Are Liability Waivers Enforceable in Massachusetts?

Usually, yes. That is the honest answer and it is not the one most people expect. Massachusetts is one of the friendlier states in the country for the business that hands you a clipboard, and the Supreme Judicial Court has said so in as many words: “Massachusetts law favors the enforcement of releases.” It does not matter that you did not read it. It does not matter that you had no choice but to sign it if you wanted to take the class, join the club or get on the lift. A parent can even sign away a child’s right to sue. What a waiver cannot do is reach a defendant’s gross negligence, excuse a violation of a statutory duty, or override the handful of situations where the Legislature has written a rule by hand. That gap is where real Massachusetts cases get won, and it is narrower and more specific than the internet suggests. To talk through a specific situation, the Jim Glaser Law line at (617) JIM-WINS is answered 24 hours a day, and the first telephone consultation is offered without charge.

The Rule, Stated Plainly

The starting point is old and it has never moved. In Lee v. Allied Sports Associates, Inc., 349 Mass. 544 (1965), a man was struck by a wheel that came off a racing car at the Westboro Speedway after signing a “release sheet” to get into the pit area. The court held the release barred his claim and set out the principle that governs to this day: “In this Commonwealth a right which has not yet arisen may be made the subject of a covenant not to sue or may be released.” Quoting an earlier case, it added that there is “no rule of general application that a person cannot contract for exemption from liability for his own negligence and that of his agents and servants.”

Nearly thirty years later the SJC applied the same rule to a consumer. In Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286 (1993), a beginner enrolled in a motorcycle safety course after seeing an advertisement promising she would be taught to ride safely by certified instructors. She was handed a waiver form and told she could not participate unless she signed it. She was injured on the second day. The court affirmed summary judgment for the safety council and rejected every argument she made, holding that “An agreement, like the one before us, placing the risk of negligently caused injury on a person as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth.”

Two details from Cormier are worth carrying around. First, a waiver does not have to use the word negligence to bar a negligence claim. The form there said “any and all liability, loss, damage, costs, claims and/or causes of action, including but not limited to all bodily injuries”, and the court said that “This language obviously is sufficient to bar a claim in negligence without specifically mentioning that word.” Second, the SJC did leave one thumb on the scale for the injured person: “While any doubts about the interpretation of the release must be resolved in the plaintiff’s favor”, the release in that case was “unambiguous and comprehensive”. Ambiguity helps you. A clearly written waiver does not become ambiguous because you wish it did.

Not Reading It Does Not Help You

This is the most common thing people believe and it is wrong. Lee stated the rule directly: the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects. Cormier applied it to someone who did not even remember signing: “The plaintiff had an opportunity to read the release and is deemed to have understood it.” Her belief that she was only releasing accidental injury, not negligence, was held to be no basis for setting the release aside.

There is one real exception and it is about the kind of document, not about whether you read it. In the older coat-check and admission-ticket cases, Massachusetts courts held that fine print on a stub does not bind a customer unless the customer was actually aware of it, because “the type of document which the patron receives and the circumstances under which he receives it are not such that a person of ordinary intelligence would assume that the ticket limits the proprietor’s liability unless the patron becomes actually aware of that limitation.” That principle is alive. It is simply not available to someone who signed a document plainly labeled as a release. In Sharon v. City of Newton, 437 Mass. 99 (2002), the SJC drew exactly that line, noting that the release there “was clearly labeled as such and was filled out and signed” by the student and her father, so that the circumstances differed substantially from the stub cases.

Practical translation: if what you signed was a form with the word release or waiver on it, expect to be held to it. If liability language was buried on the back of a wristband, a parking stub or an emailed receipt you never opened, whether you had notice may be a question for a jury.

Take It or Leave It Does Not Help You Either

People often assume a waiver presented on a no-negotiation basis is a contract of adhesion and therefore void. Massachusetts has considered that argument and rejected it. In Minassian v. Ogden Suffolk Downs, Inc., 400 Mass. 490 (1987), a horse owner argued exactly that after a stable fire, and the SJC enforced the agreements anyway, observing that “In a business context such as this, there is far less reason to designate such agreements as unconscionable than in the typical consumer transaction.”

