Exculpatory Contracts and the Coronavirus:
Can Businesses “Waive” Goodbye to COVID-19 Liability?
By Israel F. Piedra, Esq.
O
ver 170,000 people in the United States
have died from the novel coronavirus
disease known as COVID-19. The virus has
dramatically changed the lives of most Americans.
For over two months at the start of the pandemic,
Granite Staters were under a Stay-at-Home order,
meaning that most residents were confined to their
homes except for essential jobs and errands. New
Hampshire’s Stay-at-Home order was lifted on
June 15, 2020. Since then, many businesses have
reopened, and group activities are recommencing.
As activities restart and customers return,
businesses and organizations are concerned
about liability for personal injuries caused by
the coronavirus. Many have started utilizing
liability waivers, also known as liability releases or
exculpatory contracts. But would a liability waiver
effectively shield a business from COVID-19
liability? Courts in New Hampshire and around the
country may soon be faced with this question.
A. B  USINESS LIABILITY FOR
CORONAVIRUS
There is an obvious threshold question about the
enforceability of COVID-19 liability waivers: what
is required to prove liability in the first place? Courts
have not yet discussed tort liability for coronavirus-
related personal injuries. A detailed discussion
is beyond the scope of this article. However,
COVID-19 personal injury lawsuits have already
been filed.1
Although we do not yet know the parameters
and limitations which will be imposed by the
courts, we can assume that at least some coronavirus
personal injury cases will be deemed viable. In other
contexts, liability has been imposed on businesses
for the negligent transfer of communicable diseases.2
That said, as several commentators have noted,
plaintiffs will have considerable challenges proving
causation in COVID-19 personal injury cases. In
many — perhaps most — cases, it will be difficult,
if not impossible, to demonstrate that a coronavirus
infection originated at a particular business (let alone
that it was caused by the business’s negligence). This
158
is important context to this article and could make
some of the below discussion purely academic.
B. COVID-19 LIABILITY WAIVERS
In the business-consumer context, COVID-19
releases have appeared in connection to many events
and activities. For example, liability releases made
the news in June, when attendees to a rally for
President Trump were required to agree to an online
“waiver” before receiving tickets.3 Waivers with
coronavirus-related language are also being used
by fitness gyms, youth sports, massage therapists,
and dentists, among many other businesses and
organizations.
“In New Hampshire, exculpatory contracts
are generally prohibited.”4 To establish that an
exculpatory contract is enforceable, a defendant
must show that: (1) that the exculpatory agreement
does not contravene public policy; (2) that the
plaintiff understood the import of the agreement
or a reasonable person in his position would have
understood the import of the agreement; and (3) that
the plaintiff’s claims were within the contemplation
of the parties when they executed the contract.5
1. Scope and Clarity of the Release
Prongs two and three of the exculpatory contract
test are related and involve the actual language of the
release. They are both objective tests: a plaintiff cannot
avoid the applicability of the release by claiming they
did not understand it or did not read it.6
a. “Import of the Agreement”
The test first asks whether a reasonable
person would understand the “import of the
agreement.” Because it is an objective inquiry, this
is adjudged by examining the plain language of
the release. Essentially, the question boils down
to whether the word “negligence” appears in the
release.7 Although the term “negligence” is not
technically required, either that word or a close
synonym (such as “a lack of reasonable care”) must
be employed.8 For this reason, general disclaimers of
“any and all liability” or references to “assumption
of the risk” are insufficient to waive negligence
liability.9
45TBN - Fall 2020
 For example, in the aforementioned Trump
campaign event, the purported waiver read: “By
clicking register below, you are acknowledging that
an inherent risk of exposure to COVID-19 exists
in any public place . . . By attending the Rally, you
and any guests voluntarily assume all risks related
to COVID-19 and agree not to hold Donald J.
Trump for President . . . liable for any illness or
injury.”10 This waiver would not be enforceable
in New Hampshire (against claims of negligence
against the campaign), because it calls “no particular
attention” to the “notion of releasing the defendant
from liability for his own negligence.”11 As such, the
“general language in the context of the release simply
[does] not” put individuals on “clear notice” of the
intent to release negligence liability.12
b. “Contemplation of the parties”
If the exculpatory language itself is adequate
(i.e., the defendant’s negligence is specifically
discussed), courts next analyze whether the plaintiff’s
claims were “within the contemplation of the parties
at the time of the execution of the agreement.”13
This inquiry focuses on the language of the release
surrounding the exculpatory clause itself. It is
an objective test, so the language of the release is
dispositive; the plaintiff’s subjective understanding
(or lack thereof ) is irrelevant.
