1
STATE OF MINNESOTA

IN SUPREME COURT

A20-1318

Court of Appeals McKeig, J.
Dissenting, Anderson, J., Gildea, C.J.
Carter Justice,

Appellant/Cross-Respondent,

vs. Filed: September 21, 2022
Office of Appellate Courts
Marvel, LLC d/b/a Pump It Up Parties,

Respondent/Cross-Appellant.

________________________

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota; and

Patrick W. Michenfelder, Throndset Michenfelder, LLC, Saint Michael, Minnesota , for
appellant/cross-respondent.

Joseph A. Nilan, Daniel A. Ellerbrock, Jacob T. Merkel, Gregerson, Rosow, Johnson &
Nilan, Ltd., Minneapolis, Minnesota, for respondent/cross-appellant.

Taylor Brandt Cunningham, Conlin Law Firm, LLC, Minneapolis, Minnesota, for amicus
curiae Consumer Federation of America.

Matthew J. Barber, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amici
curiae Minnesota Association for Justice and Public Justice.

Brian J. Kluk, McCollum Crowley, P.A., Minneapolis, Minnesota, for amicus curiae
Minnesota Defense Lawyers Association.

Brian N. Johnson, Cortney G. Sylvester, Nilan Johnson Lewis PA, Minneapolis,
Minnesota, for amici curiae Minnesota Ski Areas Association, et al.

________________________
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S Y L L A B U S

An exculpatory clause, like an indemnity clause, is subject to strict construction,
such that a provision that purportedly releases a company from “any and all claims” is not
enforceable against a claim for negligence where the provision does not sufficiently
express a clear and unequivocal intent to release the company from the company’s own
negligence.
Reversed and remanded.
O P I N I O N
MCKEIG, Justice.
At issue in this case is whether an exculpatory clause that purports to release
respondent/cross-appellant Marvel, LLC from “any and all claims” related to use of its
inflatable amusement play area is enforceable against a claim of negligence.
Appellant/cross-respondent Carter Justice att ended a party at Marvel’s play area, and his
mother signed a waiver on behalf of Justice and herself. Justice was subsequently injured
when he fell from the top of an inflatable and hit his head on the carpet-covered concrete
floor. After Justice turned 18, he sued Marvel, claiming that Marvel negligently operated
the inflatables in its play area without adequate padding on the floor. We must determine
whether the waiver signed by Justice’s mother bars Justice’s claim. Because the waiver
does not specifically reference Marvel’s own conduct or otherwise sufficiently express that
Marvel was being released from liability for its own negligence, we conclude that the
waiver—strictly construed—does not release Marvel from liability for its own negligenc e.
3
Accordingly, we reverse the district court’s grant of summary judgment for Marvel and
remand to the court of appeals.
FACTS
In February 2007, when Justice was 7 years old, he attended a birthday party at
Pump It Up Parties, an inflatable amusement play area owned by Marvel, LLC. 1 Before
Justice entered the play area, Justice’s mother, Michelle Sutton, signed a waiver of liability
on “her own behalf, and/or on behalf of the participant(s) identified below,” naming
Justice. The waiver contained a liability release—the core provision at issue in this case—
in which Sutton agreed to “release and hold harmless MARVEL, LLC . . . from and against
any and all claims, injuries, liabilities or damages arising out of or related to our
participation in any and all Pump It Up programs, activities, parties, the use of the play
area and/or inflatable equipment.” The waiver stated that Sutton acknowledged the
“inherent risks associated with participation in Pump It Up programs, parties, and/or use
of the play area and inflatable equipment” and that she “knowingly and freely assume[d]
all such risks, both known and unknown, including those that may arise out of the
negligence of other participants.” The waiver also noted that the agreement was “[i]n
consideration of being allowed to enter into the play area and/or participate in any party
and/or program at Pump It Up.”

1 Marvel, LLC was doing business as Pump It Up Parties at the time of Justice’s
injury. Marvel discontinued operations as Pump It Up in 2009 and is currently an inactive
business entity.
4
When Justice was playing on an inflatable, he fell and hit his head on the concrete
floor, which was covered with commercial grade carpet. Justice was taken to a hospital
and treated in the intensive care unit. Justice suffered several injuries, including multiple
skull fractures, a brain hemorrhage, a post-traumatic seizure, and a traumatic brain injury.2
When Justice turned 18, he sued Marvel on his own behalf, claiming that Marvel
was negligent for not using pads on the floor near the inflatables. Justice alleged that he
experienced “severe and permanent injuries” attributable to the traumatic brain injury that
he suffered because of his fall.
Marvel moved for summary judgment, arguing, among other things, that the waiver
signed by Sutton before Justice entered the play area is enforceable and bars Justice’s
negligence claim. Justice responded that the waiver is unenforceable because it violates
public policy, as evidenced by the statute voiding negligence waivers for inflatables, Minn.
Stat. § 184B.20, subd. 5(b) (2020). Marvel countered that Minn. Stat. § 184B.20, which
was enacted after the waiver was signed, does not apply retroactively to void the waiver.
Marvel also argued that the waiver does not violate public policy because there was no

