Most people assume that the waiver they signed at the trampoline park, the gym, the ski hill, or the horse stable is the end of the conversation. Most defense letters assume the same thing. Both are usually wrong, and for a reason that has nothing to do with whether the waiver was fair, whether the injured person read it, or whether the activity was risky.
In Minnesota, the fight over an exculpatory clause is a reading exercise. Since the Minnesota Supreme Court decided Justice v. Marvel, LLC in September 2022, a release that gives up “any and all claims” — the broadest possible language a drafter can write — does not bar a negligence claim unless the document also says, clearly and unequivocally, that the business is being released for its own negligent conduct. Breadth is not specificity. A waiver can be so sweeping that it plainly includes negligence as a matter of logic and still fail, because Minnesota does not let a business establish a release of its own negligence by implication.
That is the counterintuitive part. The waivers most likely to fail in Minnesota are the ones that sound the most absolute.
Does signing a waiver mean I have no case?
No. It means the defense has an affirmative argument that has to survive four separate tests, any one of which can kill it:
- Strict construction. Does the document expressly release this defendant’s own negligence? (Justice v. Marvel.)
- Public policy. Was there a disparity in bargaining power, and is the defendant providing a public or essential service? (Schlobohm v. Spa Petite.)
- Statute. Does Minn. Stat. § 604.055 or an activity-specific statute void it? (Only for agreements signed on or after August 1, 2013.)
- Scope of conduct. Does the claim involve greater-than-ordinary negligence, which no consumer-service waiver can reach?
A waiver that clears all four is enforceable. Minnesota is not a state that voids these agreements as a class. But the number of Minnesota waivers actually drafted to clear test one is smaller than the industry seems to believe.
What Justice v. Marvel actually held
In February 2007, a seven-year-old boy attended a birthday party at an inflatable amusement play area operated by Marvel, LLC, doing business as Pump It Up Parties. His mother signed a waiver on her own behalf and on his. He fell from the top of an inflatable onto a carpet-covered concrete floor and suffered multiple skull fractures, a brain hemorrhage, a post-traumatic seizure, and a traumatic brain injury. After he turned 18, he sued on his own behalf, alleging Marvel was negligent for not padding the floor near the inflatables.
The waiver released Marvel “from and against any and all claims, injuries, liabilities or damages arising out of or related to our participation” in the programs and use of the play area and inflatable equipment. It also recited the “inherent risks” of the activity and said the signer assumed all such risks, “including those that may arise out of the negligence of other participants.”
The district court granted Marvel summary judgment. The court of appeals affirmed. The Minnesota Supreme Court reversed, and its syllabus states the rule:
An exculpatory clause, like an indemnity clause, is subject to strict construction, such that a provision that purportedly releases a company from “any and all claims” is not enforceable against a claim for negligence where the provision does not sufficiently express a clear and unequivocal intent to release the company from the company’s own negligence.
Three moves in that opinion matter to anyone litigating a waiver case in Minnesota.
First, the court imported the indemnity standard. Minnesota had long required that “[f]or an indemnity clause to pass strict construction, the contract must include an express provision that indemnifies the indemnitee for liability occasioned by its own negligence; such an obligation will not be found by implication” — the rule from Dewitt v. London Road Rental Center, Inc., 910 N.W.2d 412, 417 (Minn. 2018), as quoted in Justice. A footnote in Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 792 n.6 (Minn. 2005), had suggested indemnity clauses get “greater scrutiny” than exculpatory clauses. Justice rejected that distinction, reasoning that an exculpatory clause is if anything worse for the injured person: an indemnity agreement decides which of two parties pays, while “[a]n exculpatory clause completely bars recovery for an injured party.”
Second, ambiguity is not the trigger. This is the part practitioners miss. A defendant will argue that its release is unambiguous and therefore must be enforced as written. Justice forecloses that: strict construction here “does not require an initial determination that the provision is ambiguous,” because, as the court put it, “ambiguity cannot be the trigger for strict construction because an ambiguous provision, by definition, cannot also ‘clearly and unequivocally’ state the contracting parties’ intent.” The question is not what does this mean; it is does this meet the required standard of expression.
