Alexander T. Pendleton, Kohner, Mann & Kailas, S.C.
An attempt by a group of Minnesota legislators to amend Minnesota law so as to void all waiver-of-liability agreements has failed. Instead, the legislature adopted a bill that provides that any agreement between parties for a “consumer service” (including a recreational activity), which agreement purports to waive or release liability resulting from conduct that constitutes “greater than ordinary negligence,” is against public policy, and is therefore void and unenforceable.
The new law was signed into law by Governor Dayton on May 24th, and goes into effect on August 1, 2013.
Generally, it appears that this new law does little more than codify the current state of the common law in Minnesota as to waiver agreements in a recreational context, and therefore does not appear to be significantly detrimental to the interests of recreational-opportunity providers.
The law may in fact be beneficial to Minnesota recreational industry. The law makes clear that if the waiver in question seeks to waive claims for “greater than ordinary negligence,” that portion is severable from the remainder of the waiver agreement. (In contrast, the common law in Wisconsin, as developed by the Wisconsin courts, provides that any attempt to waive “all claims,” is overbroad and not severable from the remainder of the waiver agreement, and thus voids the entire agreement.) The law provides further that a purported waiver or release for claims “greater than ordinary negligence” may also be severed from a waiver/release for risks that are inherent in a particular activity.
The new law also expressly includes minors in the definition of “parties” involved with waivers, and thus may provide an argument to providers that the legislature had the opportunity to void all waivers-that-relate-to-minors, and decided to forgo that opportunity, and go instead in the opposite direction. This is particularly significant in light of the existence of such cases as Moore v. Minnesota Baseball Instructional School, 2009 WL 818738 (Minn. Ct. App.) (unpublished decision; petition for further review denied), in which the Minnesota Court of Appeals upheld a waiver signed by a parent of a subsequently injured minor.
The new law is not particularly well drafted, so it may cause unintended problems in cases in which it likely was not intended to apply. For example, if the terms of the new law are applied literally, a defendant (and the defendant’s insurer) could not enter into an enforceable settlement agreement as to a lawsuit, in which the plaintiff was injured due to the defendant’s alleged intentional tort committed in the course of providing of a consumer service. This is because the bills as amended and passed fail to differentiate between before-an-injury waiver agreements, and after-an-injury release agreements. For example, in some medical malpractice cases plaintiffs allege that a doctor committed battery (an intentional tort) by failing to obtain from the patient informed consent, prior to performing a procedure. An attorney trying to resolve a multi-million dollar medical malpractice case in Minnesota making such a claim, might be surprised to find that the new law, if applied literally, would void the settlement agreement. It is unlikely that the legislature intended to void such settlement agreements when it enacted the new law, but given the plain text of the statute, some degree of uncertainty as to the enforceability of such settlement and release agreements has been created.
Alexander “Sandie” Pendleton of Kohner, Mann & Kailas, S.C., authored this article which was recently published on ReleaseLaw.com. 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.
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