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Adloo v. H.T. Brown Real Estate Inc.12/16/1996
t from liability based on his own negligence. Quite simply, the general release language does not satisfy the ... requirement that "the contract must clearly state that the defendant is not responsible for the consequences of his negligence." ... The release fails in this respect not because it fails to use the word "negligence" or any other special terms; instead it fails because no particular attention is called to the notion of releasing the defendant from liability for his own negligence. The general language in the context of the release simply did not put the plaintiff on clear notice of such intent.
640 A.2d at 779 (quoting Barnes v. New Hampshire Karting Assn., 128 N.H. 102, 509 A.2d 151, 154 (1986)).
The exculpatory clause in Baker, (supra) , 433 N.W.2d 706, was:
I ... do hereby acknowledge that this is a student training facility and thus there is a price consideration less than would be charged in a salon. Therefore, I will not hold the Stewart School, its management, owners, agents or students liable for any damage or injury , should any result from this service.
Id. Addressing the adequacy of the clause, the court said:
In reviewing the language of the exculpatory clause at issue in the present case, we do not believe that it would be apparent to the casual reader asked to sign this form as a condition for receiving cosmetology services that its effect was to absolve the establishment from liability based upon the acts or omissions of its professional staff. To construe the agreement in this light would be contrary to the requirement ... that such intention must be clearly and unequivocally expressed.
Id. at 709.
To be sure, as the weight of authority makes clear, Hardage Enterprises, Inc. v. Fidesys Corporation, 570 So. 2d 436, 437 (Fla. App. 1990), the exculpatory clause need not contain or use the word "negligence" or any other "magic words." Id. ; Audley, 640 A.2d at 778; Alack, 923 S.W.2d at 335-36. Such a clause is sufficient to insulate the party from his or her own negligence "as long as language ... clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant's negligence...." Barnes, 509 A.2d at 154.
This is consistent with the objective law of contract interpretation and construction, which Maryland follows. As explained in General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306, 1310 (1985), that means:
A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean. As a result, when the contractual language is clear and unambiguous, and in the absence of fraud, duress, or mistake, parol evidence is not admissible to show the intention of the parties or to vary, alter, or contradict the terms of that contract.
Id. at 261-62, 492 A.2d 1310 (citations omitted). By parity of reasoning, when the clause is unclear and ambiguous, either the intention of the parties must be established through t
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