Personal Injury Exculpatory Clauses: Enforceability Pitfalls, State Public Policy, Novel Risks, and Foreseeability

An exculpatory agreement is any provision in a contract that purports to release one party from liability to the other before that conduct occurs. The issue is important not only in the context of direct actions by an injured person but also when a party seeks indemnity or even insurance coverage. Because such provisions are ubiquitous in both commercial and consumer activities, both plaintiffs and defendants must be able to argue in favor of or against their enforceability concerning the injuries at issue.

Counsel can sometimes be too quick to make incorrect assumptions about these provisions' enforceability, which is a matter of state law. Each state takes a different approach based on that jurisdiction's public policy concerns, the type of liability released, and the nexus between the type of potential injury and its foreseeability.

The issue often turns on the exact language of the clause in question, so counsel should know the language that causes problems. Plaintiffs have several tools to chisel away at the enforceability and scope of exculpatory clauses, and defense.

Listen as our panel discusses defeating defenses based on exculpatory clauses and what service providers can do to make it more likely they will be enforced.