Enforceability of Liability Waivers: Overview

by Practical Law Commercial Transactions

A Practice Note that provides an overview of the enforceability of releases and waivers of liability, commonly referred to as liability waivers or exculpatory agreements. Liability waivers are frequently used by commercial establishments to protect against personal injury claims, including those arising from their own negligence, in connection with potentially dangerous activities. This Practice Note examines the general legal requirements for creating an enforceable liability waiver and explores variations in state laws. It analyzes key situations where courts typically refuse to enforce these agreements, such as based on public policy concerns. Additionally, this resource addresses the divergent state approaches to the enforceability of parental waivers signed on behalf of minors. This Note also provides guidance to assist counsel in drafting an effective liability waiver to maximize its chances of being enforceable, including best practices for language, format, and execution.