exculpatory clause in Indiana

2025Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 760 (Ind. Ct. App. 1998) (rejecting similar argument and noting that plaintiff could defend against summary judgment on the material designated by defendant, particularly where the validity of the exculpatory clause – a question of law – was the dispositive issue).

2025To ensure a party’s knowing and willing acceptance of this harsh burden, however, an exculpatory clause must “specifically and explicitly refer to the negligence of the party seeking release from liability.” Plys, 893 N.E.2d at 3 (quoting Powell, 694 N.E.2d at 760 ); see also Avant, 826 N.E.2d at 10 .

2025To ensure a party’s knowing and willing acceptance of this harsh burden, however, an exculpatory clause must “specifically and explicitly refer to the negligence of the party seeking release from liability.” Plys, 893 N.E.2d at 3 (quoting Powell, 694 N.E.2d at 760 ); see also Avant, 826 N.E.2d at 10 .

2025In the context of the entire exculpatory clause, the court held that “these words clearly demonstrate that the Release encompasses negligence.” Id. [34] In Plys, this court found the following language contained in a release (signed by plaintiff for her participation at fitness center) to be specific and explicit enough to release the defendants from liability for their own negligence: I specifically agree to indemnify and hold harmless Hammond Parks and Recreation Department, the Hammond Civic Center, or the City of Hammond, Indiana as to any loss, cost, claim, injury, damage or liability, su

2014In Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 581 (Ind.Ct.App.2006), trans. denied, we held that an exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself.

2014We stated that “‘an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity[.]’ ” Id. (quoting Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind.Ct.App.1999), trans. denied).

2014We stated that “‘an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity[.]’ ” Id. (quoting Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind.Ct.App.1999), trans. denied).

2014We stated that “‘an exculpatory clause not referring to the negligence of the release may act to bar liability for those damages incurred which are inherent in the nature of the activity[.]’” Id. (quoting Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999), trans. denied).

1998In Pigman v. Ameritech Publ’g, Inc ., 641 N.E.2d 1026, 1035 (Ind. Ct. App. 1994), when an attorney brought an action against the yellow pages telephone directory publisher for failing to publish an advertisement, the Court of Appeals held “that the exculpatory clause contained in [Ameritech’s] Yellow Pages advertising contract is unconscionable and void as against public policy as a matter of law.” One month later, in Pinnacle Computer Servs., Inc. v. Ameritech Publ’g, Inc ., 642 N.E.2d 1011, 1019 (Ind. Ct. App. 1994), when a business owner brought suit against Ameritech’s Yellow Pages for rea

1998In Pigman v. Ameritech Publ’g, Inc., 641 N.E.2d 1026, 1035 (Ind.Ct.App.1994), when an attorney brought an action against the yellow pages telephone directory publisher for failing to publish an advertisement, the Court of Appeals held “that the exculpatory clause contained in [Ameritech’s] Yellow Pages advertising contract is unconscionable and void as against public policy as a matter of law.” One month later, in Pinnacle Computer Servs., Inc. v. Ameritech Publ’g, Inc., 642 N.E.2d 1011, 1019 (Ind.Ct.App.1994), when a business owner brought suit against Ameri-tech’s Yellow Pages for reasons si

2025To ensure a party’s knowing and willing acceptance of this harsh burden, however, an exculpatory clause must “specifically and explicitly refer to the negligence of the party seeking release from liability.” Plys, 893 N.E.2d at 3 (quoting Powell, 694 N.E.2d at 760 ); see also Avant, 826 N.E.2d at 10 .

2025In the context of the entire exculpatory clause, the court held that “these words clearly demonstrate that the Release encompasses negligence.” Id. [34] In Plys, this court found the following language contained in a release (signed by plaintiff for her participation at fitness center) to be specific and explicit enough to release the defendants from liability for their own negligence: I specifically agree to indemnify and hold harmless Hammond Parks and Recreation Department, the Hammond Civic Center, or the City of Hammond, Indiana as to any loss, cost, claim, injury, damage or liability, su

2018Id. (citing Fresh Cut , 650 N.E.2d at 1130 ). [19] Considering the above factors, 4 we find no compelling reason to declare the exculpatory clause void. 5 This is based in large part on two overarching observations that we have already touched upon.

