Limitation of liability

A review of the various methods by which other states have dealt with exculpatory clauses and their refusal to enforce them convinces us that the best rule, and the simplest in application, is that exculpatory clauses affecting the public interest are invalid. That rule was set forth by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal.2d 92 , 32 Cal.Rptr. 33 , 383 P.2d 441 (1963). Six criteria were established to identify the kind of agreement in which an exculpatory clause is invalid as contrary to public policy.

The transaction before this court clearly meets the Tunkl criteria. The contract arises out of a private business transaction of the telephone company which in all other respects is regulated by the Public Service Commission in performing its services.

In Fleming Farms v. Dixie AG Supply, Inc., 631 So.2d 922 (Ala.1994), this Court stated that once the party seeking to enforce a limitation-of-liability clause makes a prima facie showing that the clause is not unconscionable, the burden shifts to the plaintiff to present substantial evidence to the contrary. This Court concluded in that case that the plaintiffs had failed to meet their burden and held, therefore, that the limitation-of-liability clause was not unconscionable.

Wadsworth argues that Fox Alarm did not meet its burden under Morgan v. South Central Bell Telephone Co., 466 So.2d 107 (Ala.1985), of showing that the limitation-of-liability clause is enforceable. Wadsworth's reliance on Morgan , however, is misplaced. In Morgan , this Court addressed exculpatory clauses and set out a six-part test for analyzing the validity of such clauses. 466 So.2d at 117 . An exculpatory clause "reliev[es] a party from liability resulting from a negligent or wrongful act." Black's Law Dictionary 608 (8th ed.2004). At issue in this case, however, is a limitation-of-liability clause, not an exculpatory clause. Thus, Wadsworth's reliance on Morgan is misplaced.

“... [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some member of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract or exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”

The liability of the Telephone Company, or of any person or firm soliciting advertising for it, on account of errors in or omissions of the advertising described on the reverse side, or advertising changes or deletions subsequently ordered by the applicant by telephone or otherwise, shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue, and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred.

We are satisfied that the plaintiffs did not have a meaningful choice relative to the inclusion of an exculpatory clause in the 1980 Bessemer contract and that the defendants had the bargaining power in a gross and unbalanced manner in determining the terms and conditions in the directory advertisement. Therefore, the exculpatory clause is unenforceable because, under the criteria above established, it is invalid as contrary to public policy. For the above stated reasons, we reverse the trial court’s judgment and remand the cause to that court for new trial.

We recently considered the issue of exculpatory clauses relative to the residential leases in Lloyd v. Service Corp. of Alabama, 453 So.2d 735 (Ala.1984). There we held that we would refuse to enforce exculpatory clauses in residential leases where not clearly bargained for and where the parties to the contract are not in an equal bargaining position. The burden of proof was placed on the party attempting to enforce the exculpatory clause. The instant case illustrates the need for a more comprehensive rule concerning exculpatory clauses.

The limitation-of-liability clause found in the contract states, in pertinent part: "It is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from the failure on the part of [Fox Alarm] to perform any of its obligations hereunder: therefore should [Fox Alarm] be found liable for loss, damage, or injury due to a failure of service or equipment in any respect, its liability shall be limited to a sum equal to the monitoring charge hereunder for a period of service not to exceed (6) months or $250.00 (whichever is greater) as agreed upon damages and not as a penalty, as the exclusive remedy: and the provisions of this paragraph shall apply if loss, damage or injury, irrespective of cause or origin, results directly or indirectly to person or property from the performance or obligator [sic] imposed by this Agreement.

Similarly, in this case, Fox Alarm made a prima facie showing that the limitation-of-liability clause is not ambiguous or unconscionable, and Wadsworth did not present evidence to refute that showing.

At trial, Wadsworth did not argue that the contract was ambiguous or unconscionable; he argued that Fox Alarm had not met its burden of proving that the limitation-of-liability clause was valid under Camelot Music, Inc. v. Marx Realty & Improvement Co., 514 So.2d 987, 990 (1987)(setting out the criteria for determining whether a limitation-of-liability clause is valid or is a penalty provision that is void as against public policy). This Court will not consider an argument raised for the first time on appeal.

Therefore, we hold that Fox Alarm did not preserve for appeal its arguments that it did not owe Wadsworth a duty and that, even if it did, the contract exculpated Fox Alarm.

We agree, and we hold that the limitation-of-liability clause found in the contract is enforceable and that the trial court erred when it refused to limit Fox Alarm's damages to $250 and twice overruled Fox Alarm's objections to the instruction on damages.

We affirm the judgment of the trial court as to Wadsworth's negligence claim. However, we hold that Wadsworth's contract with Fox Alarm limited Fox Alarm's liability to $250; therefore, we reverse the judgment insofar as it awarded Wadsworth $200,000 and remand this case to the trial court to limit the damages awarded to Wadsworth to $250.

NABERS, C.J., and HOUSTON, BROWN, and STUART, JJ., concur. LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur in part and dissent in part.

LYONS, Justice (concurring in part and dissenting in part). I concur in all aspects of the main opinion except insofar as it reverses the damages award entered by the trial court, holding "the trial court erred when it refused to limit Fox Alarm's damages to $250 and twice overruled Fox Alarm's objections to the instruction on damages." 913 So.2d 1077 (emphasis added). Fox Alarm never requested an instruction limiting its damages to $250. The main opinion concludes that Fox Alarm preserved for review the trial court's error in not enforcing the limitation-of-liability clause in the contract. However, the trial court's ruling was based on its erroneous conclusion as to the mootness of the question whether the clause applied. Fox Alarm never called the trial court's attention to the error of that conclusion.

Dixie Ag made a prima facie showing that the limitation of liability clause was not unconscionable; this showing shifted the burden to the plaintiffs to present substantial evidence to the contrary, so as to create a genuine issue of material fact. This they failed to do. Therefore, we must conclude that the limitation of liability clause was not unconscionable and, consequently, that it precludes the recovery of consequential damages. Therefore, the summary judgment was proper for Dixie Ag on the plaintiffs' claims alleging breach of express warranty.

Thus, as permitted by § 7-2-316 (4), and § 7-2-719 (3), Dixie Ag attempted to contractually limit the plaintiffs' remedies for breach of warranty.

The invoices/receipts accompanying the Super Shot 40, and received by the plaintiffs, contained the following language: "WARRANTY DISCLAIMER "SELLER IS A DISTRIBUTOR OF PRODUCTS MANUFACTURED AND WARRANTED BY OTHERS. THE GOODS SOLD TO YOU BY THIS INVOICE AND CONTRACT ARE FURNISHED 'AS IS' BY SELLER AND ARE SUBJECT ONLY TO THE MANUFACTURER'S WARRANTIES WHICH APPEAR ON THE LABELS OF THE PRODUCTS SOLD TO YOU. "SELLER MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. "LIMITATION OF LIABILITY "In no event shall seller be liable for special, incidental, or consequential damages, or for damages in the nature of penalties. "Seller shall not be liable to dealer or, by way of indemnification, to customers of dealers for any damages, sums of money, claims or demands whatsoever, resulting from or by reason of, or arising out of, the misuse, or the failure to follow label warnings or instructions for use, of the products sold by seller to dealer. Conflicts between seller's invoice or delivery ticket and dealer's purchase order regarding issues of liability shall be treated separately and the voidance of such provisions shall not affect the other terms or conditions on the invoice.

In Southland Farms, Inc. v. Ciba-Giegy Corp. , 575 So.2d 1077 (Ala. 1991), the United States Court of Appeals for the Eleventh Circuit certified to this Court a question asking whether, under Alabama law, a disclaimer of consequential damages in the sale of agricultural products was reasonable and precluded recovery of such damages. Southland Farms, a corporation engaged in growing and marketing potatoes, purchased a product designed to prevent nut grass and potato rot. After using the product on its potato fields, the corporation experienced damage to a portion of its crop caused by nut grass and potato rot. The product was sold with a label that contained instructions for use, a warranty disclaimer, and a limitation of liability clause. In upholding the limitation of liability clause excluding consequential damages, this Court, recognizing the public policy allowing a seller to limit the remedies available to a buyer, stated: "The Uniform Commercial Code recognizes the validity of a limitation or exclusion of consequential damages where the loss is commercial. [Quoting § 7-2-719 (3).] ". . . . "Where a provision excluding consequential damages is so widely used and accepted in a particular trade that it can be characterized as a 'usage of trade,' it has been found to be reasonable. Comment 6 to § 7-1-205 makes it clear that a contract clause resting on 'usage of trade,' while not immune from a charge of unconscionability, is prima facie 'reasonable' due to its broad-based commercial acceptance: " '6. The policy of this Act controlling explicit unconscionable contracts and clauses (Sections 7-1-203 , 7-2-302 ) applies to implicit clauses which rest on usage of trade and carries forward the policy underlying the ancient requirement that a custom or usage must be 'reasonable.' However, the emphasis is shifted. The very fact of commercial acceptance makes out a prima facie case that the usage is reasonable, and the burden is no longer on the usage to establish itself as being reasonable. But the anciently established policing of usage by the courts is continued to the extent necessary to cope with the situation arising if an unconscionable or dishonest practice should become standard.' " Agricultural chemicals are sold, on an industry-wide basis, subject to an exclusion of liability for consequential damages. . . . Clauses excluding consequential damages are permitted under the U.C.C. because they are an allocation of unknown or undeterminable risks. Comment 3, § 7-2-719 . ". . . . " . . . [A] consequential damages exclusion in the commercial context of the sale of agricultural chemicals is an accepted method of risk-shifting in the industry. " 575 So.2d at 1079-81 .

All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

For the reasons we hereinafter specify, we have concluded that an agreement between a hospital and an entering patient affects the public interest and that, in consequence, the exculpatory provision included within it must be invalid under Civil Code section 1668.

We conclude, consistent with dicta in California cases and with the vast majority of out-of-state cases and other authority, that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy. Applying that general rule in the case now before us, we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.

In light of the language and purpose of the statute, the policy discouraging willful tortious conduct, and the general agreement in case law that limits on liability and full releases are treated similarly, we hold that limitations on damages for willful injury to the person or property of another are invalid under section 1668.