Cormier then closed the consumer side of the door: “Requiring the plaintiff to sign the release before taking the course does not make the release unconscionable.” The reason is that the activity was optional. Nobody has to take a motorcycle course, race a horse or join a climbing gym, so conditioning a voluntary and nonessential activity on a signature is treated as a price, not as coercion.

One more piece of the landscape is worth knowing before the exceptions, because it explains why Massachusetts outcomes differ from what people read online. New York has a statute voiding exculpatory clauses used by pools, gyms, amusement places and similar establishments that charge a fee. When the Appeals Court described that statute in Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645 (2004), it added four words that explain a great deal: “Massachusetts has no such statute.”

Limit One: Gross Negligence

Here is the first real gap, and it is the one that decides cases. In Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17 (1997), a dirt bike racer signed a release to enter a sanctioned race, then was injured in a pileup after a flagman failed to raise the yellow flag and instead stood watching the crash. The release disposed of his ordinary negligence count. It did not dispose of everything. The Appeals Court held “that the release did not exempt the defendant from liability for grossly negligent conduct.”

That was new law when it was decided. The court said plainly that until then, “no Massachusetts appellate court has decided whether a defendant may also exempt itself from its own gross negligence”, and reached its conclusion from the caution Massachusetts courts already showed toward releases, together with persuasive authority elsewhere. The court listed that caution: courts decline to enforce a release “where a release attempts to shield a defendant from responsibility for violation of a statutory duty”, where a public utility tries to limit its liability, and “where there is an obvious disadvantage in bargaining power so that the effect of the contract is to put a party at the mercy of the other’s negligence.”

Gross negligence is a demanding standard and it should not be oversold. Massachusetts has defined it since 1919 as “very great negligence, or the absence of slight diligence, or the want of even scant care.” In Zavras the plaintiff cleared it on one theory and failed on another: the evidence that the flagman merely looked young was held insufficient, while the evidence that he stood and watched long enough for three more riders to go over the jump was enough for a jury. Momentary inattention can qualify when it happens in a place of great and immediate danger.

Note what the case does not hold. Because the release plainly covered ordinary negligence and the court decided the gross negligence question, there is no Massachusetts appellate holding cited here that a release cannot reach reckless or intentional conduct. The Restatement position on intentional and reckless harm appears in a Zavras footnote as persuasive authority, not as a holding. In practice the point rarely matters, because conduct that reckless is well past the gross negligence line the case did decide.

Limit Two: a Statutory Duty

The second gap is older and cleaner. In Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507 (1968), a customer at a beauty school signed a release covering negligence by students and instructors, then was injured during a permanent wave given by a student who was not registered as the licensing statute required. The SJC agreed that the customer “could make a valid contract exempting the defendant from liability to her for injuries resulting from its negligence or that of its employees”, and then drew the line: “But such a contract cannot serve to shield the defendant from responsibility for violation of a statutory duty.”

The Appeals Court restated it in Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606 (1989), a case worth reading for both halves of its sentence: “As a general proposition, releases of liability for ordinary negligence are valid.” And then: “A release may not shield a defendant from responsibility for violation of a statutory duty.”

This is why the specific setting matters so much. A waiver signed at a gym, a stable or a ski area is not one legal question. It is two: what the paper says, and what statute or regulation was already binding the business regardless of the paper.

Limit Three: the Statutes the Legislature Wrote by Hand

Massachusetts has no across-the-board ban on recreational waivers. It does have a set of targeted statutes, and each one is a live route around a signature.

Your apartment lease. M.G.L. c. 186, sec. 15 is unusually blunt. Any lease provision “whereby a lessee or tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to indemnify the lessor or landlord or hold the lessor or landlord harmless, or preclude or exonerate the lessor or landlord from any or all liability to the lessee or tenant” for injury caused by the landlord’s negligence “shall be deemed to be against public policy and void.” A hold-harmless clause in a residential lease is not a hard argument in Massachusetts. It is a dead letter. That matters for a fall in a common stairway or an injury from a defect the landlord never fixed, which is ordinary premises liability territory.

