50-State Survey (Including the District of Columbia) 50-State Survey

Express Assumption of Risk/Waiver/Exculpatory Clauses

50-state survey (including the District of Columbia) 50-state survey

Contents

Overview 1 Montana 13

Alabama 4 Nebraska 13

Alaska 4 Nevada 13

Arizona 4 New Hampshire 14

Arkansas 5 New Jersey 14

California 5 New Mexico 14

Colorado 6 New York 15

Connecticut 6 North Carolina 15

Delaware 6 North Dakota 15

District of Columbia 7 Ohio 16

Florida 7 Oklahoma 16

Georgia 7 Oregon 16

Hawaii 8 Pennsylvania 17

Idaho 8 Rhode Island 17

Illinois 8 South Carolina 18

Indiana 9 South Dakota 18

Iowa 9 Tennessee 18

Kansas 9 Texas 19

Kentucky 10 Utah 19

Louisiana 10 Vermont 20

Maine 10 Virginia 20

Maryland 11 Washington 20

Massachusetts 11 West Virginia 21

Michigan 11 Wisconsin 21

Minnesota 12 Wyoming 22

Mississippi 12 Offices & Affiliates 24

Missouri 12

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2 Express Assumption of Risk/Waiver/Exculpatory Clauses

Overview

In the Restatement (Second) of Torts, the discussion regarding that PCCC would be released for its own fault or wrongdoing. express assumption of risk is explained is follows: “[t]he risk of Slowe could reasonably assume that the effect of the release harm from the defendant’s conduct may be assumed by express would have been to relieve PCCC of liability only for injuries or agreement between the parties. Ordinarily such an agreement losses resulting from risks inherent in his use of the club and its takes the form of a contract, which provides that the defendant is premises, not for losses resulting from PCCC’s negligence. The under no obligation to protect the plaintiff, and shall not be liable waiver’s reference to ‘any and all’ injuries, without any reference to him for the consequences of conduct which would otherwise be to injuries caused by PCCC, is insufficient to undermine this tortious.” (REST 2d TORTS § 496B.) American Jurisprudence states assumption or indicate that the parties contemplated releasing that “[a] valid release continues to be a complete bar to recovery in PCCC for acts of negligence.”) Courts have also looked to the negligence actions in every jurisdiction.” (30 Am. Jur. Proof of Facts complexity of the language, the length of the waiver and the point 3d 161 §3.) What courts consider to be a valid release, however, size and location within the document to determine if an “ordinarily varies from state to state. In the following review, we identify prudent and knowledgeable individual would have understood the those states that recognize the enforceability of exculpatory provision as a release from liability for negligence.” (See Hall v. clauses. Given the disfavor with which such exculpatory clauses Woodland Lake Leisure Resort Club, 1998 Ohio App. LEXIS 4898, are generally viewed under the law, however, even the majority 15 (1998).) In addition, because some states have adopted laws of states that recognize them to be enforceable impose stringent regarding contributory negligence, the terminology also varies. For and exacting requirements for the clauses to be upheld. We also example, Idaho has eliminated the term “assumption of risk” and identify those states where such clauses are strictly unenforceable states that the correct terminology for this defense is “consent.” under any circumstance or where a specific set of underlying facts (See Davis v. Sun Valley Ski Educ. Found., 130 Idaho 400, 405 are presented (e.g., involving intentional conduct/gross negligence (1997).) Courts will also examine the waiver to see if it is consistent or infants). Therefore even though the discussion below sets forth with public policy. the general rule for the enforceability or non-enforceability of these waivers in each state, the specific facts and circumstances must Several states cite to California’s Tunkl v. Regents of the University be evaluated and additional research may be required in certain of California, 60 Cal. 2d 92 (1963) for the criteria that cause a instances. provision to be void as against public policy.* In Tunkl, six criteria were established to identify the kind of agreement in which an Generally speaking, because exculpatory clauses are widely exculpatory clause is invalid as contrary to public policy: disfavored, the majority of state courts strictly construe the terms and conditions against the party seeking to enforce them, and “. . . [1] It concerns a business of a type generally thought suitable require that the contract “clearly set out what negligent liability for public regulation. [2] The party seeking exculpation is engaged is to be avoided.” (See Ingersoll-Rand Co. v. El Dorado Chem. in performing a service of great importance to the public, which Co., 373 Ark. 226, 231–232 (2008).) This generally means that is often a matter of practical necessity for some member of the the courts require the release/assumption of a risk/exculpatory public. [3] The party holds himself out as willing to perform this clause to be clear and unambiguous. It has been stated that service for any member of the public who seeks it, or at least any “[t]he release must ‘clearly, explicitly and comprehensibly set forth member coming within certain established standards. [4] As a to an ordinary person untrained in the law [] the intent and effect of result of the essential nature of the service, in the economic setting the document.’” (See Cohen v. Five Brooks Stable, 72 Cal. Rptr. 3d of the transaction, the party invoking exculpation possesses a 471, 481 (2008).) Some courts require that the word “negligence” decisive advantage of bargaining strength against any member be included and that the waiver explicitly state the type of of the public who seeks his services. [5] In exercising a superior negligence being waived to distinguish between losses resulting bargaining power the party confronts the public with a standardized from inherent risks and those resulting from fault or wrongdoing adhesion contract or exculpation, and makes no provision whereby See Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS a purchaser may pay additional fees and obtain protection against 377 (2008). (“Not only does [the liability waiver] fail to mention the negligence. [6] Finally, as a result of the transaction, the person or word ‘negligence,’ it also lacks alternative language expressing 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 fraud, for their willful injury to the person or property of another, Tunkl v. Regents of the University of California, 60 Cal. 2d at 98- or for their willful or negligent violation of the law. § 28-2-702, 101, 32 Cal. Rptr. at 37-38, 383 P. 2d at 445-446.) (Footnotes MCA. The Haynes Court held that this statute rendered illegal any omitted.) exculpatory clause or release of liability clause seeking to relieve a tortfeasor from liability for negligent conduct. Haynes, 517 P.2d at Generally, if the waiver is valid, it will apply only to ordinary 377.” (Thompson v. Simanton, 2004 ML 3736 (2004).) negligence; “the vast majority of decisions state or hold that such agreements generally are void on the ground that public policy In Florida, natural guardians are authorized “to waive and release, precludes enforcement of a release that would shelter aggravated in advance, any claim or cause of action against a commercial misconduct.” (City of Santa Barbara v. Superior Court, 41 Cal. 4th activity provider . . . which would accrue to a minor child for 747, 760 (2007).) It should be noted, however, that Connecticut, personal injury, including death, and property damage resulting for example, “does not recognize degrees of negligence and, from an inherent risk in the activity.” Fla. Stat. § 744.301(3) (2011) consequently, does not recognize the tort of gross negligence as a (emphasis added). In subsection (a), the statute defines inherent separate basis of liability.” But the courts there have nevertheless risk as “those dangers or conditions, known or unknown, which limited the application of the releases to instances where are characteristic of, intrinsic to, or an integral part of the activity considerations relating to public policy and good conscience and which are not eliminated even if the activity provider acts are not implicated. (See Hanks v. Powder Ridge Restaurant with due care in a reasonably prudent manner.” Id. The statute Corporation et al., 885 A.2d 734, 748 (2005).) states, however, that although the negligence of the minor child or a participant in the activity is included in the inherent risk, “[a] In addition, state statutes affect the applicability of an exculpatory participant does not include the activity provider or its owners, clause/waiver. For example, New York will not allow express affiliates, employees, or agents.” Id. at (3)(a)(2). This language assumption of risk/waiver in the proprietary entertainment and suggests that a commercial activity provider cannot be released recreation context (e.g., where the plaintiff paid a fee to use the from liability for its own negligence. The legislature made this facility) because of NY GOL § 6-326, and New Jersey found that a amendment in response to a case which held that “a parent did release signed by a decedent “with the express purpose of barring not have the authority to execute a pre-injury release on behalf his potential heirs from instituting a wrongful death action in the of a minor child when the release involved participation in a event of his death . . . was void as against public policy” because commercial activity.” (REST 2d Torts § 496B, Case Citations July of its Wrongful Death Act. (See New Jersey, infra.) 2007–June 2009 (citing Kirton v. Fields, 997 So.2d 349 (2008)).) The court noted that “[i]n holding that pre-injury releases executed NOTABLE EXCEPTIONS by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with Arizona has held that, by statute, “the validity of an express the majority of other jurisdictions.” (Kirton v. Fields, 997 So.2d contractual assumption of risk is a question of fact for a jury, not 349, 355 (2008).) With the amendment to § 744.301(3), natural a judge.” (See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 410 guardians can now execute pre-injury releases, but in the limited (2005).) circumstances detailed in the statute. Virginia “universally prohibits” any “provision[] for release from Other states and federal courts have also addressed the propriety liability for personal injury which may be caused by future acts of a parent or guardian’s execution of a pre-injury release on behalf of negligence” and only allows releases of liability for property of a minor child. See, e.g., Johnson v. New River Scenic Whitewater damage. (See Virginia, infra.) Tours, Inc., 313 F. Supp. 2d 621 (S.D.W.Va. 2004) (finding a parent Louisiana has a statute that states that “‘[a]ny clause is null’ that could not waive liability on behalf of a minor child and also could not limits liability based on intentional fault or gross fault or for physical indemnify a third party against the parent’s minor child for liability injury.” (See Ostrowiecki v. Aggressor Fleet. Ltd., 2008 U.S. Dist. for conduct that violated a safety statute such as the Whitewater LEXIS 62713 (2008).) 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 Montana similarly prohibits exculpatory clauses that purport a parental pre-injury waiver unenforceable in a situation where the to release a party from negligence. In Montana, “it is statutorily minor child was injured after falling off a horse at a horseback prohibited for any contracts to have as their object, directly or riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 indirectly, the exemption of anyone from responsibility for their own (Me. 1979) (stating in dicta that a parent cannot release a child’s

