Are Waivers, Releases, And Exculpatory Agreements Enforceable?

• Published date: 03 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Barrett McNagny
• Author: Lauren R. Minke

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; and
• 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...