Date of Award

Fall 2023

Document Type

Legal Research Pathfinders

Degree Name

Juris Doctorate (JD)

Instructor

Paul Callister

Abstract

Today, a vast majority of contracts signed by consumers contain provisions that release one or both of the parties from liability if personal injury occurs during the course of the contract. These provisions are referred to as liability waivers, exculpatory clauses, limitations of liability, or liability releases, and these terms are often used interchangeably within this pathfinder and in legal research relating to this topic. The effect of these provisions is that the signing party waives their right to file future claims against the other party in the event of injury or loss and relieves the drafting party of any liability for damages sustained while under contract. Enforceability of these types of waivers varies widely from state to state, leading to uncertainty in situations normally resulting in tort liability or potential damage awards. Some jurisdictions uphold these types of agreements as long as they are clear to the contracting parties, some jurisdictions prohibit them entirely, some apply stricter standards in determining validity, and some states prohibit them if the state has a regulatory interest in the safety and non-negligence of the contracting parties. Generally, across many jurisdictions, waivers of liability for future negligence are valid, and a little more than half the states have passed statutes governing exculpatory clause enforceability. However, it is important to note that exculpatory clauses are not without limitation and can be invalid in situations including minors, offense to public policy, public interest exceptions, and releases that are ambiguous. Furthermore, it is well established that liability waivers that are unconscionable or violate public policy are generally unenforceable. Regardless of legal precedent that refuses to uphold exculpatory clauses that offend public policy or are deemed unconscionable, parties continue to place these waiver provisions in their contracts to deter injured parties from litigating, even if the injured party may well prevail in a claim against the tortfeasor.

Comments

Information on in this document has been obtained by the author when he was a student in Advanced Legal Research class from sources believed to be reliable. The author does not guarantee the accuracy or completeness of any information included and is not responsible for any errors, omissions or damages arising from the use of this information. This document is made available with the understanding that the author is supplying information, but not attempting to render legal or other professional services. If such services are required, the assistance of an appropriate professional should be sought.

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