It is well established that, under Massachusetts law, releases against negligence liability are enforceable. See e.g. Sharon v. Newton, 437 Mass. 99, 105 (2002)(citation omitted) (“in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.”); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 550 (1965) quoting from Clarke v. Ames, 267 Mass. 44, 47 (1929) (“[t]here 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.”). In effect, this approach allows parties to enter into agreements that waive potential future tort remedies, including the right to recover for injuries resulting from a defendant’s negligence.
We have successfully argued that releases bar the plaintiffs’ wrongful death claim if the decedent specifically releases claims “on behalf of his or her heirs…” Under the Massachusetts wrongful death statute, a defendant is liable if he negligently causes the death of another “under such circumstances that the deceased could have recovered damages for personal injuries if his death has not resulted…” G.L.c. 229, §2. In other words, the plaintiffs have a viable wrongful death claim only if the decedent would have had a valid personal injury claim if he had survived. If a release bars a decedent’s personal injury claim, we have successfully asserted that his estate does not have a viable wrongful death action.
Although there are no Massachusetts appellate decisions that address whether a release signed by the decedent bars a wrongful death claim under the current version of the Massachusetts wrongful death statute, other courts have concluded that such a release does bar a wrongful death claim. See Turner v. Walker County, 200 Ga.App. 565, 565-566, 408 S.E.2d 818, 819 (1991); Saenz v. Whitewater Voyages, Inc., 226 Cal.App.3d 758, 763-764, 276 Cal. Rptr. 672, 676 (1991);
Courts have reasoned that, under this type of wrongful death statute, the wrongful death claim is derivative, that is, the estate only has a viable wrongful death claim if the decedent would have had a viable personal injury claim if he had survived. See e.g. Turner v. Walker County, 200 Ga.App. at 565-566, 408 S.E.2d at 819; Ruppa v. American States Insurance Co., 91 Wis.2d at 646-647, 284 N.W.2d at 325. That rationale is directly applicable to the Massachusetts statute which permits a recovery for wrongful death only “under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted…”
In the case of Brenda Roy, Administratrix of the Estate of Robert Roy v. Wachusett Mountain Ski Area, the plaintiffs sought to recover damages arising out of the death of Robert Roy (“Roy”) who sustained fatal injuries when he struck a tree while skiing at the defendant’s facility. Mr. Roy was a season’s pass holder who signed an application agreeing to release and hold harmless Wachusett from any claim for any injuries arising out of his use of the ski area even if those claims arose from Wachusett’s negligence. We successfully argued that the defendant was entitled to summary judgment on the ground that the plaintiffs’ claims were barred by a release signed by Roy.
Massachusetts courts enforce releases even where parents have released the rights of their minor children. See Sharon v. Newton, 437 Mass. 99, 105 (2002). We have invoked releases signed by parents to defeat claims field on behalf of minors.
Practical consideration for those drafting a release include
- The language must be clear;
- The language should be conspicuous; and
- The party being released must be properly named.
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