OHIO
A. Pre-Injury Liability Waivers
Ohio courts “routinely enforce” pre-injury contracts that waive liability for negligent actions as long as the language of the waiver is clear and unequivocal. Brown-Spurgeon v. Paul Davis Sys. of Tri-State Area, Inc., Docket No. CA2012-09-069, 2013 WL 1883214, at *10 (Ohio Ct. App. 2013). The contract must clearly indicate “the intent of the parties, with regard to [1] exactly what kind of liability and [2] what persons and/or entities are being released.” Hague v. Summit Acres Skilled Nursing & Rehab., Docket No. 09-NO-364, 2010 WL 5545386, at *4 (Ohio Ct. App. Dec. 17, 2010). If the language of the liability waiver is ambiguous, then the issue of what the waiver was intended to cover becomes a fact question for the fact-finder to evaluate. Id.
Ambiguous liability waivers are strictly construed against the party attempting to evade liability for their own negligence, unless they are “entered into by business entities in a context of free and understanding negotiation.” Glaspell v. Ohio Edison Co., 505 N.E.2d 264 (Ohio 1987). The contract does not need to use the term “negligence” explicitly to absolve the defendant from liability for negligent behavior, but courts are more likely to conclude the contract is ambiguous if it does not. Compare Bowman v. Davis, 356 N.E.2d 496, 499 (Ohio 1976) (holding that a contract that “[absolves] the attending physicians . . . from responsibility for any untoward or unfavorable results arising from this procedure” does not clearly cover negligence) with Geczi v. Lifetime Fitness, 973 N.E.2d 801, 806 (Ohio Ct. App. 2012) (enforcing a contract because it “included the words ‘release’ and ‘negligence’”); see generally Hague, 2010 WL 5545386, at *5 (summarizing Ohio doctrine and concluding that “there is only one exception of note” to the general rule that contracts should have “an explicit statement releasing the defendant from negligence”).
Additionally, liability waivers may be unenforceable if enforcing the agreement would raise “important public policy concerns.” Click Camera & Video, Inc., 521 N.E.2d at 832. To determine the extent of public policy concerns, Ohio courts have considered “[1] whether the goods or services contracted for are necessary for a person’s living needs; [2] whether the supplier assumes a quasi-public function in providing the goods; [3] whether the supplier has been granted a monopoly in providing a specific service; and [4] whether the limitation provision is such that the customer is in a position to assent to its terms.” Id. Ohio law also does not permit contracts that release a party from liability for their wanton and willful actions. See Harsh v. Lorain Cnty. Speedway, Inc., 675 N.E.2d 885, 888 (Ohio Ct. App. 1996) (citing Bowen v. Kil-Kare, Inc., 585 N.E.2d 84, 90 (Ohio 1992)).
B. Waivers Signed by Parents on Behalf of Minor Children
The Ohio Supreme Court has held that a pre-injury liability waiver signed by a parent on behalf of their child is enforceable if the parent signed the contract to allow their child to participate in a recreational activity led by volunteers and run by a non-profit organization. Zivich v. Mentor Soccer Club, Inc., 696 N.E. 201, 207 (Ohio 1998) (arguing that invalidating such agreements would “reduce the number of activities made possible through the uncompensated services of volunteers and their sponsoring organizations”). The Ohio Supreme Court has not addressed whether these rules apply to injuries resulting from the actions of for-profit organizations or paid employees, but Zivich has been quoted as standing for the general proposition that “parents have the authority to bind their minor children to preinjury exculpatory agreements.” See, e.g., Hewitt v. Smith, Docket No. 97-CA-996987, 1998 WL 887165, at *1 (Ohio Ct. App. Dec. 16, 1998).
If a person signs an enforceable liability waiver that prevents them from suing over negligent actions that caused injuries, their spouse or family members are not generally barred from bringing a claim over loss of consortium due to those injuries. Bowen, 585 N.E.2d at 92. However, a liability waiver signed by one parent on behalf of a child can also bar the loss of consortium claims of another parent who never signed the contract, but “accepted and enjoyed the benefits of the contract.” Zivich, 696 N.E. at 207.
Under most circumstances, parents cannot sign a post-injury release waiving the existing claims of their minor children. Brewer v. Akron Gen. Med. Ctr., Docket No. 19068, 1999 WL 33382, at *2 (Ohio Ct. App. Jan 27, 1999). Ohio courts have concluded that parents of an injured child may not act in the child’s best interest due to “trauma and financial pressures.” Zivich, 696 N.E. at 207.
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.