KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com ******************************* Negligence voids exculpatory clause in Montana case December 13, 2019 *********************** Negligence voids exculpatory clause in Montana case ************************ An Exculpatory clause received close scrutiny and was not enforced in Montana. A bails bond contract contained an exculpatory clause. You can read the entire case on our website under Alarm Law Issues / Leading Cases / Montana. Case is Eugene Deshane Mitchell, et al v First Call Bail and Surety, et al. Here’s what the court said: “Under Montana law, “all contracts5 that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” … the Montana Supreme Court held that any waiver by which an entity (principal or agent) seeks to contractually exculpate itself from liability arising out of negligent violations of legal duties, whether those duties are rooted in case or statutes, is invalid.” Here is the law in Montana that persuaded the court in the above case: “28-2-702. Contracts that violate policy of law--exemption from responsibility--exception Except as provided in 27-1-753, all contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person's own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law The statute referred to in the above statute is a limitation on liability in sport or recreational activity. In this case the court refused to enforce the exculpatory clause as a matter of law because: to the extent that litigation in this case determines that Defendants are liable based on any willful, negligent or fraudulent conduct, this waiver of this liability is void for public policy. I think the court misinterpreted the law as discussed in the prior Montana cases. This court holds that the exculpatory clause won’t be enforced if there is * Willful conduct * Negligent conduct * Fraudulent conduct But that’s not what the statute or prior cases hold. The term “negligence” is used in connection with a willful or negligent violation of law. That standard is quite different than breaching a contract or negligently performing a contract or negligently failing to perform a contract [which really isn’t actionable because it’s a breach of contract, not tort]. This case, by the way, is in the Federal Court sitting in Montana and it’s a Federal Judge who is doing his best to interpret Montana law. All I can say is, no one hired me to consult on the case. ********************** To order up to date Standard Form Alarm / Security / Fire and related forms, click here:www.alarmcontracts.com ************************* CONCIERGE LAWYER SERVICE FOR THE ALARM INDUSTRY PROGRAM You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** NOTICE: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles *********************** THE ALARM EXCHANGE
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