Consistent with our precedent (and with the law of other jurisdictions), we conclude that an agreement to exculpate a party for future violations of a statutory duty designed to protect public safety is against the policy of the law under Civil Code section 1668 and is not enforceable.

We conclude that such a release is “against the policy of the law” under Civil Code section 1668 (section 1668) to the extent it purports to relieve the City of liability for negligently violating a statutory duty relating to public safety. We therefore reverse the judgment of the Court of Appeal.

The case before us does not involve a claim for future ordinary or gross negligence under the common law. The complaint instead asserts a negligent violation of the City’s statutory duty (see Gov. Code, § 835 et seq.) to maintain its streets in a reasonably safe condition for travel by the public.

The United States Court of Appeals for the Ninth Circuit asked us whether a contract clause that substantially limits damages for intentional wrongdoing is invalid under section 1668. We hold that a limitation on damages for willful injury to the person or property of another is invalid under section 1668.

No definition of the concept of public interest can be contained within the four corners of a formula. The concept, always the subject of great debate, has ranged over the whole course of the common law; rather than attempt to prescribe its nature, we can only designate the situations in which it has been applied. We can determine whether the instant contract does or does not manifest the characteristics which have been held to stamp a contract as one affected with a public interest. In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. 9 The party seeking exculpation is engaged *99 in performing a service of great importance to the public, 10 which is often a matter of practical necessity for some members of the public. 11 The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. 12 As a result of the essential nature of the *100 service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. 13 In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, 14 and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protec *101 tion against negligence. 15 Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, 16 subject to the risk of carelessness by the seller or his agents.

Because NECF suggests that section 1668 applies not only to willful tortious conduct but also to willful breaches of contract, a further clarification is warranted: Section 1668 does not preclude parties from limiting their liability for pure breaches of contract absent a violation of an independent duty that falls within the ambit of section 1668. Where the claims asserted are “nothing more than a breach of . . . contractual obligations,” section 1668 does not apply. (Food Safety, supra, 209 Cal.App.4th at p. 1125.) In such cases, releases are governed by contract principles such as unconscionability.

In assessing whether the release implicated the public interest, the trial court relied exclusively on the multifactor test we announced in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), which evaluated the validity of a release of common law negligence claims. The Court of Appeal affirmed. (Whitehead v. City of Oakland (2024) 99 Cal.App.5th 775 (Whitehead).) Like the trial court, it relied exclusively on Tunkl and Court of Appeal decisions applying the Tunkl framework to other common law negligence claims.

That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals.

In keeping with the well established principle, however, that “[t]he law does not favor contract provisions which relieve a person from his own negligence”; Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 413 , 446 A.2d 799 (1982); we conclude that the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.

We conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence.

We next address the issue we explicitly left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640 , namely, whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy. We conclude that it does and, accordingly, reverse the judgment of the trial court.

Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.

we conclude today that the agreement at issue in this case violates public policy, not solely because of the volume of public participation, but because: (1) the defendants invite the public generally to snowtube at their facility, regardless of snowtubing ability; (2) snowtubers are under the care and control of the defendants as a result of an economic transaction; (3) the defendants, not recreational snowtubers, have the knowledge, experience and authority to maintain the snowtubing runs in reasonably safe condition, to determine whether the snowtubing equipment is adequate and reasonably safe, and to guard against the negligence of its employees and agents; (4) the defendants are in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons; (5) if we were to uphold the present agreement under the facts of this case, the defendants would be permitted to obtain broad waivers of their liability and the incentive for them to maintain a reasonably safe snowtubing environment would be removed, with the public bearing the cost; (6) the agreement at issue is a standardized adhesion contract, offered to snowtubers on a “take it or leave it” basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee; and (7) the defendants had superior bargaining authority.

We clarify that our conclusion does not extend to the risks inherent in the activity of snowtubing.

Moreover, the agreement refers to the negligence of the defendants three times and uses capital letters to emphasize the term “negligence.” Accordingly, we conclude that an ordinary person of reasonable intelligence would understand that, by signing the *325 agreement, he or she was releasing the defendants from liability for their future negligence.

We conclude that the release signed by the plaintiff does not release the defendant from liability, or indemnify the defendant, for injuries resulting from its negligence. Accordingly, we reverse the judgment of the trial court.

Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a “take it or leave it” basis.

Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him the option of procuring protection against negligence at an additional reasonable cost.

We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances. For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because *336 it violates public policy.

This Court has previously recognized that a release of prospective negligence may be valid.3 Such a release must be “‘clear and unequivocal’ to insulate a party from liability . . . .”4

The Superior Court found that the Ketlers claim was barred by a signed release of liability. It determined that a release which allows a party to avoid liability for its own negligence is permissible under Delaware Law if the release is unambiguous, not unconscionable, and not against public policy. It further determined that the release satisfied all three criteria. On appeal, the Ketlers contend that the Superior Court erred because the release is ambiguous, unconscionable, and against public policy. We approve the Superior Court’s determinations and affirm.

Finally, the release must not violate public policy. The public policy of this state is typically determined by the Delaware General Assembly. No Delaware statute has been identified which bears on the validity of a release of prospective negligence.

It is still the law in Delaware that a contract provision waiving prospective negligence “must be crystal clear and unequivocal” to insulate a party from liability for possible future negligence.

(a) A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement (including but not limited to a contract or agreement with the State, any county, municipality or political subdivision of the State, or with any agency, commission, department, body or board of any of them, as well as any contract or agreement with a private party or entity) relative to the construction, alteration, repair or maintenance in the State of a road, highway, driveway, street, bridge or entrance or walkway of any type constructed thereon in the State, and building, structure, appurtenance or appliance in the State, including without limiting the generality of the foregoing, the moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee or indemnitee or others, or their agents, servants and employees, for damages arising from liability for bodily injury or death to persons or damage to property caused partially or solely by, or resulting partially or solely from, or arising partially or solely out of the negligence of such promisee or indemnitee or others than the promisor or indemnitor, or its subcontractors, agents, servants or employees, is against public policy and is void and unenforceable, even where such covenant, promise, agreement or understanding is crystal clear and unambiguous in obligating the promisor or indemnitor to indemnify or hold harmless the promisee or indemnitee from liability resulting from such promisee’s or indemnitee’s own negligence. This section shall apply to all phases of the preconstruction, construction, repairs and maintenance described in this subsection, and nothing in this section shall be construed to limit its application to preconstruction professionals such as designers, planners and architects; provided, however, that this section shall not apply to any obligation owed to the Department of Transportation pursuant to a contract awarded under Title 17 or Chapter 69 of Title 29.

(c) Subsection (a) of this section does not apply to any covenant, promise, agreement, understanding, or other provision in a partnership agreement of a partnership (whether general or limited), limited liability company agreement, trust agreement, governing instrument of a trust, certificate of incorporation or bylaw.

The release provision involved here expressly releases Planet Fitness from any liability for any injury resulting from the negligence of Planet Fitness, whether related to exercise or not. It expressly releases Planet Fitness from any and all claims or causes of action. The provision’s language is clear and unequivocal.

There is no deprivation of meaningful choice if a party can walk away from the contract.9 Here, DeShaun was free to accept the Planet Fitness membership or not. The Superior Court did not err in concluding that the release is not unconscionable.

The Ketlers argue that the release violates the public policy embodied in the principle that a property owner has a duty to make his property safe for business invitees. However, a general release by its nature releases a party from a potential liability otherwise imposed by law. The public policy involved must be one which disapproves of the release. For the foregoing reasons, the judgment of the Superior Court is AFFIRMED.

(b) Nothing in subsection (a) of this section shall be construed to void or render unenforceable policies of insurance issued by duly authorized insurance companies and insuring against losses or damages from any causes whatsoever.

CONCLUSION We AFFIRM the grant of summary judgment on the ground that the Release operates as a general release that bars both the tort and contract claims.

PER CURIAM. This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts.

For the foregoing reasons, we conclude that the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action. Accordingly, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). It is so ordered. LABARGA, C.J., and PERRY, J., concur. CANADY and POLSTON, JJ., concur in result. LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

Despite our conclusion, however, we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions.

Accordingly, our decision is merely a rejection of the Sanislos’ invitation to extend University Plaza, which applies to indemnity agreements, to exculpatory clauses.

(1) A design professional employed by a business entity or an agent of the business entity is not individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract if:(a) The contract is made between the business entity and a claimant or with another entity for the provision of professional services to the claimant; (b) The contract does not name as a party to the contract the individual employee or agent who will perform the professional services; (c) The contract includes a prominent statement, in uppercase font that is at least 5 point sizes larger than the rest of the text, that, pursuant to this section, an individual employee or agent may not be held individually liable for negligence; (d) The business entity maintains any professional liability insurance required under the contract; and (e) Any damages are solely economic in nature and the damages do not extend to personal injuries or property not subject to the contract.

(2) As used in this section, the term “business entity” means any corporation, limited liability company, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.

With respect to the possibility of contractual indemnity, we take note that contracts of indemnification which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964). Such contracts will be enforced only if they express an intent to indemnify against the indemnitee's own wrongful acts in clear and unequivocal terms. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973).

Regarding contracts that shift the risks of one’s own negligence to another contracting party, the general rule is to enforce exculpatory contracts “unless (1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.”

exculpatory clauses are not favored and must be strictly construed against the benefit-ting party, particularly one who drafted the release.

The court also concluded that when the parties adopt broad language in a release, it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to experienced participants. Even if the release in this case is strictly construed against the defendant, its terms are broad enough to cover the situation at issue here.

As the court stated, “[t]he parties may not have contemplated the precise occurrence which resulted in plaintiff’s accident, but this does not render the exculpatory clause inoperable.”

For the foregoing reasons, we reverse the judgment of the appellate court, and affirm the decision of the circuit court. Appellate court reversed; circuit court affirmed.

(a) Except as otherwise provided in subsection (b), every covenant, agreement, or understanding in or in connection with or collateral to any lease of real property, exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his or her agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.

(b) Subsection (a) does not apply to a provision in a non-residential lease that exempts the lessor from liability for property damage.

With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable.

