Milligan v. CHESTERFIELD VILLAGE GP, LLC

MILLIGAN, Appellant, Deanna GP, LLC,

CHESTERFIELD VILLAGE Village Apartments, Chesterfield

d/b/a

LP, Ragan and McCormack Baron Services, Inc.,

Management Respon-

dents.

No. 28179. Appeals,

Missouri Court of District,

Southern

Division One.

Sept. Blair, J. Ansley and Steven

David W. appellant. Springfield, or careless- Sappington, caused Randy Scheer and Jacob (Lessee(s) the Lessor. ness of Springfield, respondent. /s/DM initials) (Language taken from War- SCOTT, Judge. E. DANIEL Technologies Group, Paragon ren vs. Inc.) 16, 2007, adopted an July On this court 18, 2007, July this opinion this case. On sum- partial Plaintiff cross-moved for the Missouri Su- case was transferred to declaring Paragraph 27 mary judgment preme pursuant to Rule On Court 83.03. ultimately The trial court unenforceable. 22, 2007,

August Supreme the Missouri summary motion for granted defendant’s court. Court retransferred case this cross-mo- judgment plaintiffs and denied original opinion now is rea- This court’s tion.2 dopted. We consider this case whether Legal Principles effective, so, clause is and if review is de novo. ITT Our protection. can claim who its Corp. Finance v. Mid— Commercial injured Plaintiff was when she fell two Supply Corp., 854 America Marine saving stories while herself and her chil- 1993). (Mo. banc A liabili S.W.2d destroyed dren from a fire that their ty validity question limitation’s is a of law. apartment building.1 apart- She sued the Paragon Technologies Group, v. Warren (Chesterfield) ment’s manage- owner (Mo. 1997). 844, 845 This banc (McCormack), company alleging ment not bound the trial court’s court is city as to fire and codes and Wallace, interpretation. contract Saun ordinances, apartment policies, rules and ders, Austin, Enochs, Brown & Chartered inadequacies, smoke alarm and other mat- Rahm, (Mo.App. v. ters. 1998). Defendants asserted an de- affirmative release, of eventually fense moved for policy Public disfavors but does summary judgment, exculpa- based on the negligence. future prohibit releases of tory plaintiff read and initialed Warren, 845; Alack v. Vic at signed apartment

when she her lease: Missouri, Inc., Tanny International LIABILITY WAIVER OF case, hereby agrees that lead demands that Lessee Lessor Missouri’s Lessee, notify a language “effectively shall not fami- be hable to his invitees, servants, ly, releasing or she is the other guests, party or others he arising from the other injury any person party to or death of or from claims negligence.” 923 pet, damage proper- party’s nor for loss or own Lessee) justice are ty (including traditional notions of property 337. Our “clear, un require fault-based that we occurring or about the Leased so unmistakable, whatsoever, conspicuous ambiguous, Premises from cause inju- to release a damages even if the cause or order negligence.” future Id. aheged ries are to be the fault or his or her own initially granted plaintiff's motion neighbor perished Her 2. The court 1. A in the blaze. case, subject companion motion. Defendant death of a and denied defendants’ GP, LLC, al., sought and the court reversed reconsideration Village et Kaufold Chesterfield #28178, rulings. WL 232 S.W.3d 699. its conspicuously hypothetical contracts3 must conversations that start simi- Consumer employ “negligence,” equivalent larly differently: “fault” or but end so that a clear and unmistakable words First conversation: shifting waiver and occurs. risk you negligence. P: sue already D: You released from all me Enforceability Paragraph Point 27’s I— claims, my fu- including own Lease titled “WAIV negligence. ture Your release of LIABILITY,” injury ER OF releases clear, my negligence conspicu- was apartment claims at or about the “from ous, you effectively notified whatsoever, any cause even if the cause or you releasing were me from future damages injuries alleged are negligence suing claims. You are fault or caused or care negligence you clearly me for what and con- Plaintiff, high lessness of Lessor.” spicuously released me from. Your graduate, school read the lease before she claims are barred. initialed, signed partic it. She read and Second conversation: ular, LIA Paragraph 27’s “WAIVER OF you negligence. P: I sue BILITY.” Absent other evidence—and already D: You released me from all plaintiff cites none—this demonstrates the claims, including my own fu- Warren, parties agreed upon this release. negligence. ture Your release of 950 S.W.2d at 846. clear, my conspicu- negligence was circumstances, Given these Plaintiffs ous, effectively you and notified that asserts, Point I makes a narrow claim. It you releasing were me from future law, Paragraph as a matter of 27 is unen- negligence suing claims. You are forceable because “from cause whatso- you clearly me for what and con- expressly ever” does not exclude intention- me from. Your spicuously released torts, recklessness, gross al or activities claims are barred. involving interest. Plaintiff is my P: But mention release doesn’t as- claiming effectively the Lessor did not sault. notify releasing her she was it from its you. D: I didn’t assault You’re not Alack, negligence. own 923 S.W.2d at 337. suing me for assault. Assault claiming Paragraph Plaintiff also is not doesn’t matter. clearly, unambiguously, does not unmistak- ably, conspicuously My it neg- and release future P: Yes does. suit is for the ligence liability. negligence clearly Id. Plaintiff does not from which I and But challenge Paragraph “negli- conspicuously you. 27 about released gence” plaintiffs my claim in this case—at release of “all” claims is silent — assault, Instead, can’t be plaintiff Paragraph all. contends about assault released, ambiguous my 27 is and invalid because its so release is automati- cally in- and unenforcea- language arguably enough “ambiguous” is broad me, nor am clude non-releasable liabilities not involved ble. You didn’t assault assault, illustrate, suing you in this case. To consider two but “fault,” mentioning ''negligence,” precise language may effective be- or an 3. Less be equal power sophisti- tween equivalent. businesses Tire & Co. v. Exec. Purcell Rubber Inc., 923 S.W.2d at 338 n. 4. So- cation. Beechcraft, phisticated negotiate businesses that at arm's liability specifically length may limit without expressly negligence makes no difference. A release of mention the drafter’s “any” or “all” claims that is silent or fault. Id. at 334—35. Section also cases, about assault is legally unenforcea- minority-view including cited those ble, against negligence even “any” and “all” holding that clearly it conspicuously claims specifically can alone be sufficient without releases. at mentioning “negligence.” Id. 335—36. The first represents conversation the trial returned to cases. Section 3 Missouri summary judgment. court’s basis for The “Historically, appellate courts Missouri plaintiff’s second illustrates Point I. Plain- required have that a release from one’s tiff support passages cites as from Alack explicitly own future stat Creek, Inc., and Lewis v. Snow ed.” at cited six exam 336. The court (Mo.App.1999). reply Defendants ples, Vergano Facility on focused they 27 is modeled on a release Missouri, Inc., Management say approved. Warren 950 S.W.2d at (Mo.App.1995), upheld an excul begin by 845—46.4 We reviewing Alack. clause, patory and Hombeck v. All Ameri (Mo. Sports, can Indoor 898 S.W.2d 717

