Express Assumption of
Risk/Waiver/Exculpatory Clauses
50-state survey
(including the District of Columbia)
50-state survey
Contents
Overview 1
Montana13
Alabama4
Nebraska13
Alaska4
Nevada13
Arizona4
New Hampshire
14
Arkansas5
New Jersey
14
California5
New Mexico
14
Colorado6
New York
15
Connecticut6
North Carolina
15
Delaware6
North Dakota
15
District of Columbia
7
Ohio16
Florida7
Oklahoma16
Georgia7
Oregon16
Hawaii8
Pennsylvania17
Idaho8
Rhode Island
17
Illinois8
South Carolina
18
Indiana9
South Dakota
18
Iowa9
Tennessee18
Kansas9
Texas19
Kentucky10
Utah19
Louisiana10
Vermont20
Maine10
Virginia20
Maryland11
Washington20
Massachusetts11
West Virginia
Michigan11
Wisconsin21
Minnesota12
Wyoming22
Mississippi12
Offices & Affiliates
21
24
Missouri12
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2
Express Assumption of Risk/Waiver/Exculpatory Clauses
Overview
In the Restatement (Second) of Torts, the discussion regarding
express assumption of risk is explained is follows: “[t]he risk of
harm from the defendant’s conduct may be assumed by express
agreement between the parties. Ordinarily such an agreement
takes the form of a contract, which provides that the defendant is
under no obligation to protect the plaintiff, and shall not be liable
to him for the consequences of conduct which would otherwise be
tortious.” (REST 2d TORTS § 496B.) American Jurisprudence states
that “[a] valid release continues to be a complete bar to recovery in
negligence actions in every jurisdiction.” (30 Am. Jur. Proof of Facts
3d 161 §3.) What courts consider to be a valid release, however,
varies from state to state. In the following review, we identify
those states that recognize the enforceability of exculpatory
clauses. Given the disfavor with which such exculpatory clauses
are generally viewed under the law, however, even the majority
of states that recognize them to be enforceable impose stringent
and exacting requirements for the clauses to be upheld. We also
identify those states where such clauses are strictly unenforceable
under any circumstance or where a specific set of underlying facts
are presented (e.g., involving intentional conduct/gross negligence
or infants). Therefore even though the discussion below sets forth
the general rule for the enforceability or non-enforceability of these
waivers in each state, the specific facts and circumstances must
be evaluated and additional research may be required in certain
instances.
Generally speaking, because exculpatory clauses are widely
disfavored, the majority of state courts strictly construe the terms
and conditions against the party seeking to enforce them, and
require that the contract “clearly set out what negligent liability
is to be avoided.” (See Ingersoll-Rand Co. v. El Dorado Chem.
Co., 373 Ark. 226, 231–232 (2008).) This generally means that
the courts require the release/assumption of a risk/exculpatory
clause to be clear and unambiguous. It has been stated that
“[t]he release must ‘clearly, explicitly and comprehensibly set forth
to an ordinary person untrained in the law [] the intent and effect of
the document.’” (See Cohen v. Five Brooks Stable, 72 Cal. Rptr. 3d
471, 481 (2008).) Some courts require that the word “negligence”
be included and that the waiver explicitly state the type of
negligence being waived to distinguish between losses resulting
from inherent risks and those resulting from fault or wrongdoing
See Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS
377 (2008). (“Not only does [the liability waiver] fail to mention the
word ‘negligence,’ it also lacks alternative language expressing
that PCCC would be released for its own fault or wrongdoing.
Slowe could reasonably assume that the effect of the release
would have been to relieve PCCC of liability only for injuries or
losses resulting from risks inherent in his use of the club and its
premises, not for losses resulting from PCCC’s negligence. The
waiver’s reference to ‘any and all’ injuries, without any reference
to injuries caused by PCCC, is insufficient to undermine this
assumption or indicate that the parties contemplated releasing
PCCC for acts of negligence.”) Courts have also looked to the
complexity of the language, the length of the waiver and the point
size and location within the document to determine if an “ordinarily
prudent and knowledgeable individual would have understood the
provision as a release from liability for negligence.” (See Hall v.
Woodland Lake Leisure Resort Club, 1998 Ohio App. LEXIS 4898,
15 (1998).) In addition, because some states have adopted laws
regarding contributory negligence, the terminology also varies. For
example, Idaho has eliminated the term “assumption of risk” and
states that the correct terminology for this defense is “consent.”
(See Davis v. Sun Valley Ski Educ. Found., 130 Idaho 400, 405
(1997).) Courts will also examine the waiver to see if it is consistent
with public policy.
Several states cite to California’s Tunkl v. Regents of the University
of California, 60 Cal. 2d 92 (1963) for the criteria that cause a
provision to be void as against public policy.* In Tunkl, six criteria
were established to identify the kind of agreement in which an
exculpatory clause is invalid as contrary to public policy:
“. . . [1] It concerns a business of a type generally thought suitable
for public regulation. [2] The party seeking exculpation is engaged
in performing a service of great importance to the public, which
is often a matter of practical necessity for some member of the
public. [3] The party holds himself out as willing to perform this
service for any member of the public who seeks it, or at least any
member coming within certain established standards. [4] As a
result of the essential nature of the service, in the economic setting
of the transaction, the party invoking exculpation possesses a
decisive advantage of bargaining strength against any member
of the public who seeks his services. [5] In exercising a superior
bargaining power the party confronts the public with a standardized
adhesion contract or exculpation, and makes no provision whereby
a purchaser may pay additional fees and obtain protection against
negligence. [6] Finally, as a result of the transaction, the person or
property of the purchaser is placed under the control of the seller,
subject to the risk of carelessness by the seller or his agents.”
1
50-state survey
Morgan v. South Cent. Bell Tel. Co., 466 So. 2d 107 (1985) (quoting
Tunkl v. Regents of the University of California, 60 Cal. 2d at 98101, 32 Cal. Rptr. at 37-38, 383 P. 2d at 445-446.) (Footnotes
omitted.)
Generally, if the waiver is valid, it will apply only to ordinary
negligence; “the vast majority of decisions state or hold that such
agreements generally are void on the ground that public policy
precludes enforcement of a release that would shelter aggravated
misconduct.” (City of Santa Barbara v. Superior Court, 41 Cal. 4th
747, 760 (2007).) It should be noted, however, that Connecticut,
for example, “does not recognize degrees of negligence and,
consequently, does not recognize the tort of gross negligence as a
separate basis of liability.” But the courts there have nevertheless
limited the application of the releases to instances where
considerations relating to public policy and good conscience
are not implicated. (See Hanks v. Powder Ridge Restaurant
Corporation et al., 885 A.2d 734, 748 (2005).)
In addition, state statutes affect the applicability of an exculpatory
clause/waiver. For example, New York will not allow express
assumption of risk/waiver in the proprietary entertainment and
recreation context (e.g., where the plaintiff paid a fee to use the
facility) because of NY GOL § 6-326, and New Jersey found that a
release signed by a decedent “with the express purpose of barring
his potential heirs from instituting a wrongful death action in the
event of his death . . . was void as against public policy” because
of its Wrongful Death Act. (See New Jersey, infra.)
NOTABLE EXCEPTIONS
Arizona has held that, by statute, “the validity of an express
contractual assumption of risk is a question of fact for a jury, not
a judge.” (See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 410
(2005).)
Virginia “universally prohibits” any “provision[] for release from
liability for personal injury which may be caused by future acts
of negligence” and only allows releases of liability for property
damage. (See Virginia, infra.)
Louisiana has a statute that states that “‘[a]ny clause is null’ that
limits liability based on intentional fault or gross fault or for physical
injury.” (See Ostrowiecki v. Aggressor Fleet. Ltd., 2008 U.S. Dist.
