Pre-Injury Liability Waivers in Alabama
Likelihood of Enforcement: Weak
Pre-injury liability waivers, most often referred to by Alabama courts as “exculpatory clauses,” are generally disfavored in the state. Alabama Personal Injury and Torts § 3:29 (2017 ed.). In 1985, Alabama adopted the Tunkl standard that “exculpatory clauses affecting the public interest are invalid.” Morgan v. South Cent. Bell Telephone Co., 466 So.2d 107 (Ala. 1985), citing Tunkl v. Regents of the University of California, 60 Cal.2d 92 (Cal. 1963). The Morgan Court adopted all six Tunkl factors to “identify the kind of agreement in which an exculpatory clause is invalid as contrary to public policy” and held the exculpatory clause at issue—in which a telephone company disclaimed liability for negligent failure to include the plaintiff’s name in the yellow pages—to be invalid as the result of “gross and unbalanced” bargaining power held by the defendants. Morgan, 466 So.2d. at 117-18. Moreover, the District Court for M.D. Alabama, Northern Division, ruled in 2010 as a matter of first impression that “a parent may not bind a child to a pre-injury liability waiver in favor of a for-profit activity sponsor by signing the liability waiver on the child's behalf.” J.T. ex rel. Thode v. Monster Mountain, LLC, 754 F.Supp.2d 1323 (M.D. Ala. 2010).
The most clearly articulated genre of pre-injury liability releases in Alabama are pre-race releases issued in the context of racetracks. See Barnes v. Birmingham Intern. Raceway, Inc., 551 So.2d 929, 932 (Ala. 1989). Until 1989, Alabama was the only jurisdiction in the country that upheld pre-race releases for negligent and wanton conduct; in 1989, the Supreme Court of Alabama held that “pre-race releases, although valid and consistent with public policy as to negligent conduct, are invalid and contrary to public policy as to wanton or willful conduct.” Id. at 933. In 2012, the Alabama legislature created a specific carve-out for exculpatory provisions in motor vehicle transportation contracts, stating that many provisions in such contracts which “purport to indemnify, defend, or hold harmless” a shipper or motor carrier from its own negligence are facially invalid. AL ST § 37-3-23.1.
Alabama courts draw a significant distinction between exculpatory clauses, governed by Morgan, and limitation-of-liability clauses. See Fox Alarm Co., Inc. v. Wadsworth, 514 So.2d 987 (Ala. 2005). Clauses which limit the available damages resulting from defendant’s negligence “are not, per se, against public policy,’” and are generally enforceable on the same terms as other contracts. Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153, 156 (Ala. 2003)(quoting Leonard v. Terminix Int'l Co., 854 So.2d 529 (Ala. 2002)). Given that very few cases involving a full pre-injury waiver of negligence have reached Alabama courts since 1985, it is possible that limitation-of-liability clauses have replaced exculpatory clauses as the choice method for vendors looking to avoid negligence damages in the state.
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.