Section 13 Exculpatory Clauses

• Library: Real Estate Leasing and Landlord-Tenant Actions and Remedies 2011

Although disfavored and strictly construed, exculpatory clauses releasing a residential landlord from liability for future negligence are not void as against public policy. Warren v. Paragon Techs. Group, Inc.,950 S.W.2d 844, 845 (Mo. banc 1997) (citing Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 334, 337 (Mo. banc 1996)). Thus, a specific, explicit, written release of a landlord’s future negligence may be enforceable even though it is made in advance of any existing controversy or injury. Warren v. Paragon Techs. Group, No. 69866, 1996 WL 741844, at *2 (Mo. App. E.D. Dec. 24, 1996). The Supreme Court of Missouri appears not to have retreated, however, from its long-standing position that exculpatory clauses are never valid to release one from future liability for intentional torts, for gross negligence, or for “activities involving the public interest.” Alack,923 S.W.2d at 337 (citing Liberty Fin. Mgmt. Corp. v. Beneficial Data Processing Corp.,670 S.W.2d 40, 48 (Mo. App. E.D. 1984)).

In the Warren, 950 S.W.2d 844,decision, the Supreme Court extended to residential leases its prior decisions upholding the validity of exculpatory clauses in contracts generally, see Alack,923 S.W.2d 330, and in commercial leases, see Kansas City Stock Yards Co. v. A. Reich & Sons,250 S.W.2d 692, 698 (Mo. 1952). In so doing, Missouri appears to be retreating to the common-law view of landlord immunity, even when equitable exceptions to landlord immunity had been carved out in more recent years. In Warren,for example, the plaintiff was injured in a common area when she fell twice in three days on an icy walkway near her...