Alack App.1995), which did not. Id. 336—37. principal Alack’s dissenting opinions I, Significantly to plaintiffs Point both exclusively focused almost on enforceabili- “any” language cases involved and “all” ty of its future negligence release. See that plaintiff claims invalidates excul 38; 923 S.W.2d at 339-46. The ma- 334— Thus, patory clause. will we discuss these jority’s analysis, titled “Release From Fu- again, cases infra. Negligence,” ture was in four sections. began by summarizing Section 1, citing cases, Section Missouri re lessons of sections 1—3: that exculpatory iterated clauses are not prohibited by public our policy, but are persuaded policy We are that the best disfavored, implied, never and must be to follow our previous decisions and clearly explicitly stated. Clear and clear, those of other states that require explicit language is required to absolve a unmistakable, unambiguous, and con- person from negligence, future and is spicuous language in order to release a strictly against construed party claim party negli- from his or her own future (citations ing its benefit. Id. at 334 omit gence. exculpatory language The must ted). effectively notify party or she he releasing

Section 2 examined the other decisions of our claims states, sister most of arising party’s negli- which “have enforced from the other own exculpatory they spe- justice clauses when gence. include Our traditional notions of cific references to negligence or fault are people so fault-based that most of the drafter.” might expect Id. The court cited not a relationship such to Minnesota, Maine, Dakota, altered, North regardless length and De- of an cases, clause, greater laware and considered at exculpatory unless done so ex- length Texas and opinions, plicitly. New York to General will not suf- the effect that clauses must fice. supreme quote Validity Exculpatory

4. Our court did not Warren’s The Provisions in Resi- opinion. Leases, (Fall 1997), clause in its Warren is dential 62 Mo. L.Rev. Read, Note, subject of Karen A. Public purports to cite the clause. Policy Violations or Permitted Provisions?: “no doubt that a law. Id. This would leave This announced no new Id. at 337. to our an pronouncements, person agreeing exculpa- these Nor did reasonable the cases cited sections knowledge what fu- tory actually understands 1— argument, let suggest plaintiffs Point waiving.” Id. at claims he or she is ture billing with equal elevate it alone nothing in The court mentioned 337—38. analysis. negligence Alack’s future purpose test or its bright-line this court’s plaintiffs Point I. The supports ambiguity was Alack’s mention Tanny’s if clause had several remedy, even Tanny’s that its reply to defendant claim ambiguities, “negli- involved (Id.), basically latent adequate argu clause was in- “any” “all” because Alack minority gence,” presumably view that ing the using Passing without that word claims. negligence only negligence covers volved “Any” and “all” seem equivalents. merely or its ambiguity seems mention of other all-encompassing, but unambiguous illustration, disqualifying not a second exculpato governing not so under the law Otherwise, a draft- I claims. rule as Point “latent perceived The court ry clauses. negli- future compliance er’s with Alack’s clause, Tanny’s while ex ambiguity” since would be for gence pronouncements Tanny’s tensive, release specifically did not ambigu- possible all “latent” naught unless its The court illustrated negligence. the case— although irrelevant ities— (intentional torts, other claims point with The hypothesized and addressed. were interest) that gross negligence,5 care and devoted considerable Alack court enough Tanny’s clause also seemed broad researching, expressing, many pages cover, yet can never exonerate one one pro- supporting its liabilities. Alack did self from such If the court meant to add nouncements. claims, they also demon involve such supporting plain- rule disqualifying second Plain ambiguity. clause’s strated the I, think it would done so tiffs Point we jurors interpret the did not tiff Alack and clearly, unambiguously, more unmistak- did, and “our law on Tanny the clause as ably, conspicuously. and cannot so out important point an such and Horn- Vergano of approval Alack’s our citi step understanding of with the of Both strengthens this conclusion. heck proposed: thus zens.” Id. The court “any” “all” involved and cases to alert all bright-line a test ... certain condemns, claims Alack plaintiff or ‘negligence’ that the future involved “negligence” mentioned gano’s Ver clause The being released. ‘fault’ of Vergano, 895 did not. and Hombeck’s or ‘fault’ or their ‘negligence’ words Hornbeck, 127; at at S.W.2d conspicuously used equivalents must be approved clause was Vergano’s 719—20. and unmistakable waiver so that a clear language. “any” and “all” despite its risk occurs. shifting and of ambi- may troublesome recognize gence,” create more general tort law does not 5. Our court, as shown Reg. guity The Alack instead. degrees negligence. Tendai v. Bd. of 358, certainly Arts, infra, and apparently considered 367 n. 6 Healing for negligence as 2005). ambiguities than (Mo. gains nothing other plaintiff treated banc “The " problems in a case not real ‘gross’ illustrations but by branding negligence because the only negligence. a release ex- involving But have Missouri courts in cases since degree releasing another neg- pressly one but not differing degrees recognize refused to Wilson, not so differen- negligence, if our law does ligence. Sherrill tiate, negligence Thus, ambiguity may an trying create a drafter 6, infra, as to whether releasing, also note by case. See illustration to address this Alack ambiguities at all. ambiguities are gross negli- latent "negligence, some example, but not for failed, say court or indicate it was a release. While Hombeck’s clause not plaintiffs The had to upheld indicated it would have a release of at 394—95. line, it, damage sign standing get all ... to their “any and loss whether while by They pressured felt equipment. caused of the Releasees ski ” chance to along adequate or otherwise.... cit- move without it. Id. at ing Speedway, comprehend Haines v. St. Charles 689 read the form and (E.D.Mo.1988). large-type F.Supp. If Point 395. In contrast correct, title, exculpatory I is Alack invalidate both “Rental Form” should approximately five- Vergano’s clause and the one Hombeck at the bottom was Instead, (Id.), it which we illustrate uphold. point type said would Alack cited Vergano approval reducing accordingly: and Hombeck with the Lewis clause used them illustrate how Missouri han- hereby any legal release from dles clauses. owners, liability the ski area and its employees, well as the