Anything sold to you as a product. If the injury came from equipment rather than from how a place was run, the release runs into the Uniform Commercial Code. M.G.L. c. 106, sec. 2-316A(4) provides that language attempting “to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify remedies for breach of those warranties, shall be unenforceable with respect to injury to the person”, and subsection (5) adds that “The provisions of this section may not be disclaimed or waived by agreement.” The companion provision, sec. 2-719(3), says that “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.” Massachusetts routes injury claims about defective equipment through warranty rather than strict liability, which is covered in detail in the guide to defective product claims.

Your gym contract. Health club contracts have their own chapter, M.G.L. c. 93, secs. 78 to 88, and it ends with a sentence gyms rarely mention: “Any waiver by the buyer of the provisions of this chapter shall be deemed void and unenforceable by the seller as contrary to public policy.” Section 85 also voids the whole contract if it does not comply with the chapter. Section 84 declares it “an unfair and deceptive trade practice in violation of chapter ninety-three A” for a club to “violate or fail to comply with any other provision of sections seventy-eight to eighty-eight, inclusive”, and section 86 lets an injured buyer sue for “damages or other relief, including injunctive relief, multiple damages and attorney’s fees, as and to the extent provided for under chapter ninety-three A.”

The gym chapter also contains a safety mandate most members have never heard of. Section 78A requires that “A health club shall have on the premises at least 1 AED” and that it “shall have in attendance during staffed business hours at least 1 employee or authorized volunteer as an AED provider”. The Legislature paired that duty with a shield in section 86: “Absent a showing of gross negligence or willful or wanton misconduct, no cause of action against a health club or its employees may arise in connection with the use or non-use of a defibrillator.” Read those together and the two limits in this article converge. On a cardiac emergency at a gym, the only open route is gross negligence or willful or wanton misconduct, which is precisely the category that Zavras says a signed release cannot reach anyway.

Section 86 also preserves the rest of your rights: “Nothing in sections seventy-eight to eighty-eight, inclusive, shall be construed so as to nullify or impair any right or rights which a buyer may have against a seller at common law, by statute, or otherwise.”

Limit Four, Reserved but Real: Compulsion and Essential Services

Every enforcement case in Massachusetts turns on the activity being voluntary. That is not decoration in the opinions, it is the load-bearing fact, and the SJC has flagged what happens when it disappears. In Sharon the court wrote: “We have not had occasion to rule on the validity of releases required in the context of a compelled activity or as a condition for the receipt of essential services”, naming public education, medical attention, housing and public utilities, and adding that “the enforceability of mandatory releases in such circumstances might well offend public policy.”

The seed of that was in Cormier, which distinguished Gonsalves on the ground that “exacting a release of liability for negligence from a public employee under a compulsion to enroll in certain training courses might offend public policy”, while the motorcycle student “was under no compulsion” to take the course.

Nobody has yet won a Massachusetts appellate decision on that theory, so it should be described as an open door rather than a rule. But it is the reason a waiver at a rock gym and a waiver demanded before a necessary medical procedure are not the same legal question.

Yes, a Parent Can Sign Away a Child’s Claim

This is the fact most readers refuse to believe, and Sharon v. City of Newton is squarely it. A sixteen year old was hurt in a cheerleading practice at Newton North High School. Three years earlier her father had signed a “Parental Consent, Release from Liability and Indemnity Agreement” so she could take part in school athletics. The SJC held the release barred her suit against the city, concluding that her father “had the authority to bind his minor child to an exculpatory release that was a proper condition of her voluntary participation in extracurricular sports activities offered by the city.”

Two qualifications keep that from being as broad as it sounds. First, her own signature was worth nothing. The court reaffirmed that “it remains our law that the contract of a minor is generally voidable when she reaches the age of majority”, and the city conceded she had effectively disaffirmed the release by filing suit. The release survived only because a parent signed it. Second, the holding is expressly bounded: “In the circumstance of a voluntary, nonessential activity, we will not disturb this parental judgment.” Compelled or essential activity remains the reserved question above.

There is also a burden point buried in a Sharon footnote that changes how these cases are actually litigated. Once the defendant produces the release, “the plaintiff bears the burden of proving that it is not a valid bar to her suit.” The injured person is the one who has to establish fraud, duress, ambiguity, gross negligence, a statutory violation or a statutory bar. That is why what happened, and what was said, gets documented early, the same discipline described in the article on social media and your injury claim.

