Pre-Injury Liability Waivers in the Northern Mariana Islands
Likelihood of Enforcement: Moderate
In order for a release to be valid and binding in Commonwealth of Northern Mariana Islands, it must comply with the Restatement (Second) of Torts Section 496B. See Ito v. Macro Energy, Inc., 92-020, 1993 WL 614805, at *8 (N. Mar. I. Oct. 26, 1993); Restatement (Second) of Torts § 496B (1965) (“A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.”). Northern Mariana Islands courts have a statutory mandate to follow common law as understood by the American Law Institute Restatements: “rules . . . as expressed in the restatements of the law approved by the American Law Institute . . . shall be the rules of decision in the courts of the Commonwealth, in the absence of written law or local customary law to the contrary.” Dong v. Royal Crown Ins. Corp., CIV 09-0035, 2010 WL 4072285, at *11 (D.N. Mar. Is. Oct. 18, 2010); see Castro v. Hotel Nikko Saipan, Inc., 4 N.M.I. 268, 1995 WL 1943012, *7 (1995) (noting that the N.M.I. Supreme Court’s “ability to formulate the common law of this jurisdiction is constrained by the statutory mandate to apply the common law as enunciated in the Restatements”). This includes Section 496B’s comments (e) through (j), which provide a non-exhaustive list of the situations and relations for which liability waivers are “contrary to public policy.”
In construing Section 496B, the Northern Mariana Islands Supreme Court follows the approaches of Wyoming and Colorado, “strictly constru[ing] the language of the release, especially where . . . it is drafted by defendants and purports to exonerate them.” Ito, 1993 WL 614805, at *8 (citing Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo.1986) and Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989)). Acknowledging a gap in these jurisdictions’ treatment of waivers that do not explicitly use the term “negligence,” the Northern Mariana Islands has elected to “side with those jurisdictions which take the more cautious approach. . . . [A] release must expressly mention that the risks of harm being assumed by a releasor include those arising from a releasee's negligence or reckless conduct.” Ito, 1993 WL 614805, at *9 (noting similar approaches in California and Florida law). Where a waiver fails to make specific reference to negligent or reckless conduct, courts will not look to outside evidence indicating the parties’ intent.
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.