Are Liability Waivers Enforceable in New Hampshire?

A woman on a trail ride at a New Hampshire mountain resort was kicked in the leg by her guide's horse. She had signed a form before setting out, and one paragraph of it was printed in capital letters releasing the operator FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF the company. The trial court held that ended the case. The Supreme Court reversed. The word negligence was there, in capitals, and the release still failed, because the structure of the document buried what that paragraph was doing. One connecting word did most of the damage. For operators who work several states, the contrast with the neighbours is laid out in the liability and waivers hub. This summarises one decision and one statute in plain terms and is not legal advice for your business.

Are liability waivers enforceable in New Hampshire?

Yes, and the state is unusually strict about how they read.

The decision is Wright v. Loon Mountain Recreation Corp., 140 N.H. 166 (1995). New Hampshire runs a three step analysis. A court will not enforce an exculpatory contract that contravenes public policy. Once an agreement is unobjectionable on that ground, it will be upheld only if it appears that the plaintiff understood the import of the agreement, or that a reasonable person in the plaintiff's position would have known of the exculpatory provision. And because the terms are strictly construed against the party relying on them, the contract must clearly state that the defendant is not responsible for the consequences of his negligence. The plaintiff in this case did not even argue public policy. She won on step two, which is where most well intentioned forms lose.

Four Seasons, WY

The word therefore, and what it cost

The release paragraph began with the word therefore. The court took that seriously, noting that a common definition is for that reason, because of that, on that ground, and that a clause introduced by therefore cannot be understood without reading the language before it. The paragraphs before it emphasised the inherent hazards of horseback riding. So a reasonable person might understand the release to relate to those inherent dangers and to injuries occurring for that reason. Then came the sentence that decides the case. Being kicked by a horse is a danger inherent to horseback riding. Receiving an injury that would not have occurred but for a tour guide's negligence is not. The connecting word had quietly narrowed a paragraph its drafter thought was broad, and the injury fell in the gap.

The list that shrank the clause

The same paragraph released the operator from its negligence, to include negligence in selection, adjustment or any maintenance of any horse. The court accepted that parsed strictly those words do not necessarily restrict anything, but held that the superfluity of the terms served to obscure rather than clarify, and that a reasonable person might conclude the agreement relieved the operator of responsibility for the listed types of negligence only. It then worked through what maintenance of a horse would mean to an ordinary reader, and concluded it might well be understood as upkeep rather than control, which does not describe a guide failing to manage his own mount. Two justices dissented on exactly this point, reading the list as illustrative rather than exhaustive. That split is the useful part. When a clause can be read two ways by four judges, it is not doing the job an operator needs it to do.

Careful reading should not be necessary

The single most quotable line in the opinion is also the most useful drafting instruction in this series. The test requires that release language be plain, and a careful reading should not be necessary to divine the defendant's intent. The operator had argued that a careful reading of a particular phrase showed it modified something else. The court refused to play. If your defence of your own form begins with the words if you read it carefully, the form has already lost in New Hampshire. The court added that the agreement easily could have been framed in a manner that would have expressed its conditions and exclusions more clearly, which is a judicial way of saying this was avoidable.

Not a magic words state, and not a general language state either

New Hampshire sits in an unusual place. In an earlier case involving a model bitten by a lion during a photography shoot, a release covering any and all liability whatsoever failed, and the court explained that it failed not because it neglected to use the word negligence or any other special term, but because no particular attention was called to the notion of releasing the defendant from liability for his own negligence. So the word is not required. In the trail riding case the word was present, in capitals, and the release still failed because qualifying language obscured it. Put those together and the rule is about attention rather than vocabulary. The document must call particular attention to what it is doing. That is a different test from the bright line in the Missouri rule, and a stricter one than the plain meaning approach in the Michigan analysis.

Read the whole document, because that is what the court does

The clarity of the contract is assessed by evaluating it as a whole rather than by examining isolated words and phrases. That means the paragraphs you wrote for other reasons can undermine the one paragraph you care about. An opening section about inherent risks, a promise about equipment, a paragraph about behaviour on the trip and a warranty disclaimer are all context now. Anything that frames the document as being about the activity's own dangers weakens a later paragraph about your conduct. The fix is separation. Put the inherent risk material in one place, put the release of your own negligence in its own clearly headed section, and do not connect them with words like therefore, accordingly or as a result.

How to write the operative paragraph for this state

Four rules follow directly from the case. Start the sentence fresh rather than with a connector, so it cannot be read as a consequence of what came before. Say plainly that the release covers injury caused by the failure of the operator, its guides and its employees to use reasonable care, in addition to the risks inherent in the activity. If you list examples, say expressly that the list is not exhaustive, since the court's problem was that the list looked like a limit. And do not restrict the language to one boat, one animal or one piece of equipment when you mean the whole operation, because that was the third ambiguity the court found. The general catalogue of these failures sits in the piece on waivers that do not hold, and this case is a textbook example of the drafting version.

The guest's understanding is a question of fact

Step two of the test has two routes and operators should notice that the first one belongs to the guest. If the plaintiff understood the import of the agreement, that is enough. Her understanding is an issue of fact, and she gets to prove it at trial unless the language was clear and a misunderstanding would be unreasonable. So a clear document does two jobs at once. It satisfies the reasonable person route directly, and it forecloses the argument that a particular guest misunderstood. A muddy document loses both, which is why the clarity work is worth more than any additional paragraph of legal boilerplate.

