Barkett v. Brucato
122 Cal. App. 2d 264, 1953 Cal. App. LEXIS 1482, 264 P.2d 978 (1953)
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Rule of Law:
A general exculpatory clause in a residential lease, which purports to relieve the landlord of liability for damages from 'any cause whatever,' does not absolve the landlord from responsibility for damages to a tenant caused by the landlord's active or affirmative negligence or intentional tortious conduct leading to a constructive eviction.
Facts:
- Walter and Adelaide Barkett leased an upper flat from Raffaela Brucato from September 1, 1949, to August 31, 1950, with an option to renew.
- The lease included a clause allowing Brucato to erect a 'Pent House' and requiring Barketts to accept 'temporary inconveniences,' as well as a general clause stating Brucato would not be liable for damage or injury from any cause.
- The Barketts discovered Brucato was charging $175 per month, which was an over-ceiling rental compared to the O.P.A. ceiling of $110, and complained to the O.P.A. and Brucato.
- Brucato became angry, threatened eviction, and stated she would make the Barketts regret living there.
- Around February 15, 1950, Brucato began construction over the Barketts' flat, tearing off the roof and erecting scaffolding that blocked windows and, at times, the front door and garage.
- Brucato refused repeated requests to fix a non-functional doorbell, broken entrance lights, and a clogged drain causing nauseating odors.
- During a heavy rainstorm on March 23, 1950, the tarpaulins covering the exposed roof area failed, causing water to pour into the Barketts' flat, damaging their personal property and causing the living room ceiling to collapse.
- Mrs. Barkett experienced nervous upset and a prolonged cold due to the conditions and the water exposure; the Barketts vacated the premises around March 31 or April 1, 1950, and leased other premises at a higher monthly rent.
Procedural Posture:
- Walter and Adelaide Barkett (plaintiffs) brought an action in a trial court against Raffaela Brucato (landlord), William A. Alaimo (contractor), and Roy E. Brousseau (contractor's manager) for constructive eviction, negligence, conspiracy to harass, and punitive damages.
- The jury returned a general verdict of $5,000 against Raffaela Brucato, but exonerated William A. Alaimo and Roy E. Brousseau, and refused to award punitive damages.
- Raffaela Brucato appealed from the judgment entered on the verdict and from the order denying her motion for a judgment notwithstanding the verdict to the California District Court of Appeal.
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Issue:
Does a general exculpatory clause in a residential lease, which purports to relieve the landlord of liability for damages from 'any cause whatever,' absolve the landlord from responsibility for damages to a tenant caused by the landlord's active negligence or intentional tortious conduct leading to a constructive eviction?
Opinions:
Majority - Peters, P. J.
No, a landlord's general exculpatory clause in a lease does not, as a matter of law, absolve them of liability for damages to tenants caused by the landlord's active and affirmative negligence or intentional tortious acts, even if a contractor involved in the construction is exonerated. The court reasoned that the jury could have found Brucato independently negligent for actions such as removing the roof of an occupied dwelling during the rainy season, irrespective of the contractor's exoneration; the doctrine of respondeat superior (where a principal is solely liable for an agent's acts) does not apply when the principal acts independently or directly causes harm. Furthermore, the exoneration of other defendants on a conspiracy charge does not preclude holding one defendant liable for the underlying tort if their actionable conduct caused damages. The court recognized the tort of intentional invasion of a tenant's private use and enjoyment of land (Restatement of Torts § 822), finding Brucato’s actions — removing the roof, blocking access, and making harassing telephone calls — clearly fell within this definition, constituting an independent tort. Regarding the waiver clauses, while acknowledging some prior cases like Werner v. Knoll that upheld such clauses for negligence, the court aligned with the later precedent of Butt v. Bertola. Butt held that a general waiver clause, independently of Civil Code section 1668, will not be interpreted to include acts amounting to active and affirmative negligence in the absence of clear, positive, and specific language. The court concluded that Brucato's actions, such as failing to repair after requests and removing the roof during the rainy season, constituted active negligence. The special 'penthouse' waiver clause was also found inapplicable because it was a question of fact whether the construction was indeed a 'penthouse' as contemplated by the lease or a more extensive 'third story,' and whether the inconveniences were 'temporary inconveniences' or more severe. The court affirmed the jury's $5,000 award as not excessive, considering various damages incurred by the Barketts.
Analysis:
This case significantly limits the effectiveness of general exculpatory clauses in residential leases, especially when landlords engage in active negligence or intentional tortious conduct. By distinguishing between passive and active negligence, the court established that broad waiver language is insufficient to shield landlords from liability for their affirmative harmful acts. This ruling enhances tenant protections, particularly against landlord harassment and deliberate interference with quiet enjoyment, by recognizing an independent tort cause of action for such conduct. Future cases will likely scrutinize exculpatory clauses more carefully, requiring clear and specific language to cover particular types of negligence, reinforcing the idea that landlords cannot easily contract away responsibility for their own egregious actions.