2 Express Assumption of Risk/Waiver/Exculpatory Clauses

cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 volunteering for nonprofit organizations’ because of the potential Mich. App. 552, 550 N.W.2d 262, 263 (Mich. Ct. App. 1996) (‘It is for substantial damage awards). 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 CONCLUSION 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) Even setting aside the exceptions, it is virtually impossible to draft (finding that where a child was injured while skateboarding ata a release/waiver that is guaranteed to withstand judicial scrutiny in skate park facility, ‘a parent may not bind a minor child to a pre- every state given the variations in standards for each state (which injury release of a minor’s prospective tort claims resulting from may warrant additional research for the particular state in any the minor’s use of a commercial recreational facility’); Childress v. given circumstance). Moreover, because state statutes can affect Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) (extending whether or not an exculpatory clause will be enforced (for example, the law that a parent could not execute a pre-injury release on whether it will be effective against one’s heirs/assigns), a “one size behalf of a minor child to a mentally handicapped twenty-year-old fits all” approach is simply not feasible. A waiver/release that is student who was injured while training for the Special Olympics clear, unambiguous and as thorough as possible may nevertheless at a YMCA swimming pool); Munoz v. II Jaz, Inc., 863 S.W.2d 207 be deemed sufficient for the vast majority of the jurisdictions that (Tex. App. 1993) (finding that giving parents the power to waive a favor enforceability. 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).

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 school- run 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 school- sponsored 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 But compare Morgan v. South Cent. Bell Tel. Co., 466 So. 2d 107 negligent conduct have been upheld as valid and not void as (1985), where the court refused to enforce a waiver because of against public policy. Young v. City of Gadsden, 482 So.2d 1158 the grossly unfair and unbalanced bargaining power of defendant, (Ala. 1985). In Young, which involved auto racing, the court held applying the criteria discussed in the overview to this document that participation in automobile races is a voluntary undertaking in Tunkl in determining whether a clause is void as against public of a hazardous activity, and releases from liability, when voluntarily policy. 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).