agents and Lewis and Warren manufacturers and distributors of this equipment any liability and all for case, Although principal Alack is the we myself or damage injury or death to Lewis, Warren, briefly will address any person property resulting the parties’ readings overbroad of each. selection, installation, maintenance, unusual, Lewis is somewhat in that the adjustment equipment or use of this court declined to consider whether the ex- any negligence, claim upon based culpatory language release, operated as a warranty, breach of contract or other plead- since the defendant ski resort never theory, myself the full legal accepting ed that defense. 6 S.W.3d at 396. The and all dam- responsibility such court instead considered the clause con- age, injury may or death which result. assumption nection with an of risk defense. circumstances, Under these the Lewis The resort’s ski rental form—in a part court deemed the clause lan- quoted in the opinion apparently men- — guage unambiguous and format neither tioned but not snow ice. Id. at 393. The un- conspicuous, nor and thus insufficient precluded only court ruled this snow-based express assump- der to establish an Alack liability. liability Ice-based would be tion risk of ice defense. Id. at 395. We general barred if the clause’s refer- result, agree fully this is consis- with which “negligence” ence to was sufficient to do tent with Alack. The Lewis clause men- “negligence” so. Id. Since the reference “negligence” arguably and met tioned expressly purported also to release claims bright-line five-point rule. But Alack’s any legal theory, based on other the court readable, clear, type barely let alone ambiguity cited Alack’s latent discussion unmistakable, effective to conspicuous, or ambiguity and said an arose. Id. at 394. they releasing the notify ski renters were The court also measured the The ambi- negligence. resort from its own language by and its format Alack’s bot- unnecessary to the guity discussion was holding tom-line and concluded the resort say a clause holding, and Lewis does not effectively notify plaintiffs] “did not [the negligence re- satisfy can Alack’s future they releasing that were [the resort] yet automatically fail under quirements, arising negligence.” claims from its Com- reasoning. Point I plaintiffs Alack, pare 6 at 394 with broadly, reads Lewis too plaintiff at 337. This was because the While Form,” did do likewise with Warren. large type, “Rental so titled defendants why upheld Judge persuasively argued plains Vergano Robertson a clause that (950 validity that clause’s ultimate S.W.2d arguably ambiguity had a latent about 48), principal opinion claims, but the did but met non-releasable Alack’s 847— go upheld pre- that far. It not negligence rules for future releases. It liminarily, but remanded to allow the explains why Vergano also Alack cited plaintiff plead prove avoidance approval. Notwithstanding any with other under while was decided ambiguities, Vergano’s latent clause effec- appeal. was on Id. at Our Warren 846. tively plaintiff notified the she was releas- arguably approved supreme court War- ing negligence, the defendant’s and thus release, subject only prima facie, ren’s anticipated complied with Alack’s bot- resolving challenges to and without holding.6 tom-line plaintiff sort makes here. Second, even if there were two latent (use “fix” ambiguities, “negli- Alack’s Analysis (to etc.) gence,” and rationale alert all that analysis yields two conclusions rele- Our released) was limited First, Plaintiffs Point vant to L Alack’s negligence ambiguity to the since the case analysis holding culminates its essential only negligence involved claims. So “exculpatory must effective- remedied, the clause would meet Alack’s ly notify releasing party he or she is bottom-line test: Does the clause effective- party arising the other from claims ly notify party releasing one that it is party’s negligence.” the other own party’s negligence? other bright-line 5.W.2d at 337. Alack’s rule is Plaintiff us of a has convinced sec- end, but a means to this as is its call for akin our bright-line ond rule to Point and “clear, unmistakable, unambiguous, hypothetical second conversation above. language in to release a conspicuous order bright-line 27 met Alack’s rule. negli- from his or her own future clearly, unambiguously, Its release unmis- explains This how a clause gence.” Id. takably, conspicuously applied “even if bright-line that met rule could be Alack’s damages injuries the cause or are al- why It explains struck down Lewis. clause, leged to be the caused Warren remanded its which met fault negligence or carelessness of the Lessor” bright-line rule but was never tested ours). effectively It against holding. (emphasis Alack’s essential It ex- notified Indeed, Contracts, Thus, (3d ed.). approval Vergano, § Alack’s and the courts re- supreme prima approval court’s of War- clauses not fuse to enforce such facie Alack, may year ambiguity lend ren's clause one after on the basis of and not as a credence to the Alack dissenters’ contention interpretation or con- matter of contractual majority's ambiguity" struction, that the “latent discus- policy. a matter but as J., (Robertson, sion was: 923 S.W.2d at dis- 345 senting). The believed no latent dissenters ambiguity talking an at all. The not about "by ambiguity created the refusal of the was properly general rule of law that courts will recognize exculpatory substantive law to give exculpatory clauses refuse to effect to purporting party relieve a of liabili- clauses to governing a for intentional torts is not rule ty "That for intentional torts.” Id. at 346. part interpretation and construction. It is scrutiny language under the contractual "[A] of the substantive law of contracts. might Tanny Vic willful not exonerate being given of law which forbids effect rule ambiguity create an where the torts does not meaning part of the sub- [clear] to contractual issue is whether the law contracts which comes into stantive Tanny liability negli- for its play interpretation and shields Vic after construction gent Id. have finished their work.” 4 Williston on acts.”