2 Approximately 6 months later, Sutton and her husband (Justice’s stepfather) signed
an agreement with Marvel, in which Marvel agreed to pay the Suttons $1,500 for the
Suttons’ unreimbursed medical expenses for Justice’s care. The parties agreed that “Justice
seems to have recovered completely from the [a]ccident.” Justice was not a party to this
agreement. The Suttons promised to execute a full release of liability if Justice had no
further medical complications in the next 6 months. The agreement also stated that the
payment from Marvel “is an accommodation only and does not serve as an admission of
any fault or legal liability for the [a]ccident.” The contemplated full release was never
signed.
The district court and the court of appeals analyzed the effect of this agreement,
concluding that it did not affect the parties’ rights. That conclusion is not before us in this
appeal.
5
disparity in bargaining power between the parties and providing inflatable amusements is
not a public or essential service.
The district court granted Marvel’s motion for summary judgment. As an initial
matter, the court concluded that parents have the authority to sign liability waivers on
behalf of their children. The court then concluded that the waiver is enforceable because
it is unambiguous, does not purport to release Marvel from liability for intentional acts (in
which case the waiver would be unenforceable), and does not violate public policy. The
court also concluded that Minn. Stat. § 184B.20 does not apply retroactively to void the
waiver in this case. Therefore, the court concluded, the waiver is enforceable, meaning
that Justice’s claim of negligence could not be pursued. Justice appealed.
The court of appeals affirmed the grant of summary judgment for Marvel. Justice
v. Marvel, LLC, 965 N.W.2d 335, 349 (Minn. App. 2021). First, the court held that “a
parent generally has authority, on behalf of a minor child, to enter into an agreement that
includes an exculpatory clause.” Id. at 342. Regarding the issue of whether the inflatables
statute applied, the court of appeals held that Minn. Stat. § 184B.20 does not apply to the
waiver here because the statute was enacted after the waiver was signed and there is no
indication that the Legislature intended for the statute to apply retroactively. Justice,
965 N.W.2d at 345. The court held that the waiver does not violate public policy because
“[t]here is no evidence in the summary-judgment record that the services Marvel provided
were unavailable else where, and we may p resume that Justice was not compelled to
participate in the birthday party because the provision of inflatable amusement equipment
is not a necessary service.” Id. at 346. Further, the court recognized that “[a] business that
6
provides inflatable amusement equipment is well within the category of recreational
activities for which exculpatory clauses are not prohibited.” Id. But the court also
recognized that under our precedent, “[a]n exculpatory clause is unenforceable if it is
‘either ambiguous in scope or purports to release the benefited party from liability for
intentional, willful or wanton acts.’ ” Id. at 347 (quoting Schlobohm v. Spa Petite, Inc.,
326 N.W.2d 920, 923 (Minn. 1982)). Against that standard, the court held that the waiver
here is overly broad because it “purports to release claims of both ordinary negligence and
greater-than-ordinary negligence, including claims based on intentional, willful or wanton
acts.” Id. But the court held that the waiver is enforceable as applied to Justice’s claim of
negligence. Id. Finally, in response to Justice’s argument “that the district court erred by
denying his motion to amend the complaint to add a request for punitive damages,” the
court of appeals held that the question was moot based on its affirmance of summary
judgment for Marvel.3 Id. at 349.
We granted Justice’s petition for review, which raised numerous grounds for the
waiver’s unenforceability. We also granted Marvel’s request for conditional cross-review
on whether portions of the waiver were overbroad.
ANALYSIS
This case comes to us on review of the district court’s grant of summary judgment
for Marvel. Summary judgment is appropriate when “there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ.