LEXIS 62713 (2008).)
Montana similarly prohibits exculpatory clauses that purport
to release a party from negligence. In Montana, “it is statutorily
prohibited for any contracts to have as their object, directly or
indirectly, the exemption of anyone from responsibility for their own
2
fraud, for their willful injury to the person or property of another,
or for their willful or negligent violation of the law. § 28-2-702,
MCA. The Haynes Court held that this statute rendered illegal any
exculpatory clause or release of liability clause seeking to relieve a
tortfeasor from liability for negligent conduct. Haynes, 517 P.2d at
377.” (Thompson v. Simanton, 2004 ML 3736 (2004).)
In Florida, natural guardians are authorized “to waive and release,
in advance, any claim or cause of action against a commercial
activity provider . . . which would accrue to a minor child for
personal injury, including death, and property damage resulting
from an inherent risk in the activity.” Fla. Stat. § 744.301(3) (2011)
(emphasis added). In subsection (a), the statute defines inherent
risk as “those dangers or conditions, known or unknown, which
are characteristic of, intrinsic to, or an integral part of the activity
and which are not eliminated even if the activity provider acts
with due care in a reasonably prudent manner.” Id. The statute
states, however, that although the negligence of the minor child
or a participant in the activity is included in the inherent risk, “[a]
participant does not include the activity provider or its owners,
affiliates, employees, or agents.” Id. at (3)(a)(2). This language
suggests that a commercial activity provider cannot be released
from liability for its own negligence. The legislature made this
amendment in response to a case which held that “a parent did
not have the authority to execute a pre-injury release on behalf
of a minor child when the release involved participation in a
commercial activity.” (REST 2d Torts § 496B, Case Citations July
2007–June 2009 (citing Kirton v. Fields, 997 So.2d 349 (2008)).)
The court noted that “[i]n holding that pre-injury releases executed
by parents on behalf of minor children are unenforceable for
participation in commercial activities, we are in agreement with
the majority of other jurisdictions.” (Kirton v. Fields, 997 So.2d
349, 355 (2008).) With the amendment to § 744.301(3), natural
guardians can now execute pre-injury releases, but in the limited
circumstances detailed in the statute.
Other states and federal courts have also addressed the propriety
of a parent or guardian’s execution of a pre-injury release on behalf
of a minor child. See, e.g., Johnson v. New River Scenic Whitewater
Tours, Inc., 313 F. Supp. 2d 621 (S.D.W.Va. 2004) (finding a parent
could not waive liability on behalf of a minor child and also could not
indemnify a third party against the parent’s minor child for liability
for conduct that violated a safety statute such as the Whitewater
Responsibility Act); Meyer v. Naperville Manner, Inc., 262 Ill. App.
3d 141, 634 N.E.2d 411, 199 Ill. Dec. 572 (Ill. App. Ct. 1994) (finding
a parental pre-injury waiver unenforceable in a situation where the
minor child was injured after falling off a horse at a horseback
riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3
(Me. 1979) (stating in dicta that a parent cannot release a child’s
Express Assumption of Risk/Waiver/Exculpatory Clauses
cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216
Mich. App. 552, 550 N.W.2d 262, 263 (Mich. Ct. App. 1996) (‘It is
well settled in Michigan that, as a general rule, a parent has no
authority, merely by virtue of being a parent, to waive, release, or
compromise claims by or against the parent’s child.’); Hojnowski
v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (N.J. 2006)
(finding that where a child was injured while skateboarding at a
skate park facility, ‘a parent may not bind a minor child to a preinjury release of a minor’s prospective tort claims resulting from
the minor’s use of a commercial recreational facility’); Childress v.
Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) (extending
the law that a parent could not execute a pre-injury release on
behalf of a minor child to a mentally handicapped twenty-year-old
student who was injured while training for the Special Olympics
at a YMCA swimming pool); Munoz v. II Jaz, Inc., 863 S.W.2d 207
(Tex. App. 1993) (finding that giving parents the power to waive a
child’s cause of action for personal injuries is against public policy
to protect the interests of children); Hawkins v. Peart, 2001 UT 94,
37 P.3d 1062, 1066 (Utah 2001) (concluding that ‘a parent does not
have the authority to release a child’s claims before an injury,’ where
the child was injured as a result of falling off a horse provided by a
commercial business); Hiett v. Lake Barcroft Cmty. Ass’n., 244 Va.
191, 418 S.E.2d 894, 8 Va. Law Rep. 3381 (Va. 1992) (concluding
that public policy prohibits the use of pre-injury waivers of liability
for personal injury due to future acts of negligence, whether for
minor children or adults); Scott v. Pac. W. Mountain Resort, 119
Wn.2d 484, 834 P.2d 6 (Wash. 1992) (holding that the enforcement
of an exculpatory agreement signed by a parent on behalf of a
minor child participating in a ski school is contrary to public policy).
volunteering for nonprofit organizations’ because of the potential
for substantial damage awards).
CONCLUSION
Even setting aside the exceptions, it is virtually impossible to draft
a release/waiver that is guaranteed to withstand judicial scrutiny in
every state given the variations in standards for each state (which
may warrant additional research for the particular state in any
given circumstance). Moreover, because state statutes can affect
whether or not an exculpatory clause will be enforced (for example,
whether it will be effective against one’s heirs/assigns), a “one size
fits all” approach is simply not feasible. A waiver/release that is
clear, unambiguous and as thorough as possible may nevertheless
be deemed sufficient for the vast majority of the jurisdictions that
favor enforceability.
Interestingly, in the context of voluntary or nonprofit endeavors,
there are jurisdictions where pre-injury releases executed by
parents on behalf of minor children have been found enforceable.
These decisions typically involve a minor’s participation in schoolrun or community-sponsored activities. See, e.g., Hohe v. San
Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr.
647 (Cal. Ct. App. 1990) (finding the pre-injury release executed
by the father on behalf of the minor child enforceable against
any claims resulting from the child’s participation in a schoolsponsored event); Sharon v. City of Newton, 437 Mass. 99, 769
N.E.2d 738 (Mass. 2002) (holding that a parent has the authority to
bind a minor child to a waiver of liability as a condition of a child’s
participation in public school extracurricular sports activities);
Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio
389, 696 N.E.2d 201, 205 (Ohio 1998) (concluding that a parent
may bind a minor child to a release of volunteers and sponsors
of a nonprofit sports activity from liability for negligence because
the threat of liability would strongly deter ‘many individuals from
3
50-state survey
Excerpts from state cases/statutes
Alabama
Enforceable
In Alabama, general releases exculpating one from liability for
negligent conduct have been upheld as valid and not void as
against public policy. Young v. City of Gadsden, 482 So.2d 1158
(Ala. 1985). In Young, which involved auto racing, the court held
that participation in automobile races is a voluntary undertaking
of a hazardous activity, and releases from liability, when voluntarily
entered into, should be enforced. Alabama courts have also noted,
however, that such releases “although valid and consistent with
public policy as to negligent conduct are invalid and contrary to
public policy as to wanton or willful conduct.” Barnes v. Birmingham
Int’l Raceway, 551 So. 2d 929, 933 (1989).
But compare Morgan v. South Cent. Bell Tel. Co., 466 So. 2d 107
(1985), where the court refused to enforce a waiver because of
the grossly unfair and unbalanced bargaining power of defendant,
applying the criteria discussed in the overview to this document
in Tunkl in determining whether a clause is void as against public
policy.
Alaska
Enforceable
“As with any contract, a release of liability is only valid to the
extent that it reflects a ‘conspicuous and unequivocally expressed’
intent to release from liability.” Moore v. Hartley Motors, 36 P.3d
628, 632-633 (2002). But if the release does not discuss or
mention liability for general negligence and merely refers only to
unavoidable and inherent risks of the activity, then negligence
unrelated to those inherent risks are not released from liability.