691 Village Apartments” and “Lessor.” We plaintiff releasing she was the Lessor from has Chester interpretation think the best arising negligence, claims from its and Lessor, acting as as and McCormack field met standard as thus Alack’s bottom-line thus not agent principal for a disclosed and well. Point fails.7 It party itself a to the lease. is fundamen Paragraph Scope Point 27’s a contract on agent signing tal that an II — principal only a disclosed binds behalf of II Paragraph Plaintiffs Point notes that itself, agent ab principal the but not the 27 releases the She claims “Lessor.” explicit sent clear and evidence that the McCormack is neither the “Lessor” nor See, agent e.g., also intended to be bound. lease, beneficiary party third Laundry Management Sys Professional claim protection. thus cannot the clause’s Inc., tems, Technologies, Aquatic Inc. v. We consider McCormack’s three counter- (Mo.App.2003); 204—05 109 S.W.3d arguments out of order. Plumbing, Supply Lyle’s Co. v. Warren L.L.C., (Mo.App.2002); 74 S.W.3d 819 Can McCormack enforce Wallace, Saunders, 422; 963 S.W.2d party? as a Budget Rent A Car St. Louis v. Guar (or McCormack claims it is the Co., anty Nat. Ins. a) Lessor; at least thus West, (Mo.App.1996); 21 Inc. v. Meadow lease; and in turn Paragraph entitled to Trails, Inc., green However, protection. 27’s is am lease (Mo.App.1995); Digest/Tennis, Inc. v. Golf biguous about who the “Lessor” is. Para (Mo. Diode, Inc., 617, 618, graph 1 parties of the lease describes the App.1993). See also Restatement as: Agency (Third) (2005). turn, § 6.01 In Ragan McCormack Baron Management agent individually burdened a con Services, Inc. agent as for Chesterfield generally tract cannot claim individual Village Apartments hereinafter referred thereunder, proof benefits absent con tacting so intended. Id. at Com parties Name) (Property ment d. as “Lessor” whose address is 2310 W. The lease evinces no intent to bind Milligan, Blvd. and Deanna Chesterfield contracting as a benefit McCormack (are) jointly severally respon- who is contrary, party. Paragraph To the ex Lease, sible under this hereinafter re- pressly “agent” identifies McCormack ferred to as “Lessee.” principal for the disclosed Chesterfield. Paragraph premises “jointly ties the leased uses and several also l’s paragraph ly” singular address “Chesterfield with the term “Lessee” to said, Thus, expressed forgone plans. 7. That even Alack’s dissenters his exercise freedom of strong personal policy concerns with outweighed policy ex- contract disfa- culpatory clauses in a contract. health club voring a health club’s clause. J., (Limbaugh, 923 S.W.2d at 339—40 dis- family forgo housing, A cannot low-income (Robertson, J., senting), dissenting at 342 home, yet may buy be unable to have few J.). joined by Covington, yet There are any power bargain options, rental and lack leases, stronger reservations as to residential away more low- onerous lease terms. As especially of low-income adhesion leases income lessors add clauses to housing. unwilling give up Mr. if forms, lessees’ “free- their lease low-income legal rights against Tanny, might his Vic have may increasingly dom of contract” become Y, joined a different health club or the local illusory. bought equipment, simply his own exercise 692 persons, (Mo.App.1996).

