contract-law liability
Is a contract valid if it releases a party from liability for probable injury?
<p>Suppose party A contracts with party B to release party B of liability for all possible injury resulting from party B providing party A a service in which there is significant risk of injury. If a strict probability figure is needed for this scenario, consider it >= 50%. This is in California. </p>

<p>Question form 1: This probability figure is included in the contract.
Question form 2: This probability is common knowledge (e.g. jumping out a third story window)</p>

<p>A release from liability for negligence is generally enforceable. </p>

<p>A release from liability for intentional acts is generally not enforceable.</p>

<p>Note also, that at a sufficiently high percentage risk (e.g. 99%), describing the source of the liability as negligence rather than an intentional act is, as a practical matter, no longer viable with respect to any party who is in any respect the cause of the injuries. Where that threshold lies would have to be determined on a case by case basis.</p>

<blockquote>
  <p>Is a contract valid if it releases a party from liability for probable injury?</p>
</blockquote>

<p>Yes, assuming that (1) the service or solicitation thereof is not outlawed, and (2) by "<em>injury resulting from party B</em>" you mean injury suffered <em>by</em> A. The contract in both of forms 1 and 2 is valid, since it meets the essential requirement that the parties <em>know</em> the terms/risks/etc. they <em>willfully</em> accept.</p>

<p>One important thing to keep in mind is that the parties' awareness of risk does not release party B from the <em>covenant of good faith and fair dealing</em> that is prerequisite (and presumed) in contract law. This means that the contract does not entitle party B to take advantage of, or unjustifiably exacerbate, the risk to which party A is subjected. In line with this, see the <a href="https://www.nylitigationfirm.com/files/restat.pdf" rel="nofollow noreferrer"><em>Restatement (Second) of Contracts</a> at § 195(1)</em> (stating that a contract is unenforceable if harm is caused <em>intentionally</em> or <em>recklessly</em>).</p>

<p>If the term "<em>injury resulting from party B</em>" reasonably or foreseeably implies a scenario where third parties might get injured, the contract would be <em>unenforceable on grounds of public policy</em>. See the <em>Restatement at § 178</em>. It might not be suffice that party A guarantees he will take responsibility for injuries caused by party B to others. Third parties are not partaking in the contract, whence it cannot be said that they knowingly and willfully accept the conditions therein.</p>