In addition to finding no public policy that is offended by enforcing the exculpatory contract here, we see nothing in the relationship between the contracting parties that suggests that the exculpatory agreement should not be enforced. This is not a case where the plaintiff is in an unequal bargaining position. Again, Schlessman is instructive, for in that case it was stated, “[w]hile it is obvious that plaintiff would not have been allowed to use the racetrack had he not signed the release, plaintiff was under no economic or other compulsion to sign the release in order to engage in amateur auto racing.

Your signature below indicates that you have read the posted rules and will abide by them. Also, your signature shall release Ky-Wa Acres and employees of any liabilities you may incur while on the premises or for any injury which may result from horseback riding. If your signature is not reliable please do not sign or ride.

Although track owners and operators have a duty to provide safe premises, see Gibson v. Shelby County Fair Ass’n, 241 Iowa 1349, 1352 , 44 N.W.2d 362, 364 (1950), we have repeatedly held that contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy. See, e.g., Bashford v. Slater, 250 Iowa 857, 865 , 96 N.W.2d 904, 909 (1959) (injured racetrack flagman’s release enforceable).

If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Except as excluded under subsection 3, a provision in a construction contract that requires one party to the construction contract to indemnify, hold harmless, or defend any other party to the construction contract, including the indemnitee’s employees, consultants, agents, or others for whom the indemnitee is responsible, against liability, claims, damages, losses, or expenses, including attorney fees, to the extent caused by or resulting from the negligent act or omission of the indemnitee or of the indemnitee’s employees, consultants, agents, or others for whom the indemnitee is responsible, is void and unenforceable as contrary to public policy.

This section does not apply to the indemnification of a surety by a principal on any surety bond, an insurer’s obligation to its insureds under any insurance policy or agreement, a borrower’s obligations to its lender, or any obligation of strict liability otherwise imposed by law.

The district court granted all defendants summary judgment based on a release Dale signed.

The words “I have read this release” were printed in red above each signature line.

These same principles of autonomy apply to releases signed by only one spouse. One spouse’s signature on a release is not imputed to the other spouse any more than is one spouse’s negligent act.

Thus, a separate tort is committed when an actor’s conduct deprives a spouse of the right to consortium. We therefore reverse the district court’s grant of summary judgment to all defendants on Karen’s claim.

The form contains a lengthy list of released parties, but it nowhere men *58 tions either insurers or insurance brokers.

We affirm the district court’s grant of summary judgment in favor of Hovey, Nordic, and the fairgrounds board and agricultural association on Dale’s claim, but reverse summary judgment for these defendants on Karen’s con *59 sortium claim.

Dale also seeks to avoid the effect of the release on the ground he did not read it. It is well settled that failure to read a contract before signing it will not invalidate the contract. Small v. Ogden, 259 Iowa 1126, 1132 , 147 N.W.2d 18, 22 (1966). Absent fraud or mistake, ignorance of a written contract’s contents will not negate its effect.

By its terms, however, the release applies to anyone who, like Dale, enters a restricted area. It makes no distinction between spectators and participants. It clearly identifies the track’s owner, operator, and lessee, as well as race participants, as releasees. The release covers personal injuries, including injuries caused by the releasee’s own negligence.

Absent any proof the risk was unusual or exceptional, Dale must be bound by his release.

The Court of Appeals, without discussion of indemnification for one’s own negligence, affirmed the district court’s ruling, but for a different reason. 21 Kan. App. 2d at 92 . We reverse. We acknowledge that a party may contract away responsibility for its own negligence. See Corral v. Rollins Protective Services *329 Co., 240 Kan. 678, 680-81 , 732 P.2d 1260 (1987). However, an agreement seeking to protect a party from liability for its own negligence is subject to strict construction ánd will not be enforced unless the protection from liability is expressed in clear and unequivocal terms.

The language of the 1975 agreement does not qualify under Zenda, Butters , and Corral as an enforceable hold harmless agreement. The language is not expressed in terms clear and unequivocal enough to contract away KDOT’s own negligence.

An indemnification provision in a contract which requires the promisor to indemnify the promisee for the promisee's negligence or intentional acts or omissions is against public policy and is void and unenforceable.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any damages recovered, award reasonable attorney fees and a civil penalty under K.S.A. 50-636, and amendments thereto, to be paid by the supplier who gave the improper disclaimer.

A provision in a contract which requires a party to provide liability coverage to another party, as an additional insured, for such other party's own negligence or intentional acts or omissions is against public policy and is void and unenforceable.

"Contract" means any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement.

Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall: (1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability as defined in K.S.A. 84-2-314, and amendments thereto, and fitness for a particular purpose, as defined in K.S.A. 84-2-315, and amendments thereto; or (2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.

It is a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed thereto, and mere general broad and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.

Contracts for the exemption from liability for. negligence are not favored by the law and are strictly construed against the party relying on them. 20 Kan. App. 2d 728 , Syl. ¶ 2.

the County agreed to “save [KDOT] harmless from any and all costs, liabilities, expenses, damages, suits, judgements [sic] and claims of any nature whatsoever arising out of or in connection with the performance of any contract, ... or the construction or maintenance of any project, or of the acts of [KDOT], its authorized agents or employees, when acting under the provisions of this agreement and any contracts or agreements entered into in connection therewith.”

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.

However, consistent with our prior case law in Telegraph Co. v. Crall, 38 Kan. 679 , and the law of the majority of jurisdictions which have addressed the question, any attempt to *772 limit liability for greater than ordinary negligence is not reasonable and, is therefore, unenforceable.

Kansas does not recognize degrees of negligence and, thus, has no category for “gross negligence,” but draws a distinction between ordinary negligence and wanton conduct, which is defined as the reckless disregard for the rights of others with a total indifference to the consequences.

It is clear that the approved limits on liability in this case go too far and are inconsistent with Kansas law and public policy.

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Accordingly, and contrary to the lower courts’ holdings, the agreement’s prohibition against consequential damages is enforceable.

The district court cited two reasons for triggering Articles 2004 and 1997. Specifically, the district court cited “the two major breaches of the [agreement] by defendants (failure to lease the minimum acreage and failure to complete the [seismic] survey) were not the result of negligence, unforeseen events, or even a lack of ability. These were conscious and calculated business decisions.

An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform.

Apparently, this court has never stated what constitutes bad faith under La. C.C. art. 1997, so our review is guided by revision comment (b) to article 1997, which indicates that “[a]n obligor is in bad faith if he intentionally and maliciously fails to perform his obligation.” Thus, according to this comment, there are both intentional and malicious components to bad faith.

While not excusing Aspect Resources’ failure to perform its survey obligation, we do not find that failure was maliciously made.

The agreement’s prohibition against consequential damages is not, however, the all-encompassing shield from every amount of damages imposed by the lower courts, as Aspect Resources urges.

Because a complete survey was one of the benefits of a bargain, under which El Paso agreed to keep its mineral interests off the market for a year, damages for failure to conduct the survey cannot fairly be characterized as consequential. The $4,525,000 in damages awarded by the district court for the failure to conduct a complete seismic survey is consistent with the foreseeable results of Aspect Resources’ failure to complete the survey. Thus, this award was proper; however, because the parties have acknowledged that the written judgment contained a typographical error, we amend the judgment to reflect the amount of the award is $4,125,000.

We agree with the court of appeal, however, in pretermitting consideration of the merits of Olympia’s claims for attorneys’ fees. We find no error in the conclusion that Olympia did not properly raise this issue in the district court; and, like the court of appeal, we decline to reach this issue in the first instance in this court. AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND REMANDED TO THE COURT OF APPEAL.

Courts have traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language which allegedly exempts a party from liability for his own negligence.

The text of the executed documents falls far short of the requirement that releases absolving a defendant of liability for his own negligence must expressly spell out “with the greatest particularity” the intention of the parties contractually to extinguish negligence liability.

we have no occasion to reach the further issue whether contractual provisions which relieve a party from liability for that party’s own negligence would be unenforceable and void as contravening public policy.

This Court has held that a parent, or guardian, cannot release the child’s or ward’s, cause of action.

The entry is: Appeal denied. Judgment affirmed. McKUSICK, C. J., and DELAHANTY, J., did not sit.

Accordingly, a release must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.”

HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE [Wiscasset Raceway] FROM ALL LIABILITY [sic] ... FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY ... ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. *370 4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise. 6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releas-ees ... and is intended to be as broad and inclusive as is permitted by the laws

Even when strictly construed against Wiscasset Raceway, the Agreement “expressly spell[s] out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Doyle, 403 A.2d at 1207 (internal quotations omitted). In light of the plain language of the Agreement, the trial court did not err in concluding that the Agreement barred Brent’s negligence claim.

Each claim is independent of the other and the pre- or post-injury release of one spouse’s claim does not bar the other spouse’s claim. A consortium claim is an independent cause ■ of action, and, therefore, the trial court committed no error in ruling that the Agreement failed to bar Carie’s consortium claim. 6 The entry is: Judgment affirmed.

In order for the releases signed by Lloyd to absolve Sugarloaf and NORBA of their own negligence, they must "expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability." Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 (Me.1979) (internal quotation marks omitted). We strictly construe such releases against the party seeking immunity from liability.

We conclude that the membership release, with its express reference to negligence, sufficiently spells out the parties' intent to extinguish the negligence liability of NORBA and Sugarloaf.

The provisions of subsections (2) , (3) and (4) do not apply to sales of consumer goods or services. Any language, oral or written, used by a seller or manufacturer of consumer goods and services that attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer's remedies for breach of those warranties is unenforceable.

A seller or manufacturer of a motor vehicle may indicate that, to the extent permitted by law, the seller or manufacturer is excluding or modifying implied warranties. Any language, oral or written, used by a prior seller or manufacturer of consumer goods and services that attempts to exclude or modify the warranty or reimbursement remedy of a retail seller of consumer goods and services who provides reimbursement or return to a consumer as required to honor an implied warranty of merchantability due to a defect for which that prior seller or manufacturer is liable under section 2‑314 or 2‑315 is unenforceable. Consumer goods and services are those new or used goods and services, including mobile homes, that are used or bought primarily for personal, family or household purposes.

I fully understand that Bowdoin College, its employees or servants will accept no responsibility for or on account of any injury or damage sustained by Brian arising out of the activities of the said THE CLINIC.

