exculpatory clause in Georgia

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2024But here, even if the limitation operates to bar suit against BPG given the timing of Mr. Omstead’s death, the limitation did not purport to relieve or release BPG from liability, because the limitation permitted suit against BPG—that is, subjected BPG to potential liability—within a year from the inspection.6 Compare Emory Univ. v. Porubiansky, 248 Ga. 391, 392 ( 282 SE2d 903 ) (1981) (language in dental form providing that the patient agreed to “‘expressly waive and relinquish any and all claims of every nature I or my minor child or ward may have’” and further “‘to hold them harmless as the

2024But here, even if the limitation operates to bar suit against BPG given the timing of Mr. Omstead’s death, the limitation did not purport to relieve or release BPG from liability, because the limitation permitted suit against BPG—that is, subjected BPG to potential liability—within a year from the inspection.6 Compare Emory Univ. v. Porubiansky, 248 Ga. 391, 392 ( 282 SE2d 903 ) (1981) (language in dental form providing that the patient agreed to “‘expressly waive and relinquish any and all claims of every nature I or my minor child or ward may have’” and further “‘to hold them harmless as the

2015See, e.g., Parkside Center v. Chicagoland Vending, 250 Ga. App. 607, 611-612 (2) ( 552 SE2d 557 ) (2001) (clause held unenforceable because it was contained at the end of a paragraph, which did not have its own heading, but was one of many listed under the heading “Miscellaneous,” and was printed in the same font size as the surrounding provisions); Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644-645 (1) ( 490 SE2d 124 ) (1997) (an exculpatory clause was held enforceable where it was contained in its own paragraph, with the capitalized heading “LIMITATION OF LIABILITY’)

2015See, e.g., Parkside Center v. Chicagoland Vending, 250 Ga. App. 607, 611-612 (2) ( 552 SE2d 557 ) (2001) (clause held unenforceable because it was contained at the end of a paragraph, which did not have its own heading, but was one of many listed under the heading “Miscellaneous,” and was printed in the same font size as the surrounding provisions); Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644-645 (1) ( 490 SE2d 124 ) (1997) (an exculpatory clause was held enforceable where it was contained in its own paragraph, with the capitalized heading “LIMITATION OF LIABILITY’)

2025P. because she agreed in her Lease to be bound by the Declaration and because of the Condo Act, which provides that “all those entitled to occupy a unit shall 13 (Citation and punctuation omitted.) Dept. of Transp. v. Arapaho Constr., Inc., 180 Ga. App. 341, 343 (1) ( 349 SE2d 196 ) (1986). 9 comply with all lawful provisions of the condominium instruments.”14 These arguments ignore the well-established requirement that an exculpatory clause must be “explicit, prominent, clear and unambiguous” to be enforceable.15 Again, while the “no security” provision may have been a prominent and unambiguo

2025P. because she agreed in her Lease to be bound by the Declaration and because of the Condo Act, which provides that “all those entitled to occupy a unit shall 13 (Citation and punctuation omitted.) Dept. of Transp. v. Arapaho Constr., Inc., 180 Ga. App. 341, 343 (1) ( 349 SE2d 196 ) (1986). 9 comply with all lawful provisions of the condominium instruments.”14 These arguments ignore the well-established requirement that an exculpatory clause must be “explicit, prominent, clear and unambiguous” to be enforceable.15 Again, while the “no security” provision may have been a prominent and unambiguo

1990Co. v. Clay, 101 Ga. 331, 332 ( 28 SE 853 ) (1897), that “[i]t is well settled that contracts will not be avoided by the courts as against public policy, except ‘where the case is free from doubt and where an injury to the public interest clearly appears.’ ” Because “all people who are capable of contracting shall be extended the full freedom of doing so if they do not in some manner violate the public policy of this state,” Cash v. Street & Trail, 136 Ga. App. 462, 466 ( 221 SE2d 640 ) (1975), and I do not find the exculpatory clause in this commercial lease offensive to the public policy of

1990Co. v. Clay, 101 Ga. 331, 332 ( 28 SE 853 ) (1897), that “[i]t is well settled that contracts will not be avoided by the courts as against public policy, except ‘where the case is free from doubt and where an injury to the public interest clearly appears.’ ” Because “all people who are capable of contracting shall be extended the full freedom of doing so if they do not in some manner violate the public policy of this state,” Cash v. Street & Trail, 136 Ga. App. 462, 466 ( 221 SE2d 640 ) (1975), and I do not find the exculpatory clause in this commercial lease offensive to the public policy of

