Reading Multiple Liability-Shifting Clauses Together Under Strict Construction: Minnesota High Court Upholds Indemnity for a Party’s Own Negligence When the Contract Clearly Says So

Introduction

In Tina Marie Lund, as conservator of the Honorable Fred Karasov v. Calhoun Orange, Inc. d/b/a Orangetheory Fitness Minneapolis–Uptown (Minn. May 21, 2025), the Minnesota Supreme Court clarified how courts must analyze contracts that contain more than one liability-shifting clause. The case arose from catastrophic injuries suffered by Judge Fred Karasov during a 2019 workout at a franchised Orangetheory studio. After he collapsed from cardiac arrest, bystanders began CPR; however, the studio’s AED was not used until paramedics arrived roughly 15 minutes later. The incident left Karasov with permanent brain injuries.

Karasov’s conservator, Tina Lund, sued the franchisee (Calhoun Orange) and its parent company, alleging a range of negligence-based claims. The district court granted summary judgment to Calhoun Orange on ordinary negligence theories based on a one-page “Client Intake Form” that contained a liability paragraph with both exculpatory and indemnity language. A jury later rejected a willful-and-wanton negligence claim. On appeal, the court of appeals affirmed dismissal of ordinary negligence claims, but it did so on a rationale distinct from the district court’s—relying on an indemnity sentence that expressly referenced “acts of active or passive negligence.”

The Minnesota Supreme Court granted review to address a narrow but important question at the intersection of consumer waivers and indemnity law: when a contract contains multiple liability-shifting sentences—one of which is overbroad and unenforceable under Justice v. Marvel, LLC (Minn. 2022), and another that explicitly references negligence—how should courts read them under the strict-construction rule governing such provisions?

Summary of the Opinion

The Supreme Court affirmed. It held:

Contractual provisions that shield a party from liability for their own ordinary negligence are enforceable only if they clearly and unequivocally express the parties’ intent to do so; they are strictly construed against the party seeking protection.
When a contract contains more than one liability-shifting clause, courts must read those clauses together rather than sever the defective one and analyze the other in isolation.
Here, the third sentence of the liability paragraph—an exculpatory “any and all claims” waiver—would be unenforceable against negligence claims under Justice v. Marvel. But the fourth sentence—an indemnity clause expressly covering “all acts of active or passive negligence” by the studio and its agents—clearly and unequivocally manifested the parties’ intent to shift liability for Calhoun Orange’s own negligence, and therefore bars ordinary negligence claims.
“Limiting” wording at the end of the indemnity sentence (“arising from or in connection with the activities that Client voluntarily participates”) did not render the clause equivocal in this case.
Arguments about the form’s formatting and conspicuousness were forfeited because they were raised for the first time in the Supreme Court.

The Court thus left intact the lower courts’ dismissal of ordinary negligence claims. It did not reach an alternative collateral estoppel argument. Claims of willful and wanton misconduct remain non-waivable.

