Exculpatory Clauses: Can they protect you?

Much like waivers and releases, Indiana courts have long recognized the validity of exculpatory contracts in which parties agree in advance that one is under no obligation of care for the benefit of the other and shall not be liable for the consequences of conduct which would otherwise be negligent. Shumate v. Lycan, 675 N.E.2d 749, 752 (Ind. Ct. App. 1997) (citing LaFrenz v. Lake City Fair Bd., 360 N.E.2d 604, 607 (Ind. Ct. App. 1977)). It is well-settled in Indiana that exculpatory contracts are not against public policy. United State Auto Club (USAC) v. Smith, 717 N.E.2d 919 (Ind. Ct. App. 1999). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Wabash County YMCA v. Thompson, 975 N.E.2d 362 (Ind. Ct. App. 2012) (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).

However, Indiana courts have held that an exculpatory clause, a clause within a contract, will not act to absolve a party from liability unless it “specifically and explicitly refer[s] to the negligence of the party seeking release from liability.” Marsh, 707 N.E.2d at 1000 (quoting Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998)).

Image of someone signing a documentAn exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006); c q, 975 N.E.2d 362 (Ind. Ct. App. 2021). Furthermore, an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity. Anderson, 852 N.E.2d at 581. The requirement of specificity is necessary only when the risk of harm is the defendant’s own negligence. Anderson, 852 N.E.2d at 581-582.

It is important to understand if an exculpatory contract, exculpatory clause, or an indemnity agreement will provide the necessary protection. Contact a member of Barrett McNagny’s Litigation team with questions. 

About the author:

Lauren Minke is a member of Barrett McNagny's litigation team with an emphasis in insurance defense and medical malpractice defense. She has first chair bench trial and second-chair jury trial experience and has been selected for inclusion in the 2020 & 2021 Indiana Super Lawyers publications as a 'Rising Star'. She can be reached at (260) 423-8858 or at lrm@barrettlaw.com.

Tagged Attorneys
Barrett McNagny LLP

Legal Disclaimer

The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.

Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.

Any links to other websites are not intended to be referrals or endorsements of those sites.

Privacy Policy

Terms of Use

ADA Compliance

Contact Us
Hello,
My name is
 
and I am a(n)
seeking legal counsel in the area of 
.
Please
me at
as soon as you can.

Thank you for contacting us!

A representative will be in touch with you shortly.

An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.
YesNo