Pre-Injury Liability Waivers in Maryland
Likelihood of Enforcement: Strong
In Maryland, “[i]n the absence of legislation to the contrary, exculpatory clauses are generally valid.” Wolf v. Ford, 644 A.2d 522, 525 (1994). And, “for an exculpatory clause to be valid, it need not contain or use the word ‘negligence’ or any other ‘magic words.’” A pre-injury liability waiver is sufficient to insulate a party from liability for his or her own negligence so long “as its language . . . clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.” Seigneur v. Nat’l Fitness Inst., Inc., 752 A.2d 631, 636–37 (2000) (internal quotations omitted). Furthermore, Maryland courts enforce exculpatory clauses when the waiver is executed by “a parent on behalf of her child in the course of the parenting role.” BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345, 362 (2013).
Nevertheless, the Maryland Supreme Court has recognized three circumstances for which exculpatory clauses are not enforced. “[1] First, a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless, wanton, or gross. [2] Second, the contract cannot be the product of grossly unequal bargaining power. . . . [3] Third, public policy will not permit exculpatory agreements in transactions affecting the public interest.” Transactions affecting the public interest include “performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen.” Wolf v. Ford, 644 A.2d 522, 525–26 (1994) (internal quotations and citations omitted). However, the standard for transactions affecting the public interest “is quite strict, and Maryland courts are reluctant to strike down exculpatory clauses on public policy grounds.” Cornell v. Council of Unit Owners Hawaiian Vill. Condominiums, Inc., 983 F. Supp. 640, 648 (D. Md. 1997).
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.