Defense Digest, Vol. 25, No. 3, September 2019

Waive Hello! Waivers of Liability Are Here to Stay, But Maybe Not as to Recklessness

By Jessica L. Tyler, Esq.*

Key Points:

  • Waivers for one’s own negligence are upheld in Delaware if clear, not unconscionable, and not against public policy.
  • Whether a waiver of reckless behavior is enforceable remains to be seen.
  • Regardless of waivers, certain recreational activities invoke the doctrine of implied primary assumption of the risk.


In Delaware, waivers of liability—even for one’s own negligence—are enforceable. In 2015, the Delaware Superior Court reiterated that general principle in Ketler v. PFPA, LLC, 2015 Del. Super. LEXIS 270 (Del.Super. June 3, 2015). Since Ketler, the courts have questioned how far a release can go in protecting a business or premises owner from liability when suit is filed.

In his suit, Mr. Ketler claimed he was injured while using fitness equipment at a Planet Fitness facility. He alleged his injuries were caused by the gym’s negligence.

When he joined Planet Fitness In 2010, he had signed a membership agreement that contained a waiver of liability:

I understand and expressly agree that my use of this Planet Fitness facility . . . involves the risk of injury to me or my guest whether caused by me or not. I understand that these risks can range from minor injuries to major injuries including death. In consideration of my participation in the activities and use of the facilities offered by Planet Fitness, I understand and voluntarily accept this risk and agree that Planet Fitness . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury. . . resulting from the negligence of Planet Fitness or anyone on Planet Fitness’ behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of action. I further understand and acknowledge that Planet Fitness does not manufacture fitness or other equipment in its facilities, but purchases and/or leases equipment, and therefore Planet Fitness may not be held liable for defective products.

In April 2013, Ketler claimed injury from a seated rowing machine. In response to the plaintiff’s complaint, Planet Fitness answered, attaching a copy of the membership agreement, and then moved for judgment on the pleadings. Planet Fitness asserted that the release/waiver contained within the agreement barred the claims of negligence. The Superior Court agreed and found that the release was unambiguous, not unconscionable and not against public policy. The plaintiff appealed, and the Delaware Supreme Court affirmed. The court found that a release is not unconscionable if the party is free to walk away from the contract. Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016). It is not against public policy if the Delaware General Assembly has not enacted a statute applicable to the validity of such a release. Mackenson v. Anthony, 2017 Del. Super. LEXIS 294 (Del.Super. June 19, 2017).

In Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495 (Del.Super. Oct. 4, 2016), the plaintiff filed suit alleging that Thomas Lynam IV, a minor, was injured while riding his motocross bike on Blue Diamond’s motocross track. Tommy Lynam lost control of the bike and collided with a metal shipping container near the track. The plaintiff sued, advancing negligence and recklessness theories against the defendant. Prior to his ride, Tommy’s father had signed a waiver of liability release that was intended to release the defendant from claims of its own negligence.

The plaintiff conceded that the waiver barred claims of negligence. However, the plaintiff also asserted that he could proceed with the theory of recklessness because the waiver did not specifically address a claim for reckless behavior. In considering the plaintiff’s argument, the Delaware Superior Court adopted Prosser and Keeton’s interpretation of exculpatory agreements, finding that recklessness is a more “extreme” form of negligence and therefore not subsumed within the meaning of negligence. After determining the release was silent as to recklessness, the court denied the defendant’s motion for judgment on the pleadings.

Following Lynam, the court considered another Blue Diamond case and again found that the issue of recklessness could not be resolved. Barth v. Blue Diamond, LLC, 2017 Del. Super. LEXIS 615 (Del.Super. Nov. 29, 2017). The court noted, however, that some inherently dangerous sport activities trigger the doctrine of implied primary assumption of the risk and do not require a waiver for dismissal. Examples include: (1) being a spectator at a sporting event, such as a baseball or hockey game or tennis match, where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski or engaging in other noncompetitive water sports, such as water-skiing, tubing or white-water rafting; (5) drag racing; and (6) skydiving.

In summary, releases must be clear and unambiguous. They can attempt to disclaim “recklessness,” but it remains to be seen whether Delaware courts will uphold those provisions or reject them as against public policy.

*Jessica is an associate in our Wilmington, Delaware office. She can be reached at or 302.552.4370.


Defense Digest, Vol. 25, No. 3, September 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact