Are Exculpatory Clauses Enforceable?
The general rule is that exculpatory clauses are enforceable if they are reasonable. They are not valid if they are unconscionable or unreasonable. Additionally, they cannot excuse liability from harm which is caused intentionally or recklessly. Courts will also consider a number of factors in determing whether or not to enforce an exculpatory clause, including: • The clause should be conspicuous. This means it should be in larger type or a different type style, meaning in bold, all capitals, or different color. • The wording should be clear and understandable so that an ordinary person knows what they are contracting away. • The clause should be specific and state specific theories of liability, such as “negligence.” The court will consider whether the releasing party knew and appreciated the risk. • The bargaing power of each party and public policy. • The intent of the parties. An exculpatory clause will be enforced if intent to relieve a party from liability is clear and unequivoca