accommodate but es- 944—46 In- multiple SW.2d deed, comparable language singular chews for its this court has concluded Aherron’s Paragraph language “abrogates term “Lessor.” 25 does not broad the common law rules mentioned in Max.” at 946. “agents” persons mention to be bound Id. Para- agreement. and benefited plaintiff Did admit out easily

graph exculpatory language 27’s herself against claim McCormack? agents,” could have “and but it included does not. The lease does not plaintiff deny McCormack claims cannot agent indicate the McCormack is individu- Paragraph protects be- McCormack not, If ally obligated. McCormack cannot entering cause she admitted the lease with claim lease benefits unless it is a third- sequi- defendants. consider this a non We party beneficiary, a claim has McCormack fact 1 in tur. Uncontroverted No. defen- beneficiary, not made. To a third-party summary judgment motion dants’ asserted clearly express the contact must intent to plaintiff agreement entered a lease party benefit that or an identifiable class copy defendants and a of the lease with party belongs. to which the Absent ex- 74.04(c)(2) attached. Rule required was intent, press declaration such it deny to “admit or each plaintiff of mov- strongly presumed party that the third statements,” plaintiff ant’s factual ad- beneficiary parties not a and the contract- mitted the facts as No. 1. ed to benefit themselves. Nitro Dis- factual not plaintiffs response Yet does Dunn, tributing, Inc. v. answer, certainly does not bind this court in deciding, legal question wheth- lease, er McCormack is a to the released, by Is McCormack legal interpretation 27’s ? operation lawof scope. by considering illustrate defen- We Next, argues McCormack release of clearly dants’ claim that the lease “is servant, citing master also releases its unambiguously agreement between” (Mo.1961). Spaeth, Max v. McCormack, plaintiff and and “McCor- respondeat This is no master-servant or mack is therefore entitled to the benefit of case, superior as Max was. Id. Max’s Liability the Waiver of clause.” The first servant, given release also to the was plaintiffs half is correct. The lease is Thus, citing the master. Id. McCormack is McCormack, agreement acting with who is dicta, questioned by and dicta our su- agent, it becomes as Chesterfield’s so preme court that. Aherron v. St. John’s plaintiffs agreement with Chesterfield. Center, Mercy Medical The rest of the statement is incorrect. (Mo.1986).8 500—01 courts have Our Signing agent as an neither bound nor vitality, questioned Max’s correctness individually. benefited McCormack 537.060, § especially light of RSMo An one agreement in their an- to release pleaded statute defendants Aherron, person’s liability discharges swers. at 500— tort no other See Center, 01; agreement pro so Manar v. Park Lane Medical tort-feasor unless “operates § 537.060.This (Mo.App.1988); 312—14 vides. RSMo Inc., persons the unintended release of Management, preclude v. S.C. Glidewell reedy in Missouri in cases in- Spaeth ... dicta that 're- states law "Max includes liability.” lease master releases the servant.’ We volving vicarious that dicta cor- need not determine whether Manar, oneself from at er use to exonerate liable in tort.” 753 S.W.2d Aherron, liability. Effec citing 713 S.W.2d at 501. releasing the other tive notice that one “is 6, 2004, while Deanna Milli- On October arising from the other

party from claims on living was a tenant gan (“Appellant”) “clear, negligence” party’s imports own apartment building the second floor of unmistakable, conspicu and unambiguous, LLC, GP, Village by Chesterfield owned just of ous” disclosure not what but who LP Village Apartments, Chesterfield d/b/a (em at released. building the was de- (“Respondent”), added). Otherwise, § phasis 537.060’s injured stroyed by a fire and she was when avoiding of releases is principle unintended trying to save ground she fell to the while already easily noted how violated. We by escaping children herself and her two McCormack,” agents,” could “and “and etc. second-story apartment through her bed- Paragraph have been added Courts out Appellant room was forced window. imply exemptions do not because, days her window the fire two (Alack, 334), especially before, breezeway apart- her the between contracts, one, arguably like this of adhe ment and the exit route became blocked sion. a new with boxes and other materials from These were not moved for tenant. boxes record, II

Point is well taken. On this complete- fire and days the two before the Paragraph preclude plaintiffs 27 does not until the ly ingress egress blocked against claims McCormack. Appellant alleges that time of the fire. packing these boxes and other material not Conclusion route, also escape blocked her judgment We affirm the for Chester- of the they that contributed to cause judgment field. We reverse the breezeway fire. The failure to unblock the McCormack and claims remand those City’s was a violation of the fire code and proceedings opinion. consistent with this The express policy Respondent. negligence are allegations of landlord’s PARRISH, J., Concurs. to maintain a clear that the landlord failed Appel- path ingress egress RAHMEYER, P.J., in Part and Concurs to the apartment, lant’s which contributed Dissents in Part. injuries trying while Appellant incurred RAHMEYER, NANCY STEFFEN burning apartment. flee her Presiding Judge, dissenting part majority opinion exculpa- The finds concurring part. tory ambiguous upon not based clause was

I Su- respectfully majori adopted by dissent from the the “test” the Missouri Paragon Tech- ty’s opinion Paragraph unambig preme 27 is Court Warren (Mo. Inc., uous, majority’s opinion nologies Group, but concur in the 950 S.W.2d 844 1997), held, in Ap order to release Paragraph preclude does banc lan- negligence, In from its own pellant’s against claims McCormack. Creek, Inc., clause must light guage of Lewis v. Snow unmistakable, W.D.1999), “‘clear, unambiguous, (Mo.App. S.W.3d 388 would ” Alack (quoting Id. at 845 apartment conspicuous.’ find 27 of the lease Missouri, general Tanny lan v. International ambiguous to be because its Vic 1996)). Inc., guage would include intentional torts and majority opinion, in the may other causes of action which one nev- As discussed 694 in analyzed liability “any

