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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Exculpation Clauses

The difficulty of overcoming exculpation clauses by personal injury claimants was reinforced recently by a ruling in Resnick v. Life Time Fitness, Inc., 2010 WL 2265869 (Minn. App. 2010) (unpublished).  These clauses, often contained in boilerplate documentation signed by patrons at recreational or sporting facilities, usually bar claims for injuries arising out of conditions on the premises.  In the Resnick case, the claimant sued after slipping and falling, which she claimed was attributable to residue of construction work performed at the site.  The court of appeals upheld dismissal of the lawsuit under the exculpation clause of the claimant’s membership agreement, which barred claims for injuries arising from “participation in supervised or unsupervised activities and programs” at the facility.  The exculpation clause satisfied the four-part standard for disclaimer of liability because it did not extend to intentional or willful or wanton conduct, was unambiguous, did not contravene public policy due to disparity of bargaining power, and did not involve an “essential” service.  The court found the disclaimer valid because it constituted an “unambiguous waiver of all claims arising out of the negligence” of the recreational facility.  Claimants seeking to overcome these clauses should try to prove that the misconduct was at least gross negligence, or greater, or that the terminology is ambiguous.  Both of these are difficult to establish and, in most cases, will fail.  Defendant should use precise language and point out the clarity of the disclaimer terminology in order to fend off the injury claims.

Marshall H. Tanick

Mansfield, Tanick & Cohen, PA, Minneapolis


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