Earlier this year, litigants tested the limits of liability waivers under Iowa law. In a 6-1 decision, the Iowa Supreme Court joined the bulk of other jurisdictions and held a contractual liability waiver was not enforceable "to the extent it purports to eliminate liability for the willful, wanton, or reckless conduct" a plaintiff alleges. Lukken v. Fleischer, 962 N.W.2d 71, 82 (Iowa 2021).
In 2016, Mr. Lukken was seriously injured on a zip line near Honey Creek, Iowa. Lukken "slammed" into a pole, fracturing his neck after an employee of the zip line business failed to reset the zip line's brake. Lukken signed a liability waiver before zip lining but still sued the zip line business owner. Mr. Lukken also sued the zip line's original manufacturer even though its braking system was not installed when Lukken was injured.
Both defendants filed motions for summary judgment in the district court. The district court granted summary judgment in favor of the zip line manufacturer, reasoning it breached no duty to Lukken and did not cause Lukken's injuries. The district court also granted summary judgment in favor of the zip line business, reasoning that Iowa courts "consistently" uphold liability waivers and that the waiver at issue contained language sufficiently "clear and unequivocal" to show that Lukken understood he was waiving "any and all negligence" claims, including claims for gross negligence.
What the Court Decided
The Iowa Supreme Court affirmed summary judgment in favor of the zip line manufacturer. Because its braking system was uninstalled, the defendant-manufacturer owed no duty of care to Lukken, and Lukken's negligence theory failed against this defendant. The defendant-manufacturer also had no duty to provide training or policies on the safe operation of the replacement braking system.
However, the Iowa Supreme Court reversed the summary judgment entered in favor of the zip line business and remanded claims for further proceedings. As the Iowa Supreme Court explained, in Iowa "there are no degrees of care or of negligence." Iowa does not differentiate between "gross" negligence and "ordinary" negligence. As such , the liability waiver blocked all negligence claims against the zip line business – regardless of the degree of negligence.
But Lukken's petition did not merely allege negligence and gross negligence. It also alleged willful, wanton, and reckless conduct. Iowa courts recognize "separate grounds for tort liability based on these more culpable types of conduct." After analyzing the Restatement of Torts and a string of cases outside Iowa, the Iowa Supreme Court wrote that liability waivers "purporting to negate liability for acts that are wantonly or recklessly committed generally violate public policy." Lukken's waiver therefore was not enforceable to the extent it sought to release claims based on wanton or reckless behavior, and Lukken could pursue the zip line business for such behavior on remand.
Entities rely on blanket waivers at their own peril regardless of the jurisdiction. Iowa is just the most recent example of the courts not allowing a defendant to escape potential liability based on a waiver.
Entities must thoroughly understand governing law before relying on a liability waiver. These waivers are not one-size-fits-all, and the law can change from year to year as well as from jurisdiction to jurisdiction. See, e.g., Murphy v. N. Am. River Runners, Inc., 412 S.E.2d 504, 510 (W. Va. 1991) (holding a general liability release did apply to reckless misconduct or gross negligence "unless such intention clearly appears from the circumstances") (emphasis added). The review of these waivers is also fact intensive and can be impacted greatly based on the situation. See, e.g., Miller as Next Friend of E.M. v. House of Boom Kentucky, LLC, 575 S.W.3d 656, 663 (Ky. 2019) (holding parents cannot enter pre-injury liability waivers on behalf of their children).
Entities should carefully consider these intricacies – and others – before relying on liability waivers. A careful analysis of current, governing law should be conducted when drafting such a waiver. Likewise, entities should consider regular audits of the law to stay abreast of any changes. Finally, discussing the proper execution and risk management issues with the individuals/employees who provide the waivers for signature (along with the services being provided) should be done regularly to ensure that company policies are followed.
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