3 We did not grant review of the district court’s ruling on punitive damages.
7
P. 56.01. Fact issues exist “when reasonable persons might draw different conclusions
from the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
Evidence is viewed in the light most favorable to the nonmoving party. Yang v. Voyagaire
Houseboats, Inc., 701 N.W.2d 783, 788 (Minn. 2005). We review grants of su mmary
judgment de novo. Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., 825 N.W.2d
695, 704 (Minn. 2013).
For Justice’s claim to survive summary judgment, the waiver signed by his mother
must be unenforceable. To determine whether the waiver is enforceable, we must first
define the appropriate standard by which to judge exculpatory provisions and then analyze
whether Marvel’s release is enforceable under that standard. We address each of these
issues in turn.
A.
Exculpatory clauses “are not favored in the law” because they “exonerat[e] a party
from liability.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). Such
provisions “will be strictly construed against the benefited party.” Id. We have previously
stated that this means that if an exculpatory “clause is either ambiguous in scope or purports
to release the benefited party from liability for intentional, willful or wanton acts, it will
not be enforced.” Id. But we have never addressed how strict construction applies when
an exculpatory clause purports to release all claims of liability without specific reference
to negligent acts. This question is one of first impression.
In defining strict construction, it may be helpful for us to identify what strict
construction is not. We have recognized that an alternative to strict construction is fair
8
construction. See Indep. Sch. Dist. No. 877 v. Loberg Plumbing & Heating Co. ,
123 N.W.2d 793, 799 (Minn. 1963). Unless a contract term violates the law or public
policy, we held in Loberg, a “contract should have not an arbitrary, that is, an unduly liberal
or harshly strict, construction, but a fair construction that will accomplish its stated
purpose,” considering “the manifest intention of the parties.” Id. (citation omitted)
(internal quotation marks omitted ). We have since turned away from the rule of fair
construction in cases involving exculpatory clauses in favor of strictly construing such
clauses. See Solidification, Inc. v. Minter, 305 N.W.2d 871, 873 (Minn. 1981).
We first acknowledged the rule that exculpatory clauses are to be strictly construed
in Solidification v. Minter. Id. In Solidification, the owner of a building signed a liability
release providing that the contractor “will avoid all possible pumping grout into sewer,
however, cannot accept responsibility should this occur.” Id. The owner sued the
contractor for negligence after he found that the sewer pipes were filled with grout. Id. at
872–73. We applied strict construction to the clause—applying it strictly against the
contractor seeking exoneration—a nd held in favor of the owner because the provision did
not clearly release the contractor from liability for its own negligence. Id. at 873 (“[W]e
have held that indemnity clauses are to be strictly construed. The same rule of construction
applies to exculpatory clauses.”). We further recognized the rule of strict construction as
applied to exculpatory clauses in Schlobohm , though we did not apply strict construction
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because the claim was for negligence, and the release at issue specifically included
negligence.4 326 N.W.2d at 922–23.
We have, however, had specific occasion to address the applicability of strict
construction to the release of a negligence claim in our indemnity clause jurisprudence.
There we have held that “[f]or an indemnity clause to pass strict construction, the contract
must include an express provision that indemnifies the indemnitee for liability occasioned
by its own negligence; such an obligation will not be found by implication.” Dewitt v.
London Rd. Rental Ctr., Inc., 910 N.W.2d 412, 417 (Minn. 2018) (citation omitted)
(internal quotation marks and alteration omitted). Indemnity clauses “need not include the
word ‘negligence,’ but [they] must use specific, express language that clearly and
unequivocally states the contracting parties’ intent.” Id. (citation omitted) (internal
quotation marks omitted). Broad language that “necessarily includes the indemnitee’s own
negligence” does not survive strict construction; “indemnity cannot be established by
implication.” Id. at 417–18.
In Dewitt, a restaurant rented folding tables from a rental company for an event, at
which one of the restaurant’s patrons was injured when a table collapsed while he was

4 Though the dissent claims that we are first recognizing that strict construction
applies to exculpatory clauses in this case, we have previously so held in Solidification and
Schlobohm. As we stated in Schlobohm, “[w]e extended th[e] rule of strict construction to
exculpatory clauses in Solidification.” 326 N.W.2d at 923. But we did not need to apply
strict construction in that case because the claim at issue was for negligence, and “[t]he
clause specifically pu rports to exonerate [the contractor] from liability for acts of
negligence and negligence only.” Id. Instead, the question in that case was whether the
exculpatory clause’s “enforcement in this case would contravene public policy” (and we
held it did not). Id. at 923–26.
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sitting at it. Id. at 414. The restaurant agreed to an indemnification provision that shifted
to the restaurant the rental company’s liability for “ANY AND ALL . . . CLAIMS . . .
EXCEPT TO THE EXTENT DIRECTLY RESULTING FROM [the rental company’s]
INTENTIONAL MISCONDUCT.” Id. at 418–19. The indemnity clause did not include
the word “negligence” and did not “fairly apprise [the restaurant], in clear and unequivocal
language, that the provision made [the restaurant] liable for claims against [the rental
company] related to [the rental company]’s own conduct.” Id. at 419. We held that the
provision was unenforceable because “it did not link the broad language to [the rental
company]’s own acts or omissions.” Id. The exemption in the indemnification agreement
for “intentional misconduct” “does not make the provision any more express regarding [the
rental company]’s negligence.”
5 Id.
We now hold that both indemnity clauses and exculpatory clauses are subject to the
same standard of strict construction. Admittedly, we have previously suggested that the
rule of strict construction may not apply to exculpatory clauses in the same manner as
indemnity clauses. In a footnote in Yang v. Voyagaire Houseboats, Inc., “we caution[ed]
against too much reliance on our observation in Schlobohm” that indemnity and
exculpatory clauses “ ‘are usually given the same treatment by the courts.’ ” 701 N.W.2d
at 792 n.6 (quoting Schlobohm, 326 N.W.2d at 922 n.3). We noted that “[w]e examine the