Although exculpatory contracts are strictly
construed against the defendant, they need not
specifically address the particular circumstances
of an injury in order to be enforceable. Rather,
the waiver may use “language that covers a broad
range of accidents.”14 In fact, it is sometimes to
a defendant’s detriment to enumerate specific
risks in the preamble to an exculpatory provision,
because “a release’s language may . . . fail because it
is too specific, i.e., where certain classes of claims
are released . . . but the terms in the release fail to
encompass the claims at issue.”15 The enumeration of
certain risks or scenarios can serve to “obscure rather
than clarify” and make an exculpatory contract “less
than clear” to the reader.16 As a result, broad and
general disclaimers of negligence are increasingly
used and are often effective against any claims of
negligence.
A waiver of “any and all” negligence liability
is not all-encompassing, however.17 Rather, a release
— like any contract — is interpreted “according to
what a reasonable person would expect it to mean
under the circumstances.”18 For example, a liability

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Fall 2020 - 45TBN 159

 release on a ski area’s season pass might contain
broad language, but would still be limited to skiing
activities — not, for example, a slip and fall in the
ski lodge, because no reasonable reader would expect
it to apply in that situation.19
Based on this principle, it is unlikely
that a generic waiver of “any and all liability
from negligence” would protect businesses from
coronavirus-related liability. This is true especially
with regard to industries which currently utilize
releases as a standard business practice (e.g.,
trampoline parks, gyms, ski resorts, etc.). In those
contexts, a reasonable customer would expect that
the release — no matter how broadly worded —
would only apply to instances of negligence closely
related to the activity in question.20
Therefore, businesses seeking protection
from COVID-19-related claims will likely need
to mention COVID-19 explicitly in their release
language. As always, the language must walk a
fine line: sufficiently descriptive to put the signer
on notice of the liability being waived, but not so
detailed that it limits the applicability of the release.
Returning to the example of the Trump campaign
disclaimer, its reference to the “inherent risk” of
COVID in “any public place where people are
present” likely limits its scope. Even if the release did
mention negligence, the overall phraseology seems to
refer to certain unavoidable risks present everywhere,
not the business’s own actions or inactions. As such,
the waiver in that example would likely be construed
to apply to the “enumerated” risks only: that is,
“inherent” risks.21
2. Public Policy
Although New
Hampshire courts strictly
construe exculpatory contracts
against defendants, and do not
hesitate to strike them down if
the “language of the contract
raises any doubt” about the
liability the plaintiff has agreed
to release, undoubtedly
22
businesses will learn to craft
ironclad waivers. However, even
the most bulletproof waiver will
not be enforced if it violates
public policy. Therein lies the
true unknown for COVID-19
liability release enforceability. John B. Kenison, Jr. • The Pickering Building • 913 Elm Street, Ste 603 • Manchester, NH 03101
160
To establish that an exculpatory contract
is enforceable, a defendant must show that that
the exculpatory agreement does not contravene
public policy.23 An exculpatory contract may offend
public policy where (1) a special relationship
existed between the parties, (2) there is a disparity
in bargaining power between the parties, or (3) the
waiver is “injurious to the interests of the public,
violates some public statute, or tends to interfere
with the public welfare or safety.”24
The first two categories of public policy
violations (which focus mostly on the legal
relationship between the parties) are narrowly
construed and only apply in limited situations.
However, they may be applicable in at least some
COVID-related contexts. For example, most states
hold that it violates public policy for an employer
to extract a pre-injury liability release from an
employee.25 Similarly, a doctor is not permitted to
enforce a liability waiver signed by a patient,26 and a
common carrier (such as a bus line or taxi) may not
enforce a release signed by a passenger.27
One potential “special relationship” sure
to be tested in the COVID-19 context is the
relationship between schools and students. Some high
schools are requiring students (or their parents) to
execute coronavirus-focused liability waivers.28 The
University of New Hampshire also made news this
summer for requiring all students to sign a COVID
“consent agreement” before returning to campus;
some observers have labeled this agreement a “liability
waiver.”29
With regard to secondary school students, it
~ John B. Kenison, Jr. ~
Experienced
Effective
Practical
Mediation
Live and Virtual (Zoom)
Let us help you resolve your case.
To schedule call or email
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603-471-3550.
