WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 6 Last Updated 1/13/22
hardware component. They may even be found, with some searching, in a file entitled “license.txt” or similar name on the installation CD on which a new piece of
software is delivered. Businesses seldom read these terms in any detail, generally view them as non-negotiable, and accept them as a necessary evil.
Enforcement Generally
The enforcement of exculpatory clauses is very state-specific. Each state can be classified as to its enforcement of such waivers. Some are very lenient, others
moderate, and many have very strict requirements. Three states disallow such waivers entirely. Because exculpatory clauses are widely disfavored, a 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.” Ingersoll-Rand Co. v. El Dorado Chem. Co., 283 S.W.3d 191 (Ark. 2008). This generally means that the courts require the exculpatory clause to be clear and
unambiguous. Any such release must clearly, explicitly, and comprehensibly set forth to an ordinary person untrained in the law the intent and effect of the document.
Cohen v. Five Brooks Stable, 72 Cal. Rptr.3d 471 (Cal. App. 2008). Some courts require that the word “negligence” be specifically 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 Slowe v. Pike Creek
Court Club, Inc., 2008 WL 5115035 (Del. Super. 2008).
The most common reason waivers are not enforced is because they are poorly written. Courts in all states require that the language be clear and unambiguous. In
addition, many states require specific language for the waiver to be enforceable. For instance, New York courts (and the courts in several other states) require that the
waiver include language specifying the “negligence” of the provider. Failure to use the word “negligence” in those states causes an otherwise enforceable waiver to
fail.
Most states will not enforce waivers intended to protect the provider against liability for gross negligence, reckless conduct, willful/wanton conduct, or intentional
acts. Ordinary negligence is the failure to take the prudence and care that a reasonable, prudent professional would take under the circumstances. Gross negligence is
an extreme form of negligence in which the party fails to take the care that even a careless person would take under the circumstances. It is sometimes said that gross
negligence includes a reckless disregard for the rights and welfare of others.
In some states a waiver signed by a spouse protects the provider from litigation by the non-signing spouse in the event of injury or death of the signing spouse. In other
states, such a waiver has no effect on the right of the non-signing spouse to bring suit.
Some states, such as Arizona, have held that 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., 111 P.3d 1003 (Ariz. 2005). States such as Virginia “universally prohibit” any “provision for release from liability for personal injury which may be caused
by future acts of negligence” and only allow releases of liability for property damage. The Supreme Court of Virginia has clearly held that public policy forbids the
enforcement of a release or waiver for personal injury caused by future acts of negligence. Johnson’s Adm’x v. Richmond and Danville R.R. Co., 11 S.E. 829 (Va. 1890).
Louisiana has a statute that declares as null any clause that limits liability based on intentional fault or gross fault or for physical injury. Ostrowiecki v. Aggressor Fleet,
Ltd., 965 So.2d 527, (La. App. 2007). 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 fraud, their willful injury to the
person or property of another, or for their willful or negligent violation of the law.” Montana Code Ann. § 28-2-702.
In at least 46 states, a well-written, properly administered waiver, voluntarily and knowingly signed by an adult, can protect the drafter of the waiver from liability for
injuries resulting from ordinary negligence. Not all waivers, however, are well-written and properly administered. Some states, such as Louisiana, Montana, and
Virginia, simply refuse to enforce such exculpatory agreements. Twenty (20) states have very strict standards which must be adhered to for an exculpatory agreement
to be effective. These include Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Hawaii, Indiana, Kentucky, Maine, Mississippi, Missouri, Nevada, New
Hampshire, New Jersey, New York, Pennsylvania, Utah, Vermont, and Wisconsin. Sixteen (16) states have more moderate standards for such an exculpatory clause to
be valid. They include Colorado, District of Columbia, Florida, Idaho, Illinois, Iowa, Minnesota, New Mexico, North Carolina, Oklahoma, Oregon, South Carolina,