1

Suppose party A contracts with party B to release party B of liability for all possible injury resulting from party B providing party A a service in which there is significant risk of injury. If a strict probability figure is needed for this scenario, consider it >= 50%. This is in California.

Question form 1: This probability figure is included in the contract. Question form 2: This probability is common knowledge (e.g. jumping out a third story window)

  • What exactly is the question about such a contract? Can it be legal? – David Siegel Mar 25 at 6:12
  • @DavidSiegel Good clarification, aided by an answer below : I forgot that in contracts we talk about "enforceability" more than "validity" or "legality". – TQuile1948 Mar 26 at 4:23
4

A release from liability for negligence is generally enforceable.

A release from liability for intentional acts is generally not enforceable.

Note also, that at a sufficiently high percentage risk (e.g. 99%), describing the source of the liability as negligence rather than an intentional act is, as a practical matter, no longer viable with respect to any party who is in any respect the cause of the injuries. Where that threshold lies would have to be determined on a case by case basis.

2

Is a contract valid if it releases a party from liability for probable injury?

Yes, assuming that (1) the service or solicitation thereof is not outlawed, and (2) by "injury resulting from party B" you mean injury suffered by A. The contract in both of forms 1 and 2 is valid, since it meets the essential requirement that the parties know the terms/risks/etc. they willfully accept.

One important thing to keep in mind is that the parties' awareness of risk does not release party B from the covenant of good faith and fair dealing that is prerequisite (and presumed) in contract law. This means that the contract does not entitle party B to take advantage of, or unjustifiably exacerbate, the risk to which party A is subjected. In line with this, see the Restatement (Second) of Contracts at § 195(1) (stating that a contract is unenforceable if harm is caused intentionally or recklessly).

If the term "injury resulting from party B" reasonably or foreseeably implies a scenario where third parties might get injured, the contract would be unenforceable on grounds of public policy. See the Restatement at § 178. It might not be suffice that party A guarantees he will take responsibility for injuries caused by party B to others. Third parties are not partaking in the contract, whence it cannot be said that they knowingly and willfully accept the conditions therein.

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