2019LEXIS 219819 , at * 3 (II) (The court ruled that, if the class-action waiver at issue was an exculpatory clause, “there [could] be no doubt that it would be unenforceable,” given that the clause was in a paragraph with other provisions, the paragraph had no separate heading, and the typeface of the clause was the same size as in the surrounding paragraphs.) (citation omitted). 21 See, e.g., Parkside Center, 250 Ga. App. at 611-612 (2) (provision was in a section under the general heading of “Miscellaneous”); see also T.S.

2015See, e.g., Parkside Center v. Chicagoland Vending, 250 Ga. App. 607, 611-612 (2) ( 552 SE2d 557 ) (2001) (clause held unenforceable because it was contained at the end of a paragraph, which did not have its own heading, but was one of many listed under the heading “Miscellaneous,” and was printed in the same font size as the surrounding provisions); Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644-645 (1) ( 490 SE2d 124 ) (1997) (an exculpatory clause was held enforceable where it was contained in its own paragraph, with the capitalized heading “LIMITATION OF LIABILITY’)

2015For example, in Grace v. Golden, 206 Ga. App. 416, 417-418 (1) (b) ( 425 SE2d 363 ) (1992), an exculpatory clause was placed after the legal description in a security deed and was in the same typeface as the legal description.

2015For example, in Grace v. Golden, 206 Ga. App. 416, 417-418 (1) (b) ( 425 SE2d 363 ) (1992), an exculpatory clause was placed after the legal description in a security deed and was in the same typeface as the legal description.

2013In analyzing this issue, we note that “because exculpatory clauses may amount to an accord and satisfaction of future claims and waive substantial rights, they require a meeting of the minds on the subject matter and must be explicit, prominent, clear and unambiguous.” (Citation and punctuation omitted.) Holmes, supra at 477 (2). 6 Moreover, because the contract at issue is a form agreement created by ECI, any ambiguity in the exculpatory clause must be construed against ECI.

2013Id.

2022A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”10 “Provisions severely restricting 9 See Martin, 314 Ga. App. at 337 (affirming the trial court’s grant of summary judgment on a contractual good faith claim); WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 469 (2) ( 610 SE2d 352 ) (2005) (same). 10 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 897 (1) (a) ( 775 SE2d 243 ) (2015) (citation and punctuation omitted). 7 remedies . . . act as exculpatory

2022A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”10 “Provisions severely restricting 9 See Martin, 314 Ga. App. at 337 (affirming the trial court’s grant of summary judgment on a contractual good faith claim); WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 469 (2) ( 610 SE2d 352 ) (2005) (same). 10 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 897 (1) (a) ( 775 SE2d 243 ) (2015) (citation and punctuation omitted). 7 remedies . . . act as exculpatory

2024FCM nominally argues that the exculpatory clause and the crime addendum do not violate OCGA § 13-8-2 (b) because they do not relate in some way “to a contract for ‘construction, alteration, repair, or maintenance’ of certain property[.]” See Milliken & Co., 306 Ga. at 9 (1).

2023An exculpatory clause is void under OCGA § 13-8-2 (b) “if it (1) relates in some way to a contract for construction, alteration, repair, or maintenance of certain property and (2) promises to indemnify a party for damage arising from that own party’s sole negligence.” Milliken & Co., 306 Ga. at 9 (1) (citation, punctuation, and emphasis omitted).

2022We begin our analysis by noting that, as a general rule, “[e]xculpatory clauses in which a business relieves itself from its own negligence are valid and binding in this State[.]” Heiman v. Mayfield, 300 Ga. App. 879, 883 (2) ( 686 SE2d 284 ) (2009).

2022We begin our analysis by noting that, as a general rule, “[e]xculpatory clauses in which a business relieves itself from its own negligence are valid and binding in this State[.]” Heiman v. Mayfield, 300 Ga. App. 879, 883 (2) ( 686 SE2d 284 ) (2009).