Id. at 633.
Arizona
Enforceable
As noted in the overview to this document, pursuant to state
statute, “the validity of an express contractual assumption of
risk is a question of fact for a jury, not a judge.” Phelps v. Firebird
Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003, 1010 (2005). Thus,
4
in Arizona, although these waivers may be enforceable, they
will always be subject to a jury determination and can never be
enforced via summary judgment.
Express Assumption of Risk/Waiver/Exculpatory Clauses
Arkansas
Enforceable
In Arkansas, exculpatory contracts must clearly set out what
negligent liability is to be avoided. Importantly, however, courts are
not restricted to the literal language of the contract, and will also
consider the facts and circumstances surrounding the execution of
the release in order to determine the intent of the parties. Jordan v.
Diamond Equipment & Supply Co. 362 Ark. 142, 149, 207 S.W.3d
525, 530 (2005). In addition, Arkansas courts have recognized three
requirements for the enforcement of an exculpatory provision:
“(1) when the party is knowledgeable of the potential liability that
is released; (2) when the party is benefitting from the activity which
may lead to the potential liability that is released; and (3) when the
contract that contains the clause was fairly entered into.” Finagin v.
Ark. Dev. Fin. Auth., 355 Ark. 440, 458, 139 S.W.3d 797, 808 (2003).
California
Enforceable
“[S]o long as the express agreement to assume the risk does not
violate public policy, it will be upheld and will constitute a complete
bar to a negligence cause of action. (Knight v. Jewett, supra, 3 Cal.
4th 296, 308, fn. 4; Madison v. Superior Court (1988) 203 Cal. App.
3d 589, 597-602 [250 Cal. Rptr. 299].)” Allan v. Snow Summit, Inc.,
51 Cal. App. 4th 1358, 1372 (1996).
“[A]lthough exculpatory clauses affecting the public interest are
invalid (Tunkl v. Regents of University of California (1963) 60 Cal. 2d
92 [32 Cal. Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693 ]), exculpatory
agreements in the recreational sports context do not implicate the
public interest.” Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358,
1373 (1996).
“California courts require a high degree of clarity and specificity
in a Release in order to find that it relieves a party from liability
for its own negligence. The release must ‘clearly, explicitly and
comprehensibly set forth to an ordinary person untrained in the law
that the intent and effect of the document is to release his claims
for his own personal injuries and to indemnify the defendants
from and against liability to others which might occur in the future
as a proximate result of the negligence of [the] defendants … .’
(Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147
Cal. App. 3d 309, 319 [195 Cal. Rptr. 90]; see Scroggs v. Coast
Community College Dist. (1987) 193 Cal. App. 3d 1399, 1404 [239
Cal. Rptr. 916] [‘The presence of a clear and unequivocal waiver
with specific reference to a defendant’s negligence is a distinct
requirement where the defendant seeks to use the agreement to
escape responsibility for the consequences of his negligence.’].)
This does not mean use of the word ‘negligence’ or any particular
verbiage is essential (see Sanchez v. Bally’s Total Fitness Corp.
(1998) 68 Cal.App.4th 62, 66–67 [79 Cal. Rptr. 2d 902]), but that
the release must inform the releasor that it applies to misconduct
on the part of the releasee.” Cohen v. Five Brooks Stable, 159
Cal. App. 4th 1476, 1488-1489 (2008). A release for future gross
negligence is unenforceable, however, in California. City of Santa
Barbara v. Superior Court, 41 Cal. 4th 747 (2007).
5
50-state survey
Colorado
Enforceable
Exculpatory agreements are enforceable but “[i]n no event will an
exculpatory agreement be permitted to shield against a claim of
willful and wanton negligence. Jones v. Dressel, 623 P.2d 370, 376
(Colo. 1981). Although an exculpatory agreement that attempts
to insulate a party from liability for his own simple negligence
is also disfavored, it is not necessarily void as against [] public
policy… ‘as long as one party is not ‘at such obvious disadvantage
in bargaining power that the effect of the contract is to put him
at the mercy of the other’s negligence.’ See Heil Valley Ranch v.
Simkin, 784 P.2d 781, 784 (Colo. 1989) (citation omitted); Jones,
623 P.2d at 376. In determining the validity of such agreements,
[courts] have held that they must [] closely scrutinize[] [the clauses]
to ensure that the intent of the parties is expressed in clear and
unambiguous language and that the circumstances and the nature
of the service involved indicate that the contract was fairly entered
into.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (2004).
Connecticut
Enforceable
In Connecticut, a party cannot be released from liability for injuries
resulting from its future negligence in the absence of language
that expressly so provides. “This rule ‘prevents individuals from
inadvertently relinquishing valuable legal rights’ and ‘does not
impose . . . significant costs’ on entities seeking to exculpate
themselves from liability for future negligence.” Hanks v. Powder
Ridge Rest. Corp., 276 Conn. 314, 320 (2005) (quoting Hyson v.
White Water Mt. Resorts of Conn., 265 Conn. 636, 643 (2003)).
“Connecticut does not recognize degrees of negligence and,
consequently, does not recognize the tort of gross negligence as
a separate basis of liability. See, e.g., Matthiessen v. Vanech, 266
Conn. 822, 833, 836 A.2d 394 and n.10, 266 Conn. 822, 836 A.2d
394 (2003).” Hanks, 276 Conn. at 337. But Connecticut courts
are careful not to allow the release to excuse a defendant from
conduct that may violate public policy or be considered wanton.
Delaware
Enforceable
“An express agreement to assume a risk can only be effective
[in Delaware] if it is clear ‘that its terms were intended by both
parties to apply to the particular conduct of the defendant which
has caused the harm.’ Accordingly, while an exculpatory clause
need not itemize every conceivable injury or loss intended to
fall within its ambit, it must nonetheless ‘clearly, explicitly and
6
comprehensibly’ state the risks the parties intend to cover,
especially where it is claimed that a party has assumed risks not
inherent to ‘the endeavor for which the release is signed.’” Slowe
v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 10-11
(2008) (footnotes omitted).
Express Assumption of Risk/Waiver/Exculpatory Clauses
District of Columbia
Enforceable
“A fundamental requirement of any exculpatory provision is that it
be clear and unambiguous. Maiatico v. Hot Shoppes, Inc., 109 U.S.
App. D.C. 310, 312, 287 F.2d 349, 351 (1961) (‘exculpation must
be spelled out with such clarity that the intent to negate the usual
consequences of tortious conduct is made plain’; also recognizing
that in most circumstances modern law ‘permit[s] a person to
exculpate himself by contract from the legal consequences of his
negligence’). Cf. Adloo v. H.T. Brown Real Estate, Inc., 344 Md.
254, 686 A.2d 298, 305 (Md. 1996) (‘Because it does not clearly,
unequivocally, specifically, and unmistakably express the parties’
intention to exculpate the respondent from liability resulting from
its own negligence, the clause is insufficient for that purpose.’).”
Moore v. Waller, 930 A.2d 176, 181 (2007). In addition, “any ‘term’
in a contract which attempts to exempt a party from liability for
gross negligence or wanton conduct is unenforceable, not the
entire [contract].’ Anderson, 712 N.W.2d at 801 (quoting Wolfgang
v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788 (D.
Kan. 1995) (which in turn quotes RESTATEMENT (SECOND) OF
CONTRACTS § 195(1) (1981) (‘A term exempting a party from tort
liability for harm caused intentionally or recklessly is unenforceable
on grounds of public policy.’ (emphasis added)).” Id. at 182.