5 We noted that, in contrast to the indemnity clause, the exculpatory clause in the
rental agreement expressly included the rental company’s own negligence by covering
“ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH OUR
NEGLIGENCE (OTHER THAN OUR INTENTIONAL MISCONDUCT).” Dewitt,
910 N.W.2d at 420.
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enforceability of exculpatory and indemnification clauses under different standards.
Indemnification clauses are subject to greater scrutiny because they release negligent
parties from liability, but also may shift liability to innocent parties.” Id. But this footnote
in Yang does not compel a conclusion different than our holding today.
First, we recognize that the footnote in Yang was not essential to the outcome in the
case because we held that both the exculpatory clause and the indemnification clause were
unenforceable on public policy grounds. Id. at 793. And though we noted that different
standards apply to indemnity clauses and exculpatory clauses, we did not provide any
guidance on how exculpatory clauses are to be judged. See id. at 792 n.6.
Second, Yang’s understanding that indemnity clauses “may shift liability to innocent
parties” applies with equal force to exculpatory clauses. Id. We fail to see why victims of
negligence are not “innocent parties” when there are no claims of comparative fault.
Absent an exculpatory agreement between the parties, an injured victim would be entitled
to recover damages from the negligent party. See 57A Am. Jur. 2d Negligence § 44 (2022).
An exculpatory clause completely bars recovery for an injured party. Id. In contrast, an
injured party may still recover even if there is an indemnity agreement between two other
parties; the indemnity agreement simply determines which of those two parties must pay
the damages. Id. We do not see why indemnity clauses require “greater scrutiny” than
exculpatory clauses based solely on the parties affected.
And third, indemnification clauses and exculpatory clauses are not so
distinguishable as to require different analyses. The difference between an exculpatory
clause and an indemnity clause is that generally, “[a]n exculpatory clause purports to deny
12
an injured party the right to recover damages from the person negligently causing the
injury, while an indemnification clause attempts to shift the responsibility for the payment
of damages to someone other than the negligent party.” 57A Am. Jur. 2d Negligence § 43
(2022). But sometimes, an indemnification clause shifts liability “back to the injured party,
thus producing the same result as an exculpatory provision.” Id. And “[a]lthough there is
a distinction between an exculpatory clause and an indemnity clause, they both attempt to
shift ultimate responsibility for negligent injury and so are generally construed by the same
principles of law.” Id. We have previously recognized that both types of provisions are
disfavored in the law. See Schlobohm, 326 N.W.2d at 923 (exculpatory clauses); Dewitt,
910 N.W.2d at 416 (indemnity clauses). We note that the reason to disfavor such
provisions is that “they relieve one party of the obligation to use due care.” 57A Am. Jur.
2d Negligence § 46 (2022). For these reasons, we apply the same standard of strict
construction to both indemnity and exculpatory clauses.
6
We also clarify that strict construction in the context of indemnity clauses (and
therefore also in exculpatory clauses) does not require an initial determination that the
provision is ambiguous. See Dewitt, 910 N.W.2d at 419 (holding that an indemnity

