Exculpatory Clause

January 28, 2022

By sam@lawquill.com

Most of us have encountered liability waivers and often give little thought to the document we are signing. Buying a ski pass, attending a sporting event, renting a kayak, or going skydiving are all activities where one must sign a waiver releasing a company from liability. Should tragedy occur, suddenly the injured party must consider the waiver they signed and its implications on their recovery. Who is at fault? What are my rights? Do I have a claim? Am I entitled to compensation?

An exculpatory agreement or liability waiver is a legal document drafted with the intended purpose of shielding a company from liability should one of its customers sustain an injury while utilizing its service or product. At times, individuals can enter into such agreements unwittingly, wherein a condition of purchasing a ticket authorizes the acceptance of a given venue’s terms of service or legal release. Not all exculpatory agreements are legally binding and no waiver of liability can absolve a business from grossly negligent or intentional acts.

While the Vermont Supreme Court has held that a waiver of liability may be sufficient to bar an action for recovery, it recognizes that the language must be clear, unambiguous, and clearly state all potential dangers and hazards associated with an activity. Barenthein v. Killington, Ltd., No. 86-33, slip. Op. At 7 (D. Vt. June 17, 1987). In regards to negligence, Vermont law is clear that waiving an assumption of risk doesn’t negate the duty of care owed to an individual, as intentionally negligent behavior is not an assumed risk of any endeavor. 12 V.S.A §1037. The Court has also held that it is wrong to put one party to a contract at the mercy of another’s negligence. Hiett v. Lake Barcroft Community Ass’n. 418 S.E.2d 894(1992).

Can an experienced skier be injured while purposefully straying from a trail into the backcountry recover damages? More than likely, no. Would a company that knowingly provided defective rental equipment to a customer be liable for any injuries arising from the use therefrom? Yes, however elements that affect the ability to recover damages for injuries arising from a given activity depend on many factors. Was the exculpatory agreement clear? Did it properly convey all potential dangers and risks? Did an injury arise out of gross negligence? Was there intentional disregard for public safety?

While navigating the complex liability waivers of powerful businesses can be daunting, the attorneys at Shillen, Mackall & Seldon have over eighty years of experience defending the rights of individuals who have been injured while engaged in various recreational pursuits. If you have been injured or have questions our attorneys are standing by ready to assist you and evaluate your claim. Please call our office at (802) 457-4848 or fill out a form for your free consultation today.

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