Personal Injury Exculpatory Clauses: Enforceability Pitfalls, State Public Policy, Novel Risks, and Foreseeability

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Wednesday, April 28, 2021

Recorded event now available

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Program Materials

This CLE webinar will guide counsel in personal injury cases in interpreting, challenging, or defending exculpatory clauses, the use of which invites a whole host of legal issues and public policy concerns. The program will explore the difference between exculpation from liability arising out of a familiar activity with a well defined set of risks with exculpation for injuries from novel and undefined risks. The program will discuss how exculpatory clauses fare in real world contexts--such as commercial leases, product liability, healthcare, and sports.

Description

An exculpatory agreement is any provision in a contract that purports to release one party from liability to the other before that conduct occurs. The issue is important not only in the context of direct actions by an injured person but also when a party seeks indemnity or even insurance coverage. Because such provisions are ubiquitous in both commercial and consumer activities, both plaintiffs and defendants must be able to argue in favor of or against their enforceability concerning the injuries at issue.

Counsel can sometimes be too quick to make incorrect assumptions about these provisions' enforceability, which is a matter of state law. Each state takes a different approach based on that jurisdiction's public policy concerns, the type of liability released, and the nexus between the type of potential injury and its foreseeability.

The issue often turns on the exact language of the clause in question, so counsel should know the language that causes problems. Plaintiffs have several tools to chisel away at the enforceability and scope of exculpatory clauses, and defense.

Listen as our panel discusses defeating defenses based on exculpatory clauses and what service providers can do to make it more likely they will be enforced.

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Outline

  1. Types of exculpatory agreements
  2. Enforcement
  3. Defeating exculpatory agreements

Benefits

The panel will review these and other key issues:

  • What is the primary reason that exculpatory provisions are found unenforceable?
  • Is a release signed by parents effective for minors?

Faculty

Bond, Thomas
Thomas M. Bond

Attorney
The Kaplan/Bond Group

Mr. Bond is a trial lawyer and proctor in admiralty who has specialized in litigation for over thirty years. His trial...  |  Read More

Frisbie, Michele
Michele P. Frisbie

Shareholder
Marshall Dennehey Warner Coleman & Goggin

Ms. Frisbie defends a wide variety of cases and has a special interest in working closely with professionals to achieve...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include program handouts.

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