Will a Delaware court enforce a clause that releases or caps a party's liability for its own negligence?
Generally yes, on three conditions the Supreme Court applies together: a release of prospective negligence may be valid if it is unambiguous (the provision waiving prospective negligence must be 'crystal clear and unequivocal' to insulate a party from liability for future negligence), not unconscionable, and not against public policy, which in Delaware is typically determined by the General Assembly. The General Assembly has spoken for construction: in a contract relative to the construction, alteration, repair or maintenance of Delaware roads, buildings and structures, a provision indemnifying or holding the promisee harmless for damage caused partially or solely by the promisee's own negligence is against public policy and void: expressly so 'even where such covenant ... is crystal clear and unambiguous'; subsection (a) then excepts 'any obligation owed to the Department of Transportation pursuant to a contract awarded under Title 17 or Chapter 69 of Title 29', and subsection (b) preserves insurance policies.
The trap
Delaware runs two opposite regimes and the contract type decides which applies. Outside the statute, careful drafting wins: Ketler enforced a gym's release of its own negligence because the words were clear, the member could walk away, and no statute disapproved it. Inside 6 Del. C. § 2704 the same care is worthless, subject to the section's own two escapes, the DelDOT proviso in (a) and the insurance saving in (b): the statute anticipates the well-drafted clause and voids it anyway, and it reaches 'partially or solely' caused damage, so carving out only the promisee's sole negligence does not save it. Note also that § 2704(c) exempts partnership agreements, LLC agreements, trust agreements and governing instruments, certificates of incorporation and bylaws, so Delaware entity documents are outside the ban entirely.
11 authorities
The words that state the rule
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 words that state the rule
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.
The words that state the rule
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.
- case55 A.3d 330Riverbend Community, LLC v. Green Stone Engineering, LLCDel.decided 2012read it at the source ↗
The words that state the rule
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.
- statute6 Del. C. § 2704enactment date not established
The words that state the rule
(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.
- statute6 Del. C. § 2704enactment date not established
The words that state the rule
(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 words that state the rule
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.
The words that state the rule
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 words that state the rule
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.
- statute6 Del. C. § 2704enactment date not established
The words that state the rule
(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.
- case55 A.3d 330Riverbend Community, LLC v. Green Stone Engineering, LLCDel.decided 2012read it at the source ↗
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.