Alaska Enforceable

“As with any contract, a release of liability is only valid to the unavoidable and inherent risks of the activity, then negligence extent that it reflects a ‘conspicuous and unequivocally expressed’ unrelated to those inherent risks are not released from liability. intent to release from liability.” Moore v. Hartley Motors, 36 P.3d Id. at 633. 628, 632-633 (2002). But if the release does not discuss or mention liability for general negligence and merely refers only to

Arizona Enforceable

As noted in the overview to this document, pursuant to state in Arizona, although these waivers may be enforceable, they statute, “the validity of an express contractual assumption of will always be subject to a jury determination and can never be risk is a question of fact for a jury, not a judge.” Phelps v. Firebird enforced via summary judgment. Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003, 1010 (2005). Thus,

4 Express Assumption of Risk/Waiver/Exculpatory Clauses

Arkansas Enforceable

In Arkansas, exculpatory contracts must clearly set out what requirements for the enforcement of an exculpatory provision: negligent liability is to be avoided. Importantly, however, courts are “(1) when the party is knowledgeable of the potential liability that not restricted to the literal language of the contract, and will also is released; (2) when the party is benefitting from the activity which consider the facts and circumstances surrounding the execution of may lead to the potential liability that is released; and (3) when the the release in order to determine the intent of the parties. Jordan v. contract that contains the clause was fairly entered into.” Finagin v. Diamond Equipment & Supply Co. 362 Ark. 142, 149, 207 S.W.3d Ark. Dev. Fin. Auth., 355 Ark. 440, 458, 139 S.W.3d 797, 808 (2003). 525, 530 (2005). In addition, Arkansas courts have recognized three

California Enforceable

“[S]o long as the express agreement to assume the risk does not (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 violate public policy, it will be upheld and will constitute a complete Cal. App. 3d 309, 319 [195 Cal. Rptr. 90]; see Scroggs v. Coast bar to a negligence cause of action. (Knight v. Jewett, supra, 3 Cal. Community College Dist. (1987) 193 Cal. App. 3d 1399, 1404 [239 4th 296, 308, fn. 4; Madison v. Superior Court (1988) 203 Cal. App. Cal. Rptr. 916] [‘The presence of a clear and unequivocal waiver 3d 589, 597-602 [250 Cal. Rptr. 299].)” Allan v. Snow Summit, Inc., with specific reference to a defendant’s negligence is a distinct 51 Cal. App. 4th 1358, 1372 (1996). requirement where the defendant seeks to use the agreement to escape responsibility for the consequences of his negligence.’].) “[A]lthough exculpatory clauses affecting the public interest are This does not mean use of the word ‘negligence’ or any particular invalid (Tunkl v. Regents of University of California (1963) 60 Cal. 2d verbiage is essential (see Sanchez v. Bally’s Total Fitness Corp. 92 [32 Cal. Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693 ]), exculpatory (1998) 68 Cal.App.4th 62, 66–67 [79 Cal. Rptr. 2d 902]), but that agreements in the recreational sports context do not implicate the the release must inform the releasor that it applies to misconduct public interest.” Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, on the part of the releasee.” Cohen v. Five Brooks Stable, 159 1373 (1996). Cal. App. 4th 1476, 1488-1489 (2008). A release for future gross negligence is unenforceable, however, in California. City of Santa “California courts require a high degree of clarity and specificity Barbara v. Superior Court, 41 Cal. 4th 747 (2007). 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 … .’

5 50-state survey

Colorado Enforceable

Exculpatory agreements are enforceable but “[i]n no event will an 623 P.2d at 376. In determining the validity of such agreements, exculpatory agreement be permitted to shield against a claim of [courts] have held that they must [] closely scrutinize[] [the clauses] willful and wanton negligence. Jones v. Dressel, 623 P.2d 370, 376 to ensure that the intent of the parties is expressed in clear and (Colo. 1981). Although an exculpatory agreement that attempts unambiguous language and that the circumstances and the nature to insulate a party from liability for his own simple negligence of the service involved indicate that the contract was fairly entered is also disfavored, it is not necessarily void as against [] public into.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (2004). 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,

Connecticut Enforceable

In Connecticut, a party cannot be released from liability for injuries “Connecticut does not recognize degrees of negligence and, resulting from its future negligence in the absence of language consequently, does not recognize the tort of gross negligence as that expressly so provides. “This rule ‘prevents individuals from a separate basis of liability. See, e.g., Matthiessen v. Vanech, 266 inadvertently relinquishing valuable legal rights’ and ‘does not Conn. 822, 833, 836 A.2d 394 and n.10, 266 Conn. 822, 836 A.2d impose . . . significant costs’ on entities seeking to exculpate 394 (2003).” Hanks, 276 Conn. at 337. But Connecticut courts themselves from liability for future negligence.” Hanks v. Powder are careful not to allow the release to excuse a defendant from Ridge Rest. Corp., 276 Conn. 314, 320 (2005) (quoting Hyson v. conduct that may violate public policy or be considered wanton. White Water Mt. Resorts of Conn., 265 Conn. 636, 643 (2003)).

Delaware Enforceable

“An express agreement to assume a risk can only be effective comprehensibly’ state the risks the parties intend to cover, [in Delaware] if it is clear ‘that its terms were intended by both especially where it is claimed that a party has assumed risks not parties to apply to the particular conduct of the defendant which inherent to ‘the endeavor for which the release is signed.’” Slowe has caused the harm.’ Accordingly, while an exculpatory clause v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 10-11 need not itemize every conceivable injury or loss intended to (2008) (footnotes omitted). fall within its ambit, it must nonetheless ‘clearly, explicitly and