Third, no magic words are required — but the subject matter is. The court was explicit that it was “not demanding that parties use certain words.” The release does not have to contain the word “negligence.” What it has to do is “link the broad language to” the released party’s own acts or omissions. Marvel’s waiver mentioned negligence exactly once, and it was “the negligence of other participants.” As the court put it, “[t]he risk of other participants is a different type of risk than that of operator negligence.”
Compare the language that has worked. The Spa Petite release in Schlobohm covered “all acts of active or passive negligence on the part of such company.” The health-club release in Anderson v. McOskar Enterprises, 712 N.W.2d 796, 799 (Minn. App. 2006), covered “any act or omission, including negligence by [the company’s] representatives.” Both name the defendant’s own conduct. That is the whole difference.
So the first question in any Minnesota waiver case is narrow and mechanical: read the release and find the sentence that releases the defendant for the defendant’s own negligence. If there is no such sentence, the waiver does not bar the negligence claim, however broad it is.
Why over-drafting a waiver backfires
Minnesota has a statute that punishes waivers written too aggressively. Minn. Stat. § 604.055, subd. 1, provides:
An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.
The second paragraph of that subdivision then makes the offending portion severable from a release of ordinary negligence or of “risks that are inherent in a particular activity.” So the statute is not a total kill switch — a court can strike the over-broad reach and enforce what is left. But the practical effect on a case is real: the defense cannot use the waiver to insulate itself from a gross-negligence or recklessness theory, and a plaintiff who can plead facts amounting to more than ordinary negligence has a route past the document entirely.
Two limits on § 604.055 that decide cases:
- It applies only to agreements signed or accepted on or after August 1, 2013. That is not from the statute’s on-screen text; it is in the enacting session law, 2013 Minn. Laws ch. 118, § 1, which states that the section “is effective August 1, 2013, and applies to agreements signed or accepted on or after that date.” A 2011 gym membership is outside it. This is exactly why § 604.055 played no role in Justice, where the waiver was signed in 2007.
- It does not apply to claims against the state under Minn. Stat. § 3.736 or against a municipality under Minn. Stat. § 466.02. Minn. Stat. § 604.055, subd. 4. City rec programs, school district activities, and county facilities sit outside the statute, and those claims carry their own notice and immunity architecture.
Even before the statute, and independent of it, the common-law rule from Schlobohm is that an exculpatory clause “will not be enforced” if it “is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts.” 326 N.W.2d 920, 923 (Minn. 1982).
When is a waiver void as against public policy?
Schlobohm set the two-prong public-policy test that Minnesota still uses. Before enforcing an exculpatory clause a court examines “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).”
On prong one, Schlobohm is a warning to plaintiffs. A printed form offered on a take-it-or-leave-it basis is not enough. “There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.” Even a local scarcity of comparable facilities, the court said, “would not create such a disparity of bargaining power.”
Prong two is where cases are actually won. The inquiry is “whether it is the type generally thought suitable for public regulation,” and Schlobohm listed the recognized categories: “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Health clubs and gyms did not qualify — in 1982 “there [was] no statute regulating health clubs, gymnasiums or spas.”
Yang v. Voyagaire Houseboats shows how much work prong two can do. Ten people rented a houseboat on Crane Lake and were poisoned by carbon monoxide. The rental agreement’s exculpatory clause expressly covered injury “whether caused by negligence or defect,” so it survived the strict-construction problem that sank Marvel’s waiver. It lost anyway. The Supreme Court held that by furnishing sleeping accommodations to the public on rental houseboats, Voyagaire performed resort functions under Minn. Stat. § 157.15, subd. 11, and met the statutory definition of “innkeeper” — and “as a matter of public policy, Voyagaire cannot circumvent its duty to protect its guests by requiring the guests to sign a rental agreement containing an exculpatory clause that purports to release Voyagaire from liability for the resort’s negligence.”
