Are Waivers, Releases, and Exculpatory Agreements Enforceable?

Indiana courts have adopted the majority view which provides that, absent a statute or public policy concern, pre-injury waivers and releases, or exculpatory agreements that release a party from liability for its own ordinary negligence, are generally enforceable. (Restatement (Second) of Contracts § 195, cmt. A).

For example, courts across other jurisdictions have enforced liability waivers and releases to bar negligence claims brought by patrons for personal injuries against business owners or operators involving a variety of activities, including:

• Horseback Riding (Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989)
• Parachute Jumping (Manning v. Brannon, 956 P.2d 156 (Okla. Civ. App. 1997)
• Skiing (Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010)
• Scuba Diving (Boyce v. West, 862 P.2d 592 (Wash. Ct. App. 1993)
• Use of Equipment at a Fitness Club (Geczi v. Lifetime Fitness, 973 N.E.2d 801 (Ohio Ct. App. 2012)
• White Water Rafting (Franzek v. Calspan Corp., 434 N.Y.S.2d 288 (4th Dep’t 1980)
• Rental of a Two-Wheeled Transport Vehicle (Mero v. City Segway Tours of Washington DC, LLC, 962 F. Supp. 2d 92 (D.D.C. 2013)

The minority view, followed by Louisiana and Virginia, declines to enforce liability waivers and releases for personal injuries.

• Louisiana (La. Civ. Code Ann. Art. 2004): Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party
• Virginia (Hiett v. Lake Barcroft Cmty. Ass’n, 418 S.E.2d 894, 896-897 (Va. 1992) (holding that under Virginia law, pre-injury releases from liability for negligence resulting in personal injuries are void as against public policy)

Because waivers and releases relieve a party of the obligation to use due care, they receive careful review by courts. Thus, in general, for a waiver or release to be valid and enforceable in Indiana, it must be:

• Clear and unambiguous
• Explicit in the parties’ intent to relieve the release party from liability and for its own negligence
• Not against public policy

Indiana case law has not expanded on defining clear and unambiguous, beyond stating that a contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms. Guidance can be drawn from other jurisdictions which suggest courts are more likely find a waiver or release clear and unambiguous if it:

• Is written in plain language that a layperson can understand (Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1566 (1990))
• Is not too long and does not contain excessive legal jargon (Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 951 (Colo. App. 2011))
• References the type of activity, circumstances, or risks that it encompasses (Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 45 (2010))
• Is conspicuous, so that a reasonable person should be expected to notice the operative language (Berlangieri v. Running Elk Corp., 76 P.3d 1098, 1109 (N.M. 2003))
• Uses different typeface, such as larger font, capital letters, bold typeface, or italics, than the rest of the document (Geczi v. Lifetime Fitness, 973 N.E.2d 801 (Ohio Ct. App. 2012))
• Is not buried in a lengthy document or surrounded by other provisions that are difficult to identify (Leon v. Family Fitness Ctr. (No. 107), Inc., 61 Cal. App. 4th 1227, 1232 (1998))

For questions regarding the enforceability of a waiver, release or exculpatory contract contact a member of Barrett McNagny’s Litigation team.

About the Author:

Lauren Minke is a member of Barrett McNagny's litigation team with an emphasis in insurance defense and medical malpractice defense. She has first chair bench trial and second-chair jury trial experience and has been selected for inclusion in the 2020 & 2021 Indiana Super Lawyers publications as a 'Rising Star'. She can be reached at (260) 423-8858 or at lrm@barrettlaw.com.