exculpatory clause in Pennsylvania

2021Generally speaking, an exculpatory clause withstands a challenge based on public policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State.’” Employers Liability, 224 A.2d at 622-23 , quoting Dilks v. Flohr [J-69-2020] - 18 Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963); see also RESTATEMENT (SECOND) OF TORTS §496B (1965) (“A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as co

2016PANELLA joins. . , The trial court noted that the three-pronged exculpatory clause test applied in Chepkevich has been 'identified as the “Topp Copy/Employers Liability standard” based upon Topp Copy Products, Inc. v. Singletary, 533 Pa. 468 , 626 A.2d 98 (1993) and Employers Liability Assurance Corp. v. Greenville Business Men's Association, 423 Pa. 288 , 224 A.2d 620 (1966).

2021Generally speaking, an exculpatory clause withstands a challenge based on public policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State.’” Employers Liability, 224 A.2d at 622-23 , quoting Dilks v. Flohr [J-69-2020] - 18 Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963); see also RESTATEMENT (SECOND) OF TORTS §496B (1965) (“A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as co

2018In Dilks v. Flohr Chevrolet , 411 Pa. 425 , 192 A.2d 682 (1963), [our supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.

2016PANELLA joins. . , The trial court noted that the three-pronged exculpatory clause test applied in Chepkevich has been 'identified as the “Topp Copy/Employers Liability standard” based upon Topp Copy Products, Inc. v. Singletary, 533 Pa. 468 , 626 A.2d 98 (1993) and Employers Liability Assurance Corp. v. Greenville Business Men's Association, 423 Pa. 288 , 224 A.2d 620 (1966).

2016PANELLA joins. . , The trial court noted that the three-pronged exculpatory clause test applied in Chepkevich has been 'identified as the “Topp Copy/Employers Liability standard” based upon Topp Copy Products, Inc. v. Singletary, 533 Pa. 468 , 626 A.2d 98 (1993) and Employers Liability Assurance Corp. v. Greenville Business Men's Association, 423 Pa. 288 , 224 A.2d 620 (1966).

2021See id. at *6-8, quoting Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010) (“It is generally accepted that an exculpatory clause is valid where three conditions are met.

2017“Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich, 2 A.3d at 1189 (citations omitted); see also Toro v. Fitness International, LLC., 150 A.3d 968 , 2016 PA Super 243 (2016) (applying Chepkevich to a waiver raised as a defense to a negligence claim in a slip-and-fall case); McDonald v. Whitewater Challengers, Inc., 116 A.3d 99 (Pa. Super. 2015), appeal denied, 634 Pa. 749 , 130 A.3d 1291 (2015) (applying Chepke-vich to a w

2021In strictly construing this clause against Landlord, we agree with Tenant that the exculpatory clause states that Landlord is not liable for injuries to any person “on said PREMISES or building….” Id.

1971The Supreme Court of this Commonwealth has held that where an exculpatory clause is valid, it still must meet the following standards: “(1) contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law (Galligan v. Arovitch, supra, p. 303 ; Crew v. Bradstreet Co., 134 Pa. 161, 169 , 19 A. 500 (1890)); (2) such contracts ‘must spell out the intention of the parties with the greatest of particularity’ (Morton v. Ambridge Borough, 375 Pa. 630, 635 , 101 A. 2d 661 (1954)) and show the intent to release from liability ‘beyond doubt

2010The court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474 , 385 A.2d 437 (1978), was confronted with an exculpatory clause that was contained in a rental agreement for ski equipment. 4 The exculpatory clause in that rental agreement read, in relevant part, as follows, “I furthermore release Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” Id. at 478 , 385 A.2d at 439 .

2010The court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474 , 385 A.2d 437 (1978), was confronted with an exculpatory clause that was contained in a rental agreement for ski equipment. 4 The exculpatory clause in that rental agreement read, in relevant part, as follows, “I furthermore release Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” Id. at 478 , 385 A.2d at 439 .

