Exculpatory Clauses: A State-by-State Comparison

Anjelica Cappellino, J.D.

Written by
— Updated on May 21, 2021

Exculpatory Clauses: A State-by-State Comparison

Exculpatory clauses in contracts are used to limit or extinguish the liability of one party whose negligence caused another’s injuries. These clauses, which can take the form of waivers, assumption of risk agreements, indemnity clauses, and others, relinquish one’s right to sue, have certain requirements to be enforceable.

The requirements for an enforceable exculpatory clause, however, vary from state to state. Although most states share some similarities in their views (i.e., conduct beyond negligence, such as reckless or intentional misconduct usually cannot be waived), the differences between the states are more numerous and warrant a breakdown of each state’s rules concerning exculpatory clause enforceability.

Below, we’re examining each state’s stance on enforceability by clause validity, drafting guidelines, and applicable statute.

 

State Exculpatory Clause Validity Drafting Guidelines Applicable Statute
Alabama Valid for releases of negligent conduct, not wanton or willful conduct. Draws a distinction between exculpatory clauses and limitations of liability clauses, finding the latter “not, per se, against public policy.” N/A
Alaska Valid if “conspicuous and unequivocally expressed” to release from liability. Must specify the word “negligence” and that it relates to the inherent risks of the act at issue. Alaska Stat. § 05.45.120

(amusement and sports)

Arizona Validity is a question of fact reserved for the jury. All agreements are strictly construed against the party seeking to enforce them. AZ Const. Art. 18, § 5 A.R.S. § 5-706 (Skiing) A.R.S. § 12-556 (Motor Sport Facilities) A.R.S. §12-553 (Equestrian)

 

Arkansas Valid but strongly disfavored. Courts consider the facts and circumstances surrounding the release to determine intent. N/A
California Valid unless against public interests. The agreement must be “clear, unambiguous, and explicit in expressing the intent of the parties.”

 

Cal. Civ. Code § 1668
Colorado Valid but disfavored. Courts consider the existence of a duty to the public, the nature of the service performed, the fairness of the contract, and whether the intent is clear and unambiguous.  

C.R.S. § 33-44-101 through 114 (liability in recreational areas)

 

Connecticut Valid if expressed in clear and unmistakable language. The release violates public policy if the party seeking the release invites the public to use its facilities regardless of ability level. C.G.S.A. § 29-212 (Assumption of risk of skiing)
Delaware Valid if language is clear and unequivocal and the clause is not unconscionable or goes against public policy. Waivers do not have to specifically name the party; releases of third parties are permitted. Del. Code Ann. 6, § 2-302
District of Columbia Valid if clear and unambiguous and does not go against public policy. Must expressly refer to waiving liability for negligence claims. N/A
Florida Valid if the intent is clear and unequivocal and the wording is understandable. An agreement need not specify the word “negligence” or use express language of types of injuries. F.S.A. § 773 (liability of equestrians)
Georgia Valid if not against public policy, which is determined by the General Assembly. Does not need to include the word “negligence” in order to waive liability. O.C.G.A. § 1-3-7; O.C.G.A. § 13-8-2
Hawaii Valid if not involving public interests or a public duty. Full disclosure of inherent risks is required. Haw. Rev. Stat. § 663- 1.54 (Recreational Activities)

 

Idaho Valid if not involving public duty or disparities in bargaining power. Broad language covering a wide range of accidents is permitted. Idaho Code § 6-1206 (Hiking)

Idaho Code § 6-1107 (Skiing)

 

Illinois Valid but disfavored. Does not need to provide specific instances, but rather, the types of situations that may occur. 740 I.L.C.S. § 35/1

 

Indiana Valid if it does not affect public interests and not involving unequal bargaining power. Must explicitly refer to the negligence the party is being released from. N/A
Iowa Valid and not contrary to public policy. Absent fraud or mistake, clauses will be upheld even if not read before signing. N/A
Kansas Valid unless contrary to public policy or involving a disparity in bargaining power. It does not need to include express language regarding negligence but the intent must be clear. N/A
Kentucky Valid unless involving willful or wanton negligence. If not otherwise specified, the hazard must be clearly within the contemplation of the release.  

K.R.S. § 411.190 (Recreational Land Use)

 

Louisiana Any clause that limits future liability for physical injury is invalid. N/A La. Civ. Code Ann. art. 2004

 

Maine Valid Must expressly spell out the intentions of the parties. N/A
Maryland Valid unless it affects the public or involves an obvious disparity of bargaining power. No requirement to specify negligence or other phrases to be valid.  

