Indiana Waiver Law as to Gross Negligence

By Doyice Cotten

14168693068_77fba3a92b_zIndiana law regarding waivers and extreme forms of negligence (gross negligence, reckless conduct, willful/wanton conduct and intentional acts) was addressed in Sportsdrome Speedway, Inc. v. Clark (2016 Ind. App. Unpub. LEXIS 363).

In this case, Sportsdrome appeal a trial court ruling denying Sportsdrome’s motion for summary judgment. Jason Clark, an employee/volunteer was injured at the racetrack when a car struck him while being propelled from the track during an accident. Clark filed suit alleging the racetrack was grossly negligent and acted in a willful and wanton manner because 1) it knew the risk faced by Clark and stationed him alone in a dangerous area and 2) because the management knew that the design and layout of the track was unreasonably dangerous.

Indiana Law

Sportsdrome contended that “gross negligence does not exist under Indiana law, i.e., Indiana courts do not recognize gross negligence as being subject to any separate standard of care from that of negligence” citing Wohlwend v. Edwards (2003). That court had said that “Use of the term ‘gross negligence’ is inappropriate in Indiana because [Indiana’s] common law does not recognize degrees of negligence.” Sportsdrome said that mere negligence, simple negligence, significant negligence, or gross negligence are all simply negligence; thus, the waiver should be enforced.

The trial court noted, however, that the Indiana Supreme Court has said negligence and gross negligence may be different in the context of what constitutes a breach and has defined gross negligence as: “‘A conscious, voluntary act or omission in reckless disregard of . . . the consequences to another party'” (N. Ind. Pub. Serv. Co. v. Sharp (2003)). The trial court went on to say that it would make no determination regarding the existence of gross negligence in Indiana; rather, it would focus on whether Sportsdrome acted in a willful and wanton manner. The appellate court elected to do the same.

The appellate court went on to summarize relevant Indiana waiver law from various cases (citations omitted).

 As a general rule, the law allows competent adults the utmost liberty in entering into contracts that, when entered into freely and voluntarily, will be enforced by the courts.

“A separate release agreement is a species of contract that surrenders a claimant’s right to prosecute a cause of action.”

“‘Our [S]upreme [C]ourt has stated that upholding releases serves an important public policy because it facilitates the orderly settlement of disputes.'”

Notwithstanding the protection provided by a release, “Indiana courts have recognized that the waiver of liability protection cannot provide a party the right to intentionally hurt someone, including by misconduct that is ‘willful and wanton’.”

“Although we have found no Indiana decision indicating that a party may not contract against liability for intentional  tortious acts, this rule has a general consensus among our sister states.” That being said, a contractual release cannot be avoided by “merely alleging intentional or near intentional conduct.”

Willful or wanton misconduct consists of either: “1) an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time; or 2) an omission or failure to act when the actor has actual knowledge of the natural and probable consequence of injury and his opportunity to avoid the risk.”

“Whether the party has acted or failed to act, willful and wanton misconduct has ‘two elements: 1) the defendant must have knowledge of an impending danger or consciousness of a course of misconduct calculated to result in probable injury; and 2) the actor’s conduct must have exhibited an indifference to the consequences of his own conduct.'”

Our Supreme Court has accepted that “‘wanton and willful’ and ‘reckless’ seem to imply the same disregard for the safety of others.”

Willful or wanton misconduct is “so grossly deviant from everyday standards that the licensee or trespasser cannot be expected to anticipate it.”

“Willfulness cannot exist without purpose or design.”


The appellate court reversed the trial court ruling which denied Sportsdrome summary judgment; the court ruled that the waiver protected against negligence and held that the evidence did not reach the criteria to label Sportsdrome’s action to be willful and wanton under Indiana law. Summary judgment in favor of Sportsdrome was granted.


Photo Credit: Thanks to trailersoftheeastcoast  on Flickr.