A well-drafted liability waiver typically protects Massachusetts business owners from negligence-based lawsuits.
According to the Supreme Judicial Court in Lee v. Allied Sports Associates,
A defendant ordinarily may “validly exempt itself from liability which it might subsequently incur as a result of its own negligence.”
See 349 Mass. 544, 550 (1965).
Such waivers, however, protect a business owner from only “ordinary negligence.” They do not extend to claims based on “gross negligence.”
So what is “gross negligence”? Writing in Zavras v. Capeway Rovers Motorcycle Club Inc., the Appeals Courts states,
Basically, it is very great negligence, or the absence of slight diligence, or the want of even scant care.
Note 4 of that opinion, gives a much lengthier description:
Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injury.
Lastly, a liability waiver cannot be used to exempt a business or an individual from a statutorily prescribed duty.
Again quoting the Appeals Court in Zavras,
Even where simple negligence is alleged, our cases, for policy reasons, are cautious in enforcing releases against liability and in certain circumstances decline to do so: e.g., where a release attempts to shield a defendant from responsibility for violation of a statutory duty.
For further discussion on liability waivers and statutory duties, see Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, (1968).