What is required for a valid waiver in Kentucky?
May 22, 2020
Kentucky is one of the minority of states that generally requires pre-injury waivers to specifically refer to negligence or clearly intend to bar negligence through other language.1 Kentucky courts use a specific test when determining whether to uphold a pre-injury release. Such a release will be upheld only if:
- it explicitly expresses an intention to exonerate by using the word “negligence;” or
- it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party's own conduct; or
- protection against negligence is the only reasonable construction of the contract language; or
- the hazard experienced was clearly within the contemplation of the provision.2
A pre-injury release that passed judicial scrutiny was at the center of Bowling v. Asylum Extreme, LLC which involved an eye injury suffered at a paintball facility.3 In upholding the release, the court noted that the waiver clearly stated that “Bowling was releasing [Asylum Extreme, LLC] from any liability resulting from negligence,” specifically listed potential injury to the eye, and “the only reasonable construction of the waiver's language is to release [Asylum Extreme, LLC] from liability, and the hazard, an eye injury, was clearly, and specifically, contemplated.”4
What are the exceptions?
A party can release another from liability but “a party cannot waive his or her right to hold another liable for acts of willful or wanton negligence.”5 Willful or wanton negligence is “‘an entire absence of care for the life, person, or property of others which exhibits indifference to consequences.’”6
The Kentucky Court of Appeals has noted that, “. . . provisions, whether pre-injury releases or indemnification provisions applied to defend against the indemnities own negligence, are not against public policy generally, but they are when agreed to by a party in a clearly inferior bargaining position.”7
Just last year, in a case involving a trampoline park, the Kentucky Supreme Court held that under Kentucky common law a parent does not have the authority to enter their child into a pre-injury exculpatory agreement with a for-profit entity.8 The Supreme Court did acknowledge that there are differences in the policy considerations that exist between for-profit and non-profit entities but declined to address them in the opinion.9
How does COVID-19 fit into existing waiver law in Kentucky?
In order to comply with Hargis the waiver should use the word “negligence,” clearly identify COVID-19 as being contemplated, and clearly indicate that the intent is to release the party from liability. It would be a best practice to provide notice of the risk generally, reference the CDC guidelines, reiterate that the activity is voluntary, and indicate the entity is taking steps to prevent the spread of COVID-19 before introducing the actual waiver language. There is no case law regarding COVID-19 or similar waivers so the validity can only be determined later.
Because a party cannot waive their right to hold another liable for willful or wanton negligence, a business must take steps to not display an entire absence of care for the life of others, indifferent to consequences. This means businesses should be aware of the potential consequences of transacting with people who are not wearing masks. That could potentially constitute willful or wanton negligence which would be outside of any COVID-19 waiver. The Kentucky state government is not requiring individuals to wear masks, so transacting business with someone not wearing a mask could be considered slightly less willful or wanton than in a state or city where masks are required.
Another area to monitor is how Kentucky begins to implement its COVID-19 tracing program. There are potential privacy issues regarding disclosure of whether a person has been at a business so how Kentucky implements its tracing program should be monitored to ensure additional waivers are not required from business patrons.
Here at Jackson Kelly, we regularly advise business clients on various operational and financial matters. If you have questions about customer waiver agreements in the context of your business or would like us to help draft a waiver agreement tailored to your business, please feel free to reach out any time and we would be happy to do anything we can to help.
1 See Dobbs, Hayden, and Bublick, The Law of Torts, § 233 (2d Ed. 2011) (while “most courts scrutinize releases more broadly for clarity and lack of ambiguity rather than looking for ‘magic words’ … [o]ther courts [citing Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005)] have held that a release must either use the word ‘negligence’ or must clearly set out the parties’ intent to bar negligence claims through other language.”).
2 Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005) (citing 57A Am. Jur. 2d, Negligence § 53 (2004)).
3 2011 WL 5119151, (Ky. App. Oct. 28, 2011).
4 Bowling at *3.
5 Bowling v. Asylum Extreme, LLC, 2011 WL 5119151, at *3 (Ky. App. Oct. 28, 2011) (citing Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 655 (Ky. 2007)).
6 Bowling, supra, at *3 (quoting Louisville & N.R. Co. v. George, 129 S.W.2d 986, 989 (Ky. 1939)).
7 Speedway SuperAmerica, LLC v. Erwin, 250 S.W.3d 339, 344 (Ky. App. 2008) (contract’s indemnity provision “was invalid and unenforceable as against Kentucky public policy” due to a party’s clearly inferior bargaining position).
8 Miller as Next Friend of E.M. v. House of Boom Kentucky, LLC, 575 S.W.3d 656 (Ky. 2019).
9 Id at 660, n. 5.