Youth Sports Come With Their Own Immunity, Waiver or Not

For a child hurt in a nonprofit league, the paperwork may be the smaller obstacle. M.G.L. c. 231, sec. 85V grants immunity from tort actions to unpaid volunteers who serve “as a manager, coach, umpire or referee or as an assistant to a manager or coach in a sports program of a nonprofit association”, to the nonprofit association running the program, and to its uncompensated officers, directors, trustees and members. That is a statute, not a signature, and it applies whether or not anyone signed anything.

The exceptions are where these cases live, and there are four. The immunity “shall not apply to any acts or failures to act intentionally designed to harm, or to any grossly negligent acts or failures to act which result in harm to the person.” Then the statute preserves liability for three more categories: conduct “committed in the course of activities primarily commercial in nature even though carried on to obtain revenue for maintaining the sports program”, anything “relating to the transportation of participants in a sports program or others to or from a game, event or practice”, and anything “relating to the care and maintenance of real estate which such persons or nonprofit associations own, possess or control”.

Read that list next to a typical youth sports injury. A van crash on the way to a tournament and a collapsing set of bleachers are both outside the immunity by the statute’s own terms. So is a for-profit travel program, since the immunity attaches to nonprofit associations and excludes primarily commercial activity. A wrongful death claim arising from one of those categories is not blocked by sec. 85V at all.

Ski Areas: the Statute Is Harsher Than Any Waiver

If you were hurt skiing, stop worrying about the lift ticket and look at the calendar. M.G.L. c. 143, sec. 71P makes written notice a condition precedent: “No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury.” Then it shortens the clock: “An action to recover for such injury shall be brought within one year of the date of such injury.”

One year, not the three years that the ordinary personal injury statute of limitations gives. Ninety days, by registered mail, for the notice. There is relief written into the statute if the notice is missed, since failure to give it does not bar recovery where the court finds the operator “had actual knowledge of said injury or had reasonable opportunity to learn of said injury within said ninety-day period, or was otherwise not substantially prejudiced”, and helpfully “the burden of proving substantial prejudice shall be on the operator”. That is a defense to fight about, not a plan.

The statute also front-loads assumption of risk. Under sec. 71O, “A skier shall be presumed to know the range of his own ability to ski on any slope, trail or area”, and a skier “shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury or loss caused by such inherent risks.”

But the operator is not off the hook, and sec. 71N is the part injured skiers should read. It requires posted notice when maintenance or snow-making equipment is on an open trail, marking and flashing or rotating lights on trail maintenance and emergency vehicles including snowmobiles, marking of snow-making hydrants on a slope, and a sign system on lifts, trails and slopes. It makes the operator “responsible for the maintenance and operation of ski areas under its control in a reasonably safe condition or manner”, with the proviso that operators “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” An unmarked hydrant or an unlit groomer is not an inherent risk of skiing. It is a statutory duty, which is exactly the category Henry says a release cannot cover.

There is one more thing in sec. 71N worth knowing, because it is the reason nobody can claim surprise. The operator must place, “on the back of any lift ticket issued notice, in plain language, of the statute of limitations and notice period established in section seventy-one P”. The warning is printed on the ticket in your pocket.

Horseback Riding Has Its Own Statute Too

M.G.L. c. 128, sec. 2D does for equine activities roughly what the ski statute does for skiing. An equine activity sponsor or professional “shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities”, with the inherent risks defined in the statute to include an animal’s propensity to behave in ways that injure people and the unpredictability of its reaction to sounds, sudden movement and unfamiliar objects.

The exceptions are specific and they are where a real case sits. Liability is preserved where the professional “provided the equipment or tack, and knew or should have known that the equipment or tack was faulty”, where the professional “provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity”, where a dangerous latent condition of the land was known and unposted, where the person “commits an act of omission that constitutes willful or wanton disregard for the safety of the participant”, and where the person “intentionally injures the participant”. Putting a first-time rider on the wrong horse is not an inherent risk; it is the second exception, written out.

