I’m now writing an Update for a book I wrote many a year ago: the California Eviction Defense Manual, now published by California Continuing Education of the Bar.
In the next few days, I’ll be posting summaries of some of the more significant new cases.
Here’s the first one. The case came down just a couple of weeks ago.
In Lewis Operating Corp. v. Superior Court (2011) ___ CA4th ___, ___ CR3d ___, 2011 WL 5429554, the tenant was injured while using a treadmill at an exercise facility operated by the landlord at the apartment house. When the tenant sued for negligence, the landlord invoked a provision of the rental agreement where the tenant waived all negligence claims against the landlord arising out of use of the exercise facility. The tenant countered with CC 1953(a)(5), which invalidates waivers of “His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.” The court rejected that argument, holding that the Legislature did not intend the statute to apply to “amenities.” The court held:
Where a landlord chooses to enhance its offering by providing an on-site health club or exercise facility that goes beyond bare habitability, there is no reason whey the landlord may not protect itself by requiring the tenant, as a condition of use of the amenity, to execute the same waiver or release of liability that could lawfully be required by the operator of a separate, stand-alone health club or exercise facility.
The court noted, however, that the protection of the statute is not limited to defects covered by the implied warranty of habitability. So the anti-waiver provision would apply to injuries incurred when a child falls out a window or the landlord fails to provide safety warnings at a common-area swimming pool. Nor does the court’s opinion necessarily apply to claims based on gross negligence.
One Justice dissented, arguing that the majority had ignored the plain language of the statute, which contains no limitation to amenities. The dissent also noted that when the statute was enacted, CC 1942.1 already invalidated waivers dealing with habitability claims, so the Legislature must have intended the newly-enacted CC 1953(a)(5) to bar waiver of claims based on amenities.