Florida
Enforceable
Although viewed with disfavor under Florida law, exculpatory
clauses are valid and enforceable when clear and unequivocal.
Borden v. Phillips, 752 So. 2d 69 (2000). As noted in the overview
to this document, in Florida, a parent may release the claims of
a minor for inherent risks in commercial activities, but not for the
negligence of the activity provider. Fla. Stat. § 744.301(3) (2011);
but see Kirton v. Fields, 997 So. 2d 349 (2008).
Georgia
Enforceable
“Except in cases prohibited by statute and cases where a public
duty is owed, the general rule is that a party may exempt himself
by contract from liability to the other party for injuries caused by
negligence; and the agreement is not void for contravening public
policy. Code § 102-106; Hearn v. Central of Ga. R. Co., 22 Ga.
App. 1, 3-7 (95 S.E. 368); King v. Smith, 47 Ga. App. 360, 364 (170
S.E. 546).” Hawes v. Central of Georgia R. Co., 117 Ga. App. 771,
772, 162 S.E.2d 14 (1968). But an exculpatory provision may not
be enforced to relieve liability for willful or wanton conduct. Brady
v. Glosson, 87 Ga. App. 476, 478, 74 S.E.2d 253 (1953).
7
50-state survey
Hawaii
Enforceable
Although exculpatory clauses are generally disfavored, exculpatory
clauses are enforceable if they do not violate a statute, implicate
a substantial public interest, or stem from unequal bargaining
power between the parties. See Fujimoto v. Au, 95 Haw. 116, 15556, 19 P.3d 699, 738-39 (2001). But see HRS § 663-1.54 (2011),
which states that an owner or operator of a business providing
recreational activities to the public will be liable for injuries caused
by negligent acts or omissions, but not for inherent risks of the
activity if a waiver that meets the requirements of the statute is
signed by the patron.
Idaho
Enforceable
Plaintiff’s express consent to a waiver or release is recognized
to be a complete bar to recovery in Idaho. With one important
exception, contractual assumption of risk operates as a total
bar to recovery. “The exception is the general contract rule that
contracts which violate public policy are not recognized. See,
e.g., Whitney v. Continental Life and Accident Co., 89 Idaho 96,
403 P.2d 573 (1965); Worlton v. Davis, 73 Idaho 217, 249 P.2d 810
(1952).” Salinas v. Vierstra, 107 Idaho 984, 990 (1985).
Illinois
Enforceable
“Although exculpatory agreements are not favored and are strictly
construed against the party they benefit, parties may allocate the
risk of negligence as they see fit, and exculpatory agreements
do not violate public policy as a matter of law. An exculpatory
agreement will be enforced if: ‘(1) it clearly spells out the intention
of the parties; (2) there is nothing in the social relationship between
the parties militating against enforcement; and (3) it is not against
public policy.’” Evans v. Lima Lima Flight Team, Inc., 373 Ill. App.
3d 407, 412 (2007) (internal citations omitted).
8
“A release or exculpatory agreement can be set aside if there is
either fraud in the execution or fraud in the inducement. Bien v.
Fox Meadow Farms Ltd., 215 Ill. App. 3d 337, 341, 574 N.E.2d
1311, 1315, 158 Ill. Dec. 918 (1991). Fraud in the execution occurs
when the plaintiff was induced to sign the agreement not knowing
it was a release, but believing it to be another type of document;
fraud in the inducement occurs when the party is induced to enter
into the release by false representations by the other party. Bien,
215 Ill. App. 3d at 342, 574 N.E.2d at 1315. However, a party has
a general duty to read documents before she signs them, and her
failure to do so will not render the document invalid. Bien, 215
Ill. App. 3d at 342, 574 N.E.2d at 1315.” Oelze v. Score Sports
Venture, LLC, 401 Ill. App. 3d 110, 117 (2010).
Express Assumption of Risk/Waiver/Exculpatory Clauses
Indiana
Enforceable
“In Indiana, assumption of risk, or an enforceable express consent
to hold another harmless and/or relieve them of duty, remains a
complete bar to recovery.” Heck v. Robey, 659 N.E.2d 498, 504
n.6 (1995). “In the absence of legislation to the contrary, it is
not against public policy in Indiana to enter into a contract that
exculpates one from the consequences of his own negligence.
Marshall v. Blue Springs Corp., 641 N.E.2d 92, 95 (Ind. Ct. App.
1994). However, in order to ensure a party’s knowing and willing
acceptance of this harsh burden, [courts] have held that such
exculpatory clauses must specifically and explicitly refer to the
negligence of the party seeking release from liability. See Powell
v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757,
761 (Ind. Ct. App. 1998); Moore Heating & Plumbing, Inc. v. Huber,
Hunt & Nichols, 583 N.E.2d 142, 146 (Ind. Ct. App. 1991). An
exculpatory clause may be found sufficiently specific and explicit
on the issue of negligence even in the absence of the word itself.
See Moore, 583 N.E.2d at 146.” Avant v. Cmty. Hosp., 826 N.E.2d
7, 10 (2005).
Iowa
Enforceable
“Under Iowa law, a contract need not expressly specify that it will
operate for negligent acts if the clear intent of the language is to
provide for such a release. See Hysell v. Iowa Public Service Co.,
534 F.2d 775, 785 (8th Cir. 1976), citing Weik v. Ace Rents Inc.,
249 Iowa 510, 514-15, 87 N.W.2d 314, 317-18 (1958). The words
‘any and all rights, claims, demands and actions of any and every
nature whatsoever . . . for any and all loss, damage or injury’ is
clearly intended to cover negligent acts.” Korsmo v. Waverly Ski
Club, 435 N.W.2d 746, 748 (1988). In addition, “[t]he parties need
not have contemplated the precise occurrence which occurred as
long as it is reasonable to conclude the parties contemplated a
similarly broad range of accidents. Schlessman v. Henson, 83 Ill.2d
82, 86, 413 N.E.2d 1252, 1254, 46 Ill. Dec. 139 (1980).” Id. at 749.
Kansas
Enforceable
Exculpatory agreements voluntarily entered into by parties
standing on equal footing are enforceable as between the
contracting parties themselves. New Hampshire Ins. Co. v. Fox
Midwest Theatres, Inc., 203 Kan. 720, 726, 457 P.2d 133 (1969);
Talley v. Skelly Oil Co., 199 Kan. 767, 433 P.2d 425 (1967); Grain
Co. v. Railway Co., 94 Kan. 590, 146 Pac. 1134 (1915). Exculpatory
clauses are upheld unless the agreement is contrary to public
policy or is illegal. Corral v. Rollins Protective Services Co., 240
Kan. 678, 681, 732 P.2d 1260 (1987).
9
50-state survey
Kentucky
Enforceable
“‘An exculpatory contract for exemption from future liability for
negligence, whether ordinary or gross, is not invalid per se. . . .
However, such contracts are disfavored and are strictly construed
against the parties relying upon them. . . . The wording of the
release must be so ‘clear and understandable that an ordinarily
prudent and knowledgeable party to it will know what he or she is
contracting away; it must be unmistakable.’” Cumberland Valley
Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 649 (2007)
(quoting Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005)).
Louisiana
Not Enforceable
Article 2004 of the Louisiana Civil Code provides:
“Any clause is null that, in advance, excludes or limits the liability
of one party for intentional or gross fault that causes damage to
the other party.
“Any clause is therefore null that, in advance, excludes or limits the
liability of one party for causing physical injury to the other party.”
Berlangieri v. Running Elk Corp., 134 N.M. 341, 346 (2003) (quoting
La. Code).
“Any clause is null that, in advance, excludes or limits the liability
of one party for causing physical injury to the other party.” La. C.C.