45TBN - Fall 2020
 seems clear that a general waiver relating to school
attendance would be unenforceable: in other
contexts, the New Hampshire Supreme Court has
found that a special relationship exists between high
schools and students.30 Of course, this question is
somewhat academic in New Hampshire for another
reason: most high schoolers are minors without the
capacity to contract,31 and New Hampshire courts
further hold that parents cannot sign away their
children’s rights.32
The New Hampshire Supreme Court has not
yet decided whether a special relationship exists
between colleges and their students.33 However,
one Connecticut Superior Court, applying New
Hampshire law, invalidated a liability release on the
basis of such a relationship.34 Courts around the
country are divided on the question, but most appear
to recognize that some sort of special relationship
exists between colleges and students (with some
debate about the extent of the duty).35 As such,
it is questionable whether any waiver would be
enforceable in the college-student context.
a. The “public welfare” rule
These so-called “special relationships” are few
and far between, however. Therefore, if COVID-19
liability waivers are to be declared invalid on the basis
of public policy, a New Hampshire court would likely
do so based on the third — somewhat amorphous
— category of public policy violation: that the
exculpatory contract is “injurious to the interests of
the public, violates some public statute, or tends to
interfere with the public welfare or safety.”36
The New Hampshire Supreme Court has not yet
defined what it means for a waiver to be “injurious to
the interests of the public” or “tend[ing] to interfere
with the public welfare or safety.” However, it has
said that the “public policy to which a court may
refer may be statutory or nonstatutory in origin.”37
Generally speaking, the concept of public policy is
not conducive to mechanistic definitions.38 In other
contexts, the New Hampshire Supreme Court has
defined public policy as “the community common
sense and common conscience, extended and
applied throughout the state to matters of public
morals, public health, public safety, public welfare
and the like. . . . No one can lawfully do that which
has a tendency to be injurious to the public, or is
detrimental to the public good.”39 As this “definition”
makes clear, public policy is not a bright line test.
Rather, it must be adjudged on a sliding scale.40
Fall 2020- 45TBN
b. Applying the public policy test to
COVID-19 waivers
Liability releases have gained increasing
acceptance in the United States, so it is tempting
to predict that a properly-drafted coronavirus
liability waiver would be upheld by the courts.
However, it is important to remember the context
in which liability waivers are currently used.
Almost exclusively, waivers are employed to
protect businesses and organizations from liability
in recreational activities — most of which have
some inherent dangers involved. This context is
demonstrated by a review of the case law in New
Hampshire. Liability release cases in the state have
exclusively41 involved plaintiffs injured during risky
recreational activities: a go-kart collision,42 a collision
with a race car at an auto race,43 a snowboard/
snowmobile crash,44 a participant kicked by a horse
on a horseback riding tour,45 a model bit in the head
while modeling with a live lion,46 and a collision
with an snow gun while skiing.47
To equate COVID-19 liability with these
examples would be error. Recreational activities
are voluntary acts which involve an inherent risk
of physical injury.48 As such, a business owner is
held to a lower standard of care with regard to that
recreational activity.49 When an injury occurs while
participating in a recreational activity, there is no
strong public policy militating against enforcement
of an exculpatory contract. In fact, public policy
arguably favors releases in that context because
imposing liability for a voluntarily-risky activity
could have a chilling effect on businesses.50
COVID-19 liability involves different policy
considerations. While contracting the coronavirus
is clearly a ubiquitous risk, an increased risk is
not unique to any particular activity or industry.
Similarly, a business’s responsibility to protect
against increased COVID-19 exposure (although
not yet well-defined) is more akin to ordinary
premises liability than to the duty implicated by
inherently-dangerous recreational activities like
skiing or horseback riding.
Enforceability of COVID-19 waivers, therefore,
will come down to balancing of the risks and duties
involved and the extent of the wrongful conduct.51
Whether a particular wavier passes muster on public
policy should be adjudged on case-by-case basis.52
There is a strong public policy underlying a
business’s duty to safeguard against COVID-19.
161
 Unlike the risks of snowboarding or go-kart
riding, the risk of COVID-19 transmission in
a particular business setting is not always easily
ascertainable. The general public enters businesses
“expecting them to be safe.”53 The business is in
the best position to protect against latent risks,
and tort liability provides an important incentive
for business owners to operate their businesses
in a safe manner.54 Thus, public policy does not
favor the waiver of “ordinary” tort liability for
negligence encountered by the general public during
routine activities.55 This is particularly true because
companies induce customers to patronize their
businesses in pursuit of profit.56
Unlike the typical risks contemplated by a
liability release, the possibility of COVID-19
transmission does not just affect the waiver signee.
