and Submitted December 1, 2016
County Circuit Court 161418610; R. Curtis Conover, Judge.
Clinton L. Tapper argued the cause for appellant. With him on
the briefs was Taylor & Tapper Insurance Attorneys.
Michael H. Long argued the cause for respondent. With him on
the brief was Gaydos, Churnside & Balthrop, P. C.
DeVore, Presiding Judge, and Garrett, Judge, and Wollheim,
which leased warehouse space from defendant, appeals the
trial court's grant of defendant's motion for summary
judgment, arguing that the trial court erred in concluding
that a provision of the parties' lease agreement released
defendant from liability for its own negligence. Plaintiff
first contends that the provision in question was not
expressed in "clear and unequivocal terms" and,
further, was not "conspicuous" so as to immunize
defendant from the consequences of its own negligence.
Plaintiff alternatively argues that the lease is ambiguous
regarding defendant's liability for its own negligence
because two other lease provisions conflict with the
liability provision. Held: The court did not err in
granting defendant's motion for summary judgment.
Plaintiff's first argument fails because the language of
the liability disclaimer is unequivocal and does not cause
undue hardship to the parties, see Estey v. MacKenzie
Engineering Inc., 324 Or. 372, 378-79, 927 P.2d 86
(1996), and is conspicuous because it is logically placed in
a short paragraph about risk allocation, set off in
sufficiently readable lettering. Plaintiff's second
argument [288 Or. 419] also fails because the provision in
question is particular and the other provisions are general.
Or. 420]GARRETT, J.
which leased warehouse space from defendant, brought this
action alleging that defendant's negligent failure to
maintain the premises resulted in water intrusion that
damaged plaintiff's personal property. The trial court
granted defendant's motion for summary judgment on the
ground that the lease agreement precludes defendant's
liability "for any loss or damage caused by water
damage." On appeal, plaintiff argues that the trial
court erred because the lease does not release defendant from
liability for its own negligence in unequivocal and
conspicuous terms, and because the lease contains conflicting
provisions that create ambiguity regarding defendant's
liability for its own negligence. For the reasons explained
below, we reject plaintiff's arguments and affirm the
review the trial court's grant of summary judgment for
legal error. Johnson v. State Board of Higher
Education. 272 Or.App. 710, 714, 358 P.3d 307, rev
den, 358 Or. 527 (2015). Summary judgment is appropriate
if there are no genuine issues of material fact and the
moving party is entitled to prevail as a matter of law. ORCP
47 C. In reviewing the trial court's grant of summary
judgment, we view the facts in the light most favorable to
the nonmoving party. Morehouse v. Havnes. 350 Or.
318, 320, 253 P.3d 1068 (2011).
state the facts in accordance with that standard. Plaintiff,
a distributor of automotive parts, entered into an agreement
in 2013 to lease warehouse space from defendant. The lease
was drafted by defendant's agent. In 2014,
plaintiff's property suffered damage from rust and
corrosion that was caused, according to plaintiff, by
moisture that entered the warehouse due to defendant's
failure to adequately maintain the structure. Plaintiff
brought this action for breach of contract against
defendant's insurer, Allstate, and for breach of contract
and negligence against defendant. Only the claims against
defendant are at issue on appeal.
moved for summary judgment based on the following provision
in the lease agreement:
[288 Or. 421]"SECTION 7. INSURANCE
"7.1 Insurance Required. Lessor shall be
responsible for insuring the premises, and Lessee for
insuring its personal property and trade fixtures located on
the premises. Neither party shall be liable to the other for
any loss or damage caused by water damage, sprinkler leakage,
or any of the risks covered by a standard fire insurance
policy with an extended coverage endorsement, and there shall
be no ...