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If You Sign a Waiver to Participate in a Recreational Activity, Are You Barred From Bringing a Lawsuit if Injured?

Photo of people rafting in yellow tube as a recreational activity

In New York, if you paid to participate in a recreational activity and are injured due to the negligence of the facility, you may sue even if you signed a waiver. New York state courts have determined it is against public policy to uphold such agreements. In other words, New York state courts have determined that it goes against the best interests of society and public safety to uphold recreational activity waiver agreements. The State of New York has even officially passed statutes invalidating these waivers.

According to New York General Obligation Law Sec. 5-326, “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.” In simpler terms, recreational activity operators/owners are liable for injuries caused through their negligence. This is true regardless of whether a waiver was signed.

In 2021, with the ever-growing arrival of so-called “trampoline parks,” the state of New York instituted another anti-waiver law for public policy reasons. This statute is New York General Business Law Sec. 12-C-228, and states “any agreement [with a trampoline park]…which purports to…restrict, or limit the venue in which a claim shall be adjudicated or arbitrated shall be deemed void as against public policy.” This means that, like other recreational activity owners/operators, trampoline park owners/operators will be liable for negligent injuries their parks cause regardless of any waiver.

An example of a case that utilizes statutes such as New York General Business Law Sec. 5-326 and 12-C-228 is Filson v Cold Riv. Trail Rides, 242 AD2d 775 (3d Dept 1997). In Filson, the defendant was a wilderness horse riding excursion operator. Plaintiff alleged that injury occurred when trying to mount a horse without the assistance of a guide. The defendant tried to have the case dismissed because the plaintiff had signed a waiver. The waiver featured “a release and discharge, acceptance of responsibility, and acknowledgement of risks by the injured party.”

The Court rejected defendant’s claim to dismiss the case. It held that horseback riding was a “recreational” activity within the class of activities under General Business Law Sec. 5-326. The Court further stated that the horseback riding qualified as “a place of amusement and recreation” under the statute. As well, they clarified that the statute applied to outdoor amusement activities not just activities within a “controlled environment.” The court also opined that it did not matter that plaintiff’s injury occurred on land defendant (who was not an owner, but an operator) did not own.

Thus, New York’s public policy is clear. Negligent owners/operators of recreational activities that charge a fee receive no legal protection from waivers/agreements that claim to limit them from liability for damages.