Analysis

Precedents Cited and How They Shaped the Decision

Justice v. Marvel, LLC, 979 N.W.2d 894 (Minn. 2022): The Court’s 2022 decision established that an exculpatory clause releasing “any and all claims” is insufficient under strict construction to waive claims arising from the drafter’s own negligence unless negligence is expressly referenced. In Lund, the Court applied Justice to conclude that sentence three of the intake form—an “any and all claims” waiver—could not, standing alone, bar negligence claims. But Justice did not foreclose enforcement of clauses that specifically name “negligence.” That distinction proved determinative.
Dewitt v. London Rd. Rental Ctr., Inc., 910 N.W.2d 412 (Minn. 2018): Dewitt required “specific, express language that clearly and unequivocally” shows the parties intended to shift liability for the indemnitee’s own negligence. Lund relies on this standard to uphold the intake form’s fourth sentence, which expressly covered “acts of active or passive negligence” of the studio and its agents. That sentence “fairly apprised” the client that claims arising from the studio’s own negligent conduct were included in the indemnity.
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982): Schlobohm recognizes that parties may contract to shift liability for ordinary negligence (but not intentional, willful, or wanton acts), and that such clauses are not per se void as against public policy. Lund fits squarely within Schlobohm’s framework: this was a fitness-club setting and the clause explicitly sought to shift negligence-based liability, which is permissible if clearly stated.
National Hydro Sys. v. M.A. Mortenson Co., 529 N.W.2d 690 (Minn. 1995): National Hydro cautions that “additional limiting language” can render an otherwise clear indemnity provision equivocal. In Lund, the Court distinguished National Hydro: the purported “limiting” phrase (“arising from or in connection with the activities that Client voluntarily participates”) did not obscure either the identity of the party to be indemnified (the studio) or the type of conduct covered (the studio’s own negligence). Therefore, it did not undo the provision’s clarity.
Solidification, Inc. v. Minter, 305 N.W.2d 871 (Minn. 1981) and Indep. Sch. Dist. No. 877 v. Loberg Plumbing & Heating Co., 123 N.W.2d 793 (Minn. 1963): These decisions underscore the general interpretive principles and the special strict-construction treatment for exculpatory and indemnity provisions.
In re GlaxoSmithKline PLC, 699 N.W.2d 749 (Minn. 2005): The Court cited GlaxoSmithKline to decline consideration of “conspicuousness” and format-based arguments not preserved in the lower courts or the petition for review.
Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921 (Minn. 2015): Collateral estoppel principles were referenced by Calhoun Orange as an alternative ground to bar the claims, but the Court did not reach that argument because it affirmed on enforceability grounds.

Legal Reasoning

The Court’s reasoning proceeds in three steps: (1) confirm the strict-construction framework; (2) decide how to read multiple liability-shifting sentences within one clause; and (3) apply that reading to the specific language at issue.

Strict Construction Applies Equally to Exculpatory and Indemnity Clauses. Following Justice v. Marvel and Dewitt, the Court reaffirmed that clauses purporting to relieve a party of liability for its own negligence are “not favored in the law” and are strictly construed against the drafter. Such clauses are enforceable only if the contract clearly and unequivocally states the parties’ intent to shift liability for the indemnitee’s own negligence. Clauses purporting to waive liability for willful, wanton, or intentional acts remain void.
Reading Multiple Liability-Shifting Clauses Together. The key doctrinal development in Lund is methodological: where a contract contains both an overbroad “any and all claims” exculpatory sentence (unenforceable under Justice) and a separate indemnity sentence expressly referencing the indemnitee’s “acts of active or passive negligence,” the court must read these provisions together rather than sever the unenforceable one and analyze the other in isolation. The Court reasoned that a contracting party’s understanding reflects the entire liability paragraph; excising one sentence post hoc would distort that understanding. That said, the Court acknowledged that truly irreconcilable or directly conflicting liability-shifting provisions could render a waiver equivocal and thus unenforceable. This case did not present such an irreconcilable conflict.
Application to the Intake Form. Applying strict construction, the Court concluded:
- The third sentence—waiving “all claims” relating to services, facilities, and classes—would be unenforceable against negligence claims if it stood alone, under Justice.
- The fourth sentence expressly provided that the client agreed to “indemnify, defend, hold harmless, release and discharge” the studio “from all acts of active or passive negligence” by the studio and its agents. That explicit reference to the studio’s own negligence satisfied the “clear and unequivocal” requirement of Dewitt and Schlobohm.
- The presence of the unenforceable “any and all claims” sentence did not negate the clarity provided by the subsequent indemnity sentence; the two sentences differ in scope but do not contradict one another.
- The trailing phrase “arising from or in connection with the activities that Client voluntarily participates” did not create ambiguity about whose negligence was covered or what conduct was encompassed; it therefore did not, in this context, undermine the clause’s clarity.
In short, the intake form’s liability paragraph, read as a whole, clearly and unequivocally shifted ordinary negligence liability back to the client, thereby barring Lund’s ordinary-negligence-based claims.

