Pre-Injury Liability Waivers in Alaska
Likelihood of Enforcement: Strong if Requirements Met
An effective pre-injury liability waiver in Alaska has six characteristics: “(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word ‘negligence’; (3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.” Donahue v. Ledgends, Inc., 331 P.3d 342 (Alaska 2014). In determining whether a release violates public policy, Alaska relies on California’s famous Tunkl factors. See, e.g., Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001).
Donahue v. Ledgends, Inc., the Alaska Supreme Court’s most recent published opinion on pre-injury liability waivers, cites three earlier cases as the defining sources of Alaska law on pre-activity releases from liability: Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); and Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991). Together, these three cases establish the six essential characteristics of an effective pre-injury liability waiver; in each case, the waiver in question did not bar the plaintiff’s claim because it failed to meet one or more of the required characteristics. The waiver in Donahue v. Ledgends, Inc., drafted by the same Ledgends, Inc. whose waiver was ineffective in Ledgends, Inc. v. Kerr, was finally upheld by the court in 2014 as sufficient to meet the six required characteristics.
Alaska law on pre-injury liability waivers is remarkable for its clarity by comparison to the law of some other states. Although some subjectivity in Donahue’s six requirements is unavoidable—especially when the Tunkl factors are introduced—other requirements, including use of simple words, capital letters, and the word “negligence,” provide clear guidance for waiver drafters and signatories alike. Donahue was most recently applied by the Alaska Supreme Court to uphold a pre-injury liability release in an unpublished opinion on March 21, 2018. Langlois v. Nova River Runners, Inc., 2018 WL 1445789 (Alaska March 21, 2018).
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.