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, and 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 statutes.

State-by-State Exculpatory Clause Guidelines and Validity

Alabama

Exculpatory Clause Validity: Valid for releases of negligent conduct, not wanton or willful conduct.
Drafting Guidelines: Draws a distinction between exculpatory clauses and limitations of liability clauses, finding the latter “not, per se, against public policy.”
Applicable Statute: N/A

Alaska

Exculpatory Clause Validity: Valid if “conspicuous and unequivocally expressed” to release from liability.
Drafting Guidelines: Must specify the word “negligence” and that it relates to the inherent risks of the act at issue.
Applicable Statute: Alaska Stat. § 05.45.120 (amusement and sports)

Arizona

Exculpatory Clause Validity: Validity is a question of fact reserved for the jury.
Drafting Guidelines: All agreements are strictly construed against the party seeking to enforce them.
Applicable Statute: 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

Exculpatory Clause Validity: Valid but strongly disfavored.
Drafting Guidelines: Courts consider the facts and circumstances surrounding the release to determine intent.
Applicable Statute: N/A

California

Exculpatory Clause Validity: Valid unless against public interests.
Drafting Guidelines: The agreement must be “clear, unambiguous, and explicit in expressing the intent of the parties.”
Applicable Statute: Cal. Civ. Code § 1668

Colorado

Exculpatory Clause Validity: Valid but disfavored.
Drafting Guidelines: 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.
Applicable Statute: C.R.S. § 33-44-101 through 114 (liability in recreational areas)

Connecticut

Exculpatory Clause Validity: Valid if expressed in clear and unmistakable language.
Drafting Guidelines: The release violates public policy if the party seeking the release invites the public to use its facilities regardless of ability level.
Applicable Statute: C.G.S.A. § 29-212 (Assumption of risk of skiing)

Delaware

Exculpatory Clause Validity: Valid if language is clear and unequivocal and the clause is not unconscionable or goes against public policy.
Drafting Guidelines: Waivers do not have to specifically name the party; releases of third parties are permitted.
Applicable Statute: Del. Code Ann. 6, § 2-302

District of Columbia

Exculpatory Clause Validity: Valid if clear and unambiguous and does not go against public policy.
Drafting Guidelines: Must expressly refer to waiving liability for negligence claims.
Applicable Statute: N/A

Florida

Exculpatory Clause Validity: Valid if the intent is clear and unequivocal and the wording is understandable.
Drafting Guidelines: An agreement need not specify the word “negligence” or use express language of types of injuries.
Applicable Statute: F.S.A. § 773 (liability of equestrians)

Georgia

Exculpatory Clause Validity: Valid if not against public policy, which is determined by the General Assembly.
Drafting Guidelines: Does not need to include the word “negligence” in order to waive liability.
Applicable Statute: O.C.G.A. § 1-3-7; O.C.G.A. § 13-8-2

Hawaii

Exculpatory Clause Validity: Valid if not involving public interests or a public duty.
Drafting Guidelines: Full disclosure of inherent risks is required.
Applicable Statute: Haw. Rev. Stat. § 663- 1.54 (Recreational Activities)

Idaho

Exculpatory Clause Validity: Valid if not involving public duty or disparities in bargaining power.
Drafting Guidelines: Broad language covering a wide range of accidents is permitted.
Applicable Statute: Idaho Code § 6-1206 (Hiking), Idaho Code § 6-1107 (Skiing)

Illinois

Exculpatory Clause Validity: Valid but disfavored.
Drafting Guidelines: Does not need to provide specific instances, but rather, the types of situations that may occur.
Applicable Statute: 740 I.L.C.S. § 35/1

Indiana

Exculpatory Clause Validity: Valid if it does not affect public interests and not involving unequal bargaining power.
Drafting Guidelines: Must explicitly refer to the negligence the party is being released from.
Applicable Statute: N/A

Iowa

Exculpatory Clause Validity: Valid and not contrary to public policy.
Drafting Guidelines: Absent fraud or mistake, clauses will be upheld even if not read before signing.
Applicable Statute: N/A

