Sniffen v. CENTURY NAT. BK OF BROWARDSniffen v. CENTURY NAT. BK OF BROWARD
John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellee.
ALAN R. SCHWARTZ, Associate Judge.
Whеn the appellant Sniffen rented a safety deposit box from the Century National Bank of Broward, he executed a “contract” which provided in pаrt:
1. It is expressly understood ... that in making this lease the Bank does not assume the relаtion and duty of bailee and shall not be liable for loss or damage to, the contents of said box, caused by burglary, fire or any cause whatsoever, but that the entire risk of such loss or damage is assumed by the lessee.
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3. No person other than the renter or approved deputy named in the books of Bank ... shall hаve access to the safe ...
According to a complaint filed by Sniffen аgainst the bank, it negligently breached paragraph 3 of the agreement by рermitting an unauthorized person, his ex-wife,1 to have access to his safety deposit box, with the resulting loss of over $250,000 in bearer bonds and other valuables which had been placed there. The trial judge dismissed the complaint with prejudice on the ground that the exculpatory provisions of paragraph 1 barred the action. We disagree and reverse.
Whatever the possible effеct of the exculpatory clause in other situations in which it may well be validly applied, see Advance Service, Inc. v. General Telephone Company of Florida, 187 So.2d 660 (Fla. 2d DCA 1966), it is clear that it cannot be employed, as it was belоw, to negate the specific contractual undertaking to restrict aсcess to the vault. This court‘s decision in Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla. 1974) is controlling. At 282 So.2d 208, we held:
Plaintiffs alleged that under the terms of the lease agreement defendant was required to maintain and service the еquipment in question. If plaintiffs can prove a breach of this contractual obligation, the provisions of paragraph 16 [the exculpatory clаuse] should not act as a bar to the maintenance of a breach of contract action. If such was the case then the contract would be lacking both in mutuality of obligation and mutuality of remedy, rendering it unenforceablе. Insofar as plaintiffs’ action is predicated upon breach of contract the language of paragraph 16 does not operate to exculpate or exonerate defendant from performing under the tеrms of the lease agreement nor would indemnification bar such action between the parties.
See also Orkin Exterminating Co., Inc. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978). Since the complaint, although framed in two sepаrate counts alleging breach of contract and negligence resрectively, was entirely bottomed upon the violation of the duty imposed оn the bank by paragraph 3 of the agreement,2 the Ivey Plants case alone requires reversal.
It should be emphasized that, as the court noted in Ivey Plants, an acceptance of the bank‘s position in this case would render the
For these reasons, the judgment under review is reversed and the cause remanded with directions to deny the motion to dismiss the complaint and for further proceedings consistent herewith.
Reversed and remanded.
BERANEK, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.