court Lewis whether an excul- to exonerate future claim” patory clause found in a ski rental form including may claim which one never express assumption established an of risk.1 for, liability it exonerate future makes am- The court found that the exculpatory biguous. Id. at 394. The fact that its “general language” clause Lewis used holding alternative second is that the ex- torts, which would include “intentional culpatory clause is also invalid it because gross negligence any or other cause of conspicuous was not does not render its Lewis, expressly action not listed.” 6 holding meaningless. other question S.W.3d at 394. is no “‘[T]here there are alternative holdings When may that one never exonerate oneself each is authoritative. v. Interstate Woods liability for intentional torts or for Co., 535, 537, Realty 337 U.S. 69 S.Ct. gross negligence, or involving for activities ” 1235, (1949); State, 93 L.Ed. 1524 Holt v. Alack, (quoting interest.’ Id. (Mo.App.St.L.D.1973); 494 S.W.2d 659 337). 923 S.W.2d at The court concluded Ladriere, see also Jones that, Alack, based upon exculpatory “ E.D.2003); 2 (Mo.App. 739 n. Buatte v. ‘purports clause that a party relieve Markets, Inc., Schnuck 574 and all claims but does not actu- E.D.2002); (Mo.App. n. 1 City St. Louis ally do duplicitous, so is indistinct and ” L.L.C., Management, v. Riverside Waste Alack, uncertain.’ (quoting (Mo.App. 806 n. E.D. S.W.3d at “duplicity, S.W.2d When there is 2002). The court in Holt stated: indistinctness, uncertainty in the mean- ing of the words used the contract” an It is well settled that when a court bases ambiguity Rodriguez arises. v. General its decision on two or more distinct America, Acc. Ins. Co. grounds, each is as authoritative as the 1991). Lewis, addi- “[i]n other and neither dictum. obit[e]r tion,” exculpatory found that the clause This rule is the reasonable infer- “conspicuous,” the ski rental form was not ence to be from alternative hold- drawn required by as and therefore was all ings. Unless the alternatives are to Lewis, invalid. 394-95. The authoritative, be considered how is one court then language stated that the of the pick which is the rule of law exculpatory ‘unambiguous’ clause was “not which is dictum? ‘conspicuous,’ and thus [did] meet (internal Holt, 494 at 659 citations the standard of Alack.” Id. at 395. omitted). upon Based these two alternative hold- Alack, I upon Based Lewis and would ings, majority “ambigui- states that the exculpatory find the clause ty unnecessary discussion was to the hold- ambiguous 27 of the lease to be as the ing, say and Lewis does not a clause can the landlord of purports release absolve satisfy negligence require- Alack’s future all actions intended and unintended. We ments, yet automatically fail plain- under principles look to the lease contract fact, tiffs Point I In reasoning.” ambigu- determine whether the contract is exactly holding what Lewis stated. Its first when, An from the general ambiguity is that the in the excul- ous. arises clause, alone, ap- it patory specifically, purports that it four corners of the contract express assumption 1. This different from Lewis because clause established an case is risk; however, analysis validity exculpatory to the here the issue is whether the as operated liability clause remains the same in release of and in Lewis the issue was whether the each circumstance. “ could whatsoever” “any cause of of the terms susceptible ‘the terms are pears listed, but only “negligence,” as that reasonable include not meaning than one so more involving honestly in matters may fairly and differ torts and persons also intentional ” interest, decidedly of the terms.’ Eve their construction which are the (Mo.App. Therefore, land v. Eveland 156 S.W.3d 366 the liabilities. non-releasable E.D.2004) v. St. John’s (quoting Chehval more than susceptible to provisions are Center, 38 Mercy Medical S.W.2d they ambiguous. are meaning one E.D.1997)). Moreover, we look (Mo.App. majority opin- the Through hypothetical, to only language provision to the the exculpatory view that the ion illustrates its ambiguous. determine if it is Little v. ambiguous because cannot be provision Co., Ins. American States negligence only claim is that of Appellant’s S.D.2005) (where (Mo.App. the 439-41 to ambiguity regards no with and there is am provision court found a contract to be majority fails to negligence. What the biguous meaning because its could however, review of accomplish, proper is determined within the boundaries previously As this contract’s construction. contract). Here, provision question the stated, of a contract are re- the terms liability is a waiver of that states: first, the four comers for viewed within LIABILITY 27. WAIVER OF Then, where, here, ambi- ambiguities. hereby agrees that Lessor Lessee the court should look guities present, are Lessee, shall not his fami- be liable a parties the contract to determine outside invitees, servants, ly, guests, or oth- Instead, out- majority begins the intent. injury any to or death of ers[2] Appellant’s negli- with side the contract person pet, damage or nor for loss or gence claim and works backward. (including property the of property fact that clearly This case illustrates the Lessee) occurring in or about the will, course, you you if start at the end any cause Leased Premises identify meaning; clear be able to one whatsoever, if or dam- even the cause however, a review of contract con- proper injuries ages alleged or are to be the beginning is meant to start at the struction by fault or the caused path one and make sure there is carelessness of the Lessor. this contract Interpreting the end result. court, reviewing As a this Court must that the beginning to end reveals determine, solely from the four corners provision subject liability” “waiver of contract, provision this is sus the whether therefore meaning than one and is more meaning, to more than one and is ceptible ambiguous. ambiguous. Seeck v. Geico Gen. therefore (Mo. Co., ambigui- the adopted banc The court Ins. Warren Alack, 2007). determination, dealt ty directly from which making In we test club exculpatory clause in a health meaning would be at with an apply pre- was ordinary per membership. The Alack court tached to those terms or not question of whether understanding. McCor sented with average son of Serv., question specific exculpatory Inc. v. Am. Mgmt. mack Baron Alack, Co., ambiguous. was & Liab. Ins. Guar. court, found that citing plain meaning The The Warren they are not to which grossly scope waiver others” via contract