Art. 2004 (2011)
Maine
Enforceable
In order for waivers or releases to be enforced, “they must
‘expressly spell out with the greatest particularity the intention of
the parties contractually to extinguish negligence liability.’ Doyle v.
Bowdoin Coll., 403 A.2d 1206, 1208 (Me. 1979) (internal quotation
marks omitted).” Lloyd v. Sugarloaf Mt. Corp., 833 A.2d 1, 4 (2003).
10
“[R]eleases saving a party from damages due to that party’s own
negligence are not against public policy. Hardy, 1999 ME 142, P3
n.1, 739 A.2d at 369 (citing Emery Waterhouse Co. v. Lea, 467 A.2d
986, 993 (Me. 1983)).” Id.
Express Assumption of Risk/Waiver/Exculpatory Clauses
Maryland
Enforceable
“In Maryland, for an exculpatory clause to be valid, it ‘need not
contain or use the word “negligence” or any other “magic words.”
Adloo v. H. T. Brown Real Estate, Inc., 344 Md. 254, 266, 686 A.2d
298 (1996); see also Sanchez v. Bally’s Total Fitness Corp., 68 Cal.
App. 4th 62, 79 Cal. Rptr. 2d 902, 905 (1998)(same). An exculpatory
clause ‘“is sufficient to insulate the party from his or her own
negligence ‘as long as [its] language . . . clearly and specifically
indicates the intent to release the defendant from liability for
personal injury caused by the defendant’s negligence . . . .”
Adloo, 344 Md. at 266 (quoting Barnes v. New Hampshire Karting
Assn., 128 N.H. 102, 509 A.2d 151, 154 (N.H. 1986)).” Seigneur
v. National Fitness Inst., Inc., 132 Md. App. 271, 280 (2000).
“Three exceptions have been identified where the public interest
will render an exculpatory clause unenforceable. They are: (1)
when the party protected by the clause intentionally causes
harm or engages in acts of reckless, wanton, or gross negligence;
(2) when the bargaining power of one party to the contract is so
grossly unequal so as to put that party at the mercy of the other’s
negligence; and (3) when the transaction involves the public interest.
Wolf, 335 Md. at 531-32; Winterstein, 16 Md. App. at 135-36.” Id.
at 282-283.
“In the determination of whether the enforcement of an exculpatory
clause would be against public policy, the courts consider whether
the party seeking exoneration offered services of great importance
to the public, which were a practical necessity for some members
of the public. As indicated above, courts have found generally
that the furnishing of gymnasium or health spa services is not an
activity of great public importance nor of a practical necessity.” Id.
at 284.
Massachusetts
Enforceable
“A defendant ordinarily may ‘validly exempt itself from liability
which it might subsequently incur as a result of its own negligence.’
Lee v. Allied Sports Assocs., 349 Mass. 544, 550, 209 N.E.2d 329
(1965) (racing cars). Cormier v. Central Mass. Chapter of the Natl.
Safety Council, 416 Mass. 286, 288-289, 620 N.E.2d 784 (1993)
(motorcycles).” Zavras v. Capeway Rovers Motorcycle Club, 44
Mass. App. Ct. 17, 18 (1997). “Even where simple negligence is
alleged, [Massachusetts courts], for policy reasons, are cautious
in enforcing releases against liability and in certain circumstances
decline to do so: e.g., where a release attempts to shield a
defendant from responsibility for violation of a statutory duty,
Henry v. Mansfield Beauty Academy Inc., 353 Mass. 507, 511,
233 N.E.2d 22 (1968), where a public utility attempts to limit its
liability, or where there is an obvious disadvantage in bargaining
power so that the effect of the contract is to put a party at the
mercy of the other’s negligence. See Prosser & Keeton, Torts § 68,
at 482 (5th ed. 1984); Gonsalves v. Commonwealth, supra. See
generally Restatement (Second) of Contracts § 195 & comments a
& b (1981).” Id. at 19.
Michigan
Enforceable
If the text in the release is clear and unambiguous, the release is
enforceable and the parties’ intentions must be upheld. “A contract
is ambiguous only if its language is reasonably susceptible to
more than one interpretation. The fact that the parties dispute the
meaning of a release does not, in itself, establish an ambiguity.”
Cole v. Ladbroke Racing Michigan, Inc., 614 N.W.2d 169, 176
(2000).
11
50-state survey
Minnesota
Enforceable
Exculpatory clauses are enforceable “when limited to negligent
conduct. See, e.g., Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920,
923 (Minn. 1982). See also Great Northern, 291 Minn. at 100, 189
N.W.2d at 407; Indep. School Dist. No. 877 v. Loberg Plumbing &
Heating Co., 266 Minn. 426, 434, 123 N.W.2d 793, 798-99 (1963);
Speltz Grain & Coal Co. v. Rush, 236 Minn. 1, 7, 51 N.W.2d 641,
644 (1952); Pettit Grain & Potato Co. v. Northern Pac. Ry. Co.,
227 Minn. 225, 229-31, 35 N.W.2d 127, 130 (1948). In upholding
indemnification agreements, the court has expressed its concern
for protecting the public interest in the freedom of contract. Id.;
Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193,
196, 288 N.W. 226, 227 (1939). To that end, the court has stated
that a party may ‘properly bargain for indemnity against his own
negligence where the latter “is only an undesired possibility in
the performance of the bargain, and the bargain does not tend
to induce the act.” Northern Pac., 206 Minn. at 197, 288 N.W. at
227-28.’” St. Paul Fire & Marine Ins. Co. v. Perl, 415 N.W.2d 663,
666 (1987).
Mississippi
Enforceable
“The law does not look with favor on contracts intended to
exculpate a party from the liability of his or her own negligence
although, with some exceptions, they are enforceable. However,
such agreements are subject to close judicial scrutiny and are
not upheld unless the intention of the parties is expressed in
clear and unmistakable language. [citation omitted] ‘Clauses
limiting liability are given rigid scrutiny by the courts, and will not
be enforced unless the limitation is fairly and honestly negotiated
and understandingly entered into.’ Farragut v. Massey, 612 So. 2d
325, 330 (Miss. 1992) (quoting 17 Am. Jur. 2d Contracts § 297, at
298 n.74 (1991). The wording of an exculpatory agreement should
express as clearly and precisely as possible the extent to which a
party intends to be absolved from liability. [citation omitted] Failing
that, we do not sanction broad, general ‘waiver of negligence’
provisions, and strictly construe them against the party asserting
them as a defense. See Leach v. Tingle, 586 So. 2d 799, 801 (Miss.
1991); State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So. 2d 1371,
1372 (Miss. 1981). In further determining the extent of exemption
from liability in releases, this Court has looked to the intention of
the parties in light of the circumstances existing at the time of the
instrument’s execution.” Turnbough v. Ladner, 754 So. 2d 467,
469 (1999).
Missouri
Enforceable
Public policy disfavors but does not prohibit releases of future
negligence. Alack v. Vic Tanny Int’l, 923 S.W.2d 330 (1996)
Missouri courts demand “that exculpatory language ‘effectively
notify a party that he or she is releasing the other party from claims
arising from the other party’s own negligence.’ 923 S.W.2d at
337.” Milligan v. Chesterfield Vill. GP, LLC, 239 S.W.3d 613, 616
(2007). They “require ‘clear, unambiguous, unmistakable, and
12
conspicuous language in order to release a party from his or her
own future negligence.’ [923 S.W.2d at 337.] Consumer contracts
must conspicuously employ ‘negligence,’ ‘fault’ or equivalent
words so that a clear and unmistakable waiver and shifting of risk
occurs. Id.” Milligan, 239 S.W.3d at 616.