6 Express Assumption of Risk/Waiver/Exculpatory Clauses

District of Columbia Enforceable

“A fundamental requirement of any exculpatory provision is that it its own negligence, the clause is insufficient for that purpose.’).” be clear and unambiguous. Maiatico v. Hot Shoppes, Inc., 109 U.S. Moore v. Waller, 930 A.2d 176, 181 (2007). In addition, “any ‘term’ App. D.C. 310, 312, 287 F.2d 349, 351 (1961) (‘exculpation must in a contract which attempts to exempt a party from liability for be spelled out with such clarity that the intent to negate the usual gross negligence or wanton conduct is unenforceable, not the consequences of tortious conduct is made plain’; also recognizing entire [contract].’ Anderson, 712 N.W.2d at 801 (quoting Wolfgang that in most circumstances modern law ‘permit[s] a person to v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788 (D. exculpate himself by contract from the legal consequences of his Kan. 1995) (which in turn quotes RESTATEMENT (SECOND) OF negligence’). Cf. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. CONTRACTS § 195(1) (1981) (‘A term exempting a party from tort 254, 686 A.2d 298, 305 (Md. 1996) (‘Because it does not clearly, liability for harm caused intentionally or recklessly is unenforceable unequivocally, specifically, and unmistakably express the parties’ on grounds of public policy.’ (emphasis added)).” Id. at 182. intention to exculpate the respondent from liability resulting from

Florida Enforceable

Although viewed with disfavor under Florida law, exculpatory a minor for inherent risks in commercial activities, but not for the clauses are valid and enforceable when clear and unequivocal. negligence of the activity provider. Fla. Stat. § 744.301(3) (2011); Borden v. Phillips, 752 So. 2d 69 (2000). As noted in the overview but see Kirton v. Fields, 997 So. 2d 349 (2008). to this document, in Florida, a parent may release the claims of

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).

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Hawaii Enforceable

Although exculpatory clauses are generally disfavored, exculpatory recreational activities to the public will be liable for injuries caused clauses are enforceable if they do not violate a statute, implicate by negligent acts or omissions, but not for inherent risks of the a substantial public interest, or stem from unequal bargaining activity if a waiver that meets the requirements of the statute is power between the parties. See Fujimoto v. Au, 95 Haw. 116, 155- signed by the patron. 56, 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

Idaho Enforceable

Plaintiff’s express consent to a waiver or release is recognized contracts which violate public policy are not recognized. See, to be a complete bar to recovery in Idaho. With one important e.g., Whitney v. Continental Life and Accident Co., 89 Idaho 96, exception, contractual assumption of risk operates as a total 403 P.2d 573 (1965); Worlton v. Davis, 73 Idaho 217, 249 P.2d 810 bar to recovery. “The exception is the general contract rule that (1952).” Salinas v. Vierstra, 107 Idaho 984, 990 (1985).

Illinois Enforceable

“Although exculpatory agreements are not favored and are strictly “A release or exculpatory agreement can be set aside if there is construed against the party they benefit, parties may allocate the either fraud in the execution or fraud in the inducement. Bien v. risk of negligence as they see fit, and exculpatory agreements Fox Meadow Farms Ltd., 215 Ill. App. 3d 337, 341, 574 N.E.2d do not violate public policy as a matter of law. An exculpatory 1311, 1315, 158 Ill. Dec. 918 (1991). Fraud in the execution occurs agreement will be enforced if: ‘(1) it clearly spells out the intention when the plaintiff was induced to sign the agreement not knowing of the parties; (2) there is nothing in the social relationship between it was a release, but believing it to be another type of document; the parties militating against enforcement; and (3) it is not against fraud in the inducement occurs when the party is induced to enter public policy.’” Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. into the release by false representations by the other party. Bien, 3d 407, 412 (2007) (internal citations omitted). 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).

8 Express Assumption of Risk/Waiver/Exculpatory Clauses

Indiana Enforceable

“In Indiana, assumption of risk, or an enforceable express consent negligence of the party seeking release from liability. See Powell to hold another harmless and/or relieve them of duty, remains a v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, complete bar to recovery.” Heck v. Robey, 659 N.E.2d 498, 504 761 (Ind. Ct. App. 1998); Moore Heating & Plumbing, Inc. v. Huber, n.6 (1995). “In the absence of legislation to the contrary, it is Hunt & Nichols, 583 N.E.2d 142, 146 (Ind. Ct. App. 1991). An not against public policy in Indiana to enter into a contract that exculpatory clause may be found sufficiently specific and explicit exculpates one from the consequences of his own negligence. on the issue of negligence even in the absence of the word itself. Marshall v. Blue Springs Corp., 641 N.E.2d 92, 95 (Ind. Ct. App. See Moore, 583 N.E.2d at 146.” Avant v. Cmty. Hosp., 826 N.E.2d 1994). However, in order to ensure a party’s knowing and willing 7, 10 (2005). acceptance of this harsh burden, [courts] have held that such exculpatory clauses must specifically and explicitly refer to the

Iowa Enforceable

“Under Iowa law, a contract need not expressly specify that it will Club, 435 N.W.2d 746, 748 (1988). In addition, “[t]he parties need operate for negligent acts if the clear intent of the language is to not have contemplated the precise occurrence which occurred as provide for such a release. See Hysell v. Iowa Public Service Co., long as it is reasonable to conclude the parties contemplated a 534 F.2d 775, 785 (8th Cir. 1976), citing Weik v. Ace Rents Inc., similarly broad range of accidents. Schlessman v. Henson, 83 Ill.2d 249 Iowa 510, 514-15, 87 N.W.2d 314, 317-18 (1958). The words 82, 86, 413 N.E.2d 1252, 1254, 46 Ill. Dec. 139 (1980).” Id. at 749. ‘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

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).

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Kentucky Enforceable

“‘An exculpatory contract for exemption from future liability for prudent and knowledgeable party to it will know what he or she is negligence, whether ordinary or gross, is not invalid per se. . . . contracting away; it must be unmistakable.’” Cumberland Valley However, such contracts are disfavored and are strictly construed Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 649 (2007) against the parties relying upon them. . . . The wording of the (quoting Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005)). release must be so ‘clear and understandable that an ordinarily

Louisiana Not Enforceable

Article 2004 of the Louisiana Civil Code provides: “Any clause is therefore null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.” “Any clause is null that, in advance, excludes or limits the liability Berlangieri v. Running Elk Corp., 134 N.M. 341, 346 (2003) (quoting of one party for intentional or gross fault that causes damage to La. Code). the other party.

“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 “[R]eleases saving a party from damages due to that party’s own ‘expressly spell out with the greatest particularity the intention of negligence are not against public policy. Hardy, 1999 ME 142, P3 the parties contractually to extinguish negligence liability.’ Doyle v. n.1, 739 A.2d at 369 (citing Emery Waterhouse Co. v. Lea, 467 A.2d Bowdoin Coll., 403 A.2d 1206, 1208 (Me. 1979) (internal quotation 986, 993 (Me. 1983)).” Id. marks omitted).” Lloyd v. Sugarloaf Mt. Corp., 833 A.2d 1, 4 (2003).

10 Express Assumption of Risk/Waiver/Exculpatory Clauses

Maryland Enforceable

“In Maryland, for an exculpatory clause to be valid, it ‘need not harm or engages in acts of reckless, wanton, or gross negligence; contain or use the word “negligence” or any other “magic words.” (2) when the bargaining power of one party to the contract is so Adloo v. H. T. Brown Real Estate, Inc., 344 Md. 254, 266, 686 A.2d grossly unequal so as to put that party at the mercy of the other’s 298 (1996); see also Sanchez v. Bally’s Total Fitness Corp., 68 Cal. negligence; and (3) when the transaction involves the public interest. App. 4th 62, 79 Cal. Rptr. 2d 902, 905 (1998)(same). An exculpatory Wolf, 335 Md. at 531-32; Winterstein, 16 Md. App. at 135-36.” Id. clause ‘“is sufficient to insulate the party from his or her own at 282-283. negligence ‘as long as [its] language . . . clearly and specifically indicates the intent to release the defendant from liability for “In the determination of whether the enforcement of an exculpatory personal injury caused by the defendant’s negligence . . . .” clause would be against public policy, the courts consider whether Adloo, 344 Md. at 266 (quoting Barnes v. New Hampshire Karting the party seeking exoneration offered services of great importance Assn., 128 N.H. 102, 509 A.2d 151, 154 (N.H. 1986)).” Seigneur to the public, which were a practical necessity for some members v. National Fitness Inst., Inc., 132 Md. App. 271, 280 (2000). of the public. As indicated above, courts have found generally “Three exceptions have been identified where the public interest that the furnishing of gymnasium or health spa services is not an will render an exculpatory clause unenforceable. They are: (1) activity of great public importance nor of a practical necessity.” Id. when the party protected by the clause intentionally causes at 284.

Massachusetts Enforceable

“A defendant ordinarily may ‘validly exempt itself from liability defendant from responsibility for violation of a statutory duty, which it might subsequently incur as a result of its own negligence.’ Henry v. Mansfield Beauty Academy Inc., 353 Mass. 507, 511, Lee v. Allied Sports Assocs., 349 Mass. 544, 550, 209 N.E.2d 329 233 N.E.2d 22 (1968), where a public utility attempts to limit its (1965) (racing cars). Cormier v. Central Mass. Chapter of the Natl. liability, or where there is an obvious disadvantage in bargaining Safety Council, 416 Mass. 286, 288-289, 620 N.E.2d 784 (1993) power so that the effect of the contract is to put a party at the (motorcycles).” Zavras v. Capeway Rovers Motorcycle Club, 44 mercy of the other’s negligence. See Prosser & Keeton, Torts § 68, Mass. App. Ct. 17, 18 (1997). “Even where simple negligence is at 482 (5th ed. 1984); Gonsalves v. Commonwealth, supra. See alleged, [Massachusetts courts], for policy reasons, are cautious generally Restatement (Second) of Contracts § 195 & comments a in enforcing releases against liability and in certain circumstances & b (1981).” Id. at 19. decline to do so: e.g., where a release attempts to shield a

Michigan Enforceable

If the text in the release is clear and unambiguous, the release is meaning of a release does not, in itself, establish an ambiguity.” enforceable and the parties’ intentions must be upheld. “A contract Cole v. Ladbroke Racing Michigan, Inc., 614 N.W.2d 169, 176 is ambiguous only if its language is reasonably susceptible to (2000). more than one interpretation. The fact that the parties dispute the

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Minnesota Enforceable

Exculpatory clauses are enforceable “when limited to negligent for protecting the public interest in the freedom of contract. Id.; conduct. See, e.g., Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193, 923 (Minn. 1982). See also Great Northern, 291 Minn. at 100, 189 196, 288 N.W. 226, 227 (1939). To that end, the court has stated N.W.2d at 407; Indep. School Dist. No. 877 v. Loberg Plumbing & that a party may ‘properly bargain for indemnity against his own Heating Co., 266 Minn. 426, 434, 123 N.W.2d 793, 798-99 (1963); negligence where the latter “is only an undesired possibility in Speltz Grain & Coal Co. v. Rush, 236 Minn. 1, 7, 51 N.W.2d 641, the performance of the bargain, and the bargain does not tend 644 (1952); Pettit Grain & Potato Co. v. Northern Pac. Ry. Co., to induce the act.” Northern Pac., 206 Minn. at 197, 288 N.W. at 227 Minn. 225, 229-31, 35 N.W.2d 127, 130 (1948). In upholding 227-28.’” St. Paul Fire & Marine Ins. Co. v. Perl, 415 N.W.2d 663, indemnification agreements, the court has expressed its concern 666 (1987).

Mississippi Enforceable

“The law does not look with favor on contracts intended to express as clearly and precisely as possible the extent to which a exculpate a party from the liability of his or her own negligence party intends to be absolved from liability. [citation omitted] Failing although, with some exceptions, they are enforceable. However, that, we do not sanction broad, general ‘waiver of negligence’ such agreements are subject to close judicial scrutiny and are provisions, and strictly construe them against the party asserting not upheld unless the intention of the parties is expressed in them as a defense. See Leach v. Tingle, 586 So. 2d 799, 801 (Miss. clear and unmistakable language. [citation omitted] ‘Clauses 1991); State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So. 2d 1371, limiting liability are given rigid scrutiny by the courts, and will not 1372 (Miss. 1981). In further determining the extent of exemption be enforced unless the limitation is fairly and honestly negotiated from liability in releases, this Court has looked to the intention of and understandingly entered into.’ Farragut v. Massey, 612 So. 2d the parties in light of the circumstances existing at the time of the 325, 330 (Miss. 1992) (quoting 17 Am. Jur. 2d Contracts § 297, at instrument’s execution.” Turnbough v. Ladner, 754 So. 2d 467, 298 n.74 (1991). The wording of an exculpatory agreement should 469 (1999).