Where the injury comes from someone else's animal, boat or gear

The third ambiguity in the case is one guides reproduce constantly. Early paragraphs of the form referred to the animal the rider accepted for use, and the court held it was unclear whether the agreement reached injuries involving horses the plaintiff was not riding. Translate that to the water. A form written around the vessel you are aboard may not cover an injury caused by the chase boat, the shuttle van, the dock, the loaner rod or another guest's gear. Write the release so it covers the whole operation and everyone working in it, name the vehicles and vessels as a category rather than one hull number, and do not let an early paragraph about your equipment narrow a later paragraph about your conduct.

Prince of Wales Eagle, AK

Draft for the reader you will actually get

Both of the New Hampshire cases turn on how an ordinary person would read the paper, which makes the intended reader a design question rather than a legal one. The person signing your form is on holiday. They are standing up, often outdoors, frequently with children nearby, and they have decided to go fishing regardless of what the document says. Nothing about that situation rewards density. Short sentences beat long ones. A heading that says what the section does beats a heading that says Terms. Ordinary words beat legal ones, because the court is asking what a reasonable person in the guest's position would have understood, and that person does not read contracts for a living. Operators sometimes worry that plain language makes a document look weaker. In this state the opposite is true, because plain is the actual test.

The paragraph you write for the inherent risks is doing a different job

It is worth being explicit about the two separate things a good form does, since conflating them is what sank the trail riding release. One job is to describe the dangers that come with the activity itself, so the guest knows what they are taking on. The other is to say that the operator is not answerable for its own carelessness. Those are different propositions and they should live in different places on the page. When they run together, the second one starts looking like a consequence of the first, which is precisely the reading that let the kicked rider proceed. Keep the risk description generous and specific. Keep the release short and unqualified. And put a heading between them so nobody has to work out where one ends.

Test the form the way the court did

There is a cheap exercise that reproduces the analysis. Take your form and read only the release paragraph, out of context. Write down what it covers. Then read the whole document from the top and answer the same question again. If the two answers differ, the surrounding material is doing something to that paragraph, and in New Hampshire the surrounding material is exactly what a court examines. Do the same test with a specific incident in mind: a guest hurt because a guide put the boat somewhere it should not have been, or because a rod was handed over in a way that put a hook in the wrong place. Ask whether your release plainly covers that, or whether it covers a category of accident that just happens to include it. The second answer is not good enough here.

Insurance is the part that does not depend on drafting

Because the New Hampshire test is about clarity and clarity is judged after the fact, an operator cannot be certain in advance that a particular form will hold. That uncertainty is what coverage is for. The Small Business Administration's summary of business insurance makes the general point that a business should match its coverage to the risks it actually runs, which for a guide means the water, the vessel, the passenger count and the season rather than a generic small business package. Read the exclusions rather than the brochure, and check whether defence costs are covered as well as damages, since a claim that survives a motion is a claim you are paying lawyers to defend regardless of how it ends.

The landowner statute, and what without charge means

New Hampshire's recreational provision is RSA 508:14, and it is drawn more generously than most states in one respect and just as narrowly in another. An owner, occupant or lessee, including the state or a political subdivision, who without charge lets someone use land for recreation or as a spectator of recreational activity is not liable for personal injury or property damage absent intentionally caused injury. Note the floor: intentionally caused, which is a higher bar for a claimant than the gross negligence standard most states use. Note also that spectators are expressly included, which many states omit. But the shield still turns on the words without charge, so a paid guided trip does not sit inside it. The statute adds that a contribution or other voluntary payment not required in order to use the land is not a charge, and that leasing land to the state or to a nonprofit for those purposes is not a charge either.

Two other subsections worth knowing

The section carries provisions that matter to operators working alongside volunteer and agricultural land uses. Anyone who builds, maintains or improves trails for public recreational use, including a person performing services for a nonprofit, is protected unless there was gross negligence or willful or wanton misconduct. And a landowner allowing pick your own or cut your own harvesting is protected absent willful, wanton or reckless conduct, notwithstanding that the picker pays for the produce. That last one is unusual, because payment does not remove the protection the way it does elsewhere in the section. None of these help a guide directly, but they describe the position of the people whose land you may be crossing, and knowing which subsection covers a particular arrangement is worth an afternoon before the season.

What this means for the season ahead

The practical work here is editorial rather than legal. Read your form out loud and stop at any sentence you have to re read. Delete every connector that ties your negligence paragraph to the paragraph above it. Break the document into headed sections so the release is visibly its own thing. Widen anything that names one boat or one item of gear. Then have somebody who has never seen it read it and tell you what the release does. If they cannot say it in one sentence, neither can a jury. Weather and cancellation practice belongs in the same file, which is the routine described in the storm season planning piece, and coverage for what the paperwork cannot reach is in the captain insurance explainer.

Before you take bookings

Send the form at booking rather than at the trailhead. Keep a dated version of each release so you can show which text a given guest signed. Collect a form from every adult, not just the organiser. Verify the exact current requirements for any guiding registration or permit with the relevant New Hampshire agency before the season starts, since those change independently of the case law. New operators should build the base document from the waiver basics and then apply this state's clarity test to every paragraph. Local material for these waters sits in the New Hampshire guide hub.