Rather, an entire community could be harmed
by a business’s negligence. While a non-signatory
would not be contractually bound by a release, the
presence of the waiver still removes an incentive to
act with reasonable care.57
Additionally, the coronavirus poses a unique risk
to the general public. The COVID-19 pandemic is
one of the greatest existential threats our country
has ever experienced. The CDC estimates that over
170,000 Americans have died from the virus.58 The
fallout from the pandemic and related business
closures has led to unemployment numbers not
seen since the Great Depression.59 Clearly, slowing
the spread of COVID-19 is a matter of national
importance.
These factors distinguish coronavirus liability
releases from other waivers. To repeat, an
exculpatory contract violates public policy if it
is “injurious to the interests of the public” or if
it “tends to interfere with the public welfare or
safety.”60 If any category of waiver would “tend
to interfere” with public welfare, it would be a
COVID-19 release.
This is particularly true if the duty violated
derives from a government safety mandate, such as
the many coronavirus-related regulations that have
been promulgated under executive or legislative
authority. It is a well-established general principle
that an exculpatory contract cannot relieve a
defendant of a statutory duty.61 This rule applies
to contracts generally: “a party cannot in advance,
make a valid promise that a statute founded in
public policy shall be inoperative.”62 That said,
162
our Supreme Court has clarified that a statutory
violation does not make a liability release per se
unenforceable.63 Rather, courts consider the public
policy embodied in the statute as part of a holistic
balancing test,64 weighing among other things: the
purpose of the statute, the strength of the public
policy behind that purpose, and the severity of
harm that would be caused by enforcement of
the release.65 It is likely that a court would find
coronavirus safety laws so affected with the public
welfare that violations could not be barred by
liability waivers.
In sum, the public policy analysis regarding a
COVID-19 exculpatory contract would be multi-
faceted. The following non-exclusive factors should
be considered by a court:
§ the parties and their relative
bargaining power:66 i.e., a waiver between
two commercial entities would not be
objectionable, whereas a release between
a business and an individual consumer
would be much more so — and the larger
the business, the more problematic from
a public policy perspective, as bargaining
power decreases accordingly.
§ how “essential” the business or
activity is, which impacts bargaining
power and other public policy concerns.67
For example, a waiver of liability to go
horseback riding would be less offensive
than a liability release to enter a clothing
store or restaurant. A waiver to enter a
supermarket or doctor’s office would be
most objectionable of all.
§ the nature of the duty violated by
the business: i.e., is the duty breached more
akin to the responsibilities implicated by
inherently-dangerous recreational activities,
or to the general duty of all business owners
to keep their premises safe?68
§ the severity of the wrongful conduct.
It is well-established that a waiver cannot
release liability for “bad faith or intentional
wrongs.”69 At least one New Hampshire
court has also found that reckless conduct
cannot be waived as a matter of public
policy, in accordance with the overwhelming
majority rule.70 More difficult is the
question of gross negligence. In Barnes,
the Supreme Court held that a liability
45TBN - Fall 2020
 release was effective against claims of gross
negligence because the “doctrine of definitive
degrees of negligence is not recognized as
part of our common law.”71 This holding is
contrary to the rule in almost every other
jurisdiction in the country, and should
be reconsidered by the Court given an
opportunity.72
§ whether a statute, executive order,
or other regulation was violated. A violation
of a safety statute or executive order would
weigh heavily towards non-enforcement.
Although “not determinative,”73 the violation
would be clear evidence that enforcement
would impinge on public welfare. A
governmental safety recommendation would
be a slightly weaker, but still powerful,
indication of public policy.
