Borg-Warner Insurance Finance Corp. v. Executive Park Ventures

400 S.E.2d 340, 198 Ga. App. 70, 1990 Ga. App. LEXIS 1546

• Court: Court of Appeals of Georgia
• Decided: November 21, 1990
• Docket: A90A1105
• Status: Published

Opinions

Carley, Chief Judge.

A fire partially destroyed commercial offices that were owned by appellee-plaintiff Executive Park Ventures and leased to appellant-defendant Borg-Warner Insurance Finance Corporation. Alleging that one of appellant’s employees or agents had negligently set the fire, appellee initiated this action for damages. Appellant answered and asserted, among its other defenses, the applicability of the following lease provision: “[Appellee] and [appellant] shall hold each other (including its employees, customers, invitees, licensees and others) harmless from and against any and all liability, damage, injury, action or causes of action whatsoever suffered or occasioned upon the premises or arising out of the operation, conduct and use of the premises.” After a period of discovery, cross-motions for summary judgment were filed as to the issue of whether this lease provision was a bar to appellee’s suit against appellant. The trial court denied appellant’s motion and granted summary judgment in favor of appellee. Appellant appeals from this order of the trial court.

As a general rule, a party can secure an enforceable contractual waiver of liability for the consequences of his own ordinary negligence if this intention is clearly and unequivocally expressed and if such a waiver is not otherwise prohibited by statute. Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226 (144 SE2d 547) (1965). Arguably, the instant lease provision does not clearly and unequivocally express the mutual intent of appellee and appellant to waive, as against each other, liability for the consequences of their own respective negligent acts or omissions. See generally Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 SE2d 67) (1984).

However, even assuming that the provision could otherwise be construed as a mutual waiver of liability for the consequences of appellee’s and appellant’s respective negligent acts or omissions, the provision would nevertheless be unenforceable as a bar to the instant action. OCGA § 13-8-2 (b) provides, in relevant part, that, insofar as certain specified contracts are concerned, a provision “purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable. . . .” Leases are among those contracts that are included within the ambit of the public policy prohibition established by OCGA § 13-8-2 (b). Country Club Apts. v. Scott, 246 Ga. 443 (271 SE2d 841) (1980). Since appellee seeks to recover for property damages allegedly resulting from the sole negligence of one of appellant’s agents or employees, it follows that, within the context of the instant action, a provision in the lease whereby appellee purported to waive liability for property damages allegedly resulting from the sole negligence of appellant’s agents or employees would be void and unenforceable. See National Candy Wholesalers v. Chipurnoi, Inc., 180 Ga. App. 664 (350 SE2d 303) (1986). Accordingly, the trial court correctly denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee.

Even under the narrow construction of OCGA § 13-8-2 (b) advanced by the dissent, the trial court’s rulings were nevertheless correct. As the dissent notes, this court’s decision in Barnes v. Pearman, 163 Ga. App. 790 (294 SE2d 619) (1982) was affirmed by the Supreme Court in 250 Ga. 628 (301 SE2d 647) (1983). The dissent would distinguish the Barnes decision on the ground that “the lease containing the exculpatory clause at issue [therein] involved ‘construction, alteration, repair, or maintenance,’ in that it specifically required the landlord to perform electrical modifications to the premises, which modifications were alleged to have caused the injury forming the basis for the suit.” It is clear, however, that the lease containing the exculpatory clause at issue in the instant case likewise involves “construction, alteration, repair, or maintenance,” in that it specifically requires appellant to “take good care of the Premises and its fixtures and permit no waste, except normal wear and tear,” and it is the negligent breach of that obligation to repair or maintain the premises which forms the basis for appellee’s suit. “This clause and similarly worded clauses contained in lease contracts have been construed by the Georgia courts a number of times, and it is now settled that where a lease contract containing such a clause gives to the lessee exclusive possession and control of the premises, only such casualties as amount in law to accidents or acts of God will relieve the lessee of liability to repair when the premises are damaged during the term of the lease. [Cits.] This means, of course, that the lessee is liable to the lessor if he returns the premises in a damaged condition, if such damage was caused by the default or negligence of the lessee.” Taylor v. R.O.A. Motors, 114 Ga. App. 671, 681 (6) (152 SE2d 631) (1966). See also Raybestos-Manhattan v. Friedman, 156 Ga. App. 880, 881 (1) (275 ) (1981); Martin v. Medlin, 81 Ga. App. 602, 604 (a) (59 SE2d 519) (1950). Accordingly, the Barnes decision is not distinguishable as the dissent contends, and the Supreme Court’s affirmance of that decision must necessarily be read as supporting the extension of OCGA § 13-8-2 (b) to the instant lease.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Deen, P. J., concurs in the judgment only. Sognier and Beasley, JJ., dissent.