Liability releases and waivers are common, and many of us have signed dozens in our lives. They’re most often used in the context of recreation or entertainment: rock-climbing gyms, ski mountains, sports leagues, and ice rinks. Typically, they contain language stating that the participant in a certain activity accepts the risks of that activity, and agrees not to hold the business (or other entity) liable for any negligence.
Whether or not these waivers are enforceable depends on which state you’re in. The vast majority of states enforce liability waivers or releases in certain situations. A few (including Montana, by statute, and Virginia, through judicial decision) have essentially outlawed liability waivers completely.
The case law in New Hampshire holds that releases and waivers (referred to as “exculpatory contracts”) are “generally prohibited.” However, this is a situation where the general rule has been swallowed by its exceptions. Despite this stated “general” prohibition, courts in New Hampshire enforce liability releases if they are (1) not contrary to public policy, and (2) the release is clear and specific. It doesn’t matter whether someone actually read the release before signing it — only that they had the opportunity to do so. It also doesn’t matter that one party is a customer without legal knowledge and one is a large business with a release drafted by an army of lawyers — the court will often assume that the parties knowingly and willingly entered into a legally-binding contract.
On the other hand, a release will violate public policy if it “tends to interfere with the public welfare or safety.” A release will also violate public policy if there was an unfair disparity in bargaining power between the parties. For example, a preinjury release signed by an employee and given to his employer would likely not be enforced, because economic necessity would force the employee to accept the terms of his employer.
According to New Hampshire courts, recreation is not a “necessity,” and liability waivers are not a public policy concern in that context. The courts have concluded that a customer could merely walk away and not sign the liability release if they don’t want to. Liability releases have been enforced in the context of ski resorts, go-kart tracks, and other amusement/recreation facilities in New Hampshire.
The New Hampshire Supreme Court has not considered whether an unsigned release, such as one pre-printed on the back of a ticket, would be enforceable in the state. Our Supreme Court has also not decided whether a release signed by a parent on behalf of their child would be enforceable, though lower court decisions in NH and in other states suggest that such a waiver would not be effective.
A liability release or waiver can mean that a defendant business will argue they’re not liable for your injuries, even if they were clearly negligent. A well-reasoned objection might be necessary to defeat an opposing party’s motion for summary judgment or motion to dismiss.
If you have a personal injury claim involving a liability release or waiver, contact us today. Welts, White & Fontaine attorneys have decades of experience in personal injury law and the knowledge and tools necessary to surmount tough legal obstacles such as liability releases.
Welts, White & Fontaine serves clients across Southern New Hampshire, from Concord to Nashua, Windham to Milford, and everywhere in between. We’re the largest law firm in Nashua and typically represent personal injury clients on a contingency fee basis: no upfront cost and our fee comes from a percentage of your settlement.
Call us today at (603) 883-0707 or contact us through our website.
Author: Israel F. Piedra
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion or forming an attorney-client relationship.
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