1998Servs. are similar to the exculpatory clause in this case. 3: In Fresh Cut, Inc. v. Fazli , 650 N.E.2d 1126, 1130 (Ind. 1995), we cited to Pigman as an example of a case where a private agreement was not enforced.

1998In Pigman v. Ameritech Publ’g, Inc ., 641 N.E.2d 1026, 1035 (Ind. Ct. App. 1994), when an attorney brought an action against the yellow pages telephone directory publisher for failing to publish an advertisement, the Court of Appeals held “that the exculpatory clause contained in [Ameritech’s] Yellow Pages advertising contract is unconscionable and void as against public policy as a matter of law.” One month later, in Pinnacle Computer Servs., Inc. v. Ameritech Publ’g, Inc ., 642 N.E.2d 1011, 1019 (Ind. Ct. App. 1994), when a business owner brought suit against Ameritech’s Yellow Pages for rea

1998In Pigman v. Ameritech Publ’g, Inc., 641 N.E.2d 1026, 1035 (Ind.Ct.App.1994), when an attorney brought an action against the yellow pages telephone directory publisher for failing to publish an advertisement, the Court of Appeals held “that the exculpatory clause contained in [Ameritech’s] Yellow Pages advertising contract is unconscionable and void as against public policy as a matter of law.” One month later, in Pinnacle Computer Servs., Inc. v. Ameritech Publ’g, Inc., 642 N.E.2d 1011, 1019 (Ind.Ct.App.1994), when a business owner brought suit against Ameri-tech’s Yellow Pages for reasons si

2007Bargain Ctr. v. American Alarm Co., 430 N.E.2d 407, 411-12 (Ind.Ct.App.1982). 5 .

1991In General Borgain Center, the court passed upon the validity of a liquidated damages provision that was in actuality an exculpatory clause. 430 N.E.2d 407 .

2014Morris v. McDonald’s Corp., 650 N.E.2d 1219, 1222 (Ind. Ct. App. 1995).

2014Id.

2008But, this court has held that “an exculpatory clause need not include the word ‘negligence’ so long as it conveys the concept specifically and explicitly through other language.” Avant, 826 N.E.2d at 12 (citing Moore Heating & Plumbing, Inc. v. Huber, Hunt & Nichols, 583 N.E.2d 142, 146 (Ind.Ct.App.1991)).

2005See Moore, 583 N.E.2d at 146 .

2018We note that relative bargaining power, and not conspicuousness of contract terms, is the relevant consideration when determining whether a contract was entered into knowingly and willingly, see Weaver , 257 Ind. at 465 , 276 N.E.2d at 148 , and we are unpersuaded by the Owners' claim that they were unaware of the exculpatory clause contained in the Covenants and Restrictions.

2018We note that relative bargaining power, and not conspicuousness of contract terms, is the relevant consideration when determining whether a contract was entered into knowingly and willingly, see Weaver , 257 Ind. at 465 , 276 N.E.2d at 148 , and we are unpersuaded by the Owners' claim that they were unaware of the exculpatory clause contained in the Covenants and Restrictions.

2025In Ransburg, the Court of Appeals applied these factors in considering an exculpatory clause in residential leases insulating the landlord from liability for personal injuries purportedly caused by the landlords’ negligence. 770 N.E.2d at 394, 396 .

2025Rather, this case implicates a “matter of public interest” in that we’re “asked to construe an exculpatory clause, the generalized use of which may have an impact upon thousands of potential [athletes].” See id. (quotation marks and citation omitted).

2002The exculpatory clause at issue in Vertucci sought to insulate the landlord from liability for "injury to person or property arising from theft, vandalism, fire, or casualty occurring in the premises or the building." Id.