The statute also imposes a duty of its own. Every equine professional must post signs and include in every written contract a warning notice in the exact statutory words: “Under Massachusetts law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 2D of chapter 128 of the General Laws.” Whether that notice was actually posted and included is a fact worth checking.

Trampoline Parks, Climbing Gyms and Everything Else

For the settings the Legislature has not addressed by name, there is no special rule and Cormier simply governs. A signed, clearly labeled, comprehensive waiver for a voluntary recreational activity will ordinarily bar an ordinary negligence claim. The questions that remain are the ones this article has already laid out: was the conduct grossly negligent, was a statutory or regulatory duty violated, was the document actually signed or merely printed on a ticket, was the activity truly voluntary, and did equipment fail in a way that puts warranty law in play.

One related statute is worth naming because it catches people who assume free access means a stronger claim. M.G.L. c. 21, sec. 17C limits the liability of a landowner who “lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor” to wilful, wanton or reckless conduct. It expressly covers minors, and it expressly does not apply to a landowner who charges a fee. Free trail, free field, free pond: no waiver needed, because the statute has already done the work.

The Clause That Is Worse Than a Waiver

Read the sentence after the release. Some agreements do not just say you cannot sue; they say you will pay the other side if anyone gets hurt.

Post v. Belmont Country Club is the cautionary example, and the facts are worth stating exactly. A club member died in a golf cart accident. His estate sued for wrongful death and conscious pain and suffering. The club counterclaimed under a clause in the member handbook reading that “Each person renting or driving a cart is responsible for any personal injury or property damage caused, including without limitation, injury to him/herself and damage to the cart, and agrees to indemnify the Club against all loss, claims or expenses resulting from use of said cart.” The club settled the estate’s claims for $4,500,000 while expressly reserving that counterclaim, on terms limiting any recovery on it to the proceeds of the decedent’s homeowner’s insurance. The Appeals Court held the estate was bound by the clause and enforced it.

The member had never read the handbook provision and there was no evidence he knew it existed. It did not matter: the court held that “in becoming a member of the club, Post should be charged with knowledge of the Club’s by-laws and rules and regulations, and that his actual knowledge of the provision need not be shown in order that the provision apply.” Nor was it a contract of adhesion, because members could vote to change it.

That is the shape of the risk. An indemnity clause in a membership document can convert an injury claim into a bill, and it can reach a person who never opened the book it was printed in.

Two Questions Massachusetts Has Not Answered

Both belong here because guessing at them is how bad advice gets written.

The first is whether the UCC provision above reaches a signed release. Section 2-316A(4) speaks of “Any language, oral or written” that excludes or modifies remedies for breach of the implied warranties, and says it is unenforceable “with respect to injury to the person”, and subsection (5) says the section cannot be waived by agreement. On the face of it, a general release of all claims signed before an injury is language that would exclude a warranty remedy for personal injury. No Massachusetts appellate decision applying that section to a recreational or membership release was found for this article, so the honest statement is that the text is broad and the question is unresolved.

The second is the wrongful death question. A claim under M.G.L. c. 229, sec. 2 belongs to the next of kin rather than to the person who signed the paper, and an estate in Post argued that a person cannot release a claim that is not his to release. The Appeals Court declined to decide it: “Whatever the merits of this argument, we need not reach the issue.” So whether a waiver signed by someone who later dies stops the family’s own claim is genuinely open in Massachusetts. Nobody should assume either answer.

If You Signed One and Got Hurt Anyway

The document is a starting point, not a verdict. A few things make a real difference to what comes next.

Get a copy of exactly what you signed, including the back and any incorporated rules, handbook or membership terms. In Post the clause that mattered was in a handbook, not on the form. Photograph the equipment, the surface, the signage and anything that failed, before it is repaired or replaced. Write down what staff did and how long it took, because gross negligence cases are usually built out of duration and inattention rather than a single bad decision, which is what carried the day in Zavras. Note whether required signs, lighting or markings were actually there, since a missing statutory notice is a route the release does not close. Keep the ticket, wristband or receipt, because in ski cases the notice deadline starts running immediately. And get the incident report; most facilities write one.