When considering exculpatory clauses contained in construction contracts and commercial leases, we have held that parties to a contract may, without violation of public policy, protect themselves against liability *923 resulting from their own negligence.

Even though we have recognized the validity of exculpatory clauses in certain circumstances, they are not favored in the law. A clause exonerating a party from liability will be strictly construed against the benefited party. If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.

An examination of the cases demonstrates the emergence of a two-prong test used by the courts in analyzing the policy considerations. Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (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) North Star Center, Inc. v. Sibley Bowl, Inc., 295 Minn. 424, 426 , 205 N.W.2d 331, 333 (1973) (per curiam), [5] and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).

Even though a contract is on a printed form and offered on a "take it or leave it" basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation *925 and that the services could not be obtained elsewhere.

An exculpatory clause is unenforceable if it is ambiguous in scope, purports to release the benefited party from liability for intentional, willful or wanton acts; or contravenes public policy.

In determining whether an exculpatory clause violates public policy, we consider (1) whether there was a disparity in bargaining power between the parties and (2) the types of services being offered or provided, taking into consideration whether they are public or essential services.

In examining whether the type of service being offered is a public or essential service, the courts consider whether it is the type generally thought suitable for public regulation. Types of services thought to be subject to public regulation have included common carriers, [11] hospitals and doctors, [12] public utilities, [13] innkeepers, [14] public warehousemen, employers [15] and services involving extra-hazardous activities. [16] In Minnesota there is no statute regulating health clubs, gymnasiums or spas. The business of Spa Petite is not the type generally thought suitable for public regulation.

Consequently, we conclude that the services offered by Voya-gaire — including the rental of houseboats — qualify Voyagaire as a “resort” subject to regulation under Chapter 157 of Minnesota Statutes. As a resort offering sleeping accommodations to the public in its lodge rooms as well as on its houseboats, Voyagaire meets the statutory definition of an “innkeeper” in Minn.Stat. § 327.70, subds. 3-4. Therefore, it is appropriate to treat Voyagaire as an innkeeper providing a public service in determining the enforceability of the exculpatory clause in the houseboat rental agreement.

We conclude that 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. See 2 J.D. Lee & Barry A. Lindahl, Modern Tort Laiv: Liability & Litigation § 22:10 (2d ed.2002) (noting that “[a]t common law, a hotel or innkeeper could not contract away liability for negligence” because “[t]he innkeeper was bound by a public or quasi-public duty”). Therefore, we conclude that the exculpatory clause in the houseboat rental agreement is contrary to public policy and is not enforceable.

Accordingly, we reverse and hold that the exculpatory clause in Spa Petite's membership contract was unambiguous and limited to exoneration from negligence; that there was not disparity of bargaining power; and that the clause was not void as against public policy.

We conclude that the dispositive factor in determining the enforceability of the exculpatory clause here is the type of service that Voyagaire offers.

Except as provided in 27-1-753 , all contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person's own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

Contract terms that violate § 28-2-702, MCA, are unenforceable. Miller v. Fallon Cnty., 222 Mont. 214, 222, 721 P.2d 342, 347 (1986). Section 28-2-702, MCA, provides: All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law. ¶15 This Court first interpreted § 28-2-702, MCA, in Miller.

That is not lawful which is: (1) contrary to an express provision of law; (2) contrary to the policy of express law, though not expressly prohibited; or (3) otherwise contrary to good morals.

The District Court ruled that although § 28-2-702, MCA, precluded the Defendants from being indemnified for their own negligence, the indemnity agreement was enforceable as applied to the negligent acts or omissions of the Plaintiffs and allowed the Defendants to enforce their claim for indemnity at the same time they claim the right to reduction in the Plaintiffs' award based on contributory negligence.

The “public policy” statute addressed by Safeco, § 28-2-702, MCA, which it claims forbids the contractual indemnification of an individual for illegal or criminal acts, has no application whatsoever to the case at bar.

This section does not prohibit a written waiver or release entered into prior to engaging in a sport or recreational opportunity for damages or injuries resulting from conduct that constitutes ordinary negligence or for risks that are inherent in the sport or recreational opportunity.

Any waiver or release for a sport or recreational opportunity must: (i) state known inherent risks of the sport or recreational opportunity; and (ii) contain the following statement in bold typeface: By signing this document you may be waiving your legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages you may suffer due to the provider's ordinary negligence that are the result of the provider's failure to exercise reasonable care.

Any waiver or release for a sport or recreational opportunity may still be challenged on any legal grounds. (e) Any waiver or release for a sport or recreational opportunity executed in compliance with this section is not prohibited by or subject to the provisions of 28-2-702 .

Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away.

Both exculpatory and indemnity clauses must make clear the effect of the agreement. And such a clause is strictly construed against the party claiming its benefit.

Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy.

Public policy prevents a party from limiting its damages for gross negligence or willful and wanton misconduct.

Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.

Further, the services offered by the university were not a public or essential service.

We agree with the New York court that public policy with regard to gross negligence and willful and wanton misconduct applies both to clauses attempting to exculpate liability and clauses attempting to limit damages to a nominal sum.

We therefore hold that this limitation-of-damages clause does not create an enforceable limitation on Wells Fargo’s liability for an action based upon gross negligence or willful and wanton misconduct

The exculpatory clause makes no mention of gross negligence or willful and wanton misconduct on the part of Wells Fargo. Therefore, gross negligence and willful and wanton misconduct were not contemplated by the parties.

Even if the exculpatory clause could be construed to include gross negligence and willful and wanton misconduct, public policy prohibits such an exclusion.

Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.

The greater the threat to the general safety of the community, the greater the restriction on the party’s freedom to contractually limit the party’s liability.

this limitation on damages is unqualified, limiting all damages of whatever cause, including those that *65 accrue due to Wells Fargo’s gross negligence or willful and wanton misconduct.

We conclude that the district court correctly determined that contractual waivers of subrogation are effective to bar gross negligence claims.

We decline, however, to extend our discussion in New Light Co. to this case involving a contractual waiver of subrogation.

a contractual provision should not be declared void as contrary to public policy unless it is clearly and unmistakably repugnant to the public interest

On balance, based on the facts and circumstances of the contract and the parties involved, [26] we conclude that enforcement of subparagraph 11.4.1.3 is not contrary to public policy.

In Bedrosky , we did not specifically address the issue of gross negligence or willful and wanton misconduct, and we do not now interpret Bedrosky to be a blanket approval of exculpatory clauses in all factual situations.

The Court of Appeals’ application of Bedrosky would have been correct if this case had involved exculpation from ordinary negligence.

It is important to note at this juncture that the student and his mother’s claim is limited to ordinary negligence. We need not address the release’s enforceability if the student and his mother had alleged gross negligence.

If the property insurance requires deductibles, [Hearst] shall pay costs not covered because of such deductibles.

Hearst continued to press its claim for $250,000 in alleged damages that had not been covered by insurance, because of its insurance policy deductible.

And had the terms of the contract been followed to the letter, none of the alleged damages would have been uninsured.

The Owner and Contractor waive all rights against . . . each other and any of their subcontractors . . . for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Paragraph 11.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary.

Unless otherwise provided, the Owner shall purchase and maintain . . . property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles.

The contract between Hearst and Entrex was an American Institute of Architects (AIA) standard form of agreement, document A101-1997.

For example, a contractual agreement to dig a ditch does not have the same public policy considerations as would the installation of a fire alarm system *64 in a school, hospital, nursing home, restaurant, or other heavily occupied building.

The plaintiffs made no allegations of gross negligence or willful and wanton misconduct.

With respect to its agreement and its limitation of liability to the persons who use its facility and exercise equipment for the unique purpose of the business, we hold that it is not contrary to the public interest, or to a legal duty owed, to enforce Powerhouse's agreement limiting its liability for injuries sustained as a matter of negligence that result from a patron's voluntary use of equipment and participation in instructed activity. As a result, we find the exculpatory agreement between Powerhouse and Stelluti enforceable as to the injury Stelluti sustained when riding the spin bike. V. For the foregoing reasons, we affirm the judgment of the Appellate Division that sustained the award of summary judgment to defendant.

In sum, although the terms of the agreement were presented "as is" to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Thus, had Powerhouse's management or employees been aware of a piece of defective exercise equipment and failed to remedy the condition or to warn adequately of the dangerous condition, or if it had dangerously or improperly maintained equipment, Powerhouse could not exculpate itself from such reckless or gross negligence. That showing was not made on this record.

The Appellate Division identified four considerations, pertinent to the enforcement of an exculpatory agreement, when rendering its decision in Gershon . The Gershon court said that an exculpatory agreement will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable. [ Gershon, supra, 368 N.J.Super. at 248 , 845 A. 2d 720 (citations omitted).]

The Gershon test, used by the panel below, captures the essential features to be explored when considering whether enforcement of an exculpatory agreement would be contrary to public policy.

An agreement containing a pre-injury release from liability for intentional or reckless conduct also is plainly inconsistent with public policy. See Hojnowski, supra, 187 N.J. at 333 , 901 A. 2d 381 .

Our Court previously expressed a similar disfavor for such *689 agreements and applied careful scrutiny to the interests involved. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 , 901 A. 2d 381 (2006) (holding unenforceable parent's execution of exculpatory agreement on behalf of child).

The issue of general public importance in this appeal, see R. 2:12-4, concerns the enforceability of an exculpatory agreement executed in a commercial setting involving membership in an exercise facility, where the exculpation brought about by the agreement does not implicate the violation of any statutory or regulatory legal duty owed by the facility.

Exculpatory agreements that attempt to release liability for statutorily imposed duties have been held invalid. See, e.g., McCarthy, supra, 48 N.J. at 543, 226 A. 2d 713 (holding exculpatory clause limiting liability arising out of car racing unenforceable due to statute regulating field and its expressed public policy in protecting participants and spectators). When the subject of an exculpatory agreement is not governed by statute, we also have considered common law duties in weighing relevant public policy considerations. See Hojnowski, supra, 187 N.J. at 335 , 901 A. 2d 381 .

Specifically, we hold such business owners to a standard of care congruent with the nature of their business, which is to make available the specialized equipment and facility to their invitees who are there to exercise, train, and to push their physical limits. That is, we impose a duty not to engage in reckless or gross negligence.