1999See, e.g., Nalls v. Blank, 571 N.E.2d 1321, 1323 (Ind.Ct.App.1991) (finding that landlord had assumed the duty to provide security); Vertucci v. NHP Management Co., 701 N.E.2d 604, 606 (Ind.Ct.App.1998) (finding that "the exculpatory clause [in the lease agreement did] not prevent [the defendant] from having or assuming a duty to protect [the plaintiff] from the criminal acts of a third party”). 7 .This information was provided as part of a workshop pamphlet.

1976For instance in McCutcheon v. United Homes Corporation, 79 Wash.2d 443 , 486 P.2d 1093 (1971), the Washington Supreme Court refused to hold the landlord immune from liability because an exculpatory clause relating to common areas in a multi-family dwelling: "Thus, we are not faced merely with the theoretical duty of construing a provision in an isolated contract specifically bargained for by one landlord and one tenant as a purely private affair.

1976For instance in McCutcheon v. United Homes Corporation, 79 Wash.2d 443 , 486 P.2d 1093 (1971), the Washington Supreme Court refused to hold the landlord immune from liability because an exculpatory clause relating to common areas in a multi-family dwelling: "Thus, we are not faced merely with the theoretical duty of construing a provision in an isolated contract specifically bargained for by one landlord and one tenant as a purely private affair.

2025Judicial enforcement of the clause, then, stands at odds with the “strong public policy” that “favors[s] the encouragement of participation in athletic activities.” See Pfenning v. Lineman, 947 N.E.2d 392, 403 (Ind. 2011).

2019In Penmanta Corp. v. Hollis , we concluded that an exculpatory clause in the original lease carried over into the holdover tenancy, reasoning that "[i]t has been held that where a tenant holds over after the lease has expired the inference that the parties consent to a continuation of the same terms is so strong that it is adopted as a rule of law." 520 N.E.2d 120 , 122 (Ind. Ct. App. 1988) ; see also City of Bloomington v. Kuruzovich , 517 N.E.2d 408 , 411 (Ind. Ct. App. 1987) ("Generally, when a tenant holds over past the term of his lease, the lease is renewed.

2018Hi-Tec Properties, LLC v. Murphy , 14 N.E.3d 767 , 773 (Ind. Ct. App. 2014), trans. denied . [12] The Owners do not suggest that the exculpatory clause here is inapplicable to their claim against the HOA, and they concede that exculpatory clauses are generally enforceable.

2018Despite the Owners' attempts to equate their bargaining relationship as akin to a residential tenant dealing with a landlord, the current situation is wholly unlike situations where we have recognized that a residential tenant does not share equal bargaining power with a residential landlord and has "no meaningful choices" when entering into a contract of adhesion for shelter, "a basic necessity of life." Ransburg v. Richards , 770 N.E.2d 393 , 402-03 (Ind. Ct. App. 2002) (holding exculpatory clause in residential lease between sophisticated landlord and unsophisticated tenant violated public

2016We will not construe a contract such that a term is meaningless when it is possible to do otherwise; See Storch v. Provision Living, LLC, 47 N.E.3d 1270, 1273 (Ind. Ct.App.2015). [18] Because the designated evidence shows BWA observed at least one item of non-conforming work, the question is what does, the contract. term “reject non-conforming Work” mean?

2014“A release, as with any contract, should be interpreted according to the standard rules of contract law.” Cummins v. McIntosh, 845 N.E.2d 1097, 1103 (Ind. Ct. App. 2006) (citation omitted), trans. denied.

2014In support of that contention, they cite Stowers v. Clinton Central School Corporation, 855 N.E.2d 739, 749 (Ind.Ct.App.2006), trans. denied, where we observed that “an exculpatory clause will not act to absolve a party from liability [from negligence] unless it ‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.’ ” (Quoting Powell v. Am.

2014In support of that contention, they cite Stowers v. Clinton Central School Corporation, 855 N.E.2d 739, 749 (Ind. Ct. App. 2006), trans. denied, where we observed that “an exculpatory clause will not act to 5 absolve a party from liability [from negligence] unless it ‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.’” (Quoting Powell v. Am.

2014Erwin v. Roe, 928 N.E.2d 609, 616 (Ind.Ct.App.2010). 4 Such clauses offend the public policy of this state and will not be enforced.