§ miscellaneous factors. For example:
whether the waiver was acquired in
furtherance of a profit motive,74 whether
there is a “special relationship” between
the parties (such as with a defendant
innkeeper, doctor, landlord, school, or
common carrier),75 and procedural elements
of the waiver text itself — such as how it
was presented and the size/placement of
the exculpatory language.76 Many other
considerations could be relevant.77
Courts must weigh all the relevant factors
and balance the competing interests before deciding
whether a particular COVID-19 liability wavier
violates public policy.78 No factor is necessarily
dispositive, and courts should consider each relevant
factor as a point on a spectrum, not a set of mutually
exclusive choices. It is difficult to predict how the
courts around the country will rule when faced
with a coronavirus-related liability waiver. In New
Hampshire, however, most such waivers should be
unenforceable as a matter of public policy, given
“the cardinal importance attached to the doctrine
of ordinary care in this state,” and the public safety
concerns implicated.79
C. CONCLUSION
COVID-19 liability protection for businesses is
a hot topic in American politics. Mitch McConnell,
the Senate Majority Leader, has stated that he
will not approve a stimulus bill unless it includes
provisions protecting businesses from coronavirus-
related negligence claims.80 The NCAA attracted
Fall 2020- 45TBN
controversy this summer when some of its members
schools began requiring student-athletes to sign
liability waivers (NCAA later prohibited colleges
from mandating such waivers).81 Here in New
Hampshire, local business organizations have
pushed for state statutory protections, though these
efforts have so far failed to gain traction.82 Calls
for immunity from business and insurance trade
groups will surely continue, despite the lack of
evidence of any deluge of COVID-19 tort claims.83
In the absence of immunity statutes, companies
will employ coronavirus liability releases, and in the
near future courts will be called upon to decide the
enforceability of these waivers.
When in doubt, judges should allow a jury to
decide. An adhesion contract ought only prevent a
plaintiff’s day in court in exceptional circumstances.
It is the defendant’s burden to demonstrate that a
liability release comports with public policy, not
the other way around. As exculpatory contracts
become increasingly omnipresent and “easy” to agree
to (whether through a checkbox on a website, the
backside of a ticket, or a touchscreen in a business),
courts should be more and more skeptical of the
legal fiction that is “freedom of contract” in this
context. Juries are capable of considering a liability
waiver and giving it appropriate weight,
and courts should trust them
to do so.
ENDNOTES
1. Chris Woodyard, New lawsuits claim Princess Cruises knew of coronavirus
exposure before ships went to sea, USA Today (Jun. 8, 2020), https://www.
usatoday.com/story/travel/2020/06/08/princess-cruises-faces-two-new-
lawsuits-over-coronavirus-plagued-ships/5322809002/.
2.  See Adel v. Greensprings of Vt., Inc., 363 F. Supp. 2d 683 (D. Vt. 2005)
(Legionnaires’ disease contracted due to hotel’s negligence).
3. Ryan Nobles, Trump campaign says it can’t be held liable if rally at-
tendees contract coronavirus, CNN (June 13, 2020), https://www.cnn.
com/2020/06/11/politics/trump-campaign-rally-coronavirus/index.html.
4.  Barnes v. N.H. Karting Ass’n, 128 N.H. 102, 106 (1986).
5.  McGrath v. SNH Dev., Inc., 158 N.H. 540, 542 (2009
6.  Barnes, 128 N.H. at 108. All that is required is an opportunity to read the
waiver (which itself requires notice of the release’s existence). Id.; Brennan v.
Ocean View Amusement Co., 194 N.E. 911, 914 (Mass. 1935). Even if the
signer feels “rushed” to sign the release, she is still deemed to have had an
opportunity to read. See id.; Lizzol v. Bros. Prop. Mgmt. Corp., 2016 U.S.
Dist. LEXIS 150427, at *4 (D.N.H. Oct. 31, 2016).
7.  See Audley v. Melton, 138 N.H. 416, 419 (1994).
8.  See id.
9.  Id.
10. Nobles, supra note 3.
11. Audley, 138 N.H. at 419.
12. Id.
13. McGrath, 158 N.H. at 545.
14. Id.
15. Porter v. Dartmouth College, 2009 U.S. Dist. LEXIS 90516, at *17 (D.
N.H. Sept. 30, 2009).
16. Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 170 (1995).
17. Dean v. Macdonald, 147 N.H. 263, 268 (2001) (“Although we hold that
163
 the Release was intended to apply to a broad range of accidents occurring in
automobile racing, we observe that this range is not without limitation.”).
18. See Behrens v. S.P. Constr. Co., 153 N.H. 498, 502 (2006) (emphasis added).
19. See Dalton v. Pats Peak, Inc., Rock. Cty., No. 218-2015-CV-00013, at *4
(Delker, J.) (June 9, 2016); see also Chen v. Pats Peak, Inc., Merr. Cty., No.
217-2019-CV-00413, at *2 (Schulman, J.) (August 25, 2020). Applying a
release to a garden variety slip and fall would also raise public policy con-
cerns. See infra, note 68.