Such a provision, not uncommon in construction contracts, especially when entered into at arm’s length by sophisticated contracting parties, in this case between a large contractor and a large city, are enforceable.

But an exculpatory agreement, no matter how flat and unqualified its terms, will not exonerate a party from liability under all circumstances. Under announced public policy, it will not apply to exemption of willful or grossly *385 negligent acts

More pointedly, an exculpatory clause is unenforceable when, in contravention of acceptable notions of morality, the misconduct for which it would grant immunity smacks of intentional wrongdoing.

In excepting willful acts from defendant’s general immunity from liability for consequential damages under section 7 of the Agreement, we think the parties intended to narrowly exclude from protection truly culpable, harmful conduct, not merely intentional nonperformance of the Agreement motivated by financial self-interest.

It was at this point, according to plaintiff’s proof, that defendant demanded an upward adjustment of the contract ceiling for enhancements, failing which it announced it would withdraw from the project.

When plaintiff refused defendant’s demand, defendant discontinued further performance. Plaintiff then commenced this action, seeking a refund of the sums it paid defendant plus general and consequential damages.

On appeal, the Appellate Division modified on the law, reducing damages to the $204,000 plaintiff paid defendant for its partial performance, plus interest, costs and disbursements ( 192 AD2d 83 ). The Court interpreted the willful act exception to the limitation of liability provision in the contract as requiring acts constituting the commission of a tort. It found, as a matter of law, that the proof did not establish any such tortious conduct, but merely an intentional abandonment which was held insufficient to invoke the exception.

This can be explicit, as when it is fraudulent, malicious 4 or prompted by the sinister intention of one acting in bad faith. 5 Or, when, as in gross negligence, it betokens a reckless indifference to the rights of others, it may be implicit (Matter of Karp v Hults, 12 AD2d 718 , affd 9 NY2d 857 ). In either event, the policy which condemns such conduct is so firm that even when, in the context of the circumstances surrounding the framing of a particular exculpatory clause, it is determined, as it was by one of the interrogatories here, that the conduct sought to be exculpated was within the contemplation of the parties, it will be unenforceable

Under the interpretation tool of ejusdem generis applicable to contracts as well as statutes, the phrase "willful acts” should be interpreted here as referring to conduct similar in nature to the "intentional misrepresentation” and "gross negligence” with which it was joined as exceptions to defendant’s general immunity from liability for consequential damages

The exculpatory clause, article 13 of the contract, reads as follows: “The Contractor agrees to make no claim for damages for delay in the performance of this contract occasioned by any act or omission to act of the City or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein”.

By attributing all of this to the misconduct of the city, even absent any evidence of malice, Kalisch’s proof, if credited, would have to establish that the city’s conduct amounted to gross negligence. 6 *386 To support such a conclusion, however, the jury would have to find more than “active interference”, which, incidentally, was not a contract term. 7 For whether conduct is “active” or “passive” does not determine wrongdoing, and “interference”, which most commonly translates as “intervention” (Webster’s International Dictionary [2d ed, 1950], at p 1294), does not connote willfulness, maliciousness, abandonment, 8 bad faith or other theories through which runs the common thread of intent. So, taken at face value by the jury, the charge was calculated to expose the city to liability for conduct within the umbrella of the exculpatory clause.

Accordingly, although the request to charge perhaps could have been more precisely put, the city, at the very least, was entitled to the amplifying instruction that unless Kalisch-Jarcho proved that “the City acted in bad faith and with deliberate intent delayed the plaintiff in the performance of its obligation”, the plaintiff could not recover.

For all these reasons, the order of the Appellate Division should be reversed, with costs, and a new trial granted.

The Agreement contained a broad limitation of liability clause. Section 7 provided that "[i]n no event shall [plaintiff] be liable for any lost profits, lost savings or other consequential damages, even if [plaintiff] has been advised of the possibility of or could have foreseen such damages”. Defendant was similarly absolved from liability for "loss of profit, loss of business, or other financial loss * * * resulting from * * * [defendant’s] performance or non-performance” but an exception to this limitation was provided "for intentional misrepresentations, or damages arising out of [defendant’s] willful acts or gross negligence” (emphasis supplied).

The issue here is not how we and other courts have construed "willful” in other contexts, such as in interpreting statutes using that term or in formulating or applying legal principles in tort or contract law. Rather, the issue is what the parties intended by "willful acts” as an exception to their contractual provision limiting defendant’s liability for consequential damages arising from its "non-performance under this agreement”. Thus, to the extent that the Appellate Division opinion holds that tort law principles apply in all cases in which the word willful is at issue or thereby limits the legal meaning of the word, we do not agree. However, because the law of contracts as pertinent and applied to this contractual dispute leads us to the same result, we now affirm.

We, therefore, conclude that the term willful acts as used in this contract was intended by the parties to subsume conduct which is tortious in nature, i.e., wrongful conduct in which defendant willfully intends to inflict harm on plaintiff at least in part through the means of breaching the contract between the parties. As thus defined, limiting defendant’s liability for consequential damages to injuries to plaintiff caused by intentional misrepresentations, willful acts and gross negligence does not offend public policy. As we said in Sommer v Federal Signal Corp. ( 79 NY2d 540 ) the conduct necessary "to pierce an *439 agreed-upon limitation of liability in a commercial contract, must 'smack[ ] of intentional wrongdoing’ ” (id., at 554 [quoting Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 385 ] [emphasis supplied]

Finally, we conclude that plaintiffs proof was insufficient as a matter of law to establish that defendant willfully intended to inflict harm on plaintiff through its abandonment of the contract. Apart from evidence of alleged misconduct by defendant during the course of its performance of the contract, totally irrelevant to the subsequent withdrawal from the project, the proof, as plaintiff has indeed stressed, was that defendant’s repudiation of the Agreement was motivated exclusively by its own economic self-interest in divesting itself of a highly unprofitable business undertaking in order to promote the sale of its computer software division to a competitor company.

Consequential damages resulting from that kind of contract nonperformance constitute a risk which plaintiff assumed under section 7 of the parties’ Agreement. Accordingly, the order of the Appellate Division should be affirmed, with costs.

the majority rule, to which we adhere, is that, subject to certain limitations hereinafter discussed, a person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty arising out of a contractual relation.

Any provision in a contract requiring a party to the contract to waive his right to a jury trial is unconscionable as a matter of law and the provision shall be unenforceable. This section does not prohibit parties from entering into agreements to arbitrate or engage in other forms of alternative dispute resolution.

Provisions in, or in connection with, a construction agreement or design professional agreement purporting to require a promisor to indemnify or hold harmless the promisee, the promisee's independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence, in whole or in part, of the promisee, its independent contractors, agents, employees, or indemnitees, is against public policy, void and unenforceable. Nothing contained in this subsection shall prevent or prohibit a contract, promise or agreement whereby a promisor shall indemnify or hold harmless any promisee or the promisee's independent contractors, agents, employees or indemnitees against liability for damages resulting from the sole negligence of the promisor, its agents or employees.

This section shall not affect an insurance contract, workers' compensation, or any other agreement issued by an insurer. This section shall not apply to lien or bond claims asserted under Chapter 44A of the General Statutes.

(f) For purposes of this section, the following definitions shall apply: (1) Construction agreement. - Any promise or agreement in, or in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, or appliance, including moving, demolition, and excavating connected therewith.

The plaintiff’s appeal presents this question for decision: Do the agreements signed by the plaintiff exempt the defendant from liability for the negligence alleged in the complaint? While contracts exempting persons from liability for negligence are not favored by the law, and are strictly construed against those relying thereon (Hill v. Freight Carriers Corp., 235 N.C. 705 , 71 S.E. 2d 133 )

The general rule rests on the broad policy of the law which accords to contracting parties freedom to bind themselves as they see fit, subject, however, to the qualification that contractual provisions violative *710 of the law or contrary to some rule of public policy are void and unenforceable.

Under application of the foregoing qualification, “the courts are in complete accord in holding that a public service corporation or a public utility cannot contract against its negligence in the regular course of its business or in performing one of its duties of public service. The limitation is likewise uniformly applied to certain relationships such as that of master and servant.” Insurance Asso. v. Parker, 234 N.C. 20, 22 , 65 S.E. 2d 341, 342 .

Also, by the weight of authority the general limitation on the contractual right to bargain against liability for negligence embraces the principle “that a party cannot protect himself by contract against liability for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where public interest requires the performance of a private duty.” Insurance Asso. v. Parker, supra.

The test of relative bargaining power as a relevant factor in determining exemption is recognized in our recent decision in Insurance Asso. v. Parker, supra ( 234 N.C. 20 ). It is there said in the first paragraph of the opinion: “A provision in a contract seeking to relieve a party to the contract from liability for his own negligence may or may not be enforceable. It depends upon the nature and the subject matter of the contract, the relation of the parties, the presence or absence of equality of bargaining power and the attendant circumstances.”

A comprehensive monograph on the subject at hand appears in 175 A.L.R., p. 1 et seq. This treatise, based on a collation of numerous decided cases from many jurisdictions, discloses that the trend of modern decision is toward placing further limitations on the general rule which allows contractual exemption from liability for negligence. This trend of decision derives from a liberalization of the judicial concept of what constitutes sound public policy.

Also, closely related to the public policy test of determining the validity of these exemption clauses is the factor, applied in some decisions, of giving consideration to the comparable positions which the contracting parties occupy in regard to their bargaining strength, i.e., whether one of the parties has unequal bargaining power so that he must either accept what is offered or forego the advantages of the contractual relation in a situation where it is necessary for him to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere. 12 Am. Jur., Contracts, Sec. 183; Annotation: 175 A.L.R. 1, at p. 16 . See also Williston on Contracts (Revised Edition), Sec. 1751C.

The plaintiff makes no claim that the contract was executed by mistake or induced by fraud or oppression, nor do the plaintiff’s allegations raise the question of unequal bargaining power between the parties. He has failed to bring himself within any of the récognized limitations upon the rule which permits exemption from liability for negligence.

