Most Liability Waivers are Not Enforceable in New York

Companies are increasingly requiring waivers for participating in many events and recreational activities.  They are intended to protect businesses from lawsuits, and act as psychological deterrents as people often assume that they cannot sue for their injuries because they signed a waiver.  If you’ve been seriously injured, an experienced New York personal injury lawyer might be able to help you make a claim, even though you signed a waiver! In fact, New York law generally holds waivers of liability for negligence unenforceable.  So if you are wondering, “I signed a liability waiver, can I still sue,?” the answer, mostly likely, is yes!

What is a Liability Waiver?

The Merriam-Webster Dictionary defines waiver as “the act of intentionally relinquishing or abandoning a known right, claim, or privilege.”  This implies that you know what you are giving up and make an informed choice to do so. Service providers often write these liability waivers to discourage all claims for negligence for all types of injuries, even catastrophic injuries.  This is the typical language used by a recreational facility:  

I fully understand and acknowledge that: (a) risks and dangers exist in my use of paintball equipment and my participation in paintball activities; (b) my participation in such activities and/or use of such equipment may result in my injury or illness, including, but not limited to bodily injury, disease strains, fractures, partial and/or total paralysis, eye injury, blindness, heat stroke, heart attack, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of XYZ, the negligence of the participants, the negligence of others, accidents, breaches of contract, the forces of nature or other causes. These risks and dangers may arise from foreseeable or unforeseeable causes; and (d) by my participation in these activities and/or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents officers, employees of XYZ, or by any other person.

When are Waivers Enforceable?

Waivers are generally enforceable when applied to the inherent risks of the activity.  Paintball is obviously a strenuous activity and the facility would not be responsible if a person in poor physical shape and/or with an existing heart condition, had a heart attack while playing paintball.  This would be true even if no waiver had been signed. Common law would apply, and it would be held that the person “assumed the risk” of strenuous activity. Similarly, if you are hit by a foul ball at a baseball game, you are unlikely to succeed with a claim because you should have known this was a risk of attending a live game.

Will Waivers Hold Up When There’s Negligence?

Ordinary negligence is the failure to exercise the care that a reasonably prudent person would exercise in like circumstances.  This is not the type of duty that is easily signed away. On the other hand, if an injured party sued when an amusement park ride failed because it was not put together properly, it’s unlikely the that the waiver would be enforceable.  If the ride was put together by an untrained 9th grader, it could even be held to be “gross negligence,” as the owner should have known how dangerous this could be. An owner might be be held liable for punitive damages, even though a waiver was signed.  If you’ve been seriously injured, it’s always a good idea to speak to an experienced personal injury attorney. Don’t let the waiver deter you from seeking legal assistance!

New York Law Renders Most Waivers of Liability Unenforceable

New York General Obligations Law § 5-326, renders most waivers of liability unenforceable.  If there was payment for participation in a recreational activity such as an amusement park, pool or gym, a waiver of liability for negligence is not enforceable.  This also applies to any payments made for a membership, ticket or any type of fee for a venue. This New York law is based on the public policy that when people charge money for something, they cannot be exempt from a lawsuit for negligence.

Most waivers of liability for minors are also unenforceable in personal injury law when negligent actions cause injuries.  The child or the parent cannot sign away rights against camps, schools or teachers for not using reasonable care. Personal injury claims are usually successful with the waivers only use being to psychologically deter parents from bringing injury cases.

Legal Representation is Crucial

If you or somebody you love has signed a liability waiver, it will take the experience and talent of a top notch law firm to bring a successful legal action.  At Wittenstein & Wittenstein, we’ve been handling personal injury cases for over 60 years. We offer a free consultation where we will patiently answer all of your questions and address all of your concerns.  If you are still wondering, “I signed a liability waiver, can I still sue,?” call 718-261-8114 for an appointment.