2021This Court has observed that pre-injury exculpatory clauses releasing a party from ordinary negligence generally are not against public policy, see Tayar, 47 A.3d at 1199 - 1200, citing, e.g., Chepkevich; however, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Id. at 12

2021This Court has observed that pre-injury exculpatory clauses releasing a party from ordinary negligence generally are not against public policy, see Tayar, 47 A.3d at 1199 - 1200, citing, e.g., Chepkevich; however, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Id. at 12

2021Duties of care arising from mandatory health and safety statutes have been deemed to be non-waivable in the context of regulations such as fire codes, which provide a specific standard of care, such that violation of the statute would constitute negligence per se. [J-69-2020] [MO: Dougherty, J.] - 4 See Boyd v. Smith, 94 A.2d 44, 46 (Pa. 1953) (holding that a landlord’s violation of the fire code constituted negligence per se and was non-waivable by an exculpatory clause); Warren City Lines, Inc. v. United Ref.

2016The Supreme Court held that the exculpatory clause was invalid because it .contravened the public policy set forth in the statute requiring fire escapes: “[w]here the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Id. at 46.

2025Princeton Sportswear Corp. v. H & M Associates, 507 A.2d 339, 341 (Pa. 1986) (internal quotation marks omitted). - 25 -

1991Princeton Sportswear Corp. v. H & M Assocs., 510 Pa. 189, 193 , 507 A.2d 339, 341 (1986); Employers Liability Assurance Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 291-92 , 224 A.2d 620, 622-23 (1966).

2025Notably, Hassan did not provide the trial court with any factual or legal support for her argument that she entered a lease agreement with Bridge House, or that the document she signed acknowledging that no ____________________________________________ 7 Specifically, Hassan cited: Commonwealth by Creamer v. Monumental Props., Inc., 329 A.2d 812, 815 (Pa. 1974) (addressing whether the Consumer Protection Law extend to allegedly unfair or deceptive practices in connection with printed form leases used by landlords in connection with the leasing of housing); Galligan v. Arovitch, 219 A.2d 463, 46

1992This Court has little problem in so construing such phraseology both as an adjunct and extension to the public policy pronounce ment in Galligan v. Arovitch, 421 Pa. 301 , 219 A.2d 463 (1963), wherein our Supreme Court condemned the exculpatory clause of a residential form lease and also under general contract principles.

2009Thus, following the rule that any document which reduces legal rights that would otherwise exist must spell out “with the utmost particularity” the intention of the parties, Morton v. Ambridge Borough, 375 Pa. 630, 635 , 101 A.2d 661, 663 (1954), and the rule of construction that a written instrument is to be strictly construed against the maker, Darrow v. Keystone, 365 Pa. 123 , 74 A.2d 176 (1950), our Supreme Court found the exculpatory clause did not protect the landlord in that particular case.

2009Thus, following the rule that any document which reduces legal rights that would otherwise exist must spell out “with the utmost particularity” the intention of the parties, Morton v. Ambridge Borough, 375 Pa. 630, 635 , 101 A.2d 661, 663 (1954), and the rule of construction that a written instrument is to be strictly construed against the maker, Darrow v. Keystone, 365 Pa. 123 , 74 A.2d 176 (1950), our Supreme Court found the exculpatory clause did not protect the landlord in that particular case.

1979In Jacob Siegel Co. the exculpatory clause stated explicitly that the landlord would not be liable for water damage to the tenant’s property even though “such damage ... be caused by or result from the negligence of the [landlord] . . . .” Id. 348 Pa. at 246 , 35 A.2d at 408 .

1979In Jacob Siegel Co. the exculpatory clause stated explicitly that the landlord would not be liable for water damage to the tenant’s property even though “such damage ... be caused by or result from the negligence of the [landlord] . . . .” Id. 348 Pa. at 246 , 35 A.2d at 408 .

2010In Leidy v. Deseret Enterprises Inc., 252 Pa. Super. 162 , 361 A.2d 164 (1977), the court reversed a trial court order that granted a motion for judgment on the pleadings filed by the defendant (health spa) based on an exculpatory clause in a membership agreement entered into between the parties.

1983While it has been held that genuine issues of material fact arise when the validity of exculpatory clauses is disputed, see Leidy v. Deseret Enterprises, Inc., 252 Pa.Super. 162 , 381 A.2d 164 (1977), we find no underlying cause of action that would invoke the exculpatory clause.

