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Exculpatory clause enforced for gross negligence in MN
October 6, 2017
Exculpatory clause enforced for gross negligence in MN 
    Patron at gym was injured when she went into the steam room.  She sued for gross negligence.  The gym defended by citing the exculpatory clause in the gym contract.  The lower court dismissed the case, enforcing the exculpatory clause  on the ground that, in the context of enforcing an exculpatory clause,               Minnesota law does not recognize a gross-negligence claim as a separate, independent claim, distinct from an ordinary-negligence claim, so Plaintiff could not overcome the valid exculpatory clause by pleading a claim for gross negligence. The appellate court affirmed.  
    This is an important decision.  The case may go to MN's highest court, so we may have to see if it remains the law in MN.  The court settled the law regarding enforcement of the exculpatory clause, and also when it's not to be enforced.  When won't the exculpatory clause be enforced?  When the claim alleges and establishes "intentional, willful, or wanton acts".  The court did not equate gross negligence with intentional, willful or wanton acts.  
    Discussing an earlier case where the appellate court did not enforce an exculpatory clause when there was personal injury [horseback rider sued stable] the court pointed out that in the earlier case the exculpatory clause specifically excluded gross negligence.  The the gym case there was no such exclusion.  Therefore, since MN does not recognize a cause of action for gross negligence as being any different that a cause of action for ordinary negligence, and since MN will enforce an exculpatory clause for negligence, the court enforced this contract provision and dismissed the case.
    You can read the case [ DOUB, V LIFE TIME FITNESS, INC] on our website, and I suggest you do, especially if you're in MN.  You can find the case under our Leading Cases page at
    If you read the case you will see two samples of an exculpatory clause, one used by the Stable, which didn't work, and one used by the gym, which did work.  You should take notice that words do matter, and enforcement may hinge on one word and certainly one sentence.  I've suggested over and over again that you be very careful with your contract language.  Your business depends on your contracts.
    The exculpatory clause and other "protective" provisions in your contract are essential because it's the contract that will 
  • provide you with a successful defense when sued
  • be accepted by a central station who agrees to monitor you
  • be accepted by an insurance company who agrees to insure you
  • be accepted by a bank who agrees to finance you
  • be accepted by a buyer who agrees to buy the contracts
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
516 747 6700