Liability waivers have become such a routine part of using recreational facilities that we automatically assume that they’re valid. Even if we are injured after using gym equipment or taking a cycling class, we believe that we aren’t entitled to compensation and fail to determine whether that is really the case.
This is what the business owner or operator who presents you with the waiver wants you to think, but in New York, you have more rights than you think. New York General Obligations Law states that liability waivers are generally against public policy and therefore void. Specifically, GOL § 5-326 indicates that if you pay a fee or other form of compensation to use a gym, pool, recreational facility, or similar establishment, any waiver that seeks to exempt the owner or operator from liability for damages resulting from their negligence is unenforceable.
In other words, many New Yorkers who signed a liability waiver were still able to pursue a personal injury claim afterward. The businesses that use waivers likely know that they are hard to enforce, but are likely hoping that injured clients don’t catch on.
Like most aspects of personal injury law, there are exceptions to the rule. In June 2009, a New York woman was allegedly injured when the vehicle she was traveling in became mired in the mud along a public trail in Sullivan County, causing her to fall. At the time, she was taking a guided tour. Although she had signed a waiver exempting the tour company from liability even if negligence was involved, she sued the company, claiming that the tour had been conducted along trails that were too muddy to travel safely upon.
When counsel for the tour company moved for summary judgment dismissing her complaint, the New York Supreme Court denied the motion, so they appealed. However, the Appellate Court reversed the ruling and dismissed the complaint, stating that the waiver was valid because the fee the woman paid was for rental of the vehicle and not an admission fee for use of the trail where the tour took place. It found no statute or public policy that invalidated the document under those circumstances.
Although GOL § 5-326 remains a strong obstacle against the enforcement of liability waivers in New York, it does not 100% prevent enforcement. If you are injured during an activity and signed a liability waiver before starting out, then a New York personal injury attorney can advise you whether or not you may have a claim. Case law on the subject continues to evolve, and an attorney will give you the right advice for your situation. Jayson Lutzky is a Bronx, New York personal injury and accident lawyer with over 36 years of experience. If you were injured and signed a liability waiver, then contact Mr. Lutzky’s office at 718-514-6619 to set up a free in-person initial consultation.