In the case at hand we have contractual provisions by which the plaintiff in clear, unambiguous language contracted to (1) maintain the *711 tank and pumping equipment in good condition and repair, and (2) “indemnify and save harmless” the defendant from any loss or damage caused by any “leakage” resulting from the installation or use of the same, whether due to negligence or otherwise.

On the contrary, it is manifest that the plaintiff has effectively bargained against liability for all the elements of damage which he alleges in his original complaint were caused by the defendant. The contracts, incorporated in the complaint by amendment, have neutralized the allegations of the original complaint and put to naught the cause of action asserted therein. See Lindley v. Yeatman, 242 N.C. 145 , 87 S.E. 2d 5 . Such variance or defect may be raised by demurrer. Sabine v. Gill, Comr. of Revenue, 229 N.C. 599 , top p. 603, 51 S.E. 2d 1 , top p. 3; Laurel Cliffs Mfg. cfc Distributing Co. v. Pritchard, 255 Ky. 762 , 75 S.W. 2d 491 . The judgment below dismissing the action will be upheld. It is so ordered. See Lindley v. Yeatman, supra; Dillingham v. Kligerman, 235 N.C. 298 , 69 S.E. 2d 500 ; Lassiter v. Adams, 196 N.C. 711 , 146 S.E. 808 ; McIntosh, North Carolina Practice and Procedure, p. 447. Affirmed.

All contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for that person's own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

The California courts' interpretation is consistent with the plain language of N.D.C.C. § 9-08-02 that "[a]ll contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for that person's ... violation of law, whether willful or negligent, are against the policy of the law." The California courts' interpretation provides persuasive authority for construing the language of N.D.C.C. § 9-08-02. We conclude that a contractual provision purporting to exempt anyone from responsibility for a willful or negligent violation of statutory or regulatory law is against the policy of law and not enforceable.

We further conclude the provision in the parties' lease waiving any claims against the other for any loss or damage to the leased premises or property therein is unenforceable to the extent it exempts B&B Hot Oil from responsibility for a willful or negligent violation of law.

the plain language of N.D.C.C. § 9-08-02 applies to "violation of law, whether willful or negligent," and is not limited to an intentional or willful violation of law.

The source note for N.D.C.C. § 9-08-02, N.D.C.C., states it is derived from Cal. Civ. Code § 1668 . Because of that common derivation, California decisions construing Cal. Civ. Code § 1668 , while not binding, are entitled to respectful consideration and may be persuasive and should not be ignored.

Here, Forster/Krebs' crossclaim alleged B&B Hot Oil improperly stored the hot oil truck inside the leased building in violation of applicable code requirements. Forster/Krebs argue the explosion was caused by the improper storing of the "knockoff" truck in the leased building and the improper construction of the "knockoff" truck without a failsafe control valve to shut off the flow of propane if the manual control valve failed to close. [¶36] Section 18-09-02, N.D.C.C., authorizes the state fire marshal to adopt rules for the regulation of liquefied petroleum gas, which includes propane. See N.D.C.C. § 18-09-01. Fire prevention regulations in N.D. Admin. Code § 10-07-01-04 for the storage and handling of liquefied petroleum gases incorporate the national fire protection standards.

We have said " 'the law does not favor contracts exonerating parties from liability for their conduct.' " Hillerson v. Bismarck Pub. Schs. , 2013 ND 193 , ¶ 11, 840 N.W.2d 65 (quoting Kondrad v. Bismarck Park Dist. , 2003 ND 4 , ¶ 6, 655 N.W.2d 411 ). We have previously discussed the "fraud or willful injury" language of N.D.C.C. § 9-08-02, but we have not heretofore considered the "violation of law, whether willful or negligent" language in that statute.

When the language of the lease is read as a whole, we conclude the district court correctly construed paragraph 10 as a waiver of any and all claims by Forster/Krebs

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

The parties in the case before us are commercial enterprises of sufficient size and quality as to presumably possess a high degree of sophistication in matters of contract. They all provide services to the general public as their means of producing income and customarily rely on contracts. Each has the financial power to provide against loss by insurance or other means.

However, we have just determined that appellees are not entitled to summary judgment on the basis of the Exhibit A release because a question of material fact remains in dispute as to whether Bowen properly executed the release.

Thus, while clauses limiting the liability of the drafter are ordinarily to be strictly construed, we need not do so when- such burden of indemnification was assented to in a context of free and understanding negotiation.

Appellants also contend that the Exhibit A release does not preclude them from recovering against appellees for willful or wanton misconduct.

It has generally been held that a participant in a stock-car race and the proprietor of such activity are free to contract in such a manner so as to relieve the proprietor of responsibility to the participant for the proprietor’s negligence, but not for the proprietor’s willful or wanton misconduct.

We find that the Exhibit A release, if properly executed, could only relieve appellees of liability to Bowen for negligence, but not for appellees’ willful or wanton misconduct. Viewing the evidence in a light most favorable to appellants, we believe that reasonable minds can reach differing conclusions as to whether appellees’ failure to timely stop the race, in clear violation of the rules of the event, was either negligent or willful and wanton. Therefore, appellees were not entitled to summary judgment on the basis of the Exhibit A release.

Often one party to a contract, being in a position to impose terms upon the other with no realistic opportunity to bargain afforded, would include those standardized clauses in the contract as would unreasonably impose upon the non-bargaining party burdens which were wholly inequitable. With such contracts of adhesion in hand, the drafting party invariably asserted, “the indemnity or the exculpation, so that the policies supporting the rule of ‘contra proferentem’ [against the proffering party], * * * caused the courts to apply the rule.” Corbin on Contracts (1984 Supp., Part 2) 624, Section 1472(E).

There is also authority for the proposition that the word “negligence” need not be utilized where an intention to exclude liability predicated upon such is set *48 forth by words excluding liability “for any and all harms however caused.” Corbin on Contracts, supra, at 604, Section 1472; Restatement of Contracts, supra, at 1079-1081, Sections 574 and 575.

We conclude that both the trial court and the Court of Appeals erred. Oregon law establishes that “a presump- tion will be indulged against an intention to contract for immunity from the consequence of one’s own negligence.” Waterway Terminals v. P.S. Lord, 242 Or 1, 19, 406 P2d 556 (1965). In considering whether that presumption has been overcome, “a contract will not be construed to provide immu- nity from the consequences of a party’s own negligence unless that intention is clearly and unequivocally expressed.”

Generic text that purports to waive all liability, or any loss, will typically be insufficiently specific to overcome the presumption against the waiver of tort liability.

We adhere to our statement in Estey that no magic words are, per se, required. However, to overcome the strong presumption against waiver of tort liability, the contract must make explicit that the liability being waived is out- side of liability arising under contract.

The dis-positive issue is whether a clause in the parties’ contract limiting defendants’ liability “to the Contract Sum” applies to plaintiffs negligence claim. We hold that the clause does not limit defendants’ liability for negligence.

We decline to hold that the word “negligence” must expressly appear in order for an exculpatory or limitation of liability clause to be effective against a negligence claim.

However, in view of the actual language of the limitation of liability clause in this case, as well as the circumstances of the parties’ contractual relationship, we are unable to conclude that the clause clearly and unequivocally expresses an intent to limit defendants’ liability for the consequences of their own negligence to the contract sum.

Because the factors favoring enforcement of the release are outweighed by the countervailing considerations that we have identified, we conclude that enforcement of the release at issue in this case would be unconscionable.21 And, because the release is unenforceable, genuine issues of fact exist that preclude summary judgment in defendant’s favor. It follows that the trial court erred in granting defendant’s motion for summary judgment and in denying plaintiff’s cross-motion for partial summary judgment, and that the Court of Appeals erred in affirming the judgment dismiss- ing plaintiff’s action. The decision of the Court of Appeals is reversed. The judgment of the trial court is reversed and the case is remanded to that court for further proceedings.

Defendants argue that we should not apply the principles expressed in Layman and similar cases, because the clauses in those cases purported to completely exculpate a party from the consequences of its own negligence, whereas *378 the clause at issue in this case merely limits defendants’ liability to the contract sum. However, because the specified contract damages at issue here are nominal in comparison with the damages that might foreseeably result from defendants’ negligence, such a distinction would be illusory.

First, the word “liability,” standing alone, is less encompassing than the broad disclaimer found in Layman , which was held not to apply against a negligence claim. In this case, plaintiff reasonably might have interpreted “liability” to refer only to *379 liability arising from breach of contract, or from a reasonable failure to discover latent defects, or from property damage resulting from the review itself. Given the reasonable possibility of such limited interpretations, we cannot conclude that the parties “clearly and unequivocally” intended a broader interpretation that would have required plaintiff to bear the risk of defendants’ negligence.

Defendants’ attempt to characterize the contract as a “high-risk, low-cost” transaction does not persuade us that plaintiff, a lay consumer, should bear the risk of the alleged negligence of a licensed professional engineer. We conclude that the limitation of liability clause contained in the parties’ contract does not bar plaintiff’s negligence claim.

We conclude that it is not violative of public policy for individuals to limit liability for their own negligence through an exculpatory-indemnification clause.

A contract will not be construed to indemnify the indemnitee against losses resulting from his or her own negligent acts unless the parties’ intention to hold harmless is clearly and unequivocally expressed in the contract.

In the circumstances of this case we conclude that the limitation-of-liability provisions contained in the lease agreement are not violative of public policy and are enforceable as written.

We are of the opinion that in the circumstances of this case the limitation of liability was not violative of public policy, nor was it unconscionable.

In respect to the directing of a verdict on the issue of negligent misrepresentation, we are of the opinion that assuming without deciding that a separate or a distinct action might be brought for negligent misrepresentation, it would be subject to the limitation of liability clause in the contract and thus would come within the damages already awarded on the contract and negligence counts.

we hold that as a matter of law, manufacturers, sellers, or lessors who enter a defective product into the stream of commerce cannot disclaim liability for personal injuries arising out of their own negligence.

We conclude that Ruzzo’s strict liability cause of action is independent of the contract, and therefore any contractual provisions, agreements or disclaimers are unenforceable with respect to this claim.

It should be noted that while a distinction exists between an exculpatory provision and an indemnity provision, in both cases the law in this state requires a strict reading against the party seeking to be exonerated.

