By Julie Pechersky Plitt, Esq.
As a former equestrian, I was overjoyed to see my daughter up on a horse for her first riding lesson. But, while reading the fine print on the stable’s contract that appears to release it from every sort of liability under the sun, I thought to myself: “Is this thing enforceable?”
Waivers of liability are ubiquitous – we sign them when renting ski equipment, joining a gym, and even before school field trips. However, contrary to what many people (business owners and consumers alike) may think, these contracts are often unenforceable in New York and injured parties who sign them are frequently entitled to compensation.
New York law is clear that if a consumer paid to engage in a recreational activity and is injured in conjunction therewith, the owners and operators cannot hide behind waivers of liability. Thus, if someone is hurt at a swimming pool, gym, amusement park or other such facility, then the owner will be liable for his negligence. Likewise, waivers of liability for minors are generally unenforceable in New York.
Neither the child or the parent can sign away these rights.
On the other hand, if the injured party is participating in an instructional class at the time of harm, then the waiver may be enforceable. Thus, if you sign up for an eight-week self defense course and are injured during class, you may have signed away your rights.
Analysis of each particular case is nuanced and can be quite complex, turning upon the language of the contract, whether an activity is instructional vs. recreational, and the manner in which payment was made. Moreover, gross or willful negligence is never protected, no matter how airtight the waiver’s language.
Consultation with an attorney is essential both for injured parties, as well as business owners subject to lawsuits.
This article is written by a member of the Oxman Law Group, PLLC (www.oxmanlaw.com). Any comments or inquiries are welcome and can be directed to Marc Oxman at 914-422-3900 or moxman@oxmanlaw.com.