Impact and Forward-Looking Consequences

Lund meaningfully clarifies Minnesota’s law of liability waivers and indemnity in consumer and recreational contracts:

“Read together” rule. When a contract contains multiple liability-shifting sentences, courts must read them as a unit. A defective “any and all claims” waiver cannot be surgically excised to “save” the rest, nor can it be used to defeat a separate clause that unambiguously covers the indemnitee’s own negligence. The whole paragraph governs the parties’ expectations.
Express negligence requirement reaffirmed. Drafting that expressly references the indemnitee’s “own negligence”—as here, “acts of active or passive negligence”—will satisfy strict construction if the clause clearly identifies both the party to be indemnified and the covered conduct.
Limits of “limiting language.” General “arising out of” phrases won’t defeat an otherwise explicit negligence indemnity if they do not obscure who is covered and what conduct is covered. National Hydro remains a cautionary precedent where such phrases create genuine ambiguity; Lund shows how to distinguish it.
Conspicuousness and formatting challenges remain open. The Court expressly declined to address whether small font, integration among non-liability “policies,” typographical errors, or lack of bolded warnings would, under strict construction, render a clause unenforceable. Those issues were forfeited and remain a potential line of attack in future cases—especially given Minnesota’s disfavor of liability-shifting clauses.
Practical drafting guidance.
- Use explicit language: “including claims arising from our own negligence, whether active or passive.”
- Identify the indemnitee(s) and their agents with specificity.
- Avoid internal inconsistency or contradictory scope among multiple liability-shifting sentences; redundancies that broaden, but do not conflict with, an express negligence clause are less risky.
- Consider conspicuous presentation (headings, font size, separate signature/initial lines) to minimize enforceability challenges that Lund left unresolved.
Substantive limits persist. As Schlobohm reiterates and Lund applies, clauses cannot waive liability for willful, wanton, or intentional conduct. Plaintiffs may still pursue such claims notwithstanding waivers; here, a jury rejected that theory.
Litigation strategy shifts. Plaintiffs can no longer rely on Justice alone to invalidate consumer waivers simply because an exculpatory sentence is overbroad; they must grapple with any companion indemnity sentence that expressly names the indemnitee’s negligence. Conversely, defendants cannot assume a defective exculpatory sentence is harmless; it will be read together with the rest of the liability paragraph and, if irreconcilable, could render the entire provision equivocal.

Complex Concepts Simplified

Exculpatory clause: A contract term where the injured party agrees not to sue the other party for certain losses; it “releases” the other party from liability.
Indemnity clause: A contract term that shifts responsibility to pay losses to another person; it can require the signatory to pay the other party’s losses, sometimes including losses caused by the other party’s own negligence.
Strict construction: Courts interpret liability-shifting clauses narrowly and against the party seeking protection. The clause must “clearly and unequivocally” show the parties intended to cover the indemnitee’s own negligence.
“Any and all claims” language: Under Justice v. Marvel, such broad wording is not enough to waive negligence claims unless the clause specifically mentions negligence or otherwise unmistakably indicates that negligence claims are included.
Active vs. passive negligence: “Active” negligence involves affirmative acts creating risk; “passive” negligence typically involves failures to act (e.g., failure to maintain equipment). Clauses referencing both aim to encompass the spectrum of ordinary negligence.
Equivocal vs. unequivocal: A clause is “equivocal” if its meaning is uncertain or inconsistent, particularly about whether it covers the indemnitee’s own negligence; such a clause is unenforceable under strict construction.
Forfeiture of arguments: Issues not raised in the lower courts or in the petition for review generally cannot be argued for the first time before the Supreme Court.

Conclusion

Lund v. Calhoun Orange is a significant refinement of Minnesota’s law governing liability-shifting contracts. It keeps intact the cornerstone principle from Justice v. Marvel and Dewitt: a party can shift liability for its own ordinary negligence only with clear and unequivocal language. But it adds an important interpretive directive: where a contract contains multiple liability-shifting clauses, courts must read them together. A defective “any and all claims” exculpatory sentence does not vitiate a companion indemnity sentence that expressly covers the drafter’s “acts of active or passive negligence,” absent a direct and irreconcilable conflict that would render the overall waiver equivocal.

The decision offers pragmatic guidance to drafters and litigants. Drafters should use explicit negligence language, identify parties unambiguously, and avoid internal contradictions. Litigants should be prepared to brief how multiple liability-shifting sentences interact and whether any “limiting language” genuinely creates ambiguity under National Hydro. Finally, the Court left open the fertile—yet unresolved—ground of conspicuousness and presentation. Those arguments, properly preserved, could shape the next iteration of Minnesota’s strict-construction jurisprudence for consumer waivers and indemnity provisions.