense. at its own and including glass, jury concerning has no express provision While the instrument termination of indemnification, it does insurance or permit fire if is to satisfactory the lease the landlord unable obtain Taken as improvements. and building insurance face indi- whole, the terms of the on their bargain entirely is to vis-a-vis responsible, that the tenant cate and for its own and chattels the interior landlord, goods it demised and that is premises obligation upon protect to such insurance as chooses to its prop- procure erty. record barren of evidence of other intent of
The is certainly clause is not adverse parties. interest, to the to the extent of to public except attempting avoid the landlord’s its willful or intentional have recently acts. We said such clauses in private in effect for distribution of and agreements, providing risks to and in connection with other agreed terms of the 'along lease, will be sustained. Fabrics v. Henley, generally 48 N. J. 483 inconceivable to me that business- of this tenant un- position men would realize and the full and broad import clause, derstand this exculpatory any damage resulting own including landlord’s the tenant must itself protect by ap- parties To ascribe to the in- means. different propriate in the fly face of common contemplation tent sense and to words make meaning and the different con- plain after Indeed, for the the event. non- tract exclude
371 for the landlord’s when the liability landlord’s negligence, willful or intentional acts also con- are excluded because clause, the full derstand and broad this import exculpatory completely since it to conceive of nugatory, is difficult within liability landlord which would not fall one of these two categories.
What the to hold is to appears majority said, law, business must be a matter of to intend as to exclude exculpation of landlord’s no mat ter how broad used, unless language they expressly so indicate deal with the specifically respective obligations to procure This, insurance. to the rationale me, contrary to Fabrics, in which the clause ab solved the lessor of liability “for loss or damage fire, explosion tenant’s otherwise” and made no mention that this broad language included re from the sulting (as landlord’s negligence was claimed to be the fire there). cause loss This court rejected the con tention that the clause should be deemed inapplicable be cause did not refer to specifically grounded actions in and, “there are no negligence, saying required words art whatever used language or the rule of construction the true is still applied, goal the ascertainment and effectu (48 ation of the intent of the N. J. parties.” 489). While stress was there the fact that laid the same sentence the lease also landlord provided would insure the all and the tenant its building equipment personal prop I only fire), loss fail to how erty (but see such an indicates intent provision exculpate the lessor from from all its perils than the inclusive plain, more used in language has lease at bar. Division very recently — — convinced, I am correctly held considering which made no clause mention either of broad insurance or Co. negligence. the landlord’s Novelty Alad Swisscraft 113 N. Corp., (App. Div. Realty 1971). Judge said: Lewis there *6 agreed question to insure The central not whether is rather, against they but, severally inter sese loss risks assumed they party knew, or allocated the risks that each
whether contingent liability known, and was should the existence of its have protect against placed position in a itself such thus where it could adequate coverage (113 Super. J. N. loss insurance otherwise. 422). specific danger signals We should not advance require in all business leases because this tenant simply be hoisted did its insurance steam protect water damage. affirm the Division. Appellate
I would judgment For reversal and remandment —Chief Justice Weintraub Francis, and Sohettino —5. Jacobs, and Justices Proctor For reversal —Justice Hall — 1. JERSEY, BY THE COMMISSIONER OF NEW
STATE TRANSPORTATION, PLAINTIFF-RESPONDENT, OF AL., PROBASCO, ET DEFENDANTS-APPEL- ETHEL W. LANTS. May 24, May Argued 10, 1971 Decided 1971. Jr., Heuser, the cause for the argued ap- Ralph
Mr. S. Heuser, & Heuser attorneys). (Messrs. pellants Biederman, General, A. Deputy Attorney David Mr. George for the F. respondent (Mr. Kugler, cause argued Jr., New attorney). Attorney Jersey, General affirmed the reasons
Per Curiam. Division, majority expressed 546 (1970). N.