6 The dissent points out that indemnification clauses require greater scrutiny because
a party may be subject to “ballooning liability” for injuries of others, using the scenario
presented in Yang as an example. There, one member of Yang’s party rented a houseboat
and signed the rental agreement, which included a provision in which the renter agreed to
indemnify the rental company. Yang, 701 N.W.2d at 786–87. Although the renter may
have faced “ballooning liability” by agreeing to indemnify the rental company for the
injuries to others in his party, in theory, the other nine members of Yang’s party would still
have at least been entitled to recover from someo ne under the indemnification clause. If
they had instead signed exculpatory agreements, they would have been able to recover from
no one.
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provision that did “not expressly refer to ‘negligence’ ” or “link the broad language to [the
indemnitee]’s own acts or omissions” was not enforceable, without first finding that the
provision was ambiguous). It is true that “strict construction” in one sense means resolving
ambiguity by adopting “the narrowest, most literal meaning of the words without regard
for context and other permissible meanings.” Strict Interpretation, Black’s Law Dictionary
(11th ed. 2019). Such a rule requires more than one reasonable interpretation to choose
between. But “strict construction” as applied to the type of provision at issue here means
that we apply a higher standard of expression and clarity—“clear[] and unequivocal[]”—
to determine whether we will entertain an interpretation in the first place. See Dewitt,
910 N.W.2d at 417 (citation omitted). In short, ambiguity cannot be the trigger for strict
construction because a n ambiguous provision, by definition, cannot also “ ‘clearly and
unequivocally’ state[] the contracting parties’ intent.” Id. (citation omitted).
To withstand strict construction, then, an exculpatory clause “must use specific,
express language that ‘clearly and unequivocally’ states the contracting parties’ intent,”
regardless of whether the provision “is ‘so broad’ that it necessarily includes the [released
party’s] own negligence.”
7 Dewitt, 910 N.W.2d at 417 (citation s omitted). We next
examine Marvel’s waiver in light of this rule.

7 The dissent argues that under this rule, “parties can still limit their liability by adding
a few words to their contracts.” But this point is true for indemnification clauses as well,
and we were not troubled by that result in Dewitt. We further disagree that our holding
today requires parties to “use the correct magic words” to properly limit their liability. We
are not demanding that parties use certain words to make their exculpatory clauses
enforceable. Rather, we insist that a party who wishes to limit their liability for negligence
do so by using specific, express language that clearly and unequivocally states such an
intent; no certain words are required to satisfy this standard.
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B.
Applying strict construction to the waiver at issue, Marvel is correct that Justice’s
negligence claim is definitionally under the umbrella of “any and all claims.” But Marvel’s
arguments do not consider our prior decisions that have required provisions that transfer
liability from otherwise-responsible parties to “use specific, express language that ‘clearly
and unequivocally’ states the contracting parties’ intent.” Dewitt, 910 N.W.2d at 417
(citation omitted). The issue here is not whether the waiver purports to release intentional
acts or whether “any and all claims” includes a claim of negligence ; the issue is that the
waiver does not specifically provide that it releases Marvel from liability for its own
negligent acts.
The waiver’s failure to refer to negligence or Marvel’s own acts or omissions
distinguishes this case from Schlobohm and the case relied on by the court of appeals,
Anderson v. McOskar Enterprises. Specifically, the waiver in Schlobohm referred to “all
acts of active or passive negligence on the part of [the] company.” 326 N.W.2d at 922.
The court of appeals cited Anderson v. McOskar Enterprises, 712 N.W.2d 796 (Minn. App.
2006), to support its holding that though o verbroad, Marvel’s waiver released it from
liability to Sutton and Justice for its own negligence. Justice, 965 N.W.2d at 347. But as
in Schlobohm, the release in Anderson waived liability for “any act or omission, including
negligence by [the company’s] representatives.” Anderson, 712 N.W.2d at 799.
The waiver in this case is more akin to the one at issue in Dewitt. Marvel’s waiver
includes an acknowledgement of the “inherent risks” involved with inflatables and states
that Sutton assumes those risks, “including those that may arise out of the negligence of
15
other participants.” But the waiver does not state whether Sutton was releasing Marvel for
Marvel’s own conduct, whether negligent or intentional. Where the waiver mentions
negligence, it only refers to the “negligence of other participants,” not Marvel’s own
negligence. The risk of other participants is a different type of risk than that of operator
negligence. Operator negligence is the type of risk that this court requires to be explicitly
rather than implicitly waived. See Dewitt, 910 N.W.2d at 417. In short, the waiver here
does not “fairly apprise” the parties “in clear and unequivocal language” that Sutton was
releasing Marvel from liability for its own acts and omissions. See id. at 419. Accordingly,
the provision —strictly construed—does not release Marvel from liability for its own
negligence.
8
The district court, then, erred by granting summary judgment for Marvel. Because
the court of appeals did not consider whether the district court erred by denying Justice’s
motion to amend his complaint to add a claim for punitive damages, we remand to the court
of appeals to decide that issue on its merits before that court in turn remands the case to the
district court for further proceedings.9

8 Because we hold that the waiver is unenforceable on this ground, we do not address
the parties’ other arguments about enforceability or overbreadth.

