Leave to appeal denied April 26, 1967. See 379 Mich. 761.
Plaintiff, Opal Feldman, brought an action for negligence against the defendants, and here appeals a summary judgment granted below.
Plaintiff, lessee of an apartment located at 17170 Meyers road in Detroit, sustained injuries as a result of a fall on the parking lot which adjoined the apartment building and which was furnished for the exclusive use of the tenants of said building. Plaintiff alleged that defendants' negligence in failing to remove an accumulation of ice on the parking lot in breach of their legal duty was a proximate
The recital of the facts above reveals that the issue which must be determined in the instant case is the validity of an "exculpatory" clause in residential leasehold agreements. We caution at the outset that the question which we decide is limited to residential leases and does not embrace and should not be extended to apply to a determination of the validity of such clauses in commercial leases which are not covered by Michigan statutes relating to dwellings.
The initial consideration in resolving this issue is the applicability of the Michigan housing law, CL 1948, § 125.401 et seq. (Stat Ann 1958 Rev § 5.2771 et seq.) to the case at bar. We note that the intent of the legislature in its enactment thereof is clearly specified in the title thereto:
"An act to promote the health, safety and welfare of the people by regulating the light and ventilation,
The section of the statute particularly relevant to the instant case is CL 1948, § 125.474 (Stat Ann 1958 Rev § 5.2846)
Since we find that ice removal is one of the statutory duties imposed by a penal statute, and since the plaintiff is clearly within the protection thereof, we are brought by this determination to the ultimate issue of this case — the validity of a contractual agreement which would immunize the landlord from liability for breach of this statutory duty.
The question of the validity (or invalidity) of exculpatory provisions has fathered progeny in the form of a prolificacy of legal writing — case law, annotations and, ultimately, statutes have been its offspring.
In four States, Massachusetts, Illinois, Maryland and New York, specific legislation has been enacted which declares such agreements void as against public policy. The New York statute of 1937 (Section 234 of the real property law) as cited in Gordon v. McAfee (1945), 184 Misc. 469 at 470, 471 (54 NY Supp 2d 443 at 445), is an example thereof:
"`Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person * * * caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises * * * shall be deemed to be void as against public policy and wholly unenforceable.'"
It is relevant to inquire into the background of such legislation. Prior to its passage in New York, several decisions
"The recent history of the exculpatory clause is well known to the bench and bar. The clause was held valid by the supreme court of Illinois in 1957 in O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill.2d 436 (155 N.E.2d 545). Following that decision, the legislature enacted a law which invalidated such clauses in leases. Ill Rev Stat, ch 80, § 15a (1959)."
In Eastern Avenue Corporation v. Hughes (1962), 228 Md. 477, 480 (180 A.2d 486, 488), the Maryland court of appeals, in upholding an exculpatory clause, listed the jurisdictions which found such exculpatory clauses valid, and followed this listing with the citation of the New York, Massachusetts, and Illinois cases which had upheld such provisions as not against public policy, and then concluded with the statement:
"In the latter States the legislatures have subsequently enacted statutes invalidating some types of exculpatory clauses."
In 1964, the Maryland legislature took similar action.
New Hampshire, without mention of a specific housing law and without a statute declaring such clauses void as against public policy, did so by court decision in Papakalos v. Shaka (1941), 91 N.H. 265, 268 (18 A.2d 377, 379), saying:
In Kuzmiak v. Brookchester, Inc. (1955), 33 N.J.Super. 575 (111 A.2d 425), the court set forth a comprehensive analysis of the law in the area. The court found sufficient State interest in the regulation and supervision of apartment buildings through the board of tenement housing supervision; it discussed the landlord's common-law duty for maintenance of premises under his control; and it concluded that since under present conditions the comparative bargaining positions of landlord and tenant are not equal, such exculpatory clauses are contrary to public policy.
We cite 6A Corbin, Contracts, § 1515, "Power to Waive or Bargain Away Rights and Defenses Conferred by Statute" p 728, wherein that eminent authority said:
"It is obvious that when a right, a privilege, or a defense is conferred upon an individual by the law, it is conferred upon him because it is believed to be in the public interest to do so. In many such cases it is believed to be contrary to the public interest to permit him to waive or to bargain away the right, privilege, or defense; and when it is so believed the attempted waiver or bargain is inoperative."
In keeping with this philosophy, we hold that the attempted waiver or bargain here is inoperative as against public policy and therefore void.
J.H. GILLIS and HOLBROOK, JJ., concurred.
"In the case of a lease of industrial property, as in the instant case, no such inequality of bargaining position exists; the exculpatory provisions of such a lease are normally valid and enforceable."