"As-Is" Waiver and Indemnity Provisions in Foreclosure Contract Bars Personal Injury Claims
Case Study

"As-Is" Waiver and Indemnity Provisions in Foreclosure Contract Bars Personal Injury Claims

In a recent case in the Superior Court of New Jersey, attorneys in Goldberg Segalla’s Commercial Litigation and General Liability practice earned a successful motion for summary judgment and dismissal with prejudice of all claims against our client, a Fortune 500 financial services company.

In this personal injury case, the plaintiff purchased a foreclosure property from our client “as-is” with no warranties and, as part of the contract, agreed that our client would have no liability for any claims or losses because of any alleged defects. He also agreed to waive claims related to defects that existed at the property and to indemnify our client against any and all claims of every kind and nature resulting from or arising out of inspections. Before closing on the property, the plaintiff averred that he fell through the attic due to an alleged defect with the cat braces and ceiling joists while he was inspecting the attic of the property. He brought suit against our client for negligence, claiming that our client knew or should have known of the allegedly defective or dangerous condition.

While discovery was ongoing, Goldberg Segalla moved for summary judgment on the foreclosure contract of sale, predominantly arguing that the “as-is” clause negated the elements necessary to bring a cause of action for negligence against our client and that our client had no duty to the plaintiff to prevent against a claimed defect at the property, when they sold the property to plaintiff “as-is” with no warranties. We also argued that the indemnity provision in the contract, which indicated that the plaintiff must indemnify our client against any and all claims resulting from inspections made by the plaintiff, was clear, unambiguous, and needed to be enforced as written.

The motion, which was done by Goldberg Segalla partner John M. McConnell with assistance from associates Thaddeus J. Hubert and David J. Coppola, was heavily contested as the issue of an “as-is” provision in a contract barring personal injury claims at a property appeared to be one of first impression in New Jersey. After extensive briefing and several oral arguments performed by John, the judge granted our client’s motion for summary judgment, finding that the “as-is” clause negated the elements necessary to bring a cause of action for negligence and our client had no duty to the plaintiff to prevent against a claimed defect at the property, when our client sold the property to the plaintiff “as-is” with no warranties. The judge also found the waiver and indemnity provisions in the foreclosure contract of sale compelling.

Although successful motions for summary judgment, while discovery is ongoing in an issue of purported first impression are rare, this result shows creativity, innovation, and advocacy for our client to get a successful result. This was done in a way to limit fees and costs to our client before trial, but even before discovery concluded.


More about Goldberg Segalla’s Commercial Litigation and General Liability practice groups

With a roster stacked with seasoned litigators and nationally recognized authorities in a number of critical legal disciplines, Goldberg Segalla brings exceptional strength and savvy to the defense of a wide range of liability claims. Our attorneys have a wealth of experience defending companies of all sizes in various industries, along with municipalities, school districts, and other public entities, in a broad spectrum of matters.

We pride ourselves on the aggressive and cost-efficient manner in which we defend all claims. Our trial record and commitment to early dispositive motions is our hallmark of success. In matters of liability, we employ creative settlement resolutions and resort to alternative dispute resolution (ADR) wherever possible.