Although the exculpatory language used here is not so specific as in other cases, the intent to hold Quality Landscaping harmless in this type of situation is clear.

purporting to indemnify the promisee, the promisee’s independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence of the promisee, the promisee’s independent contractors, agents, employees, or indemnitees, is against public policy and is void

No person, firm, or corporation whose interest is adverse to that of a person receiving personal injuries as a result of a tortious act shall negotiate any contract, written or oral, or any settlement to release the person, firm, or corporation from liability, within thirty (30) days from the date of the tortious act. Any contract settlement or release obtained in violation of this section shall be voidable at the option of the releasor upon restoration of the consideration.

The contract states that “[w]e are not responsible for injuries sustained by slipping on ice.” The trial justice correctly concluded that the clause covers the present situation and that Quality Landscaping was not responsible for indemnifying Mariner Square for plaintiffs injuries.

The jury rendered a verdict in favor of C.J. on the breach of contract and negligence counts for the amount of $360 and also rendered a verdict in favor of C.J. on the fraud count for the amount of $491,147.

For the reasons stated, the plaintiffs’ appeal is denied in part and sustained in part. All orders of the trial justice are affirmed, save his order granting a new trial on the contract and negligence counts (1, 2, and 3). The papers in the case may be remanded to the Superior Court with directions to enter judgment for C.J. in the amount of $360 on the foregoing counts and for a new trial for C.J. alone on the fraud count.

The appeal of the third-party plaintiff is sustained, the judgment entered below is reversed, and the cause is remanded to the Superior Court for further consideration.

For all these reasons the appeal of Mariner Square is denied and dismissed, the judgment appealed from is affirmed, and the papers of the case are remanded to the Superior Court.

Thus, we conclude that the motion justice committed error when he enforced the disclaimer provision against Ruzzo’s negligence claims and entered summary judgment on that basis.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or from violation of law whether willful or negligent, are against the policy of the law.

Although SDCL 20-9-1 mandates responsibility for injury caused by willful acts or want of ordinary care or skill, nothing in this statute prohibits one party from agreeing by contract to release a third party from liability for ordinary negligence.

Domson’s suit against Dakota Engineering and KLJ alleges professional negligence, not a willful or negligent violation of law.

The express negligence doctrine provides that parties seeking to indemnify the in-demnitee from the consequences of its own negligence must express that intent in specific terms. Under the doctrine of express negligence, the intent of the parties must be specifically stated within the four corners of the contract. We now reject the clear and unequivocal test in favor of the express negligence doctrine. In so doing, we overrule those portions of Joe Adams & Son v. McCann Construction Co., Ohio Oil Co. v. Smith, and Mitchell’s, Inc. v. Friedman stating it is unnecessary for the parties to say, “in so many words,” they intend to indemnify the indemnitee from liability for its own negligence. Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex.1971); Ohio Oil Co. v. Smith, 365 S.W.2d 621, 624 (Tex.1963); Mitchell’s, Inc. v. Friedman, 157 Tex. 424 , 303 S.W.2d 775, 779 (1957). In adopting express negligence, we also overrule the three so-called exceptions to the clear and unequivocal test. See Fireman’s Fund, 490 S.W.2d at 922 . These exceptions were: (1) agreements in which the indemnitor undertakes to indemnify the indemnitee against liability for damages caused by defects in certain premises or from maintenance or operation of a specified instrumentality, Mitchell’s, Inc., 303 S.W.2d 775 ; Houston & T.C.R. Co. v. Diamond Press Brick Co., 111 Tex. 18 , 222 S.W. 204 (1920); (2) agreements made pursuant to situations where the indemnitor has complete supervision over the property and employees of the indemnitee in connection with performance of the contract, Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631, 637-38 (Tex.1963); and (3) agreements in which the indemnitor agrees to indemnify the indemnitee for all injuries sustained by the in-demnitor’s employees, Ohio Oil Co., 365 S.W.2d 621 ; James Stewart & Co. v. Mobley, 282 S.W.2d 290 (Tex.Civ.App.—Dallas 1955, writ ref’d). Previously, the exceptions were invoked by parties whose indemnity agreements failed to clearly and unequivocally express their intent. See, e.g., Dorchester Gas Corp. v. American Petrofina, Inc., 710 S.W.2d 541, 543 (Tex.1986). All three exceptions are dispensed with by our adoption of the express negligence doctrine. The contract between Daniel and Ethyl speaks to “any loss ... as a result of operations growing out of the performance of this contract and caused by the negligence or carelessness of Contractor....” Ethyl emphasizes the “any loss” and “as a result of operations” language to argue an intent to cover its own negligence. We do not find such meaning in those words. The indemnity provision in question fails to meet the express negligence test.

Therefore, we hold that the fair notice requirements of conspicuousness and the express negligence doctrine apply to both indemnity agreements and to releases in the circumstances before us

The fair notice requirements are not applicable when the indemnitee establishes that the indemnitor possessed actual notice or knowledge of the indemnity agreement.

today we overrule that portion of Jefferson and hold that compliance with both of the fair notice requirements is a question of law for the court

In both contracts, the provisions are located on the back of a work order in a series of numbered paragraphs without headings or contrasting type. 6 Furthermore, the contracts are not so short that every term in the contracts must be considered conspicuous. Therefore, we hold that these contractual exculpatory provisions are without effect since they do not comply with the fair notice requirement of conspicuousness.

We thus adopt the standard for conspicuousness contained in the Code for indemnity agreements and releases like those in this case that relieve a party in advance of responsibility for its own negligence. When a reasonable person against whom a clause is to operate ought to have noticed it, the clause is conspicuous. For example, language in capital headings, language in contrasting type or color, and language in an extremely short document, such as a telegram, is conspicuous.

First, a party's intent to be released or indemnified from its own negligence must be clear and unambiguous. Id.; Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex.1990); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex.1987). Second, the clause must be "conspicuous" as defined under the Uniform Commercial Code. Dresser, 853 S.W.2d at 508-11 ; TEX. BUS. & COM.CODE § 1.201(10). *387 However, our holding in Dresser is explicitly limited to releases and indemnity clauses in which one party exculpates itself from its own future negligence.

In sum, we hold that the requirement of conspicuousness set forth in Dresser does not apply to no-damages-for-delay clauses. The court of appeals erred in concluding otherwise. Consequently, we must disregard the jury's finding of delay damages against Green because Solis waived delay damages when he signed the subcontracts containing the no-damages-for-delay provision.

Unlike the provision in Dresser, the subcontract agreement in this case provides in pertinent part: Contractor [Green] ... shall not be liable to the Subcontractor [Solis] for delay to Subcontractor's work by the act, neglect or default of the Owner, Contractor, action of workmen or others, or any cause beyond Contractor's control. This clause does not constitute the type of extraordinary risk-shifting found in Dresser. It is not an indemnity agreement because it does not shift Green's liability for third party claims to Solis. Dresser, 853 S.W.2d at 508 . Also, this clause is not a release as defined in Dresser because it neither "extinguish[es] the claim or cause of action" nor establishes "an absolute bar to any right of action on the released matter."

The distinction between Dresser and this case lies in the fact that Dresser concerned the shifting of tort and negligence damages, whereas the no-damages-for-delay clause shifts economic damages resulting from a breach of contract.

We noted in Dresser that most contract clauses operate to transfer risk in some way. Dresser, 853 S.W.2d at 508 . However, we were concerned with clauses that operate to shift risk in an extraordinary way, such as exculpating a party from the consequences of its own future negligence.

That is not to say that a release must use specific words to make its intent clear and unmistakable.

But in another context—that of liability waivers—this court has found that the difference between ordinary and gross negligence does matter.12 On public policy grounds, we have disallowed liability waivers for grossly negligent acts while permitting those that release liability stemming from negligent acts.13 See, e.g., Hawkins v. Peart, 2001 UT 94, ¶ 9, 37 P.3d 1062, superseded by statute on other grounds as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984 (noting that a liability release “is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence” (citation omitted)).

The preinjury release Cunningham signed was neither clear nor unmistakable and is therefore unenforceable.

Although we respect the ability of two parties bargaining at arm‘s length to agree that one party may waive its ability to sue for injuries arising out of the other‘s negligence before any injury is suffered, such arrangements are unenforceable unless they are clear and unmistakable about both parties‘ intentions.

3 The Cunninghams also assert that the Release violates public policy and is contrary to the public interest. Because we conclude the Release is not clear and unmistakable, we need not reach the Cunninghams‘ other arguments.

Taken together, these cases illustrate how a preinjury release must clearly and unmistakably inform a reasonable person who and what she is releasing to be enforceable. It is not enough that we might be able to squint at the preinjury release language and conclude that a reader ―might have known‖ or ―probably knew‖ that she was releasing a certain party or claim.

The Release‘s language does not clearly and unmistakably release ―the Ogden Metro SWATT [sic] Team and all related organizations and entities‖ from liability for their own negligence.5 Instead, it uses broad, general language that does not specifically nor unequivocally evince an intent to hold the released party blameless for its own negligent conduct. Unlike the release in Freund, there is no additional context that would put a party on specific notice that it was providing a preinjury release for claims arising out of the other party‘s negligence. ¶25 Ambiguity exists in a preinjury release when reasonable minds could disagree on the release‘s meaning.

Although that release did not specifically state that the licensee was agreeing to indemnify the licensor for claims that might arise out of the licensor‘s negligence, the specific carveouts for intentional wrongdoing and willful negligence helped transform what might have been mistakable language into a clear and unmistakable expression of an intent to extend the indemnification to negligent acts.

5 Because we conclude that the release is not clear and unmistakable about what it purports to release, we need not address the question of whether it is clear and unmistakable about who it releases.

To that end, we demand precision in preinjury releases to ensure that a reasonable person reviewing the document would understand that she is changing the default setting and waiving her right, prior to suffering any injury, to recover the damages caused by another party‘s negligence. ¶16 For this reason, we will not imply that a party intended, prior to suffering an injury, to release another party from the consequences of her negligent act.

Simply stated, the preinjury release Cunningham signed was not clear and unmistakable. It was therefore unenforceable, and the district court erred when it concluded otherwise and granted summary judgment.

