Exculpatory clause

Within a contract, an exculpatory clause is a statement that aims to prevent one party from holding the other party liable for damages.^[1] An exculpatory clause is generally only enforceable if it does not conflict with existing public policy.^[2] The two other prerequisites for an exculpatory clause to be valid are that the contract must pertain to the involved parties' private affairs, and each of the involved parties must be free bargaining agents to the contract in question such that there is no adhesion.^[3]

Example uses

For information regarding the exculpatory clause applied towards spectators at baseball games, see Baseball Rule.

A swimming pool at Comfort Inn located in Downtown Charleston, South Carolina with a posted sign stating "No lifeguard on duty, swim at your own risk"

• In hospitality law, exculpatory clauses are sometimes used in waivers to absolve hotels of liability regarding unstaffed swimming pools open for visitor use, aided by signs displaying language such as "swim at your own risk".^[4]
• In construction law and real estate, exculpatory clauses are sometimes included in nonrecourse loans to minimize personal liability for the borrower.^[5]
• Exculpatory clauses are also applied more generally in construction law to immunize a person from the consequences of his/her negligence, though this application is subject to stringent standards.^[6]
• Ski resorts typically defend themselves with exculpatory clauses due to the inherent risk of injury involved with skiing, and thus it is usually very difficult for skiers to successfully win a personal injury lawsuit against the resort.^[7]
• In aviation law, activities like skydiving and performing an air show are typically uninsurable due to carrying such a high level of risk; this necessitates the usage of exculpatory clauses as risk management tools, so that individuals and businesses can defend against lawsuits in the event of injury or death.^[8]
• In medical law, most jurisdictions have ruled that exculpatory clauses are generally considered invalid for medical malpractice cases because health care is an important and sensitive area of public interest,^[9][10] though a common exception to this trend exists for experimental procedures.^[9]

Additional resources

• Chart of exculpatory clause laws for all 50 U.S. states (begins on page 8; updated January 13, 2022)

References

1. "exculpatory clause". law.cornell.edu. Legal Information Institute at Cornell Law School. July 2021. Retrieved November 28, 2023.
2. Sido, Kevin R. (2006). Architect and Engineer Liability: Claims Against Design Professionals. Aspen Publishers. p. 422. ISBN 9780735561038.
3. Rapp, Geoffrey (2020). Tort Law in Focus. Wolters Kluwer. p. 405. ISBN 9781543807820.
4. Barth, Stephen C.; Hayes, David K. (2006). "Chapter 2: Hospitality Contracts". Hospitality Law: Managing Legal Issues in the Hospitality Industry. Wiley. p. 46. ISBN 9780471464259.
5. Sirota, David (2004). "Chapter 5: Financing for Real Estate Investments". Essentials of Real Estate Investment. Dearborn Real Estate Education. p. 95. ISBN 9780793143610.
6. Cameron, John G. (2000). A Practitioner's Guide to Construction Law. American Law Institute-American Bar Association Committee on Continuing Professional Education. p. 5-19 and 5-20. ISBN 9780831808037.
7. de Yoanna, Michael (March 20, 2019). "The Thousands Of Colorado Ski Injuries That Resorts Don't Tell You About". kunc.org. KUNC. Retrieved November 29, 2023.
8. Pearson, Michael W.; Riley, Daniel S. (April 15, 2016). Foundations of Aviation Law. Taylor & Francis. p. 301. ISBN 9781317133711.
9. Pozgar, George D. (2004). Legal Aspects of Health Care Administration. Jones and Bartlett Publishers. pp. 330–331. ISBN 9780763731823.
10. Reynolds, Jeremiah (August 25, 2005). "Make Sure Contractual Limits On Liability Are Enforceable" (PDF). Los Angeles Daily Journal. Los Angeles. Retrieved December 1, 2023.