Diane Creed et al. v. Robert Santamaria dba N–S Partners Warehouse Storage (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The defendant, Robert SantaMaria, DBA, N–S Partners Warehouse Storage have moved for summary judgment against the plaintiffs based on certain hold harmless language in a supplemental lease acknowledgment.   The tenant/plaintiffs entered into a lease agreement in which the said language states that the defendant/landlord will not be responsible or liable to the tenant/plaintiff for any damages to or loss of personal property, located within the demised premises.   The tenant also releases the landlord from any and all liability claims and causes of action which may arise and further indemnifies the landlord against any and all liability.

The plaintiffs stored on the said premises certain commercial food processing and restaurant equipment, which was damaged when the roof over the said premises collapsed due to a snow overload during the winter of 2010–2011.   Subsequent to the roof collapse, the plaintiffs' personal property was further damaged by exposure to the elements without due notice from the landlord/defendant.

The issue raised by this summary judgment motion is whether or not a hold harmless agreement between the parties releases the defendant from any and all liability brought about by the said roof collapse.

Connecticut courts generally disfavor hold harmless provisions as against public policy.  [T]he law does not favor contract provisions which relieve a person from his own negligence ․ Reardon v. Windswept Farm, LLC, 280 Conn. 153, 159, 905 A.2d 1156 (2006).   Our courts are careful not to allow hold harmless provisions to preclude recovery where there is unequal bargaining power between contracting parties.   See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 333–34, 885 A.2d 734 (2005);  Dow–Westbrook, Inc. v. Candlewood Equine Practice, LLC, 119 Conn.App. 703, 712 (2010).

The plaintiffs rely on the basic concept that a party cannot release or relieve themselves from their own negligence.  Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405 (1982).   There are cases that allow such consideration where the circumstances relating to the occurrence would normally be under the control of a landlord as opposed to a tenant.  B & D Associates, Inc. v. Russell, 73 Conn.App. 66 (2002).

The court in the B & D Associates case found that a defendant (landlord) might be released from liability as long as the damage to the plaintiff is not the same general type as that which makes the defendant's conduct negligent in the first place.

The nature of each party's status as commercial business entities does not necessarily lower the bar as to what constitutes negligence.   The leasing of storage space by the plaintiff from the defendant does not put the plaintiff on the same par as the defendant/landlord, who is in the business of leasing out such space.

In this case, the defendant's failure to unload and clear the roof over the demised premises would create a foreseeable risk under the circumstances, and is therefore the type of general damages which the defendant should actually or constructively have knowledge of and therefore should have taken protective or preventative steps as a reasonable landlord.

The essential purpose of the subject storage lease, i.e., to provide a building protected from the elements, was in effect obviated by the collapsing of its roof.   The clear language of the exculpatory clauses notwithstanding, public policy should prevent such a forfeiture of property by a non-negligent party.

The defendant/landlord failed to recognize that roofs and buildings may collapse after an excessive amount of snowfall and are a common risk in this part of the country.   Therefore, the attempts to shift the risk from the defendants to the plaintiffs through the hold harmless document cannot be accepted under these particular circumstances and therefore the defendant's motion for summary judgment is denied.

BY THE COURT

V. ROCHE, J.

Roche, Vincent E., J.