Southern Pacific Transportation Co. v. Sandyland Protective Ass'n

Opinion

GILBERT, J.

A homeowners association and a railroad company enter into an agreement whereby the association will construct and maintain a roadway so that its members can have access to their property across the railroad’s tracks. The agreement contains a clause which requires the association to indemnify the railroad for any negligence of the railroad.

Here we hold that the indemnification clause is unenforceable because Civil Code

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section 2782, subdivision (a) makes indemnification clauses void for the sole negligence of the promisee in a construction contract. We therefore affirm the judgment in favor of the association.

Facts

Sandyland Protective Association entered into an agreement with Southern Pacific Transportation Company to allow its members to cross the Southern Pacific railroad tracks. The agreement was signed by the president of the association in 1976. It was a successor to two similar agreements executed in 1956 and 1959 respectively.

The agreement provided that the association would construct and maintain the roadway and such signs as the railroad may designate; install and maintain gates or barricades as the railroad may require; and pay for all labor and materials. The railroad agreed to maintain existing “protective devices” at the association’s expense.

The agreement contained the following clause: “[The association] agrees to indemnify and save harmless Railroad, its officers, employees, agents, successors and assigns, of all claims, liability, cost and expense, howsoever same may be caused, including reasonable attorney fees, for loss of or

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damage to property of either party hereto or third persons and for injuries to or deaths of. . . the agents, employees or invitees of [the association] or third persons or the employees of Railroad caused by or arising out of the presence, construction, reconstruction, maintenance, use or removal of said roadway, regardless of any negligence or alleged negligence on the part of Railroad.”