We agree with Hiett that the above cases have not modified or altered the holding in Johnson. Therefore, we conclude here, based on Johnson, that the pre-injury release provision signed by Hiett is prohibited by public policy and, thus, it is void.

We agree with the circuit court that had Landmark, as the drafter of the lease, desired to be exempt from all liability for losses sustained by Park as the result of the common hazards to which the property would be subject, it was required to express the exemption in the plain language of the lease.

Estes, therefore, establishes that a contractual provision whereby a party indemnifies itself against losses incurred as the result of personal injury caused by its own future negligence is enforceable and does not violate the public policy of the Commonwealth.

The plain language of this section only prohibits Park from obtaining a double recovery on a loss sustained and requires Park to release Landmark from any claim of subrogation by her insurer.

In holding that the release language was invalid because it violated public policy, this Court stated: [T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct. . . can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void. *195 86 Va. at 978 , 11 S.E. at 829 . This Court emphasized that its holding was not based on the fact that the railroad company was a common carrier. Rather, this Court found that such provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited “universally.”

As noted by Hiett, the cases following Johnson have not eroded this principle. Instead, this Court’s decisions after Johnson have been limited to upholding the right to contract for the release of liability for property damage, as well as indemnification from liability to third parties for such damage.

Other cases decided by this .Court since Johnson have upheld provisions for indemnification against future property damage claims. In none of these cases, however, did the Court address the issue whether an indemnification provision would be valid against a claim for personal injury.

Since Novins had no ownership interest in or control over the operation of Lake Bar-croft, she had no duty to warn Hiett of any dangerous condition therein. See Busch v. Gaglio, 207 Va. 343, 348 , 150 S.E.2d 110, 114 (1966). Therefore, Hiett’s assertion that Novins had a duty to warn him of the condition of the lake bottom, fails as a matter of *197 law, and we conclude that the trial court did not err in dismissing Novins from the case. Accordingly, we will affirm in part and reverse in part the judgment of the trial court, and we will remand this case for further proceedings consistent with the principles expressed in this opinion.

For these reasons, as well as the reasons stated in Estes, we reject W. R. Hall’s assertion that a contractual 9 indemnification provision is void as against public policy insofar as it indemnifies a party against liability for future acts of negligence causing personal injury. Accordingly, the trial court correctly ruled that the indemnity provisions in Article 6.16 and Article 6.31 are not void as against public policy and are enforceable. The judgment of the trial court will therefore be affirmed.

Indeed, a further provision of the lease expressly limited Landmark’s liability, stating that “[i]n no event shall Landlord be liable to Tenant for loss of business or consequential damages.” Landmark is, in effect, asking the Court to find implicit in the lease a term that it could have expressly included, but failed to do so. However, when interpreting a contract, we construe it as written and will not add terms the parties themselves did not include. TM Delmarva Power, L.L.C. v. NCP of Virginia, L.L.C., 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002). Accordingly, we hold that the circuit court did not err in holding that Landmark’s failure to provide a serviceable, leak-free roof constituted a breach of its lease with Park and that the lease did not absolve Landmark from liability for the damage sustained by Park with respect to her inventory.

While Johnson and Hiett clearly prohibit pre-injury release provisions relating to personal injury, we agree with Estes that such provisions are substantively different from indemnity provisions with regard to their purpose, effect, and public policy implications. The purpose of pre-injury release provisions such as those in Johnson and Hiett is to prospectively extinguish one party’s right to recover for future bodily injuries caused to that one party by the other party’s negligence.

In contrast, the purpose of an indemnity provision is to pre-determine how potential losses incurred during the course of a contractual relationship will be distributed between the potentially liable parties. See Safeway, 270 Va. at 289, 619 S.E.2d at 79. Moreover, indemnity provisions, including those indemnifying a party against future liability for personal injury caused by its own negligence, do not invoke the same public policy concerns as pre-injury release agreements.

Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.

For and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and the Grayson Con-nor Ski School and any instructor or chaperon from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injury suffered while taking part in the program.

The general rule in Washington is that exculpatory clauses are enforceable unless (1) they violate public policy, or (2) the negligent act falls greatly below the standard established by law for protection of others or (3) they are inconspicuous.

Exculpatory clauses are strictly construed and must be clear if the exemption from liability is to be enforced.

We hold that to the extent a parent's release of a third party's liability for negligence purports to bar a child's own cause of action, it violates public policy and is unenforceable. However, an otherwise conspicuous and clear exculpatory clause can serve to bar the parents' cause of action based upon injury to their child. Therefore, we hold that Justin's parents' cause of action is barred by the release; Justin's own cause of action is not haired.

In sum, the attempted releases in the cases before us exhibit all six of the characteristics denominated in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101 , 383 P.2d 441 , 32 Cal. Rptr. 33 , 6 A.L.R.3d 693 (1963). Because of this, and for the aforesaid reasons, we hold that the releases in these consolidated cases are invalid as against public policy.

Probably the best exposition of the test to be applied in determining whether exculpatory agreements violate public policy is that stated by the California Supreme Court. In writing for a unanimous court, the late Justice Tobriner outlined the factors in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92 , 383 P.2d 441 , 32 Cal. Rptr. 33 , 6 A.L.R.3d 693 (1963): Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby *852 a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. (Footnotes omitted.) Tunkl, 60 Cal. 2d at 98-101 . 15 We agree. Obviously, the more of the foregoing six characteristics that appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds. In the consolidated cases before us, all of the characteristics are present in each case.

In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

Many students cannot afford private programs or the private schools where such releases might not be employed. In this regard, school districts have near-monopoly power. And, because such programs have become important to student participants, school districts possess a clear and disparate bargaining strength when they insist that students and their parents sign these releases.

Two Washington Court of Appeals cases have also held that the word "negligence" is not essential to *491 the effectiveness of an express release. 8 We agree. Courts should use common sense in interpreting purported releases, 9 and the language "hold harmless ... from all claims" logically includes negligent conduct. One does not have a "claim" to be "held harmless" from unless there is a basis for liability.

We conclude that the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct.

Accordingly, we reverse the summary judgment in favor of the ski resort operator and remand to the trial court for further proceedings consistent with this opinion. As to the summary judgment in favor of the ski school, we affirm the *504 dismissal of the parents' cause of action, but reverse and remand with regard to Justin's own cause of action.

(1) A covenant, promise, agreement, or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, a contract or agreement for architectural, landscape architectural, engineering, or land surveying services, or a motor carrier transportation contract, purporting to indemnify, including the duty and cost to defend, against liability for damages arising out of such services or out of bodily injury to persons or damage to property: (a) Caused by or resulting from the sole negligence of the indemnitee, his or her agents or employees is against public policy and is void and unenforceable; (b) Caused by or resulting from the concurrent negligence of (i) the indemnitee or the indemnitee's agents or employees, and (ii) the indemnitor or the indemnitor's agents or employees, is valid and enforceable only to the extent of the indemnitor's negligence and only if the agreement specifically and expressly provides therefor, and may waive the indemnitor's immunity under industrial insurance, Title 51 RCW, only if the agreement specifically and expressly provides therefor and the waiver was mutually negotiated by the parties. This subsection applies to agreements entered into after June 11, 1986.

In a setting which involves one or more of these characteristics, a preinjury release from liability for negligence may violate public policy. Wagenblast, 110 Wn.2d at 851 ; Tunkl, 60 Cal.2d at 98, 101 ; 383 P.2d at 444, 446-47 . These factors are not the exclusive considerations to which a court may look in the determination of public policy. These general characteristics are taken from prior court cases and only give a "rough outline" of the type of settings in which exculpatory agreements have not been allowed.

In spite of the fact that this was not an adhesion *856 contract, in that there was no particular unequal bargaining strength, we conclude there are critical public policy reasons to maintain the usual standard of care in settings where one person is using another as a medical research subject.

We conclude that a preinjury agreement, which releases a medical researcher for liability for negligent conduct which occurs in the course of medical research, violates public policy.

Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly negligent. If Mr. West's negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm, the releases are unenforceable.

We are next asked to determine whether the release was invalid based on the gross negligence of Four Star. In addition to the previously discussed "inconspicuous" basis for invalidating contracts waiving liability for negligence, another exception exists "where the negligent act falls greatly below the standard established by law for the protection of others against unreasonable risk of harm." Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574 , 636 P.2d 492 (1981) (citing McCutcheon v. United Homes Corp., 79 Wn.2d 443 , 486 P.2d 1093 (1971); Hewitt , at 77 n. 1). Gross negligence is negligence substantially and appreciably greater than ordinary negligence.

An examination of the principles underlying the determination of the validity of exculpatory contracts leads us to the conclusion that the form is an unenforceable exculpatory contract due to a combination of three factors. None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public policy. First, the contract serves two purposes, not clearly identified or distinguished. Second, the release is extremely broad and all-inclusive. Third, the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining.

We conclude that the exculpatory language in Swimwest's form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word "fault" on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts.

Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy.

Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver's nature and significance.

While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81 ; Merten, 108 Wis. 2d at 210-11 .

We have consistently held that "[o]nly if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable." Id. at 520 (citing Arnold, 111 *318 Wis. 2d at 213 ).

In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: "First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed." Yauger, 206 Wis. 2d at 84 .

Applying the factors from Yauger and Richards , we hold that Swimwest's exculpatory clause is in *316 violation of public policy. 7 First, this exculpatory waiver, which uses the word "fault," is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86 ; Richards, 181 Wis. 2d at 1017-18 . Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver's nature and significance. Yauger, 206 Wis. 2d at 86-87 . Third, there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019 . 8 Under this framework, the waiver in question is unenforceable as against public policy.

We acknowledge that Yauger v. Skiing Enters., Inc., , 206 Wis. 2d 76 , 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat'l Tractor Pullers Ass'n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, "the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement." Id. On the other hand, in Richards , the court stated that "none of these factors alone would necessarily have warranted invalidation of the exculpatory contract." Richards, 181 Wis. 2d at 1020 ; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.

While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646 , 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.

Accordingly, we conclude that the document contravenes public policy and is void and unenforceable. The decision of the court of appeals is reversed and the cause remanded for proceedings not inconsistent with this opinion. By the Court. — The decision of the court of appeals is reversed and the cause remanded to the circuit court.