20. See, e.g., Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, at
*16-18 (D. Del. Dec. 31, 1986).
21. See Wright, 140 N.H. at 170.
22. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 414 (2002).
23. Id.
24. Id.at 543
25. See, e.g., Johnston v. Fargo, 77 N.E. 388 (N.Y. 1906); see also Wallace v. Boston &
M.R.R., 72 N.H. 504, 514 (1904) (“It is doubtful if the servant could assume
the risk of injury from the master’s negligence in the performance of the duty
by an express contract.”); but see Dupont v. Aavid Thermal Techs., 147 N.H. 706
(2002).
26. See, e.g., Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977).
27. Wessman v. Boston & M. R.R., 84 N.H. 475, 478 (1930).
28. See, e.g., Matt Galka, Arizona schools send COVID-19 liability waivers, here’s
what a lawyer says about it, Fox 10 Pheonix (July 28, 2020), https://www.
fox10phoenix.com/news/arizona-schools-send-covid-19-liability-waivers-heres-
what-a-lawyer-says-about-it; Beaver Area School District Requiring Coronavirus
Liability Waivers For Athletics, CBS Pittsburgh (Aug. 24, 2020), https://
pittsburgh.cbslocal.com/2020/08/24/beaver-area-school-district-will-have-fall-
sports.
29. Teddy Rosenbluth, UNH: Students must sign COVID consent agreement or go
home, Concord Monitor (Aug. 17, 2020), https://concordmonitor.com/
UNH-reopening-updated-guidelines-35775763. The UNH agreement con-
tains general assumption of the risk language, but not the “magic language”
necessary to waive negligence liability.
30. Marquay v. Eno, 139 N.H. 708, 716-17 (1995). Whether that special rela-
tionship extends to voluntary activities – such as athletics – is somewhat less
certain; however, courts in other jurisdictions have answered that question in
the affirmative. See, e.g., Wagenblast v. Odessa Sch. Dist., 758 P.2d 968, 973-74
(Wash. 1988) (cited with approval in Marquay).
31. Porter v. Wilson, 106 N.H. 270, 271 (1965).
32. See Israel F. Piedra, “Mommy, What’s an Exculpatory Contract?”: Parental Liabili-
ty Releases in New Hampshire, 44 N.H. Trial Bar News 57 (Spring 2019).
33. It has, however, determined that colleges have a fiduciary relationship with
their students. Schneider v. Plymouth State College, 144 N.H. 458, 463 (1999).
34. Gonzalez v. Univ. Sys. of N.H., 2005 Conn. Super. LEXIS 288, at *36-37
(Conn. Super. Ct. Jan. 28, 2005) (applying New Hampshire law, finding that
special relationship between student-cheerleader and university precluded en-
forcement of exculpatory contract).
35. See, e.g., Dzung Duy Nguyen v. Massachusetts Institute of Technology, 96 N.E.3d
128, 142 (Mass. 2018) (“a university has a special relationship with a stu-
dent”); see also Duffin v. Idaho State Univ., 2017 U.S. Dist. LEXIS 211296, at
*18 (D. Idaho Dec. 21, 2017) (surveying cases).
36. McGrath., 158 N.H. at 543.
37. Harper v. Healthsource N.H., 140 N.H. 770, 775 (1996).
38. Note, The Significance of Comparative Bargaining Power in the Law of Exculpa-
tion, 37 Colum. L. Rev. 248, 249 (1937).
39. Heath v. Heath, 85 N.H. 419 (1932).
40. 8  Williston on Contracts § 19.23 (4th ed.).
41. In the consumer-business context, published state and federal decisions since the
seminal Barnes case in 1986.
42. Barnes, 128 N.H. at 104.
43. Dean, 147 N.H. at 264.
44. McGrath, 158 N.H. at 541.
45. Wright, 140 N.H. at 167.
46. Audley, 138 N.H. at 416-17.
47. Miller v. Sunapee Difference, LLC, 308 F. Supp.3d 581, 585 (D.N.H. 2018).
48. Hyson v. White Water Mt. Resorts of Conn., 829 A.2d 827, 835 (Conn. 2003)
(dissent); Phi Delta Theta Co. v. Moore, 10 S.W.3d 658, 662 (Tex. 1999) (dis-
sent).
49. See Allen v. Dover Co-Recreational Softball, 148 N.H. 407, 417 (2002).
50. See Hohe v. San Diego Unified Sch. Dist., 274 Cal. Rptr. 647, 649 (Cal. Ct. App.
1990).