If a child was hurt, find out who ran the program and how it is organized, because a nonprofit league, a for-profit camp and a public school district sit in three different places under sec. 85V and the Sharon rule. The other article worth reading alongside this one is the guide to how fault is determined, and for what a claim is worth once the paperwork question is resolved, case value and legal fees cover the parts people ask about next. Serious injuries such as a traumatic brain injury or a spinal cord injury are worth a lawyer’s review even where a waiver looks airtight, and if the defendant is a city, a town or the Commonwealth, the separate rules in suing the government apply on top. Where a claim was never barred at all, the ordinary comparative negligence rules decide what the recovery looks like.

Frequently Asked Questions

Q: Are liability waivers legal in Massachusetts?

A: Yes. Massachusetts enforces pre-injury releases of ordinary negligence as a general matter. In Sharon v. City of Newton, 437 Mass. 99 (2002), the Supreme Judicial Court said flatly that “Massachusetts law favors the enforcement of releases”, and in Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286 (1993) it held that “placing the risk of negligently caused injury on a person as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth.” Unlike New York, Massachusetts has no statute voiding waivers used by gyms, pools and amusement places. The Appeals Court noted exactly that in Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645 (2004): “Massachusetts has no such statute.”

Q: I signed a waiver without reading it. Does that make it invalid?

A: No. Lee v. Allied Sports Associates, Inc., 349 Mass. 544 (1965) held that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects. Cormier went further and enforced a release against a plaintiff who did not remember signing it, holding that “The plaintiff had an opportunity to read the release and is deemed to have understood it.” The narrow exception is for liability language on a ticket or coat-check style stub rather than a document plainly labeled a release, where actual notice can be a question of fact.

Q: The gym told me I could not join unless I signed. Is that duress?

A: No, not where the activity is voluntary. Cormier held that “Requiring the plaintiff to sign the release before taking the course does not make the release unconscionable”, because the decision to take the course was voluntary. Minassian v. Ogden Suffolk Downs, Inc., 400 Mass. 490 (1987) rejected the adhesion argument in a comparable setting, noting that “In a business context such as this, there is far less reason to designate such agreements as unconscionable than in the typical consumer transaction.” A take-it-or-leave-it presentation is not, by itself, a reason to set a waiver aside.

Q: What can a waiver never cover in Massachusetts?

A: Gross negligence, at a minimum. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17 (1997) held “that the release did not exempt the defendant from liability for grossly negligent conduct.” A release also cannot excuse a violation of a statutory duty. Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507 (1968) held that a valid negligence release “cannot serve to shield the defendant from responsibility for violation of a statutory duty”, and Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606 (1989) restated it: “A release may not shield a defendant from responsibility for violation of a statutory duty.”

Q: What counts as gross negligence?

A: Massachusetts has used the same definition since 1919: gross negligence is “very great negligence, or the absence of slight diligence, or the want of even scant care.” It is a real step above carelessness. In Zavras the evidence that a flagman looked ten to thirteen years old was held insufficient on a negligent hiring theory, but the evidence that he stood watching a pileup long enough for three more riders to launch over the same jump was enough to send the case to a jury. Duration and inattention in a place of immediate danger are what usually carry these cases.

Q: My child was injured after I signed a waiver for a school or league. Is the claim gone?

A: Not automatically, but the parent’s signature is a serious obstacle. Sharon v. City of Newton held that a father “had the authority to bind his minor child to an exculpatory release that was a proper condition of her voluntary participation in extracurricular sports activities offered by the city.” The holding is limited to “a voluntary, nonessential activity”, and the Supreme Judicial Court expressly reserved the question of releases required for a compelled activity or as a condition of essential services. A child’s own signature is separately voidable, since “it remains our law that the contract of a minor is generally voidable when she reaches the age of majority.”

Q: Does a waiver matter in a nonprofit youth sports case?

A: It may not be the main problem. M.G.L. c. 231, sec. 85V already gives tort immunity to unpaid volunteer coaches, managers, umpires and referees and to the nonprofit association itself, with or without a signed form. The immunity has hard limits written into the statute. It does not apply to acts “intentionally designed to harm”, to “grossly negligent acts or failures to act which result in harm to the person”, to activities “primarily commercial in nature”, to anything “relating to the transportation of participants”, or to “the care and maintenance of real estate” the organization owns, possesses or controls.

