The “exculpatory clause,” “hold harmless clause,” or “indemnification clause” in your form residential apartment lease that states your landlord is not liable to you or your guests except for acts of gross negligence most likely does not protect your landlord from responsibility for injuries you or your guests may have suffered due to a dangerous condition in the common area of your apartment complex.

In Stanley v. Creighton Co., 911 P.2d 705 (Colo. App. 1996), the tenant was injured when she slipped on a spot of clear ice that had allegedly formed on the landing in front of her apartment because of a negligently repaired leaky roof. Her lease agreement contained a clause that stated the landlord shall not be responsible for any damage or injury to the tenant from any cause whatsoever unless the injury was a direct result of the landlord’s gross negligence.

The Colorado Court of Appeals in Stanley found the exculpatory clause in the residential lease void. Public policy dictated that the exculpatory clause was invalid because (i) Colorado has a long history of regulating the landlord-tenant relationship, (ii) Colorado’s premises liability act which covers a landowner’s duty to its tenant confirms that a landowner’s negligence is an issue of public concern in Colorado, (iii) tenants do not have the ability to correct hazardous conditions in the common area, and, (iv) allowing a landowner to eliminate reasonable care from common areas is likely to have an adverse effect on non-parties to the lease. The tenant’s lack of bargaining power was an additional element used to invalidate the exculpatory clause because it was a form or standardized lease, and the Tenant did not have an opportunity to negotiate away the exculpatory clause.

If you or a guest have been injured in a common area of your apartment complex, and your lease contains an “exculpatory,” “hold harmless,” or “indemnification” clause, that says the landlord is only responsible for grossly negligent acts, don’t be intimidated or discouraged from pursuing your rights if you have been injured due to a dangerous condition on the property. You should contact an attorney who can help evaluate your potential claims you may have.