9 Justice asks us to vacate the portions of the court of appeals’s decision that we do
not address, but we decline to do so. When we have vacated court of appeals decisions
without deciding the merits of the underlying issues, it has typically been because the court
of appeals did not have authority or jurisdiction. See, e.g., Howard v. Svoboda ,
890 N.W.2d 111, 116 (Minn. 2017) (vacating a court of appeals decision for lack of
appellate jurisdiction over an interlocutory order); Powell v. Anderson, 660 N.W.2d 107,
124 (Minn. 2003) (vacating a court of appeals decision because the judge was disqualified
from hearing the appeal); Pike v. Gunyou, 491 N.W.2d 288, 289–90 (Minn. 1992) (vacating
a court of appeals decision when it was “immediately apparent . . . that the appellate court’s
16
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to that court for consideration of whether the district court erred in denying
Justice’s motion to amend the complaint to add a claim of punitive damages.
Reversed and remanded.

opinion far exceeded the bounds of appropriate appellate review”). Justice does not point
us to any case where we vacated a court of appeals decision on the merits as to issues that
we did not address; his only citation is to a U.S. Supreme Court decision from 1950, United
States v. Munsingwear, Inc., 340 U.S. 36, 40–41 (1950).
Additionally, Marvel moved to strike a portion of Justice’s brief that referred to
legislative testimony from Pump It Up Management’s director because it “is not part of the
record on appeal and has never been presented to the district court or the court of appeals.”
Because our analysis does not rely on the director’s testimony, we need not decide the
merits of Marvel’s motion to strike. Rather, we deny the motion as moot.
D-1
D I S S E N T
ANDERSON, Justice (dissenting).
When a contract purports to indemnify a party for the party’s own negligence, our
prior decisions have made clear that the indemnification clause will be strictly construed
against the benefitted party. Dewitt v. London Rd. Rental Ctr., Inc., 910 N.W.2d 412, 416–
17 (Minn. 2018). Strict construction requires the contract to be clear and unequivocal and
must affirmatively show that the indemnitor agreed to assume the liability of another. Id.
at 417. When this does not occur, the indemnification clause is unenforceable even if the
language is broad enough that, by implication, “it necessarily includes the indemnitee’s
own negligence.” Id. But we have previously cautioned that indemnification clauses—
clauses in which a party assumes liability for another’s misconduct—and exculpation
clauses—clauses in which a party forgoes an individual claim stemming from the
misconduct of another —are not treated the same. Yang v. Voyagaire Houseboats, Inc.,
701 N.W.2d 783, 792 n.6 (Minn. 2005). Although it is undisputed that the clause at issue
here is exculpatory, the court collapses this distinction and holds that strict construction
applies to exculpation clauses as well. This expansion of our existing law creates confusion
where there is none, upsets settled expectations, and— because parties can still limit their
liability by adding a few words to their contracts—ultimately provides no added guarantee
of redress to injured parties. I further conclude that there is no other justification for
holding this exculpatory clause unenforceable. Accordingly, I respectfully dissent.
Parties may contract to limit their exposure to liability. Schlobohm v. Spa Petite,
Inc., 326 N.W.2d 920, 923 (Minn. 1982). But contract terms that require a party to either
D-2
exculpate another for that person’s own negligence, or to indemnify another for the other’s
negligence, are disfavored in law. Id. “An exculpatory clause is unenforceable if it is
ambiguous in scope, purports to release the benefited party from liability for intentional,
willful or wanton acts; or contravenes public policy.” Yang, 701 N.W.2d at 789.
We have stated that, when dealing with “strict construction” clauses in
indemnification provisions, “strict construction” is more than just determining whether the
contractual language is broad enough that it “necessarily includes” the misconduct at issue.
Dewitt, 910 N.W.2d at 417. Rather, the indemnification clause must affirmatively state the
intent of the contracting parties “clearly and unequivocally.” Id. (citation omitted). 1 In
Dewitt, we considered a contractual term requiring a restaurant to indemnify the company
from which it rented furniture for “any and all liabilities, claims, damages, losses, costs
and expenses . . . resulting from or arising in connection with such possession, use,
transportation and/or storage, regardless of the cause . . . except to the extent directly
resulting from [the rental company’s] intentional misconduct.” Id. at 418– 19
(capitalization omitted). The rental company argued that the broad language of the

