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Brandon Glanz and Alex Mastorides

Brandon Glanz and Alex Mastorides

December 18, 2023

Rules Disfavoring Liability Waivers for a Party’s Own Negligence Can be Overcome with Specific, Unequivocal Language

On December 4, the Minnesota Court of Appeals put to test a 2022 Minesota Supreme Court ruling in Justice v. Marvel, LLC which held that, for a liability waiver to release a party from its own negligence, the waiver’s language must be specific, clear, and unequivocal. Notwithstanding this strict construction applied to exculpatory waivers, the Court of Appeals in Lund v. Calhoun Orange, Inc., held that Calhoun Orange’s (d/b/a Orange Theory Fitness Minneapolis-Uptown) liability waiver was enforceable with respect to the company’s own negligence.

The lawsuit was brought by Tina Lund, wife and conservator of Fred Karasov. While attending a fitness class at Orange Theory, Karasov suffered a cardiac arrest. He suffered permanent brain damage. Lund brought various claims of negligence against Calhoun Orange in Hennepin County District Court. The District Court granted summary judgment on three claims because Karasov signed a liability waiver before attending exercise classes at Orange Theory.

The Justice Standard and Strict Construction of Exculpatory Waivers

On appeal, Lund argued that the Calhoun Orange liability waiver was unenforceable. Minnesota law disfavors clauses that purport to exonerate a party from liability; these clauses are therefore strictly construed against the benefitted party.[1] The Minnesota Supreme Court reaffirmed this principle in Justice, ruling that a company is generally not released from liability for its own negligence unless the waiver’s exculpatory clause uses “specific, express language that clearly and unequivocally states the contracting parties’ intent” to do so.[2] The Court further held that language purporting to release a company from liability “for any and all claims” is insufficient to meet the requirements.[3]

The Minnesota Court of Appeals’ Application of the “Specific, Clear, and Unequivocal” Standard

On appeal, Lund argued that the heightened standard from Justice required the court to reverse the district court’s summary judgment order on the negligence claim. The Court of Appeals disagreed. In applying the Justice standard to the facts, the appellate court looked at the entirety of the waiver’s fourth paragraph, which included the following language:

“[c]lient hereby agrees to indemnify[,] defend, hold harmless, release and discharge the Studio and Facility from all claims, demands, injuries, damage actions [sic] causes of action and from all acts of active or passive negligence on the part of the Studio, the Facility, the Studio instructors, their servants, agents, employees, and/or any successors and assigns . . . .” [4]

The Court held that, even though this language may have been placed in a clause dealing with indemnity rather than exculpation, it nonetheless expressed the parties’ specific, clear, and unequivocal intent to release Calhoun Orange from liability for its own acts of negligence.[5]

This ruling underscores the importance of carefully drafting liability waivers. Because Minnesota courts strictly construe exculpatory clauses relevant to the drafter’s claimed negligence, any liability waivers should be carefully crafted to specifically and unequivocally express an intent to release themselves for their own acts of negligence.


  • [1] See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982).
  • [2] Justice v. Marvel, LLC, 979 N.W.2d 894, 901-02 (Minn. 2022); see also Dewitt v. London Road Rental Center, Inc., 910 N.W.2d 412, 417 (Minn. 2018).
  • [3] Id. at 902-03.
  • [4] Lund v. Calhoun, No. A23-0149, 2023 WL 8368507 at *4-5 (Minn. Ct. App. 2023) (emphasis supplied in original).
  • [5] Id. at *5.


Authors: Brandon T. Glanz and Alex Mastorides*

*Alex Mastorides, a law clerk at HAWS-KM, attends the University of Minnesota Law School (J.D. expected May 2025).



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