Express Assumption of Risk/Waiver/Exculpatory Clauses
Montana
Not Enforceable
“In Montana, it is statutorily prohibited for any contracts to have
as their object, directly or indirectly, the exemption of anyone
from responsibility for their own fraud, for their willful injury to
the person or property of another, or for their willful or negligent
violation of the law. § 28-2-702, MCA.” Thus, “any exculpatory
clause or release of liability clause seeking to relieve a tortfeasor
from liability for negligent conduct is not valid. Haynes, 517 P.2d at
377.” Thompson v. Simanton, 2004 ML 3736, 24 (2004).
Nebraska
Enforceable
Exculpatory clauses may be upheld to insulate a party from
ordinary negligence. New Light Co. v. Wells Fargo Alarm Servs.,
525 N.W.2d 25 (1994). But clauses purporting to insulate parties
from gross negligence or willful misconduct may be viewed to
be in contravention of public policy. Whether a contract violates
public policy must be considered on the basis of the particular
facts surrounding the agreement. Nebraska courts have defined
public policy as: “that principle of the law which holds that no
subject can lawfully do that which has a tendency to be injurious
to the public or against the public good. * * * The principles under
which the freedom of contract or private dealings is restricted by
law for the good of the community. . . . OB-GYN v. Blue Cross,
219 Neb. 199, 203, 361 N.W.2d 550, 553 (1985). Accord United
Seeds, Inc. v. Hoyt, 168 Neb. 527, 96 N.W.2d 404 (1959).” New
Light Co. v. Wells Fargo Alarm Servs., 525 N.W.2d 25, 30 (1994).
Nevada
Enforceable
Releases and waivers are generally enforceable subject to public
policy considerations. An exculpatory provision is generally
regarded as a valid exercise of the freedom of contract by Nevada
courts. Miller v. A & R Joint Venture, 97 Nev. 580 (1981).
13
50-state survey
New Hampshire
Enforceable
“Although New Hampshire law generally prohibits a plaintiff from
releasing a defendant from liability for negligent conduct, in limited
circumstances a plaintiff can expressly consent by contract to
assume the risk of injury caused by a defendant’s negligence.
See Dean v. MacDonald, 147 N.H. 263, 267, 786 A.2d 834 (2001).
For a plaintiff to assume such risk, the release must ‘clearly and
specifically indicate[] the intent to release the defendant from
liability for personal injury caused by the defendant’s negligence
. . . .’ Id. (quotation omitted). A defendant, however, will not be
released from liability when the language of the contract raises
any doubt as to whether the plaintiff has agreed to assume the risk
of a defendant’s negligence. See Audley v. Melton, 138 N.H. 416,
418-19, 640 A.2d 777 (1994); Papakalos v. Shaka, 91 N.H. 265,
267-68, 18 A.2d 377 (1941). Because a plaintiff’s contract releases
a defendant from liability under this theory, it completely bars a
plaintiff’s recovery, and therefore the comparative fault statute
does not apply. See Keeton, supra at 496-97.” Allen v. Dover CoRecreational Softball League, 148 N.H. 407, 413-414 (2002).
New Jersey
Enforceable
In order for the exculpatory clause to be upheld, the “agreement
must, on its face, reflect the unequivocal expression of the party
giving up his or her legal rights that this decision was made
voluntarily, intelligently and with the full knowledge of its legal
consequences. Knorr v. Smeal, 178 N.J. 169, 177, 836 A.2d 794
(2003); Country Chevrolet, Inc. v. Township of N. Brunswick Planning
Bd., 190 N.J. Super. 376, 380, 463 A.2d 960 (App.Div.1983).”
Gershon, Adm’x Ad Prosequendum for Estate of Pietroluongo
v. Regency Diving Center, Inc. and Costas Prodromou, 368 N.J.
Super. 237, 247 (2004). “The law does not favor exculpatory
New Mexico
Enforceable
“[A]greements that exculpate one party from liability for negligence
will be enforced, unless they are ‘violative of law or contrary to
some rule of public policy.’ Sw. Pub. Serv. Co. v. Artesia Alfalfa
Growers’ Ass’n, 67 N.M. 108, 118, 353 P.2d 62, 69 (1960); accord
Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 558, 627 P.2d 1247,
1251 (Ct. App. 1981).” Berlangieri v. Running Elk Corp., 134 N.M.
341, 347 (2003).
14
agreements because they encourage a lack of care. Kuzmiak v.
Brookchester, Inc., 33 N.J. Super. 575, 580, 111 A.2d 425 (App.
Div.1955). An exculpatory release agreement, like any contract,
can only bind the individuals who signed it. Goncalvez v. Patuto,
188 N.J. Super. 620, 628, 458 A.2d 146 (App.Div.1983).” Id. Such
exculpatory agreement is unenforceable and void as against
public policy, however, when it is invoked to preclude a minor or
decedent’s heirs from prosecuting a wrongful death action. Id.
at 249.
Express Assumption of Risk/Waiver/Exculpatory Clauses
New York
Enforceable
Exculpatory clauses are generally enforceable, except in
certain instances prohibited by statute pertaining to proprietary
amusement and recreational activities. Fazzinga v. Westchester
Track Club, 48 AD3d 410, 411 (2nd Dep’t 2007); General Obligations
Law § 5-326. That statute renders “[a]greements exempting
pools, gymnasiums, places of public amusement or recreation
and similar establishments from liability for negligence void and
unenforceable.” Compare Garnett v. Strike Holdings LLC, et al.,
882 N.Y.S.2d 115, 116 (2009), where a commercial go-kart release
was deemed unenforceable under the General Obligations Law.
North Carolina
Enforceable
“In North Carolina ‘releases which exculpate persons from liability
for negligence are not favored by the law.’ Johnson v. Dunlap,
53 N.C. App. 312, 317, 280 S.E.2d 759, 763 (1981), cert. denied,
305 N.C. 153, 289 S.E.2d 380 (1982); Alston v. Monk, 92 N.C.
App. 59, 373 S.E.2d 463 (1988); Miller’s Mut. Fire Ins. Ass’n v.
Parker, 234 N.C. 20, 65 S.E.2d 341 (1951). Nonetheless, such an
exculpatory contract will be enforced unless it violates a statute,
is gained through inequality of bargaining power, or is contrary to
a substantial public interest. Jordan v. Eastern Transit & Storage
Co., 266 N.C. 156, 146 S.E.2d 43 (1966); Hall v. Sinclair Refining
Co., 242 N.C. 707, 89 S.E.2d 396 (1955) (discussing the general
rule that parties may contract to allocate the risk of their own
negligence, and the circumstances under which such contracts
will be held void); Miller’s Mut. Fire Ins. Ass’n, supra; Brockwell v.
Lake Gaston Sales and Service, 105 N.C. App. 226, 412 S.E.2d
104 (1992).” Fortson v. McClellan, 131 N.C. App. 635, 636-637
(1998).
North Dakota
Enforceable
“Generally, the law does not favor contracts exonerating parties
from liability for their conduct. Reed v. Univ. of North Dakota, 1999
ND 25, P22, 589 N.W.2d 880. However, the parties are bound by
clear and unambiguous language evidencing an intent to extinguish
liability, even though exculpatory clauses are construed against
the benefitted party. Id. When a contract is reduced to writing,
the intention of the parties is to be ascertained from the writing
alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel.
State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a
written contract to determine its legal effect is a question of law for
the court to decide, and, on appeal, this Court will independently
examine and construe the contract to determine if the trial court
erred in its interpretation of it. Egeland v. Continental Res., Inc.,
2000 ND 169, P10, 616 N.W.2d 861. The issue whether a contract
is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc.,
2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is
particularly amenable to summary judgment. Meide, 2002 ND 128,
P7, 649 N.W.2d 532.” Kondrad v. Bismarck Park Dist., 2003 ND 4,
P6 (2003).