Q: I was hurt skiing. Does the waiver on my lift ticket end it?

A: The bigger issue is usually the deadline. M.G.L. c. 143, sec. 71P requires that within ninety days of the incident the injured person “give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury”, as a condition precedent to suing, and it requires that any action “shall be brought within one year of the date of such injury.” That is one year rather than the usual three. Missed notice is not always fatal, since the operator carries “the burden of proving substantial prejudice”, but nobody should rely on that. Section 71N(5) requires the operator to print notice of these deadlines on the back of the lift ticket.

Q: Are there ski injuries the operator can still be liable for?

A: Yes. M.G.L. c. 143, sec. 71N imposes concrete duties: notice when maintenance or snow-making equipment is on an open trail, flashing or rotating lights on trail maintenance and emergency vehicles including snowmobiles, marking of snow-making hydrants located on a slope or trail, and a sign system on buildings, lifts, trails and slopes. It makes an operator “responsible for the maintenance and operation of ski areas under its control in a reasonably safe condition or manner”, while providing that operators are not liable for damages “which arise out of the risks inherent in the sport of skiing.” An unmarked hydrant or an unlit grooming vehicle is not an inherent risk of skiing, and it is a statutory duty a release cannot cover.

Q: My apartment lease says I cannot sue my landlord. Is that enforceable?

A: No. M.G.L. c. 186, sec. 15 provides that a lease provision whose effect is to indemnify or hold the landlord harmless, or to “preclude or exonerate the lessor or landlord from any or all liability to the lessee or tenant, or to any other person, for any injury, loss, damage or liability arising from any omission, fault, negligence or other misconduct of the lessor or landlord” on or about the leased premises or its common areas “shall be deemed to be against public policy and void.” This is one of the few places where Massachusetts voids the clause outright rather than construing it.

Q: Does the waiver I signed at my gym cover everything?

A: Not the parts the Legislature reserved. M.G.L. c. 93, sec. 85 provides that “Any waiver by the buyer of the provisions of this chapter shall be deemed void and unenforceable by the seller as contrary to public policy”, and sec. 84 makes it an unfair and deceptive practice under chapter 93A for a club to “violate or fail to comply with any other provision of sections seventy-eight to eighty-eight, inclusive.” Section 78A separately requires that a health club “have on the premises at least 1 AED” and an on-duty AED provider during staffed business hours. On a defibrillator claim, sec. 86 leaves open only a showing of “gross negligence or willful or wanton misconduct”, which is the same conduct a release cannot reach.

Q: The injury was caused by broken equipment. Does that change anything?

A: It can, because equipment claims run through warranty law. M.G.L. c. 106, sec. 2-316A(4) makes language excluding or modifying implied warranties or remedies for their breach “unenforceable with respect to injury to the person”, and subsection (5) states that “The provisions of this section may not be disclaimed or waived by agreement.” Section 2-719(3) adds that “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.” Whether those sections defeat a signed general release is a question no Massachusetts appellate decision found for this article answers, so treat it as unresolved rather than settled.

Q: My family member signed a waiver and later died. Can we still bring a wrongful death claim?

A: That question is open in Massachusetts. A wrongful death claim under M.G.L. c. 229, sec. 2 belongs to the next of kin rather than to the person who signed, and an estate raised precisely that argument in Post v. Belmont Country Club, Inc. The Appeals Court declined to resolve it, writing “Whatever the merits of this argument, we need not reach the issue.” Because it is unsettled, a family should not assume the answer in either direction without talking to a lawyer.

Q: Who has to prove what once a waiver is produced?

A: The injured person. A footnote in Sharon v. City of Newton states the rule: when a release is raised in defense, “the plaintiff bears the burden of proving that it is not a valid bar to her suit.” That means the burden of showing fraud, duress, ambiguity, gross negligence, a statutory violation or a statutory bar sits with the claimant, which is why evidence gathered in the first days after an injury matters so much in these cases.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney-client relationship. Whether a particular waiver bars a particular claim depends on the exact wording of the document, the setting, the conduct involved and the deadlines that apply, which only a lawyer reviewing them can assess. For advice about a specific situation, call Jim Glaser Law at (617) JIM-WINS.