2025Notably, Hassan did not provide the trial court with any factual or legal support for her argument that she entered a lease agreement with Bridge House, or that the document she signed acknowledging that no ____________________________________________ 7 Specifically, Hassan cited: Commonwealth by Creamer v. Monumental Props., Inc., 329 A.2d 812, 815 (Pa. 1974) (addressing whether the Consumer Protection Law extend to allegedly unfair or deceptive practices in connection with printed form leases used by landlords in connection with the leasing of housing); Galligan v. Arovitch, 219 A.2d 463, 46

2001The fundamental nature of this type of contract is such that the consumer who is presented with it has no choice but to either accept the terms of the document as they are written or reject the transaction entirely.” Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d 689, 700 (Pa. Super. 2000) (quoting Denlinger Inc. v. Dendler, 415 Pa. Super. 164, 174-75 , 608 A.2d 1061, 1066 (1992) (quoting Black’s Law Dictionary (5th ed. 1979))). (citations omitted) In the present case, Professor Thompson testified that Thiel College insisted that the students going on the Thiel-sponsored trip to Peru

2023Hinkal v. Pardoe, 133 A.3d 738, 742 ([Pa. Super.] 2016) [(en banc)] (emphasis added).

2016Although two of our respected judges opined in dissent that an exculpatory clause in a contract to provide personal training services at a gym sufficiently “implicates health and safety concerns” that it should be held to contravene public policy, id. at 747-49 (dissenting opinion), the majority of the Court, sitting en banc, did not adopt that view.

2012DeFrancesco, 478 A.2d at 1307 (quoting Warren City Lines, 287 A.2d at 151-52 ); cf. Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 204 (3d Cir.1995) (“[S]o long as the limitation [of liability clause in a private contract] ... is reasonable and not so drastic as to remove the incentive to perform with due care, Pennsylvania courts uphold the limitation”). 3 As additional bases for our reluctance to uphold such disclaimers, we cited the lack of incentive of a water utility insulated from liability to ensure an adequate supply of water; the utility’s ownership of, and exclusive responsibil

2012See id. at 1307 (reasoning that “it was the trial court’s responsibility initially, and ours on appeal, to determine the validity of [limitation of liability provision] as an exculpatory clause”).

2021Co., 287 A.2d 149 , 151 & n.4 (Pa. Super. 1971) (holding that a fire marshal’s regulation could not be waived by an exculpatory clause because the violation of the regulation was negligence per se).

2012DeFrancesco, 478 A.2d at 1307 (quoting Warren City Lines, 287 A.2d at 151-52 ); cf. Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 204 (3d Cir.1995) (“[S]o long as the limitation [of liability clause in a private contract] ... is reasonable and not so drastic as to remove the incentive to perform with due care, Pennsylvania courts uphold the limitation”). 3 As additional bases for our reluctance to uphold such disclaimers, we cited the lack of incentive of a water utility insulated from liability to ensure an adequate supply of water; the utility’s ownership of, and exclusive responsibil

2006Drawing upon its decisions in other cases, it held that the following standards must be met to establish that an exculpatory clause relieves a party of liability: (1) the agreement must be construed strictly since it is not favored by the law; (2) such agreements “must spell out the intention of the parties with the greatest of particularity” and show the intent to release from liability “beyond doubt by express stipulation,” because “(n)o inference from words of general import can establish it”; (3) such agreements “must be construed with every intendment against the party who seeks the immun

2006Drawing upon its decisions in other cases, it held that the following standards must be met to establish that an exculpatory clause relieves a party of liability: (1) the agreement must be construed strictly since it is not favored by the law; (2) such agreements “must spell out the intention of the parties with the greatest of particularity” and show the intent to release from liability “beyond doubt by express stipulation,” because “(n)o inference from words of general import can establish it”; (3) such agreements “must be construed with every intendment against the party who seeks the immun

2021Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 890-91 ; Zimmer v. Mitchell & Ness, 385 A.2d 437 , 440 (Pa. Super. -9- J-S27045-21 1978) (en banc), aff’d without opinion, 416 A.2d 1010 (Pa. 1980).

2014The law for interpreting exculpatory agreements provides that an exculpatory clause must meet the following standards to relieve a party of liability: (1) the agreement must be construed strictly since it is not favored by the law; (2) such agreements ‘must spell out the intention of the parties with the greatest of particularity’ and show the intent to release from liability ‘beyond doubt by express stipulation,’ because ‘(n)o inference from words of -8- J-A29006-14 general import can establish it’; (3) such agreements ‘must be construed with every intendment against the party who seeks the i

