March 28, 2023
Associate, Stoll Keenon Ogden PLLC
Douglas C. Ballantine
Member, Stoll Keenon Ogden PLLC
Christopher E. Schaefer
Member, Stoll Keenon Ogden PLLC
Before you go on your next bungee jumping or ziplining trip in Kentucky, you might want to brush up on your knowledge of pre-injury liability waivers.
Sometimes called hold-me-harmless agreements or pre-injury releases, pre-injury liability waivers are contracts executed between a business and its customers. The customer signs the waiver in order to be able to participate in a service or activity offered by the business, and in so doing, agrees that they will not hold the business liable if they are somehow injured in the process. Usually, these activities are in some way inherently risky, and the liability waiver seeks to ensure that the customer is aware of and assumes that risk.
But pre-injury liability waivers are not always enforceable. In fact, generally, courts have said that pre-injury liability waivers are disfavored in Kentucky. They are not invalid per se, but a Kentucky court will strictly construe them against the parties seeking to be released from liability and analyze them for violations of public policy.
First of all, a pre-injury liability waiver must use conspicuous language. Kentucky is among a minority of states that require pre-injury liability waivers to expressly indicate intent to release the business from liability for negligence. The Kentucky Supreme Court has said that the language of the agreement must be “so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.” In layman’s terms, liability waivers will only be upheld if it is completely clear from the document that the signer is contracting away their right to hold a business liable for their injuries, should any arise.
In December of 2022, the Kentucky Court of Appeals addressed this exact issue and upheld a pre-injury liability waiver where the language of the waiver was clear and satisfied three of four alternative measures of validity recognized under Kentucky law. The court found that the waiver:
(1) expressly exonerated the business from all liability except for instances of gross negligence;
(2) made it virtually impossible to construe the clause as intended to do anything other than provide protection for the business against causes of action for bodily injuries and damages; and
(3) the injury the plaintiff sustained was clearly within the contemplation of the provision because it was specifically mentioned.
But even if the waiver’s language is unmistakably clear, or meets one of the four alternative measures of validity, it will not be enforced against the parties in every case.
Willful and Wanton Negligence
Parties in Kentucky cannot waive their right to hold another liable for acts of willful or wanton negligence. In other words, a business can still be held liable for any acts that constitute an “entire absence of care for the life, person, or property of others” that demonstrates “indifference to consequences.” Willful and wanton negligence does not necessarily mean showing ill will to the injured person, but rather, refers to a complete disregard for the safety of others. Even a perfectly worded pre-injury liability waiver cannot contract away a party’s right to sue over injuries caused by such conduct.
Pre-injury liability waivers are unenforceable in other circumstances, too, such as when the parties to the contract do not have equal bargaining power, or are not on “equal footing,” so to speak. The premiere case on the issue of bargaining power in pre-injury liability waivers is Greenwich Insurance Co. v. Louisville & Nashville Railroad Co.In that case, the court upheld a release between two sophisticated parties, the railroad company and a brewing company, but said that the railroad, as a common carrier, could not have enforced a waiver against its passengers. The passengers would not have had equal bargaining power with the railroad because of its monopoly on rail travel. Further, common carriers generally cannot contract away their liability, as it would reduce their incentive to protect passengers, which could have widespread ramifications.
In another bargaining power case, the Kentucky Supreme Court held parties did not have equal bargaining power where an amputee was required to sign before the rehabilitation center would treat her. There, the court said the parties did not have equal bargaining power because the weaker party was compelled to submit to the stipulation. The takeaway: pre-injury liability waivers likely will not be enforced where one party has a significant advantage in the negotiating process.
Generally, a party cannot contract away liability for damages caused by that party’s failure to comply with a duty imposed by a safety statute. In Martin Co. Coal Corp. v. Universal Underwriters Ins. Co., the Sixth Circuit Court of Appeals held that Martin County Coal could not contract away liability for damages caused by its failure to comply with a federal safety statute. The statute required the coal company to engage certain protocol in the storage of hazardous and loose materials. An employee of Crum Motors, a company that had executed a release agreement with Martin County Coal, was seriously injured when a loose boulder crashed into the pickup truck he was riding in. The court said that the release was unenforceable. The court reasoned that liability waivers allow a party to avoid liability for its own negligence, which reduces its incentive to comply with safety statutes.
One of the most recent developments in Kentucky law relating to pre-injury liability waivers is the enforcement, or not, of such waivers against minors. In 2019, the Kentucky Supreme Court handed down its opinion in E.M. v. House of Boom Kentucky, LLC (In re Miller). In that case, a parent signed a pre-injury liability waiver on behalf of their minor child, who was subsequently injured jumping on one of the trampolines at the defendant’s business location. The court found that the waiver was unenforceable against the minor child, and thus that the child’s cause of action was not contractually barred.
The court reasoned that it was a longstanding policy in Kentucky that, while parents have certain inherent rights relating to their children, they do not have the inherent right to contract on behalf of their child. Additionally, the court expressed concern that enforcing pre-injury liability waivers against minors, who lack the capacity to contract under the common law, would remove any incentives to ensure that reasonable care was taken to protect their safety. The court also stated that, as a for-profit company, House of Boom could purchase insurance to cover injuries to minors and spread those costs among its customers, whereas children had no similar ability to protect themselves from the negligence of others within the confines of a commercial establishment. The court mentioned that there are differences between for-profit and not-for-profit entities but declined to expand upon that discussion.
In conclusion, parents do not have the authority to sign pre-injury liability waivers on behalf of their children, at least when a for-profit entity is involved. The Kentucky Supreme Court has not addressed the similar situation, but with a not-for-profit entity involved.
If you are an insurance provider or business owner and you have concerns about pre-injury liability waivers, Stoll Keenon Ogden is here to help. Our attorneys regularly advise clients on matters related to liability, operations, and finances, and we look forward to seeing how we can assist you with your business needs.
Disclaimer: this article is not legal advice.
 E.M. v. House of Boom Kentucky, LLC (In re Miller), 575 S.W.3d 656, 660 (Ky. 2019).
 Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005).
 Rieff v. Jesse James Riding Stables, Inc., 656 S.W.3d 225, 230 (Ky. Ct. App. 2022). The fourth alternative measure of validity, not found in this case, is when the word “negligence” is explicitly stated in the release. See also Bowling v. Asylum Extreme, LLC, 2011 WL 5119151, at *3 (Ky. Ct. App. Oct. 28, 2011) (holding that the only reasonable construction of a paintball facility’s waiver was to release the business from liability for injuries like the plaintiff suffered to his eye)).
 Bowling v. Asylum Extreme, LLC, 2011 WL 5119151, at *3 (Ky. Ct. App. Oct. 28, 2011) (citing Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 655 (Ky. 2007)).
 66 S.W. 411 (Ky. 1902).
 See also Cumberland Valley Contractors, 238 S.W.3d at 655 (upholding a release between a mining company and mine operators where they were both businesses with sophisticated operations and negotiation ability).
 See Louisville & N.R. Co. v. George, 129 S.W.2d 986 (Ky. 1939).
 Meiman v Rehabilitation Center, Inc., 444 S.W.2d 78 (Ky. 1969).
 Hargis, 168 S.W.3d at 47 (quoting Boyer v. Atchison, T. & S. F. Ry. Co., 181 N.E.2d 372, 375 (Ill. App. Ct. 1962)).
 727 F.3d 589, 590 (6th Cir. 2013).