Recently, a reader of the blog was asked by her daughter’s girl scout troop to sign a waiver of liability, which purported to relieve the Girl Scout Troop of all liability for damages, including that which may be caused by their own negligence. She questioned whether such a liabilty waiver was valid. In New York the waiver would not be valid where the participant was under the age of 18. A person under the age of 18 can elect to nullify a contract signed by them. A parent signing the document on behalf of the child will not change the result. There are certain exceptions to this rule, but it would not apply to this case. What about when an adult signs a waiver of liability for him or herself? Will that be upheld in court? Such agreements are subject to close judicial scrutiny. The law frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable. To the extent that agreements purport to grant exemption for liability for willful or grossly negligent acts they have been viewed as wholly void. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. Further, their are certain waivers and releases which are void as a matter of public policy under New York’s General Obligations Law, as seen in the following law:
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable. 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.
Thus, any waiver included in a contract or ticket for a gym, amusement park, swim club, or other recreational facility will not be enforceable where a fee was charged. However, outside of those scenarios the waiver will be considered valid. In fact such waivers have been upheld in NY where they have been signed by participants in bicycle races, and running races held on public roads, a mechanic working at a racetrack (as compared to a racer who paid a fee to participate), or where the participant was receiving instruction rather than participating in a recreational activity. When in doubt it is best to consult an attorney. Also, keep in mind that just because a waiver may not be valid does not mean that you can recover for every injury. One still must prove that the other party was negligent, and possibly that you did not assume the risks of the activity.
Zalman Schnurman & Miner is a New York law firm experienced in handling all type of accident cases including cases where people have been injured in recreational activities, at camps, schools, and sporting activities. We will be happy to speak to you and offer a free consultation. Zalman Schnurman & Miner P.C. is a New York law firm that concentrates in personal injury actions Contact us at 1-800-LAWLINE, or 1-800-529-5463 Zalman Schnurman & Miner P.C. handles personal injury actions in New York City, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Suffolk County, Westchester County, and Rockland County. We can often refer you to attorneys in other areas that we have worked with in the past. The information provided here is for informational purposes only and is not meant as legal advice or to cover all possible facts or factors. An attorney should be consulted to discuss specific facts and laws.