The warm weather has finally arrived. As many of us get ready to participate in – or allow our children to participate in – summer activities, we will invariably be confronted with a waiver/release form.
Are these waivers enforceable in New York? As with many things in law, it depends. Generally speaking, any contract, membership application, admission ticket, or similar writing entered into between a participant and the owner of a pool, gymnasium, or place of recreation/amusement seeking to exempt the owner from liability or damages in exchange for a fee is void as against public policy.
The intent of the law in New York is to prevent places of amusement or recreation from benefiting from exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or does not understand their full effect.
Enforceability generally comes down to whether a facility is instructional or recreational in its purpose.
If the facility is instructional in nature (look to a website, brochure, or even a certificate of incorporation), then a waiver/release form is likely enforceable. By way of example, private/personal training gyms, martial arts schools, and gymnastic programs are typically instructional in nature.
If the facility is purely recreational, such as amusement parks, pools, and camps, the waiver/release form is generally not enforceable.
When considering these activities, one must also consider the applicability of the doctrine of primary assumption of the risk. When engaging in a sport or recreational activity for which a participant consents to those commonly appreciated risks that are inherent and arise out of the nature of the sport and flow from such participation, the participant – even a child – assumes the risk of any injury. Think of activities such as horseback riding, scuba diving, surfing, and skydiving. These activities often carry with them instruction-based programs as well, so both theories exonerating the facility from liability or damages might apply.
Be aware of what you’re signing, appreciate the risks of an activity, and if you have questions before signing any document, feel free to call our office to discuss the ramifications.