2. The overbroad of this likelihood, and, is unknown to parties in all apparent attempt to exclude liabili- from its invitees, servants, "family, guests, them. ty to private clauses in contracts dential in fact a public lease involves or a against public are not void as policy, private interest. did not the public policy implica- review Missouri courts have chosen to review applied tions as to a residential lease. validity clauses through Warren, 950 S.W.2d at 845. The affir- a strict review of involved. mance was without discussion of the previously, As mentioned the intention to policy absolutely different concerns release one negligent from his or her acts exist between residential lease and a clearly expressed plain must be terms Instead, health membership. club an anal- “clear, unambiguous, that are unmistak ysis designed exculpatory to test in clauses able, conspicuous.” specif Even more private applied contracts was to a different ically, Supreme the Missouri Court chose of inquiry kind contract with no further “fault,” require to the “negligence,” words public policy clearly into the issues equivalent exculpa or an to be used in the situations, in very exist these two different tory clause. A approach different has although the Warren court did note that come from those recog states which have release of negligence is disfavored nized that the use of exculpatory clauses strictly and should be construed. Id. The necessarily challenges the of principles majority opinion of this Court makes the freedom to contract and common law re inquiry same policy observes obvious quirements person that a be accountable

implications allowing exculpatory of claus- e.g. Stanley for their own acts. See v. bad in present es residential leases. The case (Colo. Co., 705, Creighton 911 P.2d 706 an appropriate policy case to revisit the App.1996). implications allowing of landlords shirk Specifically, approaches in alternative responsibility responsible their to act in a clude considerations of whether the con and non-negligent manner towards ten- interest, tract involves a public ants. whether the contract fairly, was entered into the parties Covenants that relieve of future bargaining power parties, relative of the against are not void se as per the practical necessity of the item con public policy, yet this rule does not apply for, tracted whether transaction the causes fraud, in involving gross negligence, cases party one to be under the control of the unequal bargaining power, or a in public party making him vulnerable to his care City terest. Kansas Stock Yards Co. v. A. lessness, legislative policy whether there is Sons, Reich & 698 it, against significant a and whether num 1952) (overruled part grounds on other ber people of are forced to use the service. Groves, by Gateway Chemical v.Co. 388 generally (considering See whether the (Mo. 1960)) (upholding 87 an S.W.2d subject duty a type matter concerned of exculpatory clause a commercial lease affecting public the interest and the cir accepted where the landlord lower rent in contract, the specific cumstances of the exchange for the tenant’s release of the court held that the clause in a Therefore, any liability). landlord from if grounds residential lease was void on of public, the contract does not involve the public policy); Lloyd Corp. v. Service private parties, public but rather then no (Ala. Alabama, Inc., 738 exists, So.2d public policy interest and no can be 1984) (declined Id.; Warren, by to follow violated. see also Rock Springs Real (Mo. 845) Waid, five-part a ty, (using Inc. v. test Court, issue, public policy Neither this nor the Warren determine the (1) court, however, provided considered whether a resi- included: whether the service (2) leases clauses residential necessity; the contract is leases the idea that residential stems from people are significant number whether however, contracts; (3) essentially private are service; whether forced to use day present ignore it is unrealistic one under places transaction relation- landlord-tenant realities of the makes him vulner control of the other and in a negotiation (4) rarely There is carelessness; ship. wheth able to the other’s bargains lease where private residential parties bargaining power er the agreement occur until (5) and concessions legisla there is a equal; and whether negotiate A tenant does is reached. con policy against tive unconscionable bargain protection for extra Buckner, pay more and tracts); Crawford negligence. See Craw- (Tenn.1992) landlord’s from his six-part (applying “ (noting that ford, 839 S.W.2d at 758 necessary is not that all stating, test ‘[i]t a “take it or is faced with transaction, average tenant present given contract). Commonly, the lease it” leave some of generally a transaction has and will now boilerplate language contains characteristics would be offensive’ these language releasing the (1) contain additional the contract concerns a busi whether (2) to act in a any responsibility landlord public regulation; ness suitable for careful manner. prudent public is of provided whether the service (3) necessity; importance public in an era of the longer no live We the holds himself out to private whether in a rental of rooms occasional anyone this service for seeks In provide who grocery. home or over the comer (4) it, standards; or who meets established the relatively span years of 30 the short party invoking exculpation whether the state public’s use of rental units this bargaining of the power has more because dramatically. past In the expanded has (5) the provided; alone, Washing- nature of service wheth in the state of years 10 er, power, of superior bargaining because ton, has an increase of over there been a party presents public 77,000 the the with stan imagina- units. It takes no rental dardized adhesion contract and makes no a which once tion to see that business allowing public pro the to obtain provision living the hab- impact upon had a minor (6) against negligence; tection wheth into a citizenry developed has its of the person property placed er the or under directly major enterprise commercial seller, subject the control of the to risk of of thou- touching the lives of hundreds seller) by (quoting carelessness the Olson depend upon it for people who sands Molzen, (Tenn.1977)); 429 v. shelter. States, 1017, 456 F.2d

Garretson v. United Thus, merely are not faced with we (9th Cir.1972) (upholding an excul 1020-21 construing pro- duty of the theoretical the rendered patory clause because service specifically in an isolated contract vision was not essential to the welfare one by landlord and bargained [o]ne for Riner, convenience); v. 68 Md. Boucher purely private ]. Con- affair[ tenant as (Md.Ct. 485, 539, App. 514 A.2d realistically, we are asked sidered Spec.App.1986) (upholding clause, gen- construe an are not parachute because lessons an im- may have eralized use of which necessity). practical potential ten- upon thousands pact ants. exist, it is many approaches other While Corp., 79 v. Homes topic to reassess this within McCutcheon United

possible (Wash. 1093, 486 P.2d Missouri law. Wash.2d confines of established Here, allowing for the use of the basis that,