51. See Stelluti v. Casapenn Enters., LLC, 1 A.3d 678, 693 (N.J. 2010) (“To properly
balance the public-policy interests,” courts “consider the nature of the activity
and the inherent risks involved.”); Rossman v. 740 River Drive, 241 N.W.2d 91,
92 (Minn. 1976) (Courts weigh the “public policy favoring freedom of con-
tract . . . against the policy favoring the [defendant’s] observance of the particu-
164
lar duty he is alleged to have breached.”).
52. Cf. Plourde Sand & Gravel Co. v. JGI E., Inc., 154 N.H. 791, 796 (2007) (special
relationship determined on case by case basis); Chemical Bank v. Rinden Profes-
sional Ass’n, 126 N.H. 688, 697 (1985) (unconscionability determined on case
by case basis).
53. Valenti v. NET Props. Mgmt., 142 N.H. 633, 636 (1998).
54. See id.; Estate of Cargill v. Rochester, 119 N.H. 661, 666 (1979).
55. See Valenti, 142 N.H. at 635-36; Wessman., 84 N.H. at 478 (“contracts designed
to relieve a party from the consequences of the non-performance of his com-
mon-law duty to exercise ordinary care . . . [are] against the policy of the law . .
. .”).
56. See Bagley v. Mt. Bachelor, Inc., 340 P.3d 27, 43 (Or. 2014); Jack v. Public Serv.
Co., 86 N.H. 81, 82 (1932).
57. See Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001).
58. Provisional Death Counts for Coronavirus Disease 2019 (COVID-19), Center
for Disease Control and Prevention, https://www.cdc.gov/nchs/nvss/vsrr/
covid19/index.htm (updated Sept. 4, 2020).
59. See How Bad Is Unemployment? ‘Literally Off the Charts’, N.Y. Times (May 8,
2020), https://www.nytimes.com/interactive/2020/05/08/business/economy/
april-jobs-report.html.
60. McGrath, 158 N.H. at 543.
61. 57A Am. Jur. 2d Negligence, §55. This principle would also apply to executive
orders and similar. Cf. State v. McKeowan, 151 N.H. 95, 97 (2004) (“[R]ules
and regulations promulgated by administrative agencies under a valid delegation
of authority have the force and effect of laws.”).
62. West Gate Village Ass’n v. Dubois, 145 N.H. 293, 298 (2000); see also Spencer v.
Laconia Sch. Dist., 107 N.H. 125, 130 (1966) (“contract would in effect permit
the defendant to nullify the . . . statute and cannot be held valid.”).
63. McGrath, 158 N.H. at 543. The plaintiff in McGrath argued that the defen-
dant (a ski area employee on a snowmobile) violated RSA 215-C, a snowmobile
statute which requires (in part) that snowmobiles to yield the right of way to
skiers. Id. The Court held that enforcement of the liability release against the
alleged statutory violation would not violate public policy because the “interests
of the public are protected” by the State’s power to prosecute violators under
the statute. Id. Presumably, the Court did not intend to announce a general
rule that a statutory violation is never sufficient to invalidate an exculpatory
contract if the State can impose penalties under the statute. Such a rule would
be contrary to virtually every other court in the country. See 57A Am. Jur. 2d
Negligence, §55; see also Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d
425, 433 (W.D.N.C. 2004); Zerby v. Warren, 210 N.W.2d 58, 64 (Minn. 1973);
McCarthy v. Nat’l Assoc. for Stock Car Auto Racing, 226 A.2d 713, 715 (N.J. 1967).
Essentially every statute proscribing conduct has a State enforcement mecha-
nism, making such a litmus test meaningless.
64. Restatement (Second) of Contracts § 178; Noble v. Alis, 474 N.E.2d 109,
111 (Ind. Ct. App. 1985).
65. Id.; Shadis v. Beal, 685 F.2d 824, 834 (3rd Cir. 1982) (quoting Restatement
(Second) of Contracts § 179, cmt. b); see also Trefethen v. Amazeen, 96 N.H.
160, 161 (1950).
66. See Shaer Shoe Corp. v. Granite State Alarm, 110 N.H. 132, 135 (1970).
67. See Audley, 138 N.H. at 418; Beehner v. Cragun Corp., 636 N.W.2d 821, 827
(Minn. Ct. App. 2001).