The lesson for a plaintiff’s lawyer is to look past the label the business uses for itself. Voyagaire called its houseboats recreational equipment. The court called them “floating homes” and looked to what the operation actually did. Whether the defendant’s activity is licensed or regulated — and under which chapter — is often the most productive early discovery in a waiver case.
Can a parent sign away a child’s injury claim?
This is the question everyone asks about Justice v. Marvel, and the honest answer is that the Supreme Court did not decide it.
The court of appeals had held that “a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.” Justice v. Marvel, LLC, 965 N.W.2d 335, 342 (Minn. App. 2021). The Supreme Court reversed on the strict-construction ground and expressly declined to go further: “Because we hold that the waiver is unenforceable on this ground, we do not address the parties’ other arguments about enforceability or overbreadth.” So the court of appeals’ authority holding stands as published court of appeals precedent, unreviewed by the Supreme Court on that point.
Two statutes constrain it, however.
Minn. Stat. § 604.055, subd. 2 reaches parent-signed waivers directly. It defines “party” for purposes of the section to include “a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.” So for any consumer-service or recreational agreement signed on or after August 1, 2013, a parent’s signature cannot waive greater-than-ordinary negligence on a child’s behalf.
Minn. Stat. § 184B.20, subd. 5(b) goes further for one industry. For inflatable amusement equipment in commercial use, the statute is categorical:
A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.
That is not limited to greater-than-ordinary negligence. It voids the ordinary-negligence waiver too. The same section requires ASTM F 2374.07-compliant placement (subd. 3), a trained supervisor actively supervising in close proximity (subd. 4), liability insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate per year plus $5,000 medical payments coverage (subd. 5(a)), and registration with the commissioner of labor and industry (subd. 6). An operator out of compliance with the supervision or placement requirements has a negligence problem independent of the waiver. In Justice, § 184B.20 did not apply only because the waiver predated the statute and the legislature had not made it retroactive.
There is one more reason parent-signed waivers get litigated late: the child’s own limitations clock. Minn. Stat. § 541.15(a)(1) lists being “within the age of 18 years” as a disability that suspends the running of a limitations period, with the proviso that the period “except in the case of infancy, shall not be extended for more than five years, nor in any case for more than one year after the disability ceases.” Justice himself sued after turning 18, on his own behalf, more than a decade after the injury. How § 541.15 applies to a given claim depends on the underlying limitations period and the facts, and it is worth confirming before assuming a childhood injury is stale. Our overview of Minnesota civil limitations periods covers the base periods.
What a waiver never gets you
Even a perfectly drafted release leaves gaps:
- Greater-than-ordinary negligence in any consumer service or recreational activity, by statute, for agreements signed on or after August 1, 2013. Minn. Stat. § 604.055, subd. 1.
- Intentional, willful, or wanton acts, by common law. Schlobohm, 326 N.W.2d at 923.
- Non-signers. A waiver binds the person who signed it and, subject to the limits above, the minor named in it. In Yang, the district court determined that the other adult members of the vacationing party were not engaged in a joint enterprise with the renter and therefore were not bound by the clauses he signed — an issue the Supreme Court noted was not before it. In a group-activity injury, identify who actually signed what before conceding anything.
- Statutory duties. A release cannot rewrite a duty the legislature imposed. Compare Minn. Stat. § 337.02, which makes indemnification agreements in building and construction contracts unenforceable except in narrow circumstances.
Related exposure a waiver does not touch
Waiver defenses tend to arrive alongside other liability theories that run on different rules. If the injury happened on someone else’s land, Minnesota’s recreational land-use statute may matter more than any document. Falls on commercial property run through snow-and-ice premises liability, which has its own body of law about natural accumulation. Where alcohol was served, dram shop liability is statutory and carries a notice requirement that a waiver cannot touch. And in every case, comparative fault and the collateral source rule determine what a verdict is actually worth.
