concluding that, because an exculpatory clause was not explicit and prominent, it did not bar a homeowner’s negligence claim against her home security company related to her sexual assault by an intruder
How later courts described this case
- concluding that, because an exculpatory clause was not explicit and prominent, it did not bar a homeowner’s negligence claim against her home security company related to her sexual assault by an intruder
- physical precedent only as to Division 2
- private contracts are not to be voided on public policy grounds except where the case is free from doubt and where an injury to the public interest clearly appears
Written by the judges who cited it.
The opinion
BOGGS, Judge,
concurring specially.
I concur fully with the majority opinion, with the exception of Division 2.1 agree that the limitation of liability clause in the contract does not bar Veasley’s action, but for a different reason: the clause in question can be interpreted to apply only to property damage or loss, not personal injury.
Paragraph 4, pertaining to “WARRANTY LIMITATIONS AND EXCLUSIONS,” refers only to “the value of Subscriber’s premises and possessions.” Moreover, in paragraph 5, “DAMAGES,” the first subparagraph attributes the difficulty in fixing actual damages to “the uncertain amount or value of property belonging to the Subscriber or others and kept on the premises which may be lost, stolen, destroyed, damaged or otherwise affected by Occurrences which the System or service is designed to detect or avert.” (Emphasis supplied.) In this light, the repeated references to “loss or damages” throughout paragraph 5 could appear, to a lay reader, to refer to property loss or damage only, not personal injury.
As Judge McMillian correctly notes in her special concurrence, an exculpatory clause must be clear and unambiguous and is construed against the drafter. I would therefore conclude that this language, at a minimum, creates an ambiguity as to whether this clause applies to a personal injury claim.