MASSACHUSETTS
Likelihood of Enforcement: High
A. Liability Waivers
In general, “Massachusetts law favors the enforcement of releases immunizing parties from future liability for their negligent acts.” Cahalane v. Skydive Cape Cod, Inc., 107 N.E.3d 1254, 1254 (Mass. App. Ct. 2018); see also Sharon v. City of Newton, 769 N.E.2d 738, 744 (Mass. 2002) (“[I]n the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence.”).
Where a release is ambiguous, “any doubts about the interpretation of [a] release must be resolved in the plaintiff’s favor.” Cormier v. Central Massachusetts Chapter of National Safety Council, 620 N.E.2d 784, 786 (Mass. 1993). In practice, however, Massachusetts courts have taken a more lenient approach when parsing the language of a liability waiver to determine if it is ambiguous. In Cormier, the Massachusetts Supreme Court held that broad language releasing a defendant from “any and all liability” was “unambiguous” and “obviously . . . sufficient to bar a claim in negligence without specifically mentioning that word.” Id. (contract released defendant from “any and all liability, loss, damage, costs, claims and/or causes of action, including but not limited to all bodily injuries”).
While a party can escape liability for negligence acts through a clearly worded contract, “a waiver cannot shield a party from responsibility for its gross negligence or reckless or intentional conduct.” Cahalane, 107 N.E.3d at 1254.
The Massachusetts legislature has provided some additional guidance on the permissibility of liability waivers. A lease cannot indemnity a landlord or release a landlord from liability arising out of their own negligence. Mass. Gen. Laws Ann. ch. 186, § 15 (West 2022). The Massachusetts legislature has also explicitly exempted from liability for negligence both “nonprofit organizations and volunteer managers and coaches who offer and run sports programs for children under eighteen years of age” and “owners of land (including municipalities) who permit the public to use their land for recreational purposes without imposing a fee.” Sharon v. City of Newton, 769 N.E.2d 738, 747 (Mass. 2002) (citing Mass. Gen. Laws Ann. ch. 231, § 85V (2022); Mass. Gen. Laws Ann. ch. 21, § 17C (2022)). As a result, no liability waiver is necessary for parties that meet those statutory criteria to avoid liability for negligence.
B. Liability Waivers Signed by Parents on Behalf of Minor Children
The Massachusetts Supreme Court has held that a parent can waive a minor child’s right to sue in tort over a municipality’s negligence where the parent does so to allow their child to participate in a voluntary activity. Sharon, 769 N.E.2d at 748 (enforcing liability waiver that school required parent to sign before student could join cheerleading team). The court’s reasoning – which focused on parents’ rights to make decisions about what risks to expose their children to – suggests that liability waivers may be enforceable more broadly for recreational activities that children participate in, particularly those run by non-profits or municipalities. Id. at 746-47.
C. Enforceability of Liability Waivers Against Wrongful Death Suits
Family members may be prevented from recovering if their loved one signs a liability waiver before their death. Liability waivers signed by a decedent can preclude wrongful death actions by the decedent’s executors. Doherty v. Diving Unlimited Int’l, Inc., 140 N.E.3d 394, 397 (2020).
Last updated 03/2022
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.