Pre-Injury Liability Waivers in Maine

Likelihood of Enforcement: Moderate

In Maine “[c]ourts have traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language [that] allegedly exempts a party from liability for h[er] own negligence.” Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me.1979). Accordingly, a release must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Id. (internal quotations omitted). “To discern the parties’ intention, [Maine courts] look to the plain language of the agreement.” “It is only where the contract on its face by its very terms clearly and unequivocally reflects a mutual intention on the part of the parties to” waive liability that a waiver will be found. Emery Waterhouse Co. v. Lea, 467 A.2d 986 (Me.1983). Here, “words of general import will not be read as expressing such an intent and establishing by inference such liability.” Id.

Liability waivers in Maine may also be invalid because they are against the state’s public policy. Here, Maine courts “will not enforce a contract if it is illegal, contrary to public policy, or contravenes the positive legislation of the state.” Bureau of Me. State Police v. Pratt, 568 A.2d 501, 505 (Me.1989). A contract is unenforceable as violating public policy in Maine only if it violates a well-defined and dominant policy that may be ascertained from the law and legal precedent. Id. at 505–06; see also Court v. Kiesman, 2004 ME 72, ¶ 11, 850 A.2d 330, 333 (“A contract is against public policy if it clearly appears to be in violation of some well-established rule of law, or that its tendency will be harmful to the interests of society.” (quotation marks omitted)). To determine whether a contract violates public policy, [Maine courts] balance the freedom of the parties to contract against the detriment to society that would result from enforcement of that contract. Court, 2004 ME 72, ¶ 11, 850 A.2d at 333.

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.