Missouri Enforceable

Public policy disfavors but does not prohibit releases of future conspicuous language in order to release a party from his or her negligence. Alack v. Vic Tanny Int’l, 923 S.W.2d 330 (1996) own future negligence.’ [923 S.W.2d at 337.] Consumer contracts Missouri courts demand “that exculpatory language ‘effectively must conspicuously employ ‘negligence,’ ‘fault’ or equivalent notify a party that he or she is releasing the other party from claims words so that a clear and unmistakable waiver and shifting of risk arising from the other party’s own negligence.’ 923 S.W.2d at occurs. Id.” Milligan, 239 S.W.3d at 616. 337.” Milligan v. Chesterfield Vill. GP, LLC, 239 S.W.3d 613, 616 (2007). They “require ‘clear, unambiguous, unmistakable, and

12 Express Assumption of Risk/Waiver/Exculpatory Clauses

Montana Not Enforceable

“In Montana, it is statutorily prohibited for any contracts to have clause or release of liability clause seeking to relieve a tortfeasor as their object, directly or indirectly, the exemption of anyone from liability for negligent conduct is not valid. Haynes, 517 P.2d at from responsibility for their own fraud, for their willful injury to 377.” Thompson v. Simanton, 2004 ML 3736, 24 (2004). the person or property of another, or for their willful or negligent violation of the law. § 28-2-702, MCA.” Thus, “any exculpatory

Nebraska Enforceable

Exculpatory clauses may be upheld to insulate a party from to the public or against the public good. * * * The principles under ordinary negligence. New Light Co. v. Wells Fargo Alarm Servs., which the freedom of contract or private dealings is restricted by 525 N.W.2d 25 (1994). But clauses purporting to insulate parties law for the good of the community. . . . OB-GYN v. Blue Cross, from gross negligence or willful misconduct may be viewed to 219 Neb. 199, 203, 361 N.W.2d 550, 553 (1985). Accord United be in contravention of public policy. Whether a contract violates Seeds, Inc. v. Hoyt, 168 Neb. 527, 96 N.W.2d 404 (1959).” New public policy must be considered on the basis of the particular Light Co. v. Wells Fargo Alarm Servs., 525 N.W.2d 25, 30 (1994). 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

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).

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New Hampshire Enforceable

“Although New Hampshire law generally prohibits a plaintiff from any doubt as to whether the plaintiff has agreed to assume the risk releasing a defendant from liability for negligent conduct, in limited of a defendant’s negligence. See Audley v. Melton, 138 N.H. 416, circumstances a plaintiff can expressly consent by contract to 418-19, 640 A.2d 777 (1994); Papakalos v. Shaka, 91 N.H. 265, assume the risk of injury caused by a defendant’s negligence. 267-68, 18 A.2d 377 (1941). Because a plaintiff’s contract releases See Dean v. MacDonald, 147 N.H. 263, 267, 786 A.2d 834 (2001). a defendant from liability under this theory, it completely bars a For a plaintiff to assume such risk, the release must ‘clearly and plaintiff’s recovery, and therefore the comparative fault statute specifically indicate[] the intent to release the defendant from does not apply. See Keeton, supra at 496-97.” Allen v. Dover Co- liability for personal injury caused by the defendant’s negligence Recreational Softball League, 148 N.H. 407, 413-414 (2002). . . . .’ Id. (quotation omitted). A defendant, however, will not be released from liability when the language of the contract raises

New Jersey Enforceable

In order for the exculpatory clause to be upheld, the “agreement agreements because they encourage a lack of care. Kuzmiak v. must, on its face, reflect the unequivocal expression of the party Brookchester, Inc., 33 N.J. Super. 575, 580, 111 A.2d 425 (App. giving up his or her legal rights that this decision was made Div.1955). An exculpatory release agreement, like any contract, voluntarily, intelligently and with the full knowledge of its legal can only bind the individuals who signed it. Goncalvez v. Patuto, consequences. Knorr v. Smeal, 178 N.J. 169, 177, 836 A.2d 794 188 N.J. Super. 620, 628, 458 A.2d 146 (App.Div.1983).” Id. Such (2003); Country Chevrolet, Inc. v. Township of N. Brunswick Planning exculpatory agreement is unenforceable and void as against Bd., 190 N.J. Super. 376, 380, 463 A.2d 960 (App.Div.1983).” public policy, however, when it is invoked to preclude a minor or Gershon, Adm’x Ad Prosequendum for Estate of Pietroluongo decedent’s heirs from prosecuting a wrongful death action. Id. v. Regency Diving Center, Inc. and Costas Prodromou, 368 N.J. at 249. 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 Express Assumption of Risk/Waiver/Exculpatory Clauses

New York Enforceable

Exculpatory clauses are generally enforceable, except in pools, gymnasiums, places of public amusement or recreation certain instances prohibited by statute pertaining to proprietary and similar establishments from liability for negligence void and amusement and recreational activities. Fazzinga v. Westchester unenforceable.” Compare Garnett v. Strike Holdings LLC, et al., Track Club, 48 AD3d 410, 411 (2nd Dep’t 2007); General Obligations 882 N.Y.S.2d 115, 116 (2009), where a commercial go-kart release Law § 5-326. That statute renders “[a]greements exempting was deemed unenforceable under the General Obligations Law.

