Can you waive your liability for reckless driving? The Supreme Court of Iowa finally says no | Husch Blackwell LLP
Earlier this year, litigants tested the limits of liability exemptions under Iowa law. In a 6-1 decision, the Iowa Supreme Court joined with the bulk of other jurisdictions in ruling that a contractual liability waiver is unenforceable “to the extent that it purports to eliminate the liability for willful, wanton or reckless conduct” alleged by a plaintiff. Lukken v. Fleischer, 962 NW2d 71, 82 (Iowa 2021).
In 2016, Mr. Lukken was seriously injured on a zipline near Honey Creek, Iowa. Lukken “slammed” a pole, fracturing his neck after a zipline company employee failed to reset the zipline brake. Lukken signed a liability waiver before the zipline, but sued the owner of the zipline company anyway. Mr. Lukken also sued the original manufacturer of the zip line even though its braking system was not installed when Lukken was injured.
Both defendants filed motions for summary judgment in the district court. The district court entered summary judgment in favor of the zipline manufacturer, finding that it had not breached any duty owed to Lukken and had not caused injury to Lukken. The district court also entered summary judgment in favor of the zipline company, finding that Iowa courts “consistently” uphold disclaimers and that the disclaimer at issue contained language sufficiently “clear and unambiguous.” equivocal” to show that Lukken understood he was waiving “any and all claims of negligence,” including claims of gross negligence.
What the Court decided
The Iowa Supreme Court upheld summary judgment in favor of the zipline maker. Because its brake system was uninstalled, the defendant manufacturer owed no duty of care to Lukken, and Lukken’s theory of negligence failed against that defendant. Nor was the defendant manufacturer required to provide training or policies on the safe operation of the replacement brake system.
However, the Iowa Supreme Court overturned the summary judgment in favor of the zipline company and dismissed the suits. As the Iowa Supreme Court explained, in Iowa “there is no degree of care or neglect.” Iowa does not differentiate between “gross” negligence and “ordinary” negligence. Thus, the disclaimer has blocked all negligence claims against the zipline company – regardless of the degree of negligence.
But Lukken’s petition does not merely allege negligence and gross negligence. He also alleged deliberate, wanton and reckless conduct. Iowa courts recognize “separate grounds of tort liability based on these more culpable types of conduct.” After analyzing the Restatement of Torts and a series of cases outside of Iowa, the Iowa Supreme Court wrote that waivers of liability “purported to deny liability for wanton or recklessly violent acts generally public order”. Lukken’s waiver was therefore not enforceable insofar as it sought to nullify claims based on wanton or reckless behavior, and Lukken could sue the zipline business for such behavior on remand.
Entities rely on blanket waivers at their own risk, regardless of jurisdiction. Iowa is just the most recent example of courts not allowing a defendant to escape potential liability on the basis of a waiver.
Entities should fully understand the applicable law before relying on an exemption from liability. These waivers are not uniform and the law may change from year to year as well as from jurisdiction to jurisdiction. See, for example, Murphy v. N. Am. River Runners, Inc., 412 SE2d 504, 510 (W. Va. 1991) (holding a general liability waiver applied to reckless misconduct or gross negligence”unless that intention is clear from the circumstances”) (emphasis added). Consideration of these waivers is also very factual and can be greatly influenced depending on the situation. See, for example, Miller as EM’s Next Friend vs. House of Boom Kentucky, LLC, 575 SW3d 656, 663 (Ky. 2019) (custodian parents cannot register a pre-injury liability waiver on behalf of their children).
Entities should carefully consider these – and other – complexities before resorting to liability exemptions. Careful analysis of applicable applicable law should be made when drafting any such waiver. Likewise, entities should consider regular audits of the law to stay abreast of any changes. Finally, discussing execution and risk management issues with the individuals/employees who provide the waivers for signature (as well as the services provided) should be done on a regular basis to ensure company policies are being followed.