Kansas

Exculpatory Clause Validity: Valid unless contrary to public policy or involving a disparity in bargaining power.
Drafting Guidelines: It does not need to include express language regarding negligence but the intent must be clear.
Applicable Statute: N/A

Kentucky

Exculpatory Clause Validity: Valid unless involving willful or wanton negligence.
Drafting Guidelines: If not otherwise specified, the hazard must be clearly within the contemplation of the release.
Applicable Statute: K.R.S. § 411.190 (Recreational Land Use)

Louisiana

Exculpatory Clause Validity: Any clause that limits future liability for physical injury is invalid.
Drafting Guidelines: N/A
Applicable Statute: La. Civ. Code Ann. art. 2004

Maine

Exculpatory Clause Validity: Valid
Drafting Guidelines: Must expressly spell out the intentions of the parties.
Applicable Statute: N/A

Maryland

Exculpatory Clause Validity: Valid unless it affects the public or involves an obvious disparity of bargaining power.
Drafting Guidelines: No requirement to specify negligence or other phrases to be valid.
Applicable Statute: Md. Code, Real Prop. § 8-105

Massachusetts

Exculpatory Clause Validity: Valid and favored
Drafting Guidelines: A party is bound even if they did not read or understand the waiver.
Applicable Statute: N/A

Michigan

Exculpatory Clause Validity: Valid
Drafting Guidelines: Must be clear and unambiguous (not reasonably susceptible to more than one interpretation).
Applicable Statute: M.C.L. § 554.633

Minnesota

Exculpatory Clause Validity: Valid
Drafting Guidelines: Must be unambiguous and not in violation of public policy.
Applicable Statute: M.S.A. § 604A.11

Mississippi

Exculpatory Clause Validity: Valid but disfavored
Drafting Guidelines: Must be expressly and unmistakably clear; must be fairly negotiated.
Applicable Statute: M.C.A. § 93-19-13 (contracts with minors)

Missouri

Exculpatory Clause Validity: Valid but disfavored
Drafting Guidelines: Must conspicuously use the terms “negligence,” “fault” or other equivalent words.
Applicable Statute: N/A

Montana

Exculpatory Clause Validity: Invalid and statutorily prohibited.
Drafting Guidelines: N/A
Applicable Statute: Mont. Stat. § 28-2-702

Nebraska

Exculpatory Clause Validity: Valid
Drafting Guidelines: Whether a contract violates public policy is determined by the facts surrounding the agreement.
Applicable Statute: N/A

Nevada

Exculpatory Clause Validity: Valid
Drafting Guidelines: The agreement is construed strictly against the party seeking relief from liability and must spell out the parties’ intent with the greatest particularity.
Applicable Statute: N/A

New Hampshire

Exculpatory Clause Validity: Valid but generally prohibited in physical injury waivers.
Drafting Guidelines: A reasonable person must understand the agreement and the claims must be within the contemplation of the parties when the contract was executed.
Applicable Statute: N/A

New Jersey

Exculpatory Clause Validity: Valid but disfavored.
Drafting Guidelines: The waiving party must demonstrate they assented voluntarily, intelligently, and with full knowledge of the consequences.
Applicable Statute: N.J.S.A. § 5:13-3 (Ski Lift Operator), N.J.S.A. § 5:14-1 (Amusements, Public Exhibitions, and Meetings)

New Mexico

Exculpatory Clause Validity: Valid unless against public policy.
Drafting Guidelines: 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

Exculpatory Clause Validity: Valid except when prohibited by statute.
Drafting Guidelines: The agreement must be clear and coherent, with intent in unmistakable language.
Applicable Statute: General Obligations Law §5-321 through 326

North Carolina

Exculpatory Clause Validity: Valid except when prohibited by statute, against substantial public interest, or involves inequality in bargaining power
Drafting Guidelines: The exculpatory clause must be in all capital letters and must mention negligence.
Applicable Statute: N.C.G.S.A. § 99C-2(c) (Sports Safety)

