We’ve all experienced the joy of signing a waiver of liability before doing some activity; as practitioners, we’ve likely drafted countless waivers of liability to protect our clients from litigation. And, as we all know, failure to read the contents of a waiver has led many clients to inadvertently agree to waive their ability to bring lawsuits after they’ve been harmed. While most ordinary people will blindly scroll through an adhesion contract looking for the “accept” checkbox or the dotted line to sign, lawyers have a tendency to read every line of every document they sign. For those of us that do examine the contents, we may notice similar language being used repeatedly across different businesses. This is often the case when businesses seek to cut costs by using free, pre-written online contracts. Such commonly used language may state:
[T]he Releasor releases and forever discharges the Releasee . . . from any and all claims, liabilities, obligations, promises, agreements, disputes, demands, damages, causes of action of any nature and kind, known or unknown, which Releasor has or ever had or may in the future have against Releasee or any of the Released Parties arising out of or relating to [the underlying transaction].
Business owners, having obtained signatures on such waivers, may assume that they are now free from the risk of lawsuits. And indeed, many lawyers draft similar waivers, attempting to cover as many possible claims that could be raised in the assumption that this helps their client. If you are drafting a waiver for a Minnesota entity however, such broad language has actually wiped away any protection your client might have under the recent case of Justice v. Marvel, LLC, 979 N.W.2d 894 (Minn. 2022).
In Justice, the plaintiff suffered severe head injuries as a child at the defendant’s play area. Prior to his entrance to the play area, his mother had signed a broad release of liability waiver that provided that the defendant would be released from “any and all claims, injuries, liabilities, or damages arising out of or related to” use of the play area. Understandably, the defendant moved to dismiss the plaintiff’s negligence claim in light of that release. In evaluating the waiver, the Justice court first stated that “if an exculpatory clause is either ambiguous in scope or purports to release the benefitted party from liability for intentional, willful, or wanton acts, it will not be enforced.” Seizing on this general language, the Justice court then expanded the scope of this rule, concluding that the waiver was unenforceable because it failed to “use specific, express language that clearly and unequivocally state[d] the contracting parties’ intent.” Because the waiver did not specify whose liability was to be released, the Justice court determined that the waiver did not fairly apprise the parties of who was waiving what, and therefore could not be enforced. Thus, despite signing a waiver of liability, the Justice plaintiff was able to proceed with a negligence suit.
Businesses that employ liability releases to protect themselves certainly do not want to learn that the waiver is worth less than the paper it’s printed on. But if you draft a waiver that’s too broad, a Minnesota court will likely throw it out. So, how to avoid this scenario?
First, any waiver of liability should explicitly note that the waiver does not apply to intentional, willful, or wanton acts or torts. Second, the waiver should specifically identify the party that is being released from liability, including any parents or successors of the waiver-owner. Further, if the waiver owner is using a d/b/a, the waiver should also name the actual legal name of the company. Third, the waiver should require a parent or guardian to represent that they have the authority to waive liability for their minor child(ren). While these steps do not guarantee that a Minnesota court will uphold a waiver, it will make it substantially harder for it to invalidate it.
Inartful contract drafting can lead to catastrophic consequences if litigation ever arises. Relying on pre-drafted contracts found on the internet is never as safe or effective as retaining an attorney. The old adage “you get what you pay for” is correct; do not expect a free downloadable contract to hold up to substantial scrutiny in court. And, if you’re an attorney reading this, sometimes less broad language is the safer route for your client.
For more information on liability waivers, or if you are a business in need of contract drafting services, don’t hesitate to contact the experienced contract attorneys at Eckland & Blando.
 Research and drafting assistance provided by Tommy Harshaw, law clerk at Eckland & Blando.
 See, e.g., Pole Position Raceway Des Moines/Team-1 Karting Iowa, Inc. Adult Waiver and Release, Express Assumption of the Risk, and Indemnity and Hold Harmless Agreement, Pole Position Raceway, https://www.polepositionraceway.com/waivers/ (last visited Nov. 3, 2022) (“[The Business and its representatives are released] FROM ALL LIABILITY to the UNDERSIGNED for any and all loss or damage and any claim or demands on account of INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH of the UNDERSIGNED arising out of or related to the UNDESIGNED’s participation . . . .”).
 Free Release of Liability (Waiver Form), “General Release,” LegalTemplates, https://legaltemplates.net/form/release-of-liability-waiver/ (last visited Oct. 27, 2022).
 Justice, 979 N.W.2d at 896 (The “play area” in question was Pump It Up Parties, an inflatable children’s party venue. Pump It Up Parties is owned by the defendant, Marvel LLC).
 Id. at 897.
 Id. at 898 (citing Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1992) (internal quotation marks omitted)). This rule has been cited favorably by the United States District Court for the District of Minnesota. See, e.g., Kroll OnTrack, Inc. v. Devon IT, Inc., No. CV 13-302 (DWF/TNL), 2015 WL 13766880 (D. Minn. Mar. 20, 2015).
 Id. at 902 (citing Dewitt v. London Rd. Rental Ctr., Inc., 910 N.W.2d 412, 417 (Minn. 2018) (internal quotation marks omitted))
 The lawyers in the audience may note that Justice has not been cited once since the date of decision. Given that, at the time of this writing, the opinion is just over a month old, this is not surprising. Expect to see this opinion cited favorably in the future.