Liability Waiver

By Christopher A. LaVoy, Esq.
Tiffany & Bosco, P.C.

Most self-storage leases contain a provision in which the renter, by signing the lease, waives any right to sue the operator and its employees for any personal injury or property damage the renter suffers in connection with use of the space. Let me say at the outset that such a provision is a smart idea and you should include one in your self-storage lease. However, it is important to understand the limitations of such a provision because it does not afford absolute protection.

The most important thing to understand is that courts approach such provisions with great scrutiny and skepticism. The thinking is that broad application of such provisions may condone and encourage carelessness. Therefore, the courts strictly construe such provisions and do not enforce them where it would offend public policy.

INTENTIONAL HARM OR NEGLIGENCE?

Based on public policy, the courts will not enforce such a provision where an intentional harm is involved. If an operator or one of its employees assaults a renter, or steals a renter’s property, the operator or employee cannot hide behind the provision. Generally such a provision will not protect you for anything beyond ordinary negligence in terms of severity. Grossly negligent and reckless acts are usually not covered.

An example of ordinary negligence is not paying attention and rear-ending another vehicle. An example of gross negligence or recklessness is getting in a wreck because you were driving blindfolded for fun. An example of intentional harm is purposefully hitting another vehicle because the driver cut you off.

In addition, to cover you for negligence the provision must specifically state that it applies to negligent acts. The Arizona courts have held the word “negligence” must appear in the provision and there must be an explanation therein that the renter is waiving his or her right to sue the operator and its employees for negligent acts causing the renter personal injury or property damage.

LIST THE RISKS

Also, the provision is far more likely to be enforced if it specifically mentions the type of harm at issue. For example, in a suit for water damage to the renter’s property, you stand the greatest chance of winning if the provision specifically mentions the risk of water damage. Therefore, if there is a particular risk you are concerned about, you should mention it in the provision to guard against liability for it. Other risks you should mention in the provision are fire, theft, vandalism and defects in the premises.

When such provisions are properly drafted, the courts have enforced them. Late last year an operator in California avoided a $250,000 negligence claim by a renter for missing property based on such a provision. There are also reported decisions from Tennessee, Louisiana, Kentucky, Washington and New York enforcing such provisions against renters. The Arizona Court of Appeals recently upheld the dismissal of a personal injury suit by a skater against a roller hockey rink based on the liability waiver he signed. Therefore, make sure your self-storage lease includes a liability waiver provision, make sure it specifically mentions that “negligence” by the operator and its employees is being waived, and make sure it identifies the major risks that might cause a loss.

[This article deals with a law related subject at a general level and is not intended for you to rely on. You should consult a lawyer before making a final decision in a situation involving any legal issues.]

Christopher A. LaVoy is partner in the law firm, Tiffany & Bosco, P.C., and serves as AZSA’s legal counsel.

Source: Behind Closed Doors, AZSA Newsletter Archives