WYOMING

Likelihood of Enforcement: Moderate

A. Pre-Injury Liability Waivers

Under Wyoming law, an agreement that releases one party from liability for negligent conduct is generally valid. Dimick v. Hopkinson, 422 P.3d 512, 517 (Wyo. 2018). A liability waiver is unenforceable if it shields a party from liability for wanton and willful conduct or violates public policy. Id. To determine whether a liability waiver is unenforceable on public policy grounds, the Wyoming Supreme Court has adopted a four-factor test which considers (1) whether the defendant owes a “duty to the public”; (2) the “nature of the service” the defendant was providing; (3) “whether the contract was fairly entered into”; and (4) whether the language of the contract indicates the intent of the parties to waive liability for negligence in “clear and unambiguous language.” Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). Wyoming courts can conclude that a contract is against public policy based on a single factor alone. Id.

i. Nature of the Service/Public Duty

The first two factors of the public policy test both assess the nature of the service that the exculpated party provides. Wyoming courts are less likely to enforce liability waivers if the service is “essential” to some members of the public, Dimick, 422 P.3d at 517, if the service is “suitable for public regulation,” or if the party offering the service “holds himself out as willing to perform this service for any member of the public who seeks it.” Milligan v. Big Valley Corp. 764 P.2d 1063, 1066 (Wyo. 1988) (quoting Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441, 445–46 (Cal. 1963)). Under these circumstances, courts assume the importance of the service creates a disparity of bargaining power. Dimick, 422 P.3d at 517–18. Services that meet this definition include “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities.” Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132 (Wyo. 2000) (citing Milligan, 754 P.2d at 1056).

ii. Fair Contracting Process

The third factor of the public policy test, the fairness of the contracting process, requires courts to consider whether the parties had an opportunity to read and understand the terms of the contract, whether the liability waiver was clearly laid out or hidden in fine print, whether the contract was adhesive, and the experience and knowledge of the parties to the contract. See Milligan, 764 P.2d at 1067; see generally Jason T. Loos, Government Owned Recreation Centers, 39 Wyoming Lawyer 24 (2016) (providing guidance on how to draft enforceable liability waivers).

iii. Clarity of the Contract

The fourth public policy factor addresses whether the contract makes it “clear and unambiguous” that the agreement is intended to exculpate one party from negligence. Boehm v. Cody Cnty. Chamber of Com., 748 P.2d 704, 711 (Wyo. 1987). Unlike many states, Wyoming does not require the contract to explicitly use the term “negligence.” Schutkowski, 748 P.2d at 1062. Indeed, even if the language of the contract is broad and relatively vague, Wyoming courts may still hold that the provision releases a party from liability for negligence if “it is difficult to envision any claim other than one based on negligence that [the plaintiff] might have had.” Id. (holding that an agreement that released one party from liability for “any and all claims. . . in any way resulting from, personal injuries” clearly applied to claims based on the defendant’s negligent actions).

B. Waivers Signed By Parents on Behalf of Minor Children

It is unclear whether a liability waiver that a parent or guardian signs on behalf of their child is enforceable in Wyoming – the Wyoming Supreme Court has never decided this issue. However, the U.S. District Court for Wyoming held that under Wyoming law, “a parent cannot execute a pre-injury exculpatory agreement waiving a minor child’s negligence claim against a commercial for-profit business.” Order Granting in Part and Denying in Part Snow King Resort, Inc.’s Motion for Summary Judgment, Oswald v. Snow King Resort, Inc., No. 2:11-CV-382-J, at 22 (D. Wyo. July 19, 2013). The court reasoned that a majority of states do not allow parents to prospectively waive a minor’s negligence claims, and Wyoming’s legislature had removed a section of proposed legislation from the final bill that would have empowered parents to waive their children’s prospective claims. Id. at 20-21.

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.