North Dakota

Exculpatory Clause Validity: Valid unless contract is ambiguous
Drafting Guidelines: Interpretation is governed by statute and clause is unlawful if otherwise contrary to good morals.
Applicable Statute: N.D.C.C. § 9-08-02

Ohio

Exculpatory Clause Validity: Valid
Drafting Guidelines: Determined by whether an ordinarily prudent and knowledgeable person would reasonably understand the release.
Applicable Statute: N/A

Oklahoma

Exculpatory Clause Validity: Valid if not injurious to public health or morals.
Drafting Guidelines: Must identify the nature of the act and extent and type of damages covered.
Applicable Statute: Okla. Const. art. XXIII, § 6

Oregon

Exculpatory Clause Validity: Valid and determined on a case-by-case basis.
Drafting Guidelines: 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.
Applicable Statute: N/A

Pennsylvania

Exculpatory Clause Validity: Valid if it relates entirely to the private affairs of the party.
Drafting Guidelines: Intent must be clearly stated and any ambiguities will be construed against the party seeking enforcement.
Applicable Statute: N/A

Rhode Island

Exculpatory Clause Validity: Valid
Drafting Guidelines: Intent must be clearly and unequivocally expressed in the contract.
Applicable Statute: R.I.G.L. § 7-6-9 (Non-profit exemption from liability)

South Carolina

Exculpatory Clause Validity: Valid but disfavored
Drafting Guidelines: Must inform the party they are waiving all negligence claims.
Applicable Statute: N/A

South Dakota

Exculpatory Clause Validity: Valid if fairly and knowingly made.
Drafting Guidelines: The more inherent the risk, the more likely it will be enforced.
Applicable Statute: S.D.C.L. § 42-11-3 (Recreation)

Tennessee

Exculpatory Clause Validity: Valid and generally enforceable unless against public policy.
Drafting Guidelines: The courts use six factors to determine whether the contract is against public policy.
Applicable Statute: T.C.A. § 68-114-103 (Ski Safety), T.C.A. § 47-18-303 (Health Clubs)

Texas

Exculpatory Clause Validity: Valid if in compliance with fair notice doctrines.
Drafting Guidelines: Must express negligence and language must be conspicuous.
Applicable Statute: Tex. Bus & Com. Code § 1.201(10)

Utah

Exculpatory Clause Validity: Valid unless it offends public policy or falls within the public interest exception.
Drafting Guidelines: Language must be clear and unambiguous but does not need to expressly include the word “negligence.”
Applicable Statute: 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

Exculpatory Clause Validity: Valid but must meet higher standards for clarity and pass public policy inspection.
Drafting Guidelines: Courts consider the nature of the parties’ relationship, the type of service involved, and whether it involves a public interest.
Applicable Statute: N/A

Virginia

Exculpatory Clause Validity: Invalid – public policy forbids waivers for personal injuries caused by future acts of negligence.
Drafting Guidelines: N/A
Applicable Statute: N/A

Washington

Exculpatory Clause Validity: Valid unless it’s against public policy or an inconspicuous clause.
Drafting Guidelines: The specific mention of waivers from liability need not be mentioned but the waiver itself must be in a separate document and conspicuously labeled.
Applicable Statute: R.C.W. § 79A.45.030

West Virginia

Exculpatory Clause Validity: Valid
Drafting Guidelines: Releases for conduct beyond negligence (gross negligence, reckless, or intentional conduct) are enforceable if the release clearly indicates the party’s intention.
Applicable Statute: W. Va. Code § 20-3B-3 (Whitewater Rafting)

Wisconsin

Exculpatory Clause Validity: Valid
Drafting Guidelines: Must give adequate notice, the opportunity to bargain, and the scope of the release must not go beyond negligence claims.
Applicable Statute: Wis. Stat. § 895.447

Wyoming

Exculpatory Clause Validity: Valid if not against public policy
Drafting Guidelines: Language should clearly state the intent and should suggest no other rational purpose for which it could be intended.
Applicable Statute: N/A