North Carolina Enforceable

“In North Carolina ‘releases which exculpate persons from liability Co., 266 N.C. 156, 146 S.E.2d 43 (1966); Hall v. Sinclair Refining for negligence are not favored by the law.’ Johnson v. Dunlap, Co., 242 N.C. 707, 89 S.E.2d 396 (1955) (discussing the general 53 N.C. App. 312, 317, 280 S.E.2d 759, 763 (1981), cert. denied, rule that parties may contract to allocate the risk of their own 305 N.C. 153, 289 S.E.2d 380 (1982); Alston v. Monk, 92 N.C. negligence, and the circumstances under which such contracts App. 59, 373 S.E.2d 463 (1988); Miller’s Mut. Fire Ins. Ass’n v. will be held void); Miller’s Mut. Fire Ins. Ass’n, supra; Brockwell v. Parker, 234 N.C. 20, 65 S.E.2d 341 (1951). Nonetheless, such an Lake Gaston Sales and Service, 105 N.C. App. 226, 412 S.E.2d exculpatory contract will be enforced unless it violates a statute, 104 (1992).” Fortson v. McClellan, 131 N.C. App. 635, 636-637 is gained through inequality of bargaining power, or is contrary to (1998). a substantial public interest. Jordan v. Eastern Transit & Storage

North Dakota Enforceable

“Generally, the law does not favor contracts exonerating parties the court to decide, and, on appeal, this Court will independently from liability for their conduct. Reed v. Univ. of North Dakota, 1999 examine and construe the contract to determine if the trial court ND 25, P22, 589 N.W.2d 880. However, the parties are bound by erred in its interpretation of it. Egeland v. Continental Res., Inc., clear and unambiguous language evidencing an intent to extinguish 2000 ND 169, P10, 616 N.W.2d 861. The issue whether a contract liability, even though exculpatory clauses are construed against is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., the benefitted party. Id. When a contract is reduced to writing, 2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is the intention of the parties is to be ascertained from the writing particularly amenable to summary judgment. Meide, 2002 ND 128, alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. P7, 649 N.W.2d 532.” Kondrad v. Bismarck Park Dist., 2003 ND 4, State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a P6 (2003). written contract to determine its legal effect is a question of law for

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Ohio Enforceable

“Exculpatory contracts which clearly and unequivocally relieve the negligence of the proprietor. There is an exception, however, one from the results of his own negligence are generally not which prohibits a proprietor from contracting to relieve itself from contrary to public policy in Ohio. It is therefore well-settled law responsibility for willful or wanton misconduct.” Swartzentruber v. that a participant in a recreational activity is free to contract with Wee-K Corp., 117 Ohio App. 3d 420, 424 (1997) (internal citations the proprietor of such activity so as to relieve the proprietor of omitted). 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 Express Assumption of Risk/Waiver/Exculpatory Clauses

Pennsylvania Enforceable

“An exculpatory clause is valid if three conditions are met: (1) the can establish the intent of the parties; 3) the language of the clause must not contravene public policy, (2) the contract must be contract must be construed, in case of ambiguity, against the party between persons relating entirely to their own private affairs and (3) seeking immunity from liability; and 4) the burden of establishing each party must be a free bargaining agent to the agreement so that the immunity is upon the party invoking the protection under the the contract is not one of adhesion. Even if an exculpatory clause clause.” Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233, 1238 is determined to be valid, however, it will still be unenforceable (2009) (internal citations omitted). 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

Rhode Island Enforceable

Exculpatory clauses “that negate liability for an individual’s own v. Vendresca, 426 A.2d 262, 264 (R.I. 1981). [I]t is not violative of negligence [are valid] if the clause is sufficiently specific. Corrente public policy [in Rhode Island] for individuals to limit liability for v. Conforti & Eisele Co., 468 A.2d 920, 922 (R.I. 1983); see also their own negligence through an exculpatory-indemnification Ostalkiewicz v. Guardian Alarm, Division of Colbert’s Security clause.” Id. 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

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South Carolina Enforceable

Exculpatory contracts are generally valid but “notwithstanding indicating that such was the intent of the parties.’” South Carolina the general acceptance of exculpatory contracts, ‘since such Elec. & Gas Co. v. Combustion Eng’g, Inc., 283 S.C. 182, 191, 322 provisions tend to induce a want of care, they are not favored S.E.2d 453, 458 (Ct. App. 1984) (quoting Hill v. Carolina Freight by the law and will be strictly construed against the party relying Carriers Corp., 235 N.C. 705, 71 S.E.2d 133, 137 (N.C. 1952)).” thereon.’” Fisher v. Stevens, 355 S.C. 290, 295, 584 S.E.2d 149, McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 152 (Ct. App. 2003) (quoting Pride v. Southern Bell Tel. & Tel. Co., 242 (2005). 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

South Dakota Enforceable

“‘To be valid, a release must be fairly and knowingly made.’ valid and are against public policy. Id. (citing Winterstein v. Wilcom, Paterek v. 6600 Ltd., 465 N.W.2d 342, 344 (Mich. Ct. App. 1990) 16 Md. App. 130, 293 A.2d 821 (1972); SDCL 53-9-3). ‘Willful and (citations omitted). A release is not fairly made and is invalid if the wanton misconduct is something more than ordinary negligence nature of the instrument was misrepresented or there was other but less than deliberate or intentional conduct.’ 293 A.2d at 829 fraudulent or overreaching conduct. Id. (Citation omitted). See also (citing Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938).” Dombrowski v. City of Omer, 199 Mich. App. 705, 502 N.W. 2d Holzer v. Dakota Speedway, Inc., 610 N.W.2d 787, 793 (2000). 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 Express Assumption of Risk/Waiver/Exculpatory Clauses