1 The court correctly notes that we have previously used the phrase “strict
construction” when discussing exculpatory clauses as well. See Schlobohm, 326 N.W.2d
at 923; Solidification, Inc. v. Minter, 305 N.W.2d 871, 873 (Minn. 1981). But we have
never applied the heightened affirmative statement standard used in Dewitt to exculpatory
clauses. In both Schlobohm and Solidification, we instead focused on the plain language
of the contract: in Schlobohm we upheld the clause because the contract “demonstrate[d]
an absence of ambiguity,” 326 N.W.2d at 923, and in Solidification we declined to enforce
the exculpatory clause because the contractual language was ambiguous and could have
been read multiple ways, 305 N.W.2d at 873. Although any existing ambiguity must be
construed against the benefitted party, and we have previously referred to this as “strict
construction,” this is the first time we have applied the “clearly and
unequivocally”/affirmative-statement rule to an exculpatory clause.
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indemnification clause, coupled with the explicit carveout for intentional misconduct,
showed that the contract clearly included any negligent acts on its part. Id. at 419. But we
held that the language was not sufficiently clear: it did not affirmati vely mention liability
for negligence, and the terms limiting the indemnity to only those claims “resulting from
or arising in connection with” the rental could, under strict construction, be construed as
limiting the terms to not include the rental company’s own negligent acts before the rental
occurred. Id. We held that the agreement was equivocal and thus unenforceable. Id. at
420.
We have previously noted that indemnification and exculpatory clauses are “usually
given the same treatment by the courts” given the frequently similar public policy concerns
raised by each. Schlobohm, 326 N.W.2d at 922 n.3 (emphasis added). But we have also
cautioned that indemnification clauses and exculpatory clauses are not identical. Yang ,
701 N.W.2d at 792 n.6. Specifically, indemnity clauses are to be given a higher degree of
scrutiny than exculpatory clauses because, although both release negligent parties from
liability, indemnification clauses may also “shift liability to innocent parties.” Id.
The court’s primary argument for collapsing the distinction between exculpatory
clauses and indemnification clauses is that an exculpatory clause leaves the victims to bear
their own expenses, in a sense also shifting liability to an innocent party. But the victim—
that is, the person who signed the waiver and was then injured— personally agreed to
assume their own risk in exchange for access to the service provided. And further, although
it does not arise in this dispute, the risk of shifting liabilities from indemnification reaches
far more broadly. The heightened risk of shifting liability is clearly illustrated by Yang .
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There, a group rented a large houseboat for a vacation. Id. at 786. Although the vacation
party consisted of 10 individuals, the rental paperwork was only signed by the one
individual who organized the outing. Id. at 786–87. The rental contract included an
indemnification clause protecting the rental company. Id. All 10 members of the party
were injured in a carbon monoxide leak and alleged that the rental company had negligently
failed to maintain the carbon monoxide detector. Id . at 787– 88. The rental company
defended itself in part by bringing a third-party action against the contracting individual,
asserting that he had agreed to indemnify the company for all expenses. Id. at 788. If the
indemnification clause had been enforceable, the contracting individual would have been
responsible not only for his own damages, but also the damages of nine other people and
the full cost of any lawsuits. Although an exculpatory clause, as we have here, can release
a negligent party from liability, it need not be viewed with the same degree of skepticism
as an indemnification clause because it presents no risk of similar ballooning liability for
the injuries of other parties. Put another way, an exculpatory clause is not a trap for the
unwary in the same manner as an indemnity agreement.
Because an exculpatory clause is materially different from an indemnification
clause, I would not apply our rule of strict construction. Rather, I look to the language of
the contract between Justice and Marvel. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 582
(Minn. 2010) (“[W]e review the language of the contract to determine the intent of the
parties.”). Exculpatory clauses are still disfavored, and we resolve any ambiguities against
the party that would benefit from the agreement. See Schlobohm, 326 N.W.2d at 923. But
contractual language is only “ambiguous if it is susceptible to two or more reasonable
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interpretations.” Dykes , 781 N.W.2d at 582. “When the language is clear and
unambiguous, we enforce the agreement of the parties as expressed in the language of the
contract.” Id.
The waiver contained in the contract here relieved Marvel for liability from “any
and all claims, injuries, liabilities or damages.” No party seriously argues that “any and
all” means anything other than what it says, or that any party was confused by the phrase.
Justice argued at the court of appeals that the waiver “plainly releases [Marvel] from every
possible tort claim.” And the court of appeals agreed, holding that the “plain language” of
the release included all negligence claims. Justice v. Marvel, LLC, 965 N.W.2d 335, 347
(Minn. App. 2021). I agree that “any and all” means “any and all,” and would hold that
there is no ambiguity here.
In holding otherwise, the court risks upsetting the settled expectations of parties who
