Posted On: February 15, 2012 by Robinson Calcagnie Robinson Shapiro Davis, Inc.

LIABILITY RELEASES: TENANT AMENITIES

Lewis Operating Corporation v. Superior Court, (Fourth District, November 10, 2011) 132 Cal.Tprt.3d 849, 11 Cal. Daily Op. Serv. 13,810, 2011 Daily Journal D.A.R. 16,468

An apartment resident who was injured while using a treadmill at a ‘tenant-only’ health club/exercise facility filed an action for personal injuries against his landlord and a personal training company. The plaintiff alleged that an employee of the latter had rolled a ball into the treadmill, causing it to flip upward and throw the plaintiff off of the machine.

The defendants moved for summary judgment based upon a ‘release and waiver’ provision in the rental agreement under which tenants assumed all risks of harm arising from use of the health and recreation facilities. The trial court denied the motion, finding that the agreement was unenforceable under Civil Code § 1953, which declares void any provision of a dwelling lease or rental agreement which modifies or waives the tenant or leasee’s right to have the landlord exercise due care to prevent personal injury where that duty is imposed by law. However, the court of appeal issued a peremptory writ of mandate directing the trial court to grant the motion, holding that a landlord’s duty to maintain amenities does not necessarily trigger the application of § 1953:

"[A] landlord may be held liable in tort under usual rules of duty and negligence even if the dangerous condition does not exist in the tenant’s dwelling and does not affect the statutorily required elements of habitability or tenantability. We will assume, arguendo, that a landlord may not lawfully require the tenant to sign an exculpatory clause relating to injuries that might occur as a result of the tenant’s use of the basic or essential common areas—i.e., a parking area, lawns, walkways or corridors. However, we do conclude that a landlord’s duty to maintain amenities does not necessarily trigger the application of Civil Code section 1953. . . . . . . [I]n this case, the provision of an on-site health club or exercise facility was clearly well outside the basic, heavily regulated offering of a residential dwelling. . . . This brings us back to our case, representing the interplay between a clear matter of essential public interest (residential tenancies) and a nonessential matter of personal improvement or enjoyment (the use of exercise facilities). We conclude that where a landlord chooses to enhance its offering by providing an on-site health club or exercise facility that goes well beyond bare habitability, there is no reason why 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. Civil Code section 1953 is designed to protect a tenant’s basic, essential need for shelter. Real party’s recreational use of the fitness facility and equipment was in no way critical to this need. Petitioners had no legal obligation to offer such a facility and we conclude that it was entitled to condition real party’s use on his execution of the waiver and release at issue here. No public policy was violated by the exculpatory clause, and it may be enforced against real party in this case."

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