Will a Kansas court enforce this clause capping or excluding our liability for our own negligence?
It will read it narrowly, but it will read it. In Johnson v. Board of County Commissioners the Supreme Court said "We acknowledge that a party may contract away responsibility for its own negligence", and in the next sentence that "an agreement seeking to protect a party from liability for its own negligence is subject to strict construction" and "will not be enforced unless the protection from liability is expressed in clear and unequivocal terms". It added, in words it took from the Court of Appeals' syllabus in Zenda Grain & Supply, that contracts for the exemption from liability for negligence "are not favored by the law and are strictly construed against the party relying on them". It reversed the Court of Appeals, which had held the hold-harmless clause effective to bar the county's indemnity claim, and applied that standard to hold that the language before it "is not expressed in terms clear and unequivocal enough to contract away KDOT's own negligence." Two statutes then take particular clauses out of play. In a construction contract, motor carrier transportation contract, dealer agreement or franchise agreement, a provision requiring the promisor to indemnify the promisee for the promisee's negligence or intentional acts or omissions is void and unenforceable, as is a provision requiring a party to name another as an additional insured for that other party's own negligence (K.S.A. 16-121(b)-(c)). In a sale of goods, consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable, and limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable while limitation where the loss is commercial is not (K.S.A. 84-2-719(3)). The same section attaches a condition the cap cannot shed: "Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act" (subsection (2)).
The trap
Keep the two directions apart. K.S.A. 16-121(b) voids a promise to answer for the OTHER party's negligence; on its words it does not reach a clause capping or excluding the drafter's own liability to its counterparty, and nothing read here extends it there. What does reach the drafter's own clause is the strict-construction rule: general words will not do the work, because a contract of indemnity is not construed to cover the indemnitee's own negligence unless the intention is expressed in clear and unequivocal terms and "mere general broad and seemingly all-inclusive language in the indemnifying agreement is not sufficient". Breadth is what failed in Johnson: the 1975 clause covered "any and all costs, liabilities, expenses, damages, suits, judgements [sic] and claims of any nature whatsoever" and named "the acts of [KDOT], its authorized agents or employees", and the Court still held it not clear and unequivocal enough. Adding words does not buy clarity; naming the protected party's own negligence does. Kansas does have a public-policy limit, and it has been applied: in Danisco Ingredients USA v. Kansas City Power & Light the Supreme Court, answering certified questions from the Missouri Court of Appeals about an electric utility tariff approved by the Kansas Corporation Commission, held that "any attempt to ... limit liability for greater than ordinary negligence is not reasonable and, is therefore, unenforceable" and that the limits before it "go too far and are inconsistent with Kansas law and public policy". What that means in Kansas is particular: the state "does not recognize degrees of negligence and, thus, has no category for “gross negligence,” but draws a distinction between ordinary negligence and wanton conduct", so the line a clause may not cross is wanton conduct. Danisco is about a regulated utility's tariff rather than a negotiated commercial contract, and nothing read here extends it to one. In a consumer transaction there is a further bar this rule states separately: K.S.A. 50-639 forbids a supplier to exclude, modify or attempt to limit the implied warranties or any remedy provided by law for their breach, and makes an offending disclaimer void.
15 authorities
The words that state the rule
The Court of Appeals, without discussion of indemnification for one’s own negligence, affirmed the district court’s ruling, but for a different reason. 21 Kan. App. 2d at 92 . We reverse. We acknowledge that a party may contract away responsibility for its own negligence. See Corral v. Rollins Protective Services *329 Co., 240 Kan. 678, 680-81 , 732 P.2d 1260 (1987). However, an agreement seeking to protect a party from liability for its own negligence is subject to strict construction ánd will not be enforced unless the protection from liability is expressed in clear and unequivocal terms.
The words that state the rule
The language of the 1975 agreement does not qualify under Zenda, Butters , and Corral as an enforceable hold harmless agreement. The language is not expressed in terms clear and unequivocal enough to contract away KDOT’s own negligence.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
An indemnification provision in a contract which requires the promisor to indemnify the promisee for the promisee's negligence or intentional acts or omissions is against public policy and is void and unenforceable.
- statuteK.S.A. 84-2-719enactment date not established
The words that state the rule
Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any damages recovered, award reasonable attorney fees and a civil penalty under K.S.A. 50-636, and amendments thereto, to be paid by the supplier who gave the improper disclaimer.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
A provision in a contract which requires a party to provide liability coverage to another party, as an additional insured, for such other party's own negligence or intentional acts or omissions is against public policy and is void and unenforceable.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
"Contract" means any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall: (1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability as defined in K.S.A. 84-2-314, and amendments thereto, and fitness for a particular purpose, as defined in K.S.A. 84-2-315, and amendments thereto; or (2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.
The words that state the rule
It is a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed thereto, and mere general broad and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.
The words that state the rule
Contracts for the exemption from liability for. negligence are not favored by the law and are strictly construed against the party relying on them. 20 Kan. App. 2d 728 , Syl. ¶ 2.
The words that state the rule
the County agreed to “save [KDOT] harmless from any and all costs, liabilities, expenses, damages, suits, judgements [sic] and claims of any nature whatsoever arising out of or in connection with the performance of any contract, ... or the construction or maintenance of any project, or of the acts of [KDOT], its authorized agents or employees, when acting under the provisions of this agreement and any contracts or agreements entered into in connection therewith.”
- statuteK.S.A. 84-2-719enactment date not established
The words that state the rule
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.
- case267 Kan. 760Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co.Kan.decided 1999read it at the source ↗
The words that state the rule
However, consistent with our prior case law in Telegraph Co. v. Crall, 38 Kan. 679 , and the law of the majority of jurisdictions which have addressed the question, any attempt to *772 limit liability for greater than ordinary negligence is not reasonable and, is therefore, unenforceable.
- case267 Kan. 760Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co.Kan.decided 1999read it at the source ↗
The words that state the rule
Kansas does not recognize degrees of negligence and, thus, has no category for “gross negligence,” but draws a distinction between ordinary negligence and wanton conduct, which is defined as the reckless disregard for the rights of others with a total indifference to the consequences.
- case267 Kan. 760Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co.Kan.decided 1999read it at the source ↗
The words that state the rule
It is clear that the approved limits on liability in this case go too far and are inconsistent with Kansas law and public policy.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.