Landlords Can Use Certain Lease Provisions To Protect Themselves From Lawsuits Relating To Tenant Injuries
by Tamara Rider
In an important ruling for landlords, the California Court of Appeal held that where a landlord provides athletic or recreational facilities to its residents and their guests, landlords can utilize certain provisions within their lease agreements which waive the landlord’s liability for injuries sustained during a tenant’s use of such facilities. Lewis Operating Corporation v. Superior Court (2011) 200 Cal.App.4th 940.
Generally, California law imposes a legal duty on landlords to use “reasonable care” in the management of their properties and facilities to prevent injuries or damage sustained by tenants. For example, a landlord’s failure to use reasonable care can make the landlord liable for injuries where “a child falls out of a window in a common hallway (Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 898, 87 Cal.Rptr.2d 34), [the landlord] fails to install a perimeter barrier when it is foreseeable that playing children might be propelled into a busy street (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1479–1480, 84 Cal.Rptr.2d 634), or [the landlord] fails to provide safety warnings and equipment at a common-area swimming pool (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 763, 91 Cal.Rptr. 745, 478 P.2d 465).”
Generally, the legal duty to use reasonable care can’t be contracted away through a lease. California Civil Code section 1953 says that any provision of a lease or rental agreement which waives or modifies this duty of reasonable care is legally void and unenforceable because such a waiver is “contrary to public policy.”
But the Appellate Court in Lewis narrowed a landlord’s legal obligation, and considered “whether public policy prohibits exculpatory clauses in a residential lease that pertain to what might be called noncore functions of the property.” It held that with respect to those noncore functions, landlords could use lease provisions to protect themselves.
In Lewis, a tenant was using a treadmill at the exercise facility on the premises. An agent of the landlord rolled a ball into or under the treadmill while it was in use, causing the treadmill to flip over and throw the tenant off the machine. The tenant sued the landlord for his injuries. The landlord brought a motion for summary judgment, arguing that a waiver provision in the lease agreement absolved the landlord of any liability. That waiver provision stated that the tenant:
“assumes all risk of harm resulting from the use of said facilities . . . and waives all Claims against the Landlord Group arising from or relating to the use of said facilities or the participation in such activities and programs by RESIDENT and his or her guests, even if caused by the Landlord Group’s negligence or gross negligence. The use of said facilities shall be at the sole risk of RESIDENT and his or her guests.”
The tenant argued that the release and waiver language in the lease agreement was void because it was contrary to public policy and Civil Code section 1953. The Superior Court agreed with the tenant, and denied the landlord’s motion.
The landlord appealed. The Appellate Court disagreed with the Superior Court, and allowed the waiver of liability clause in the lease to stand. The Court of Appeal determined that the exercise facility was not essential to the tenancy of the tenant, but was rather an added benefit of residing at the premises. Even though exculpatory clauses which modify or waive landlord liability in lease agreements are subject to scrutiny, “the law has  been consistent in enforcing exculpatory clauses, releases, and waivers in the recreational context.” As one other California Appellate Court stated, “[r]ecreational activities such as snow skiing or parachute jumping are not essential services or necessities affecting the public within the meaning of Tunkl.” (Booth v. Santa Barbara Biplane Tours, LLC (2008) 158 Cal.App.4th 1173, 1179).
The Appellate Court read section 1953 as designed only to protect a tenant’s basic need for shelter. In doing so, it considered two California Supreme Court cases, Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512 and Tunkl v. Regents of University of California (1963) 60 Cal.2d 92. In distinguishing those two California Supreme Court cases, the Appellate Court held that while it is true, as Henrioulle and Tunkl articulated, that “exculpatory clauses affecting the public interest are invalid,” having an exercise facility was not necessarily in the public’s interest. Instead, the Appellate Court held that “a landlord’s duty to maintain amenities does not necessarily trigger the application of Civil Code section 1953 or the rule of Henrioulle and Tunkl, and, in fact, does not do so in this case.”
Because the Court determined that the exercise facility was merely a recreational benefit, and not essential to the shelter or tenancy of the tenant, the landlord was permitted to condition the tenants’ use of the exercise facility on agreeing to a liability waiver in the lease.
If you are a landlord who maintains amenities on your leased property which are noncore functions of the property (such as a recreational facility, a gym, sports center, a playground, or the like), you may be able to limit your liability for injuries sustained by a tenant’s use of these amenities. You need to include a written exculpatory clause and waiver in your lease agreement to do so. The lawyers at Michel & Associates, P.C. can assist you in that effort.