Pre-Injury Liability Waivers in South Carolina
Likelihood of Enforcement: Moderate
South Carolina state courts have upheld exculpatory contracts in select cases. See Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 630, 281 S.E.2d 223, 224 (1981) (finding plaintiff's action against speedway for injuries sustained during a race was barred by “waiver and release” voluntarily signed by plaintiff prior to entering the race track); Pride v. Southern Bell Tel. & Tel. Co.,244 S.C. 615, 619–22, 138 S.E.2d 155, 157–58 (1964) (holding it was not violative of public policy for a telephone company to legally limit its liability by contract for negligence in the publication of a paid advertisement in the yellow pages of its telephone directory). However, notwithstanding the general acceptance of exculpatory contracts, “[s]ince such provisions tend to induce a want of care, they are not favored by the law and will be strictly construed against the party relying thereon.” Pride, 244 S.C. at 619, 138 S.E.2d at 157. Thus, the waiver “will never be . . . construed . . . to exempt [a party] from liability for h[er] own negligence ... in the absence of explicit language clearly indicating that such was the intent of the parties.” Hill v. Carolina Freight Carriers Corp., 235 N.C. 705, 71 S.E.2d 133, 137 (1952).
“Common sense and good faith are the leading touchstones of the construction of a contract and contracts are to be so construed as to avoid an absurd result. Where one construction would make a contract unusual or extraordinary and another, equally consistent, would make the contract reasonable, fair and just, the latter construction will prevail.”
Georgetown Mfg. & Warehouse Co. v. South Carolina Dep't of Agric., 301 S.C. 514, 518, 392 S.E.2d 801, 804 (Ct.App.1990). Nevertheless, “an exculpatory agreement will be held to contravene public policy if it is so broad ‘that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.” Fisher v. Stevens, 355 S.C. 290, 297 (Ct.App.2003). In determining the public policy of the state, South Carolina courts rely on legislative enactments whenever possible. Gladden v. Boykin, 402 S.C. 140, 143 (2013).
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.