It no imagination takes to see when clothes and that negligence proxi was the lease, signs a tenant he has become mate injury by cause of sustained a tenant vulnerable to the carelessness of the land depression.); when she fell near such Har lord, person literally charged who is Roberts, (Mo. rison protection with the of the roof over a W.D.1990) App. (holding negli landlord By allowing exculpatory tenant’s head. gent dangerous where the and defective responsibili clauses to save landlords from part porch gave condition of one of the rise ty from negligence, put their own we are duty inspect to a porch, rest of the ting Biegel, tenants at risk. See Lewis v. injured and tenant was railing when on (Mo.App. 357-58 W.D. fell). porch gave way and tenant Accord 2006) (where alleges tenant that landlord ing Bureau, to the United States Census negligent repairing an elevator be 2,285,280 occupied housing cause landlord has no mechanical expertise Missouri, 671,063, units the state of and his incomplete repair of the brake are occupied. 29.36% renter This accounts system caused the elevator to fall on two 1,467,592 people living that are in rent separate occasions while tenant was in al potential units and are affected side); Welch, Shannon v. carelessness and of their land W.D.1993) (Mo.App. (affirming 751-53 an lords. damages award of to a mobile home tenant Before this Court relieves landlords of fire, resulting losses which land their long-held obligation to use reasonable by negligent repair

lord caused of a water care, a meaningful review of the various heater); Browning, Kilmer v. policy considerations should be taken. (Mo.App. S.D.1991)(holding 79-80 that Currently, protected landlords are negligent 20-year- landlord was a where liability dangerous to tenants for condi- man poi old died from carbon monoxide existing premises, tions on leased soning with ex- overwhelming and evidence was ceptions, liability for personal injury that the condition which caused the death to collapse persons occurring prop- was the third on leased venting system of the that landlord); erty. was There are at four exceptions under the control of the least Lazarus, general Norwood v. 587- rule: E.D.1982) (Mo.App. (holding that land (1) superior where the landlord had lord was liable for ten where knowledge dangerous of a condition not injured ingested ant’s child was when he by discoverable his tenant and he fails to paint premises); lead-based on landlords’ (2) condition; warn of said where the Co., Stoeppelman Hays-Fendler v. Const. injury in occurs an area over which the (Mo.App.St.L.D.1968) S.W.2d (3) control; landlord retains actual (holding that negligent landlord was where where the landlord is for responsible injured leaving premises tenant was (4) premises repair maintenance and open during and fell into a trench left “public where the landlord leases for a construction, period of warnings, with no premises dangerous use” that are in a barriers, lighting, prior extra notice of condition. Hitt, danger); Taylor v. Sales, Lammert v. Leseo Auto 495-96 (Mo.App.St.L.D.1961) (holding E.D.1996). 846, 849 These four negligent allowing (Mo.App. landlord was exis exceptions pro- can be viewed as the four square depression tence of a 15-inch on; area of basement which landlord knew was tections that tenants can count howev- er, by washing application to be used several tenants for minimum effectively obliterates this protection. KAUFOLD, Appellant, Jason may question is no that one “[T]here oneself from future liabili- never exonerate gross negli- for ty for intentional torts or LLC, GP, CHESTERFIELD VILLAGE public gence, involving or for activities Village Apartments, Chesterfield d/b/a Alack, 923 at 337. interest.” Ragan LP, Baron and McCormack protection interest in the public There is Respon- Services, Inc., Management across the thousands of residential tenants dents. Missouri, protection of the State of and the No. 28178. of landlord-tenant established common law , Moreover, interest in law. there is Appeals Missouri Court in a protecting the freedom to contract District, Southern equal bargaining setting provides Division One. bargain for and powers power and the Sept. personal rights ones and interests. protect need for recognized The state has basic

landlords to act a reasonable manner

creating regulations and ordinances de-

signed safety to maintain a minimum level. Blair, Ansley and Steven J. David W. Here, ordinance, city there was Springfield, Appellant. violated, alleged

landlord was to have Sappington, Randy Scheer and Jacob required the landlord maintain a clear Respondent. Springfield, for ingress egress. The landlord’s failure comply this ordinance would re- with SCOTT, Judge. E. DANIEL quire pay city him to a fine to the 16, 2007, adopted an July this court Ón Yet, major- punishment. as a result of the 18, 2007, July this opinion this case. On ity opinion, city while the will recover for case was transferred to the Missouri Su- misbehavior, injured the landlord’s preme pursuant Court to Rule 83.03. On tenant will be left without recourse. 22, 2007, Supreme August the Missouri Moreover, provision how can a contract retransferred the case to this court. Court conflict with established law not be consid- is rea- original opinion This court’s now contrary public policy? ered Given the dopted. public policy implications obvious lease, agree that one

residential would property Plaintiff owner sued may never exonerate themselves from ac- his mother’s management company for involving public interest and tivities in an fire. The wrongful apartment death leasing that the residential market is such summary judgment granted trial court interest; therefore, exculpato- This case involves the the defendants. should be ry clause the residential lease fire, form, defendants, exculpa lease same found void. issues, clause, claims, attorneys tory with,

as, orally together argued and was GP, LLC, Village Milligan v. Chesterfield al., (Mo.App. No. 232 S.W.3d 683 et reasoning Milligan, Our S.D. equally here today, applies decided

Case Details

Case Name: Milligan v. CHESTERFIELD VILLAGE GP, LLC

Court Name: Missouri Court of Appeals

Date Published: Sep 12, 2007

Citation: 232 S.W.3d 683

Docket Number: 28179

Court Abbreviation: Mo. Ct. App.