Liability waivers for consumer services – including recreational activities – that waive liability for damage, injuries or death which result from “ordinary negligence" remain enforceable in Minnesota following the 2012 - 2013 legislative session. Though the Minnesota Legislature at one point considered proposals to make nearly all liability waivers unenforceable, the bill ultimately passed by the legislature and signed into law by Governor Dayton is consistent with long-standing common law in Minnesota.
The new law applicable to liability waivers distinguishes between “ordinary negligence” and “greater than ordinary negligence.” Liability resulting from “ordinary negligence” may be released, limited or waived, while liability resulting from “greater than ordinary negligence” may not. For public policy reasons, waivers purporting to release, limit or waive liability for damage, injuries or death resulting from “greater than ordinary negligence” are void and unenforceable. This is consistent with the way in which Minnesota courts have treated liability waivers prior to the passage of this law. Minnesota courts have long found liability waivers unenforceable if they purport to release, waive or limit liability for intentional, willful or wanton acts. If a liability waiver contains both enforceable and unenforceable language, the unenforceable language may be severed from the waiver and the enforceable language may remain effective.
The new law goes into effect on August 1, 2013 and applies only to liability waivers signed or accepted on or after August 1, 2013. It will appear in the Civil Liability chapter of the Minnesota Statutes at Section 604.055. The new statute provides:
604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT
Subdivision 1. Certain agreements are void and unenforceable.
An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.
The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.
Subdivision 2. Party or parties.
For the purposes of this section, “party” or “parties” includes a person, agent, servant or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.
Subdivision 3. Other void and unenforceable agreements.
This section does not prevent a court from finding that an agreement is void and unenforceable as against public policy on other grounds or under other law.
Subdivision 4. Nonapplication to certain claims.
This section does not apply to claims against the state pursuant to section 3.736 or a municipality pursuant to section 466.02.
Effective date. This section is effective August 1, 2013, and applies to agreements signed or accepted on or after that date.