The practical checklist
If you are evaluating a Minnesota injury claim where a waiver was signed:
- Get the actual document, not a description of it. Signature page, date, and all terms.
- Date it. Before or after August 1, 2013? That decides whether § 604.055 is in play at all.
- Find the negligence sentence. Does it release this defendant’s own negligent acts or omissions, or only inherent risks and third-party conduct? If the latter, Justice controls.
- Identify the regulatory regime. Is the defendant licensed, registered, or regulated — as a resort, a lodging establishment, an inflatable operator, a health care provider? Regulation is evidence the service is “public or essential” under Schlobohm prong two.
- Plead the facts, not the label. A record supporting greater-than-ordinary negligence takes the waiver out of the case under § 604.055, subd. 1, regardless of how well it was drafted.
- Check who signed. Parent for child, one adult for a group, an employer for an employee — each raises a distinct question.
Madgett Law, LLC
Madgett Law, LLC represents injured people in Minnesota personal injury matters, including cases where a business is asserting a signed waiver or release as a defense. We read the document before we accept its consequences, and we litigate the enforceability question on the strict-construction, public-policy, and statutory grounds Minnesota law actually provides. If you were hurt and were told the waiver you signed ends the matter, we will tell you what the document does and does not do. Call 612-470-6529 or send us a message.
Sources: Minn. Stat. § 604.055, subd. 1 (consumer-service and recreational waivers of greater-than-ordinary negligence void and unenforceable; severability of the offending portion), subd. 2 (“party” includes a minor or another authorized to sign on the minor’s behalf), subd. 3 (other public-policy grounds preserved), subd. 4 (nonapplication to claims against the state under § 3.736 or a municipality under § 466.02); 2013 Minn. Laws ch. 118, § 1 (effective August 1, 2013, applying to agreements signed or accepted on or after that date). Minn. Stat. § 184B.20, subd. 3 (ASTM F 2374.07 placement), subd. 4 (trained supervisor in close proximity), subd. 5(a) (insurance limits), subd. 5(b) (waiver signed by or on behalf of a minor for owner negligence is void), subd. 6 (registration). Minn. Stat. § 541.15(a)(1) (infancy as a disability suspending a limitations period, and the proviso capping the extension). Minn. Stat. § 337.02 (indemnification agreements in building and construction contracts). Minn. Stat. § 157.15, subd. 11 (definition of “resort”), as applied in Yang. Justice v. Marvel, LLC, No. A20-1318 (Minn. Sept. 21, 2022) (syllabus and part A: exculpatory clauses subject to strict construction; “any and all claims” insufficient absent clear and unequivocal release of the released party’s own negligence; ambiguity not a prerequisite to strict construction; no magic words required; part B: waiver referring only to “negligence of other participants” insufficient; declining to reach the remaining enforceability arguments), quoting Dewitt v. London Rd. Rental Ctr., Inc., 910 N.W.2d 412, 417 (Minn. 2018), Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 792 n.6 (Minn. 2005), Justice v. Marvel, LLC, 965 N.W.2d 335, 342, 347 (Minn. App. 2021), and Anderson v. McOskar Enters., 712 N.W.2d 796, 799 (Minn. App. 2006). Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922–26 (Minn. 1982) (strict construction; nonenforcement where ambiguous in scope or purporting to release intentional, willful or wanton acts; two-prong public-policy test; adhesion analysis; categories of public or essential services). Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 788–93 (Minn. 2005) (exculpatory and indemnification clauses unenforceable on public-policy grounds where the operator functions as a resort and innkeeper; joint-enterprise ruling as to non-signing party members noted as not before the court). The Minnesota Supreme Court’s reporter citation for Justice v. Marvel could not be confirmed from a primary source and the case is cited by name, docket number, and filing date.
This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and it does not promise or imply any particular outcome. Every case turns on its own facts and the applicable law may change. Consult a lawyer about your specific situation.