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Contract Exculpatory Clauses for Future Negligence

What is the effect of all of those contractual waivers and releases you’re given at the last moment before you undertake an activity like skiing, sky-diving, or other dangerous acts? While public policy disfavors releases of future negligence, they are not prohibited. Milligan v. Chesterfield Village GP, LLC, 239 S.W.3d 613, 616 (Mo. Ct. App. 2007).

In order to be enforceable in Missouri, exculpatory clauses which release future negligence must contain clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). The exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. at 337. The words negligence or fault or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. Id. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving. Id.

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