Md. Code, Real Prop. § 8-105

 

Massachusetts Valid and favored A party is bound even if they did not read or understand the waiver. N/A
Michigan Valid. Must be clear and unambiguous (not reasonably susceptible to more than one interpretation). M.C.L. § 554.633

 

Minnesota Valid Must be unambiguous and not in violation of public policy. M.S.A. § 604A.11

 

Mississippi Valid but disfavored Must be expressly and unmistakably clear; must be fairly negotiated. M.C.A. § 93-19-13

(contracts with minors)

Missouri Valid but disfavored Must conspicuously use the terms “negligence,” “fault” or other equivalent words. N/A
Montana Invalid and statutorily prohibited. N/A Mont. Stat. § 28-2-702

 

Nebraska Valid Whether a contract violates public policy is determined by the facts surrounding the agreement. N/A
Nevada Valid The agreement is construed strictly against the party seeking relief from liability and must spell out the parties’ intent with the greatest particularity. N/A
New Hampshire Valid but generally prohibited in physical injury waivers. A reasonable person must understand the agreement and the claims must be within the contemplation of the parties when the contract was executed. N/A
New Jersey Valid but disfavored. The waiving party must demonstrate they assented voluntarily, intelligently, and with full knowledge of the consequences. N.J.S.A. § 5:13-3 (Ski Lift Operator)

N.J.S.A. § 5:14-1 (Amusements, Public Exhibitions, and Meetings)

 

 

New Mexico Valid unless against public policy. Enforceable under two-prong test: 1) a person without legal train could understand the agreement and 2) not contrary to public policy.  

N.M.S.A. § 42-13-1 (Equestrian)

N.M.S.A. § 24-15-1 (Ski Safety)

 

New York Valid except when prohibited by statute. The agreement must be clear and coherent, with intent in unmistakable language. General Obligations Law §5-321 through 326
North Carolina Valid except when prohibited by statute, against substantial public interest, or involves inequality in bargaining power The exculpatory clause must be in all capital letters and must mention negligence. N.C.G.S.A. § 99C-2(c)

(Sports Safety)

North Dakota Valid unless contract is ambiguous Interpretation is governed by statute and clause is unlawful if otherwise contrary to good morals. N.D.C.C. § 9-08-02

 

Ohio Valid Determined by whether an ordinarily prudent and knowledgeable person would reasonably understand the release. N/A
Oklahoma Valid if not injurious to public health or morals.

 

Must identify the nature of the act and extent and type of damages covered. Okla. Const. art. XXIII, § 6
Oregon Valid and determined on a case-by-case basis. Considers whether the language is unambiguous, whether there is a disparity of bargaining power, whether it was offered as “take-it-or-leave-it,” and whether it involved a consumer transaction. N/A
Pennsylvania Valid if it relates entirely to the private affairs of the party. Intent must be clearly stated and any ambiguities will be construed against the party seeking enforcement. N/A
Rhode Island Valid

 

Intent must be clearly and unequivocally expressed in the contract. R.I.G.L. § 7-6-9

(Non-profit exemption from liability)

South Carolina Valid but disfavored Must inform the party they are waiving all negligence claims. N/A
South Dakota Valid if fairly and knowingly made. The more inherent the risk, the more likely it will be enforced. S.D.C.L. § 42-11-3

(Recreation)

Tennessee Valid and generally enforceable unless against public policy. The courts use six factors to determine whether the contract is against public policy. T.C.A. § 68-114-103 (Ski Safety)

T.C.A. § 47-18-303 (Health Clubs)

 

Texas Valid if in compliance with fair notice doctrines. Must express negligence and language must be conspicuous. Tex. Bus & Com. Code § 1.201(10)

 

Utah Valid unless it offends public policy or falls within the public interest exception. Language must be clear and unambiguous but does not need to expressly include the word “negligence.” U.C.A. § 78B-4-401 (Skiing)

U.C.A. § 78B-4-203 (Equestrian)

U.C.A. § 57-14-101 (Recreational Use of Land)

 

Vermont Valid but must meet higher standards for clarity and pass public policy inspection. Courts consider the nature of the parties’ relationship, the type of service involved, and whether it involves a public interest. N/A
Virginia Invalid – public policy forbids waivers for personal injuries caused by future acts of negligence. N/A N/A
Washington Valid unless it’s against public policy or an inconspicuous clause. The specific mention of waivers from liability need not be mentioned but the waiver itself must be in a separate document and conspicuously labeled. R.C.W. § 79A.45.030

 

West Virginia Valid Releases for conduct beyond negligence (gross negligence, reckless, or intentional conduct) are enforceable if the release clearly indicates the party’s intention. W. Va. Code § 20-3B-3

(Whitewater Rafting)

 

Wisconsin Valid Must give adequate notice, the opportunity to bargain, and the scope of the release must not go beyond negligence claims. Wis. Stat. § 895.447

 

Wyoming Valid if not against public policy Language should clearly state the intent and should suggest no other rational purpose for which it could be intended. N/A

 

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