15
50-state survey
Ohio
Enforceable
“Exculpatory contracts which clearly and unequivocally relieve
one from the results of his own negligence are generally not
contrary to public policy in Ohio. It is therefore well-settled law
that a participant in a recreational activity is free to contract with
the proprietor of such activity so as to relieve the proprietor of
responsibility for damages or injuries to the participant caused by
Oklahoma
Enforceable
Exculpatory clauses for personal injury are valid in Oklahoma and
as long as they are clear and unambiguous - and enforcement
would not be injurious to public health or morals or against public
policy - such clauses will be upheld. See Schmidt v. U.S., 912 P.2d
874 (1996).
Oregon
Enforceable
An agreement limiting liability for ordinary negligence is governed
by principles of contract law and will be enforced in the absence
of some consideration of public policy derived from the nature of
the subject of the agreement or a determination that the contract
may be viewed as one of adhesion. Mann v. Wetter, 100 Ore.
App. 184, 187, 785 P.2d 1064, rev. denied, 309 Ore. 645, 789 P.2d
1387 (1990).
16
the negligence of the proprietor. There is an exception, however,
which prohibits a proprietor from contracting to relieve itself from
responsibility for willful or wanton misconduct.” Swartzentruber v.
Wee-K Corp., 117 Ohio App. 3d 420, 424 (1997) (internal citations
omitted).
Express Assumption of Risk/Waiver/Exculpatory Clauses
Pennsylvania
Enforceable
“An exculpatory clause is valid if three conditions are met: (1) the
clause must not contravene public policy, (2) the contract must be
between persons relating entirely to their own private affairs and (3)
each party must be a free bargaining agent to the agreement so that
the contract is not one of adhesion. Even if an exculpatory clause
is determined to be valid, however, it will still be unenforceable
unless the language of the parties is clear that a person is being
relieved of liability for his own acts of negligence. The standard for
evaluating an exculpatory release is as follows: … 1) the contract
language must be construed strictly, since exculpatory language
is not favored by the law; 2) the contract must state the intention
of the parties with the greatest particularity, beyond doubt by
express stipulation, and no inference from words of general import
can establish the intent of the parties; 3) the language of the
contract must be construed, in case of ambiguity, against the party
seeking immunity from liability; and 4) the burden of establishing
the immunity is upon the party invoking the protection under the
clause.” Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233, 1238
(2009) (internal citations omitted).
Rhode Island
Enforceable
Exculpatory clauses “that negate liability for an individual’s own
negligence [are valid] if the clause is sufficiently specific. Corrente
v. Conforti & Eisele Co., 468 A.2d 920, 922 (R.I. 1983); see also
Ostalkiewicz v. Guardian Alarm, Division of Colbert’s Security
Services, Inc., 520 A.2d 563, 566 (R.I. 1987); Di Lonardo v. Gilbane
Building Co., 114 R.I. 469, 472, 334 A.2d 422, 424 (1975).” Rhode
Island Hosp. Trust Nat’l Bank v. Dudley Serv. Corp., 605 A.2d 1325,
1327 (1992). “Clear and unambiguous language contained in a
contract is controlling in regard to the parties’ intent. Chapman
v. Vendresca, 426 A.2d 262, 264 (R.I. 1981). [I]t is not violative of
public policy [in Rhode Island] for individuals to limit liability for
their own negligence through an exculpatory-indemnification
clause.” Id.
17
50-state survey
South Carolina
Enforceable
Exculpatory contracts are generally valid but “notwithstanding
the general acceptance of exculpatory contracts, ‘since such
provisions tend to induce a want of care, they are not favored
by the law and will be strictly construed against the party relying
thereon.’” Fisher v. Stevens, 355 S.C. 290, 295, 584 S.E.2d 149,
152 (Ct. App. 2003) (quoting Pride v. Southern Bell Tel. & Tel. Co.,
244 S.C. 615, 619, 138 S.E.2d 155, 157 (1964). “An exculpatory
clause will never be construed to exempt a party from liability for
his own negligence ‘in the absence of explicit language clearly
indicating that such was the intent of the parties.’” South Carolina
Elec. & Gas Co. v. Combustion Eng’g, Inc., 283 S.C. 182, 191, 322
S.E.2d 453, 458 (Ct. App. 1984) (quoting Hill v. Carolina Freight
Carriers Corp., 235 N.C. 705, 71 S.E.2d 133, 137 (N.C. 1952)).”
McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C.
242 (2005).
South Dakota
Enforceable
“‘To be valid, a release must be fairly and knowingly made.’
Paterek v. 6600 Ltd., 465 N.W.2d 342, 344 (Mich. Ct. App. 1990)
(citations omitted). A release is not fairly made and is invalid if the
nature of the instrument was misrepresented or there was other
fraudulent or overreaching conduct. Id. (Citation omitted). See also
Dombrowski v. City of Omer, 199 Mich. App. 705, 502 N.W. 2d
707, 709 (Mich. Ct. App. 1993).” Johnson v. Rapid City Softball
Ass’n, 514 N.W.2d 693, 697 (1994). “However, releases that are
construed to cover willful negligence or intentional torts are not
Tennessee
Enforceable
“Express assumption of risk refers to an express release, waiver, or
exculpatory clause, by which one party agrees to assume the risk
of harm arising from another party’s negligence. Such agreements
are of a contractual nature and will generally be enforced by a court
unless it is contrary to a sound public policy.” Perez v. McConkey,
872 S.W.2d 897, 900 (1994).
18
valid and are against public policy. Id. (citing Winterstein v. Wilcom,
16 Md. App. 130, 293 A.2d 821 (1972); SDCL 53-9-3). ‘Willful and
wanton misconduct is something more than ordinary negligence
but less than deliberate or intentional conduct.’ 293 A.2d at 829
(citing Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938).”
Holzer v. Dakota Speedway, Inc., 610 N.W.2d 787, 793 (2000).
Express Assumption of Risk/Waiver/Exculpatory Clauses
Texas
Enforceable
“An agreement purporting to absolve a party of the consequences
of its own negligence is not enforceable unless it conforms to
the twin fair notice requirements of (1) conspicuousness and (2)
the express negligence doctrine. Dresser Indus., Inc. v. Page
Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. 1993); Enserch Corp.
v. Parker, 794 S.W.2d 2, 9 (Tex. 1990). A contract which fails to
satisfy either of the fair notice requirements when they are imposed
is unenforceable as a matter of law. Storage & Processors, Inc.
v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). However, if both
contracting parties have actual knowledge of the contract’s terms,
the fair notice requirements need not be satisfied. Id. (citing
Dresser Indus., 853 S.W.2d at 508 n.2).
“The conspicuousness requirement mandates that ‘something
must appear on the face of the [contract] to attract the attention
of a reasonable person when he looks at it. Id. (quoting Dresser
Indus., 853 S.W.2d at 508); Amtech Elevator Servs. Co. v. CSFB
1998-P1 Buffalo Speedway Office Ltd. P’ship, 248 S.W.3d 373,
377 (Tex. App.--Houston [1st Dist.] 2007, no pet.). A term is
conspicuous when it is written, displayed, or presented such that
a reasonable person against which it is to operate ought to have
noticed it. TEX. BUS. & COM. CODE ANN. § 1.201(b)(10) (Vernon
Supp. 2008) (listing ways to make a term conspicuous).