2019“In determining whether a limitation of liability clause or an exculpatory clause is sufficiently prominent, courts may consider a number of factors, including whether the clause is contained in a separate paragraph; whether the clause has a separate heading; and whether the clause is distinguished by features such as font size.”19 The record clearly shows that the Provision is the same font size as that used throughout the entirety of the 2012 and 2013 Contracts, and the Provision is not capitalized, italicized, or set in bold type for emphasis.20 Further, the Provision is not 18 See 2010-1 S

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2015Co., 197 Ga. App. 141, 142 ( 397 SE2d 611 ) (1990) (“Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.”) (citations and punctuation omitted); compare Peck v. Rollins Protective Svcs., Inc., 189 Ga. App. 381, 383 (2) ( 375 SE2d 494 ) (1988) (contract clause limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct). 4 If the language of a contract is clear and unambiguous, we enforce the contract according

2015Co., 197 Ga. App. 141, 142 ( 397 SE2d 611 ) (1990) (“Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.”) (citations and punctuation omitted); compare Peck v. Rollins Protective Svcs., Inc., 189 Ga. App. 381, 383 (2) ( 375 SE2d 494 ) (1988) (contract clause limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct). 4 If the language of a contract is clear and unambiguous, we enforce the contract according

2013Moreover, Steiner Corp. v. American District Telegraph, 683 P2d 435, 439-440 (Idaho 1984), upon which the dissent relies, involves an exculpatory clause with materially broader language. 7 A13A0090, A13A0091.

2013Moreover, Steiner Corp. v. American District Telegraph, 683 P2d 435, 439-440 (Idaho 1984), upon which the dissent relies, involves an exculpatory clause with materially broader language.

2013To the contrary, Leland Industries, Inc. v. Suntek Industries, Inc., 184 Ga. App. 635, 636-637 (1) ( 362 SE2d 441 ) (1987), 47 upon which the majority relies, notes that the prominent introductory language in that case was only general in nature and did not relate to the warranty disclaimers, suggesting that if the introductory language had referred to the disclaimers, the clause could have satisfied OCGA § 11-2-316 (2).

2013To the contrary, Leland Industries, Inc. v. Suntek Industries, Inc., 184 Ga. App. 635, 636-637 (1) ( 362 SE2d 441 ) (1987), 47 upon which the majority relies, notes that the prominent introductory language in that case was only general in nature and did not relate to the warranty disclaimers, suggesting that if the introductory language had referred to the disclaimers, the clause could have satisfied OCGA § 11-2-316 (2).

2013See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) ( 663 SE2d 240 ) (2008) (holding a limitation-of-liability clause unenforceable on the grounds thatit violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 ( 686 SE2d 853 ) (2009) (holding that a limitation-of-liability clause did not violate public policy).

2013See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) ( 663 SE2d 240 ) (2008) (holding a limitation-of-liability clause unenforceable on the grounds thatit violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 ( 686 SE2d 853 ) (2009) (holding that a limitation-of-liability clause did not violate public policy).

2013Our interpretation of the exculpatory clause is supported by the rule that “a contract should be given a reasonable construction that will uphold the agreement rather than a construction that will render the agreement meaningless and ineffective.” McLendon, supra at 60 ; see also Azzouz v. Prime Pediatrics, 296 Ga. App. 602, 605 (1) (a) ( 675 SE2d 314 ) (2009).

2013Our interpretation of the exculpatory clause is supported by the rule that “a contract should be given a reasonable construction that will uphold the agreement rather than a construction that will render the agreement meaningless and ineffective.” McLendon, supra at 60 ; see also Azzouz v. Prime Pediatrics, 296 Ga. App. 602, 605 (1) (a) ( 675 SE2d 314 ) (2009).

1980In Country Club Apts. v. Scott, 154 Ga. App. 217, 220 ( 267 SE2d 811 ) (1980); affirmed, 246 Ga. 443 (1980), this court held an exculpatory clause in a landlord-tenant agreement to be void and stated: "A landlord's implied warranty concerning latent defects existing at the inception of the lease is sufficiently analogous to a contract for maintenance or repair that an exculpatory provision purporting to nullify the effect of the implied warranty is void and unenforceable under Code § 20-504." The court found that the landlord's warranty existed by operation of law in the interest of public saf

1980In Country Club Apts. v. Scott, 154 Ga. App. 217, 220 ( 267 SE2d 811 ) (1980); affirmed, 246 Ga. 443 (1980), this court held an exculpatory clause in a landlord-tenant agreement to be void and stated: "A landlord's implied warranty concerning latent defects existing at the inception of the lease is sufficiently analogous to a contract for maintenance or repair that an exculpatory provision purporting to nullify the effect of the implied warranty is void and unenforceable under Code § 20-504." The court found that the landlord's warranty existed by operation of law in the interest of public saf

2012TSG involved an exculpatory clause purporting to eliminate the duty of care for accountants; the Eleventh Circuit expressly held that it was “not persuaded that the duties of an accountant are analogous to the duties of a medical or dental professional.” TSG Water Resources, supra, 260 F. App’x at 204 (V).