thought they were bargaining for a complete release of liability, only to be told now that
they were not clear enough. Further, the settled expectations upset by the court here extend
well beyond just these two parties. These exculpatory general releases of liability are
common in all sorts of routine and recreational activities in which one party releases
another party “from any and all claims, injuries, liabilities or damages.”
And unlike a holding based in public policy that would prevent this type of waiver
in all circumstances, see, e.g., Yang, 701 N.W.2d at 790–91 (holding an exculpatory clause
relieving an innkeeper of the duty to take reasonable action to protect their guests was void
as contrary to public policy), this holding presents a mere form management problem for
companies like Marvel going forward. These companies may still contract to limit their
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potential liability; the court merely holds that they must use the correct magic words to do
so. Whether less sophisticated parties will know that they must invoke the appropriate
phraseology to protect themselves from liability is doubtful.
I would also reject the other arguments raised by Justice. Minnesota Statutes section
184B.20, subdivision 5(b) (2020), prohibits liability waivers releasing the owner of
inflatable amusement devices from their own negligence. But that statute was not passed
until 2010, years after the waiver at issue here was signed. Act of May 14, 2010, ch. 347,
art. 3, § 2, 2010 Minn. Laws 1055, 1100. And Justice’s argument that section 184B.20
applies retroactively is unconvincing. “No law shall be construed to be retroactive unless
clearly and manifestly so intended by the legislature.” Minn. Stat. § 645.21 (2020).
Section 184B.20 does not state that it applies retroactively. Instead, the legislation that
became section 184B.20 stated that the effective date of the law was not until several
months after its passage. See Act of May 14, 2010, ch. 347, art. 3, § 2, 2010 Minn. Laws
1055, 1101. This is not clear and manifest evidence of retroactive effect.
Waivers for recreational services do not violate public policy. The Legislature’s
subsequent action limiting such waivers through section 184B.20 does not, as discussed,
retroactively alter our analysis. We have previously enforced waivers for recreational
services. See, e.g., Schlobohm, 326 N.W.2d at 925. In Yang, we held that a houseboat
rental agency could not disclaim liability for its own negligence because it served as an
innkeeper providing a necessary public service—and we explicitly contrasted this role
against that of providing “recreational equipment.” 701 N.W.2d at 790–91. As a provider
of access to inflatable play equipment, Marvel did not provide any essential services. Nor
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did Marvel benefit from any imbalances in bargaining power because Justice could simply
have not participated if the terms were unfair. Contractual liability waivers for recreational
services do not categorically violate our public policy.
Nor does this specific liability waiver violate our public policy as applied here. It
is true that a liability waiver is void if it “ purports to release the benefited party from
liability for intentional, willful or wanton acts.” Id. at 789. The waiver here states it
releases Marvel from “any and all” claims, without making any carveout allowing claims
for intentional misconduct. But in this dispute, the waiver does not purport to release
Marvel from any claims of intentional misconduct because Justice has not made any claims
of intentional misconduct. Rather, Justice’s entire lawsuit relies on claims of ordinary
negligence.
Finally, I would hold that parents have the authority to sign liability waivers on
behalf of their children. Justice asserts there is a “national rule” that parents do not have
the authority to sign liability waivers on behalf of their minor children. But courts holding
to the contrary are not unique. See, e.g., BJ’s Wholesale Club, Inc. v. Rosen, 80 A.3d 345,
360 (Md. 2013) (“[W]e will defer to a parent's determination that the potential risks of an
activity are outweighed by the perceived benefit to the child when she executes an
exculpation agreement.”). And a child’s parents are in the best situation to decide if
participating in an activity is worth the risk of signing a liability waiver. Parents have a
“fundamental right . . . to make decisions concerning the care, custody, and control of their
children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). “[T]here is a presumption that fit
parents act in the best interests of their children.” Id. at 68. Accordingly, “there will
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normally be no reason for the State to inject itself into the private realm of the family.” Id.
And we generally recognize that enforcing clear contractual terms furthers the public
interest by preserving freedom of contract. Schlobohm, 326 N.W.2d at 923. I would
therefore hold that the parents of Justice had the authority to sign a liability waiver on his
behalf.
In sum, I would hold that a liability waiver covering “any and all” claims clearly
and unambiguously covers negligence on the part of Marvel. And I would hold that this
waiver was not covered by Minn. Stat. § 184B.20, subd. 5(b), was not contrary to public
policy, and was not overbroad because although the waiver does not contain a specific
carveout for intentional misconduct, it does not purport to relieve Marvel of liability for
intentional misconduct because Justice raises no such claims. Finally, I would hold that it
was not beyond the authority of Justice’s parents to sign this waiver on his behalf.
Accordingly, I would hold that the waiver is enforceable and relieves Marvel of any
potential liability arising from these claims.

GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice Anderson.