“Under the express negligence doctrine, an intent to release one of
the parties from the consequences of its own negligence ‘must be
specifically stated in the four corners of the document.’ Reyes, 134
S.W.3d at 192 (quoting Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d
705, 707 (Tex. 1987)); Amtech, 248 S.W.3d at 377. Moreover, the
intent to release ‘must be expressed in unambiguous terms.’ OXY
USA, Inc. v. Sw. Energy Prod. Co., 161 S.W.3d 277, 282 (Tex. App.-Corpus Christi 2005, pet. denied); see also ALCOA v. Hydrochem
Indus. Servs., No. 13-02-00531-CV, 2005 Tex. App. LEXIS 2010,
at *20-21 (Tex. App.--Corpus Christi Mar. 17, 2005, pet. denied)
(mem. op., not designated for publication) (‘Express negligence
does not mandate that in order for an indemnity clause to be
enforceable it must be the best or the briefest possible statement
of the parties’ intentions, only that it specifically define the parties’
intent.’).” Rackley v. Advanced Cycling Concepts Inc. d/b/a Pump
It Up, 2009 Tex. App. LEXIS 1888, 7-8 (2009).
Utah
Enforceable
Utah permits parties to “contract away their rights to recover in
tort for damages caused by the ordinary negligence of others.
See Rothstein v. Snowbird Corp., 2007 UT 96, P 6, 175 P.3d
560; Berry v. Greater Park City Co., 2007 UT 87, P 15, 171 P.3d
442 (‘[Utah’s] public policy does not foreclose the opportunity of
parties to bargain for the waiver of tort claims based on ordinary
negligence.’).” But pre-injury releases “are not unlimited in
power and can be invalidated in certain circumstances.” Three
such limitations are: “(1) releases that offend public policy are
unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560; (2)
releases for activities that fit within the public interest exception
are unenforceable, Berry, 2007 UT 87, P 16, 171 P.3d 442; and
(3) releases that are unclear or ambiguous are unenforceable,
Rothstein, 2007 UT 96, P 6, 175 P.3d 560.” Pearce v. Utah Ath.
Found., 2008 UT 13, P 14, 179 P.3d 760, 765.
19
50-state survey
Vermont
Enforceable
Vermont “‘strictly constru[es] an exculpatory agreement against
the party relying on it,’” and as a precondition to enforcement
“‘consider[s] whether [a] release [is] void as contrary to public
policy.’ Thompson v. Hi Tech Motor Sports, Inc., 183 Vt. 218, 2008
VT 15, ¶¶ 17, 6, 945 A.2d 368.” Provoncha v. Vt. Motocross Ass’n,
974 A.2d 1261 (2009).
Virginia
Not eNforceable
The Supreme Court of Virginia has unequivocally held that public
policy forbids the enforcement of a release or waiver for personal
injury caused by future acts of negligence. (See Johnson’s Adm’x
v. Richmond and Danville R.R. Co., 86 Va. 975, 978, 11 S.E. 829,
830 (1890)). Hiett v. Lake Barcroft Community Assoc., 244 Va. 191,
194-195 (1992).
Washington
Enforceable
“Exculpatory clauses are enforceable unless they violate public
policy, are inconspicuous, or the negligence fall [sic] below
standards established by law. Johnson v. N E W, Inc., 89 Wash.
App. 309, 311, 948 P.2d 877 (1997).” “Contractual express
assumption of the risk involves an agreement in advance to relieve
one party from the obligation to use reasonable care for the benefit
of the other so long as the agreement clearly and unambiguously
specifies the risks assumed. Scott v. Pacific West Mt. Resort, 119
Wash. 2d 484, 496, 834 P.2d 6 (1992); Shorter v. Drury, 103 Wash.
2d 645, 655-58, 695 P.2d 116, cert. denied, 474 U.S. 827, 88 L. Ed.
2d 70, 106 S. Ct. 86 (1985).” “[T]he evidence must demonstrate
20
the plaintiff: (1) had full subjective understanding (2) of the
presence and nature of the specific risk, and (3) voluntarily chose
to encounter the risk. Kirk v. Washington State Univ., 109 Wash.
2d 448, 453, 746 P.2d 285 (1987) (citations omitted).” Allinger v.
Resort at Mt. Spokane, 1998 Wash. App. LEXIS 1374, 6-7 (1998).
Express Assumption of Risk/Waiver/Exculpatory Clauses
West Virginia
Enforceable
“Generally, in the absence of an applicable safety statute, a plaintiff
who expressly and, under the circumstances, clearly agrees
to accept a risk of harm arising from the defendant’s negligent
or reckless conduct may not recover for such harm, unless the
agreement is invalid as contrary to public policy.” Murphy v. N. Am.
River Runners, 186 W. Va. 310, 314-315 (1991) (internal citations
omitted). “In particular, a general clause in a pre-injury exculpatory
agreement or anticipatory release purporting to exempt a defendant
from all liability for any future loss or damage will not be construed
to include the loss or damage resulting from the defendant’s
intentional or reckless misconduct or gross negligence, unless
the circumstances clearly indicate that such was the plaintiff’s
intention. Similarly, a general clause in an exculpatory agreement
or anticipatory release exempting the defendant from all liability for
any future negligence will not be construed to include intentional
or reckless misconduct or gross negligence, unless such intention
clearly appears from the circumstances.” Id. at 316 (internal
citations omitted). “A clause in an agreement exempting a party
from tort liability is, however, unenforceable on grounds of public
policy if, for example, (1) the clause exempts a party charged
with a duty of public service from tort liability to a party to whom
that duty is owed, or (2) the injured party is similarly a member of
a class which is protected against the class to which the party
inflicting the harm belongs.” Id. at 315 (internal citations omitted).
Wisconsin
Enforceable
Exculpatory contracts are valid and do not violate public policy.
But “‘[e]xculpatory agreements that are broad and general in terms
will bar only those claims that are within the contemplation of the
parties when the contract was executed.’ Arnold v. Shawano County
Agric. Soc’y, 111 Wis.2d 203, 211, 330 N.W.2d 773, 778 (1983),
overruled on other grounds, Green Spring Farms, 136 Wis.2d at
317, 401 N.W.2d at 821. Courts construe such agreements strictly
against the party seeking to rely on them. Arnold, 111 Wis.2d at
209, 330 N.W.2d at 777.” Kellar v. Lloyd, 180 Wis. 2d 162, 171
(1993). “A determination as to whether an exculpatory contract
is void as contrary to public policy involves accommodating the
tension between principles of contract law and tort law. The law of
contracts protects the justifiable expectations of individuals who
choose to enter into agreements. Tort law compensates individuals
injured by the unreasonable conduct of others. Where the
unreasonable conduct, even though dangerous, is within the
contemplation of the parties to an agreement, the agreement is not
necessarily void as against public policy.” Id. at 181-182 (internal
citations omitted). But Wisconsin courts “have acknowledged that
an exculpatory contract exempting a party from tort liability for
harm caused intentionally or recklessly is void as against public
policy.” Id. at 183 (internal citations omitted).
21
50-state survey
Wyoming
Enforceable
“Exculpatory clauses or releases are contractual in nature, and
[Wyoming courts] interpret them using traditional contract principles
and considering the meaning of the document as a whole. Milligan
v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v.
Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo.
1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701
P.2d 1157, 1159 (Wyo. 1985).” Massengill v. S.M.A.R.T. Sports
Med. Clinic, P.C., 996 P.2d 1132, 1135 (2000). “‘In Wyoming, a
contract limiting liability for negligence may be enforced only if it
does not contravene public policy. Schutkowski v. Carey, 725 P.2d
1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of
22
Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601
P.2d 532, 535 (Wyo.1979).’” Id. at 1136 (quoting Fremont Homes,
Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999)). “The factors the
court considers are: ‘(1) whether a duty to the public exists; (2)
the nature of the service performed; (3) whether the contract was
fairly entered into; and (4) whether the intention of the parties is
expressed in clear and unambiguous language.’” Id. (quoting
Schutkowski v. Carey, 725 P.2d 1057(Wyo.1986)).
23
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