68. Stelluti, 1 A.3d at 693. Although there are few reported decisions on the applica-
bility of exculpatory contracts to generic premises liability actions (as opposed to
injuries incurred during recreational activities), those courts which have consid-
ered the question generally find such attempted waivers to be invalid on public
policy grounds. See, e.g., Walters v. YMCA, 96 A.3d 323, 328 (N.J. Super. Ct.
App. Div. 2014) (slip and fall in gym, held, “the exculpatory clause here . . .
would eviscerate the common law duty of care owed by defendant to its invitees
. . . . Such a contract must be declared unenforceable as against public policy.”).
69. First N.H. Mortg. Corp. v. Greene, 139 N.H. 321, 323 (1995).
70. Perry v. SNH Dev., 2017 N.H. Super. LEXIS 32, at *29-30 (N.H. Super. Ct.
Sept. 13, 2017) (Temple, J.); see Tayar v. Camelback Ski Corp., 47 A.3d 1190 (Pa.
2012).
71. Barnes, 128 N.H. at 108.
72. See 15 Corbin on Contracts § 85.18. The fact that New Hampshire does not
recognize “degrees of negligence” is not sufficient reason to reject the majority
rule. Other jurisdictions do not generally recognize degrees of negligence (or
gross negligence as a separate cause of action) but have still crafted an exception
on public policy grounds for exculpatory contracts. See Mero v. City Segway Tours
of Wash. DC, LLC, 962 F. Supp. 2d 92, 100 n.7 (D.D.C. 2013). Indeed, the
New Hampshire Supreme Court has created several common law rules depen-
dent on a finding of “gross negligence.” See, e.g., Certain Underwriters at Lloyd’s
London v. Home Ins. Co., 146 N.H. 740, 743-44 (2001); State v. Buinowski, 130
N.H. 1, 4 (1987); Taylor v. Grand T. Ry., 48 N.H. 304, 318 (1869).
Continued on page 180
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73. See McGrath, 158 N.H. at 543; see also discussion of statutory violations,

74. 
supra. Front cover photography provided by:
Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1115 (Fla. Dist. Ct.
App. 2008)
75. McGrath, 158 N.H. at 544.

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76. See Bagley, 340 P.3d at 36 n. 7.
77. 8 Williston on Contracts § 19.22 (4th ed.).
O rd e r t h
e-mail!
78. Rossman, 241 N.W.2d at 92; Stelluti, 1 A.3d at 693.
79. See Wessman, 84 N.H. at 478-79.
80. Ana Swanson & Alan Rappeport, Liability Shield Is a Stumbling Block as Pr i n t v i a
Lawmakers Debate Relief, N.Y. Times (Aug. 5, 2020), https://www.nytimes.
com/2020/08/05/us/politics/liability-shield-business-coronavirus.html.
81. Joey Kaufman, NCAA says schools cannot require COVID liability waiv-
ers, Buckeyextra (Aug. 5, 2020), https://www.buckeyextra.com/
sports/20200805/ncaa-says-schools-cannot-require-covid-liability-waivers.
82. Michael Kitch, Covid liability shield for NH businesses gets lukewarm recep-
tion, N.H. Bus. Rev. (May 7, 2020), https://www.nhbr.com/covid-busi-
Fine Art Photography
ness-liability-shield-for-nh-businesses-gets-lukewarm-reception/.
83. Ana Radelat, COVID sparks lawsuits in CT, but not the ‘epidemic’ businesses

Unique Greeting Cards

seeking immunity expected, The Conn. Mirror (Aug. 10, 2020), https://
ctmirror.org/2020/08/10/covid-sparks-lawsuits-in-ct-but-not-the-epidem-
ic-those-seeking-lawsuit-shield-for-businesses-expect/.
603-455-5505 • jill@justjillartdesign.com
13 Bean Hill Road • Belmont, NH
stjillartdesign.com Linkedin: Jill Mahan
ISRAEL F. PIEDRA is an associate with Welts, White
& Fontaine, P.C. in Nashua. He is a graduate of Bates
College and Boston College Law School. His practice
focuses on injury law and general civil litigation, Facebook and Instagram: @BoldSparkDesign
including appeals. Attorney Piedra also serves in the jill@BoldSparkDesign.com
New Hampshire House of Representatives.

Workers’ Compensation, Medical Malpractice, Family Law,

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Peer Groups have been established as an additional member benefit to enhance your practice.
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180 45TBN - Fall 2020