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Prince Philip Partnership v. Cutlip12/10/1990
Presented here is a claim against a tenant by a landlord seeking contractual indemnity for the landlord's tort liability to a handicapped invitee of the tenant. The trial court correctly held, on the facts presented here and for reasons hereinafter stated, that the indemnification provision of the lease was void by operation of Md.Code (1974, 1988 Repl. Vol.), ยง 8-105 of the Real Property Article (RP). The statute reads in full:
"If the effect of any provision of a lease is to indemnify the landlord, hold the landlord harmless, or preclude or exonerate the landlord from any liability to the tenant, or to any other person, for any injury, loss, damage, or liability arising from any omission, fault, negligence, or
other misconduct of the landlord on or about the leased premises or any elevators, stairways, hallways, or other appurtenances used in connection with them, and not within the exclusive control of the tenant, the provision is considered to be against public policy and void. An insurer may not claim a right of subrogation by reason of the invalidity of the provision."
The landlord is the appellant, Prince Philip Partnership (the Partnership). Since 1979, it has held medical office building premises (the Building) adjacent to Montgomery General Hospital. The tenant is the appellee, Basil Cutlip, Jr., M.D., a dermatologist, who in 1985, and for some years prior thereto, maintained his professional office in the Building.
On December 19, 1985, one of Dr. Cutlip's patients, Evelyn A. Yinger (Yinger), sought Dr. Cutlip's professional services at his office. Yinger is afflicted with muscular dystrophy and uses a wheelchair. After examining Yinger, Dr. Cutlip recommended that she then be seen by an ear, nose and throat specialist who also had offices in the Building. Yinger replied that she must first go to the bathroom. Dr. Cutlip wheeled Yinger from his examining room to the lavatory off of the reception area within his suite. Yinger's wheelchair protruded partially into the lavatory, but it could not fit fully through the lavatory doorway. Yinger advised Dr. Cutlip that she could manage on her own. There were no other patients in the reception area. A housekeeper employed by Yinger accompanied her to Dr. Cutlip's office, but precisely where the housekeeper was at this time is unclear. Dr. Cutlip's receptionist was in his personal office answering a telephone call. In order to give Yinger privacy, Dr. Cutlip stepped outside of his suite into the Building corridor, closing behind him the door between the corridor and the reception area. Yinger fell in the lavatory and broke both legs.
There were no public rest rooms in the Building.
Yinger and her husband sued the Partnership, alleging negligence in its failure to provide in the Building public toilet facilities designed for use by handicapped persons. The Partnership impleaded Dr. Cutlip and, later, Yinger's housekeeper, as third party defendants. The plaintiffs never sued over directly against Dr. Cutlip or the housekeeper.
The third party claim against Dr. Cutlip sought complete indemnification based upon the lease. The provision reads:
"22. Indemnification. Tenant will indemnify Landlord and each of its partners and save it and them harmless from and against any and all claims, action, damages, liability and property arising from or out of any occurrence in, upon or at the Demised Premises, or the occupancy or use by Tenant of the Demised Premises or any part thereof, or occasioned wholly or in part by any act o omis ion of Tenant or of any employee, patient, client, guest, or invitee of Tenant. In case Landlord shall, without fault on its part
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