Pre-Injury Liability Waivers in North Dakota

Likelihood of Enforcement: Strong

While North Dakota states that waivers are generally disfavored by the law, the state will still enforce a waiver for simple negligence as long as it is unambiguous and does not violate public policy. Reed v. University of North Dakota, 589 N.W.2d 880, 886 (N.D.,1999).

North Dakota courts endeavor to give effect to the parties’ intent, as evidenced by giving meaning to each provision of the contract. Reed, 589 N.W.2d at 886. Thus, the absence of particular terms such as “negligence” does not invalidate a waiver, and as long as the intention to waive liability can be clearly and unambiguously found in the contract, the parties will be bound. Id.  North Dakota treats the ambiguity of a contract as a question of law, rather than one of fact, and states that broad language alone is not enough to void a waiver for ambiguity. Id.

In considering whether a waiver is against public policy, North Dakota courts consider a truncated version of the Tunkl test, proposed by the Minnesota Supreme Court and comprised of two factors. Id. at 887 (citing Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982)).

(1) the disparity of bargaining power between the parties in terms of compulsion to sign the agreement and lack of ability to negotiate elimination of the clause

While the court does not precisely define the extent of bargaining power disparity necessary to invalidate a waiver, they do cite compulsion (economic, or otherwise) as a potential source of this disparity. Reed, 589 N.W.2d at 887. However, the mere inability to participate in the activity for which the signing of the waiver was required is not a disparity of bargaining power great enough to be considered compulsion. Id.

(2) the types of services provided by the party seeking exoneration, including whether they are public or essential services.

For purposes of the second factor, “public” services are services generally thought suitable for public regulation, such as common carriers, certain medical professionals, public utilities, etc. while “essential” services are those which are of great importance or practical necessity to some members of the public. Schlobohm, 326 N.W.2d at 925 (Minn. 1982).

The North Dakota Supreme Court has said that it will not enforce waivers for intentional, willful, or wanton acts. Reed, 589 N.W.2d at 887 n.4. This ruling was based on a North Dakota statute, which provides that “[a]ll contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for his own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” N.D.C.C. § 9-08-02.

The court in Reed interpreted this language as barring waivers for intentional or willful acts, but not those of simple negligence. Reed, 589 N.W.2d at 887 n.4

North Dakota courts seem to subject parental waivers to the same tests as a standard waiver: clear, unambiguous intent. It does not appear that the fact that the waiver was signed by a parent on behalf of a child raises any additional public policy concerns for the court. See Kondrad ex rel. McPhail v. Bismarck Park Dist., 655 N.W.2d 411, 413 (N.D. 2003); Bridston by Bridston v. Dover Corp., 352 N.W.2d 194, 195 (N.D. 1984).

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.