2015Therefore, to the extent [Appellant] seeks to be deemed exempt from the terms of the contract she signed on the basis of her failure to read the contract, she may not do so. [FN3: Although [Appellant] notes that she was not specifically given time to read the contract, at no point does she argue that she signed the contract under duress, or that her feeling of being rushed could be the basis for invalidating the exculpatory clause.] First, [Appellant] argues that whether or not the contracts are ones of adhesion, they are ambiguous and fail to meet the drafting requirements outlined in Beck-Hu

2010Beck-Hummel v. Ski Shawnee Inc., 902 A.2d 1266, 1274 (Pa. Super. 2006) (standing for the proposition that an exculpatory clause should be conspicuous on the face of a document and espousing a three-part test for determining whether a reasonable person should have noticed an exculpatory clause contained in a document as follows: (1) the disclaimer’s placement in the document, (2) the size of the disclaimer’s print, and (3) whether the disclaimer was highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document).

2025Notably, Hassan did not provide the trial court with any factual or legal support for her argument that she entered a lease agreement with Bridge House, or that the document she signed acknowledging that no ____________________________________________ 7 Specifically, Hassan cited: Commonwealth by Creamer v. Monumental Props., Inc., 329 A.2d 812, 815 (Pa. 1974) (addressing whether the Consumer Protection Law extend to allegedly unfair or deceptive practices in connection with printed form leases used by landlords in connection with the leasing of housing); Galligan v. Arovitch, 219 A.2d 463, 46

1976By 1974, a majority of the Pennsylvania Supreme Court had not only adopted Mr. Justice Cohen’s analysis of the landlord-tenant problem, but had gone further in its landmark opinion of Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 454 , 329 A.2d 812 (1974), where it held that the leasing of residences fell within the ambit of the Consumer Protection Act. 3 There the Court said (all footnotes have been omitted): “It would be difficult indeed to imagine anything that affects the lives and welfare of the people of this Commonwealth more than housing.

2024Indemnity and exculpatory provisions, as opposed to limitation of liability clauses, are “disfavored and must meet certain conditions to be enforceable.” Id. -8- J-A14010-24 L&M claims that, in violation of the law of the case, the trial court erred by first deciding, on preliminary objections, “that [s]ection 7(b) of the Agreement [] was an exculpatory clause as a matter of law and then improperly used the factual record to decide that [s]ection 7(b) of the Agreement [] was instead a limitation of liability clause.” Appellant’s Brief, at 28.

2012DeFrancesco, 478 A.2d at 1307 (quoting Warren City Lines, 287 A.2d at 151-52 ); cf. Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 204 (3d Cir.1995) (“[S]o long as the limitation [of liability clause in a private contract] ... is reasonable and not so drastic as to remove the incentive to perform with due care, Pennsylvania courts uphold the limitation”). 3 As additional bases for our reluctance to uphold such disclaimers, we cited the lack of incentive of a water utility insulated from liability to ensure an adequate supply of water; the utility’s ownership of, and exclusive responsibil

2017“Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich, 2 A.3d at 1189 (citations omitted); see also Toro v. Fitness International, LLC., 150 A.3d 968 , 2016 PA Super 243 (2016) (applying Chepkevich to a waiver raised as a defense to a negligence claim in a slip-and-fall case); McDonald v. Whitewater Challengers, Inc., 116 A.3d 99 (Pa. Super. 2015), appeal denied, 634 Pa. 749 , 130 A.3d 1291 (2015) (applying Chepke-vich to a w

2016See Chepkevich, 2 A.3d at 1191 (skiing); see also McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 120 (Pa. Super. 2015) (whitewater rafting), appeal denied , 130 A.3d 1291 (Pa. 2015); Valeo v. Pocono Int’l Raceway Inc., 347 Pa.Super. 230 , 500 A.2d 492, 493 (1985) (automobile racing).

2005Under Pennsylvania law: “a generally valid exculpatory clause must meet the following standards before it will be interpreted so as to relieve a person of a liability that the law would otherwise impose: “(1) contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law . . . ; (2) such contracts ‘must spell out the intention of the parties with the greatest of particularity’ . . . and show the intent to release from liability ‘beyond doubt by express stipulation’ and ‘[n]o inference from words of general import can establish

1986In our earlier decision, we held that an exculpatory clause in the parties’ lease agreement was valid and enforceable and, accordingly, reversed the trial court’s order entering judgment in favor of appellee-lessee and against appellants in the amount of $600,000.00. 335 Pa.Superior Ct. 381, 484 A.2d 185 (1984).