Texas Enforceable

“An agreement purporting to absolve a party of the consequences a reasonable person against which it is to operate ought to have of its own negligence is not enforceable unless it conforms to noticed it. TEX. BUS. & COM. CODE ANN. § 1.201(b)(10) (Vernon the twin fair notice requirements of (1) conspicuousness and (2) Supp. 2008) (listing ways to make a term conspicuous). the express negligence doctrine. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. 1993); Enserch Corp. “Under the express negligence doctrine, an intent to release one of v. Parker, 794 S.W.2d 2, 9 (Tex. 1990). A contract which fails to the parties from the consequences of its own negligence ‘must be satisfy either of the fair notice requirements when they are imposed specifically stated in the four corners of the document.’Reyes , 134 is unenforceable as a matter of law. Storage & Processors, Inc. S.W.3d at 192 (quoting Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). However, if both 705, 707 (Tex. 1987)); Amtech, 248 S.W.3d at 377. Moreover, the contracting parties have actual knowledge of the contract’s terms, intent to release ‘must be expressed in unambiguous terms.’ OXY the fair notice requirements need not be satisfied. Id. (citing USA, Inc. v. Sw. Energy Prod. Co., 161 S.W.3d 277, 282 (Tex. App.- Dresser Indus., 853 S.W.2d at 508 n.2). -Corpus Christi 2005, pet. denied); see also ALCOA v. Hydrochem Indus. Servs., No. 13-02-00531-CV, 2005 Tex. App. LEXIS 2010, “The conspicuousness requirement mandates that ‘something at *20-21 (Tex. App.--Corpus Christi Mar. 17, 2005, pet. denied) must appear on the face of the [contract] to attract the attention (mem. op., not designated for publication) (‘Express negligence of a reasonable person when he looks at it. Id. (quoting Dresser does not mandate that in order for an indemnity clause to be Indus., 853 S.W.2d at 508); Amtech Elevator Servs. Co. v. CSFB enforceable it must be the best or the briefest possible statement 1998-P1 Buffalo Speedway Office Ltd. P’ship, 248 S.W.3d 373, of the parties’ intentions, only that it specifically define the parties’ 377 (Tex. App.--Houston [1st Dist.] 2007, no pet.). A term is intent.’).” Rackley v. Advanced Cycling Concepts Inc. d/b/a Pump conspicuous when it is written, displayed, or presented such that It Up, 2009 Tex. App. LEXIS 1888, 7-8 (2009).

Utah Enforceable

Utah permits parties to “contract away their rights to recover in unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560; (2) tort for damages caused by the ordinary negligence of others. releases for activities that fit within the public interest exception See Rothstein v. Snowbird Corp., 2007 UT 96, P 6, 175 P.3d are unenforceable, Berry, 2007 UT 87, P 16, 171 P.3d 442; and 560; Berry v. Greater Park City Co., 2007 UT 87, P 15, 171 P.3d (3) releases that are unclear or ambiguous are unenforceable, 442 (‘[Utah’s] public policy does not foreclose the opportunity of Rothstein, 2007 UT 96, P 6, 175 P.3d 560.” Pearce v. Utah Ath. parties to bargain for the waiver of tort claims based on ordinary Found., 2008 UT 13, P 14, 179 P.3d 760, 765. 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

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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 the plaintiff: (1) had full subjective understanding (2) of the policy, are inconspicuous, or the negligence fall [sic] below presence and nature of the specific risk, and (3) voluntarily chose standards established by law. Johnson v. N E W, Inc., 89 Wash. to encounter the risk. Kirk v. Washington State Univ., 109 Wash. App. 309, 311, 948 P.2d 877 (1997).” “Contractual express 2d 448, 453, 746 P.2d 285 (1987) (citations omitted).” Allinger v. assumption of the risk involves an agreement in advance to relieve Resort at Mt. Spokane, 1998 Wash. App. LEXIS 1374, 6-7 (1998). 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 Express Assumption of Risk/Waiver/Exculpatory Clauses

West Virginia Enforceable

“Generally, in the absence of an applicable safety statute, a plaintiff any future negligence will not be construed to include intentional who expressly and, under the circumstances, clearly agrees or reckless misconduct or gross negligence, unless such intention to accept a risk of harm arising from the defendant’s negligent clearly appears from the circumstances.” Id. at 316 (internal or reckless conduct may not recover for such harm, unless the citations omitted). “A clause in an agreement exempting a party agreement is invalid as contrary to public policy.” Murphy v. N. Am. from tort liability is, however, unenforceable on grounds of public River Runners, 186 W. Va. 310, 314-315 (1991) (internal citations policy if, for example, (1) the clause exempts a party charged omitted). “In particular, a general clause in a pre-injury exculpatory with a duty of public service from tort liability to a party to whom agreement or anticipatory release purporting to exempt a defendant that duty is owed, or (2) the injured party is similarly a member of from all liability for any future loss or damage will not be construed a class which is protected against the class to which the party to include the loss or damage resulting from the defendant’s inflicting the harm belongs.” Id. at 315 (internal citations omitted). 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

Wisconsin Enforceable

Exculpatory contracts are valid and do not violate public policy. injured by the unreasonable conduct of others. Where the But “‘[e]xculpatory agreements that are broad and general in terms unreasonable conduct, even though dangerous, is within the will bar only those claims that are within the contemplation of the contemplation of the parties to an agreement, the agreement is not parties when the contract was executed.’ Arnold v. Shawano County necessarily void as against public policy.” Id. at 181-182 (internal Agric. Soc’y, 111 Wis.2d 203, 211, 330 N.W.2d 773, 778 (1983), citations omitted). But Wisconsin courts “have acknowledged that overruled on other grounds, Green Spring Farms, 136 Wis.2d at an exculpatory contract exempting a party from tort liability for 317, 401 N.W.2d at 821. Courts construe such agreements strictly harm caused intentionally or recklessly is void as against public against the party seeking to rely on them. Arnold, 111 Wis.2d at policy.” Id. at 183 (internal citations omitted). 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

21 50-state survey

Wyoming Enforceable

“Exculpatory clauses or releases are contractual in nature, and Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 [Wyoming courts] interpret them using traditional contract principles P.2d 532, 535 (Wyo.1979).’” Id. at 1136 (quoting Fremont Homes, and considering the meaning of the document as a whole. Milligan Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999)). “The factors the v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. court considers are: ‘(1) whether a duty to the public exists; (2) Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. the nature of the service performed; (3) whether the contract was 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 fairly entered into; and (4) whether the intention of the parties is P.2d 1157, 1159 (Wyo. 1985).” Massengill v. S.M.A.R.T. Sports expressed in clear and unambiguous language.’” Id. (quoting Med. Clinic, P.C., 996 P.2d 1132, 1135 (2000). “‘In Wyoming, a Schutkowski v. Carey, 725 P.2d 1057(Wyo.1986)). 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 23 Offices & Affiliates

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