Legislative Alert: New Proposed Minnesota Bills Would Void Waiver Agreements

By Alexander “Sandie” Pendleton of KMK

This article was originally published on ReleaseLaw.com.

Minn LogoBills are advancing in both chambers of the Minnesota legislature which if adopted, would render liability waivers void in many settings. Because both chambers of the Minnesota legislature and the executive branch are controlled by the Democratic Farm Labor Party, there is a good chance that some version of these bills will be enacted. If enacted, the new law could be effective by the end of this summer.

The proposed bills are HF792 and SF768, and both bills (as of the date of this article, April 22, 2013) have reached the second reading stage.

Of the two, the House version is broader than the current Senate version. The House version provides, in pertinent part:

 An agreement between parties that purports to release, limit, or waive the liability of one party for damage arising out of the negligent operation, maintenance, or design of that party’s premises is against public policy and void and unenforceable. The agreement is severable from a waiver of liability for injuries resulting from the risk inherent in a particular activity.

 The Senate version provides, in pertinent part:

 An agreement between parties that purports to release, limit, or waive the liability of one party for damage arising out of the negligent operation, maintenance, or design of that party’s premises is against public policy and void and unenforceable to the extent the agreement applies to injury resulting in:

(1) a very serious impairment of an important bodily function;

(2) disability for 60 days or more; or

(3) death.

The agreement is severable from a waiver of liability for injuries resulting from the risk inherent in a particular activity or for injuries not described in clauses (1) to (3).

 If passed, these bills would put Minnesota in a distinct minority, as very few states have adopted such a broad ban on the enforceability of waiver agreements.

These bills were both introduced this year, and both have progressed rapidly. If opponents of these bills want to persuade the legislature or the governor not to enact these bills, opponents will need to emphasize points such as the following:

 

  • The ambiguities that currently exist in these two bills.
  • The broad scope of the bills; for example:
    • the bills would apply to professional race car drivers, daredevils and stuntmen, to the same extent they apply to amateur participants in running or biking races; and
    • the bills would apply to large, sophisticated recreational-opportunity providers (such as ski resorts), to the same extent they apply to small, unsophisticated recreational-opportunity providers (such as non-profits, church groups, community groups, and small businesses).
    • The importance of recreational activities and recreational products to the Minnesota economy and Minnesota employment.
    • How the inability to gauge, limit and manage legal liability can discourage entrepreneurs from starting businesses that provide recreational opportunities.
    • How the inability to gauge, limit and manage legal liability can discourage non-profits and government agencies from providing recreational opportunities.
    • The widespread acceptance of waiver agreements in almost all other states, especially when it comes to adult participants.
    • The liberty interests infringed upon when courts or legislators refuse to allow private parties to allocate risk and liability between themselves.
    • The decline that has been seen levels of physical activity (by both adults and children), the rise in obesity, and the importance of ensuring that vigorous, even risky, recreational activities remain available and affordable, in order to fight these unhealthy trends.

 

About Pendleton:  Alexander “Sandie” Pendleton is a shareholder with the Milwaukee law firm of Kohner, Mann & Kailas, S.C., and is the leader of the firm’s Sports, Fitness and Recreational (S/F/R) Team. Sandie has over twenty years of experience counseling clients involved in sports and recreational activities, including power sports activities, and is a frequent speaker and writer on recreational liability issues. To learn more about Sandie and the KMK S/F/R Team, visit www.releaselaw.com.

Photo credit: Thanks to Eric Kilby at http://www.flickr.com/photos/ekilby/4924922401/sizes/n/

 

 

 

The ambiguities that currently exist in these two bills.

The ambiguities that currently exist in these two bills

  • The broad scope of the bills; for example:
    • the bills would apply to professional race car drivers, daredevils and stuntmen, to the same extent they apply to amateur participants in running or biking races; and
    • the bills would apply to large, sophisticated recreational-opportunity providers (such as ski resorts), to the same extent they apply to small, unsophisticated recreational-opportunity providers (such as non-profits, church groups, community groups, and small businesses).
    • The importance of recreational activities and recreational products to the Minnesota economy and Minnesota employment.
    • How the inability to gauge, limit and manage legal liability can discourage entrepreneurs from starting businesses that provide recreational opportunities.
    • How the inability to gauge, limit and manage legal liability can discourage non-profits and government agencies from providing recreational opportunities.
    • The widespread acceptance of waiver agreements in almost all other states, especially when it comes to adult participants.
    • The liberty interests infringed upon when courts or legislators refuse to allow private parties to allocate risk and liability between themselves.
    • The decline that has been seen levels of physical activity (by both adults and children), the rise in obesity, and the importance of ensuring that vigorous, even risky, recreational activities remain available and affordable, in order to fight these unhealthy trends.