2012TSG involved an exculpatory clause purporting to eliminate the duty of care for accountants; the Eleventh Circuit expressly held that it was “not persuaded that the duties of an accountant are analogous to the duties of a medical or dental professional.” TSG Water Resources, supra, 260 Fed.

2022We agree with this analysis.15 Accordingly, we affirm the trial court’s grant of summary judgment on these claims. 13 See Dataforensics, 361 Ga. App. at 320 (1) (c) (holding that an exculpatory clause was not prominent where it was in the same typeface as the entire contract and in a section entitled “Landlord’s Liability”); Warren Averett, LLC v. Landcastle Acquisition Corp., 349 Ga. App. 479 , 484-485 (1) (b) ( 825 SE2d 864 ) (2019) (physical precedent only) (holding that an exculpatory clause was not prominent where it was in the same typeface as the entire contract and in a section entitle

2022We agree with this analysis.15 Accordingly, we affirm the trial court’s grant of summary judgment on these claims. 13 See Dataforensics, 361 Ga. App. at 320 (1) (c) (holding that an exculpatory clause was not prominent where it was in the same typeface as the entire contract and in a section entitled “Landlord’s Liability”); Warren Averett, LLC v. Landcastle Acquisition Corp., 349 Ga. App. 479 , 484-485 (1) (b) ( 825 SE2d 864 ) (2019) (physical precedent only) (holding that an exculpatory clause was not prominent where it was in the same typeface as the entire contract and in a section entitle

2022See generally Lovelace v. Figure Salon, Inc., 179 Ga. App. 51, 52 (1) ( 345 SE2d 139 ) (1986) (enforcing exculpatory clause in contract for the use of fitness equipment as not violative of public policy); City of Pembroke v. Hagin, 194 Ga. App. 642, 643 (1) ( 391 SE2d 465 ) (1990) (recognizing that the judiciary is “not lightly to interfere with this freedom of contract”) (citation and punctuation omitted); Cash v. Street & Trail, Inc., 136 Ga. App. 462, 465-466 ( 221 SE2d 640 ) (1975) (“It is well settled that contracts will not be avoided by the courts, as against public policy, except where

2022See generally Lovelace v. Figure Salon, Inc., 179 Ga. App. 51, 52 (1) ( 345 SE2d 139 ) (1986) (enforcing exculpatory clause in contract for the use of fitness equipment as not violative of public policy); City of Pembroke v. Hagin, 194 Ga. App. 642, 643 (1) ( 391 SE2d 465 ) (1990) (recognizing that the judiciary is “not lightly to interfere with this freedom of contract”) (citation and punctuation omitted); Cash v. Street & Trail, Inc., 136 Ga. App. 462, 465-466 ( 221 SE2d 640 ) (1975) (“It is well settled that contracts will not be avoided by the courts, as against public policy, except where

1982After a hearing plaintiff Pearman’s motion for partial summary judgment was granted, the trial court holding that a new public policy had been created declaring the exculpatory clause attempting to insulate the lessor from liability as void and unenforceable, citing Code Ann. §§ 20-504 (Ga. L. 1970, p. 441) and 61-102 (Ga. L. 1976, pp. 1372,1373) and Country Club Apts. v. Scott, 246 Ga. 443, 444 ( 271 SE2d 841 ), thus striking the defendant lessor’s third defense of indemnity.

1980In Country Club Apts. v. Scott, 154 Ga. App. 217, 220 ( 267 SE2d 811 ) (1980); affirmed, 246 Ga. 443 (1980), this court held an exculpatory clause in a landlord-tenant agreement to be void and stated: "A landlord's implied warranty concerning latent defects existing at the inception of the lease is sufficiently analogous to a contract for maintenance or repair that an exculpatory provision purporting to nullify the effect of the implied warranty is void and unenforceable under Code § 20-504." The court found that the landlord's warranty existed by operation of law in the interest of public saf