Pre-Injury Liability Waivers in Guam

Likelihood of Enforcement: Weak

The Supreme Court of Guam, established in 1996, has issued no decisions directly addressing the enforceability of pre-injury liability waivers on the island.  The Ninth Circuit, addressing whether failure to read a release is ground for disavowing such an agreement in Guam, noted that the Guam Codes, adopted by the territory’s legislature in 1953, were derived directly from the California Codes. Morta v. Korea Ins. Corp., 840 F.2d 1452 (9th Cir. 1988).  Accordingly, “[b]ecause the Guam Codes were derived from the California Codes, we have held that California decisions predating the enactment of the Codes are controlling authority on issues of the statutory construction and effect of Guam laws. California cases decided after the adoption of the Guam Codes are merely persuasive.”  Id.at 1461. While enacted in 1953, Guam’s statute governing responsibility for willful acts and negligence, 18 G.C.A. § 90107,  remains identical to California Civil Code § 1714(a). “California case law on [negligence statutes] is persuasive when there is no compelling reason to deviate from California's interpretation.” O’Mara v. Hechanova, 2001 Guam 13 n.1; see Fajardo v. Liberty House Guam, 2000 Guam 4. 

As a result, California’s rule restricting waivers of liability for gross negligence is controlling authority for Guam courts. See Donnelly v. Southern Pacific Co., 18 Cal.2d 863 (1941).  Other important rules, such as California’s Tunkl factors test for waivers affected with a public interest, will be considered persuasive authority in the absence of compelling reasons to deviate.  Tunkl v. Regents of the University of California, 60 Cal.2d 92 (1963).  Tunkl, however, surveys the landscape of California Supreme Court decisions at the turn of the twentieth century, “reveal[ing]a rough outline of that type of transaction in which exculpatory provisions will be held invalid.” Id. at 97.  It did little to displace precedents that are considered binding on the Guam judiciary.  Guam courts regularly look to California precedent in the context of tort law; absent a major change in the substantive law in either jurisdiction, the California Supreme Court’s approach will continue to drive the law of liability waivers in Guam. 

Last updated: 12/2018

This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.