APPEAL from the Circuit Court of DuPage County; the Hon. BRUCE
FAWELL, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This appeal arises from entry of an order of judgment on the pleadings in favor of defendant landlord in a cause of action wherein the plaintiff tenant sought damages for personal injuries allegedly sustained because of the landlord's negligence. Plaintiff had filed a jury demand with her complaint, and the judgment was based on an exculpatory clause in a written lease which the trial court viewed as a complete defense as a matter of law for the defendant landlord.
Helen Strauch, the plaintiff tenant, entered into a two year written lease commencing November 1, 1967, for rental of an apartment in Elmhurst, Illinois, owned by the corporate defendant landlord, Charles Apartments Company. This lease is a Chicago Real Estate Board form for a heated apartment. The only typewritten insertions in it are the date, the names of the parties, the apartment number and street address (the City of Elmhurst and County of Du Page being printed), the commencing and ending dates of the term, the amount of monthly rental, the place of its payment, and the amount of the security deposit. Otherwise, the lease is printed and contains twenty-five provisions, twenty-four of them captioned in margins on each side of the page and set in print finer than the introductory paragraphs containing the typewritten insertions. Paragraph Nine of the lease contains the exculpatory clause in issue and is captioned in the margin Lessee Waives Damages." Paragraph Nine reads as follows:
"Neither the Lessor nor his agents shall be liable for damages, to the Lessee or to any person claiming through Lessee (nor shall rent be abated) for injury to person or for damage claimed for eviction actual or constructive; this provision includes particularly but not exclusively all claims arising from the building or any part thereof being or becoming out of repair including appurtenances, equipment, furnishings, fixtures or apparatus located in the demised premises or in the building or premises of which said demised premises are a part, or from any act or neglect of Lessor or his agents or of any tenant or occupant of such building or of the premises of which such building is a part, or of the neighboring property."
This paragraph is followed by additional provisions, a number of them favorable to the landlord, such as a right to confess judgment against the tenant, cumulative remedies for the lessor, payment by lessee of lessor's legal expenses incurred or expended because of a breach of the lease agreements, waiver by lessee of all notices and demands which may be required by state statute relating to forcible entry and detainer, and a reservation that lessor's rights are affected only by written waiver.
The complaint alleges that, while exercising due care, plaintiff suffered severe and permanent injuries in falling while traversing the common parking area of the apartment building because of defendant's negligence in carelessly shoveling the snow so as to create an unnatural accumulation of snow and ice and in failing to warn tenants and pedestrians of the unsafe accumulation which had thus been created. Defendant answered, denying all allegations other than the location of the apartments, and filed interrogatories which plaintiff answered. Defendant subsequently filed an amended answer setting up the exculpatory clause in the lease as an affirmative and complete defense.
The record contains two replies by plaintiff to the affirmative defense. The first, filed October 21, 1969, raises the following two propositions:
"(1) There existed between the parties such a disparity of bargaining power that the lessee had no alternative but to accept the document in its tendered form, and
(2) That Paragraph Nine of the lease is as a matter of common law void and against public policy."
Another reply by plaintiff was filed February 24, 1970. On that same date defendant filed a motion for judgment on the pleadings and hearing was had. Plaintiff's February 24th reply is an expanded version of the first reply and alleges additionally that an acute shortage of residential apartments existed in the City of Elmhurst when the lease was executed, that plaintiff's financial condition did not provide her with flexibility in seeking a tenancy outside Elmhurst, that defendant owned the only known major apartment complex in Elmhurst in that year, that there was disparity of bargaining power between the parties and an existing question of fact whether this disparity was so great as to prevent enforcement of the exculpatory clause in order to prevent great injustice.
The trial court entered judgment on the pleadings for defendant and denied plaintiff leave to file an amended reply to defendant's affirmative defense. The transcript of the hearing, however, seems to indicate that this denial pertains not to the two replies in the record, but to still another reply contemplated by plaintiff and disclosed in the course of the hearing. It would concern the place of injury as related to plaintiff's oral lease for garage space rather than to her written apartment lease with exculpatory clause.
The question here is whether the exculpatory clause contained in Paragraph Nine of the written lease constitutes a defense as a matter of law to plaintiff's cause of action in view of those matters alleged in her replies and argued by her counsel at hearing. The concepts in conflict are the right to freedom of contract as opposed to common law responsibility to use ordinary care to avoid injuring others.
In 1953, the Illinois Supreme Court upheld an exculpatory clause in a business lease saying it was valid and enforceable "* * * unless there is something in the social position or social relationship of the parties opposed to its operation." The court observed that although lessee in that case inferred he had no freedom of choice and had either to accept what was offered or be deprived of the advantages of the relationship, there was "nothing in the record or the circumstances surrounding the parties to bear out this contention. This is a business lease." Jackson v. First National Bank of Lake Forest (1953), 415 Ill. 453, 114 N.E.2d 721.
Six years later that court considered an exculpatory clause contained in a residential lease. The plaintiff did not seek strict construction of the clause, conceding it barred her recovery if valid, and argued it was invalid because contrary to public policy. The majority of the court, in an opinion written by Justice Schaefer, sustained the validity of that exculpatory clause, stating the subject was one "that is appropriate for legislative rather than judicial action." A strong dissenting opinion by Justice Bristow and Chief Justice Daily deplored destruction of the concept of negligence and standards painstakingly evolved in case law and stated that only by blind application could Jackson be deemed determinative. The dissenters commented that while stare decisis has a strong social justification, it should not be used to stifle the growth of the law, and that the basis of voiding exculpatory clauses is that they are contrary to the public policy ...