My eleven year old son was recently invited to a birthday party at an indoor rock climbing facility. One of the preconditions for attendance, as required by the facility (and no, doubt, its insurance company) was the execution of a “waiver of liability” which had to be signed by a parent or legal guardian and provided that the participant/parents agreed to “release and hold harmless” the rock climbing facility from “any and all claims arising from injuries that may occur on the premises.” The “waiver of liability” set forth an entire page of potential horribles, such as the signer’s “understanding and recognizing that the activities to be conducted are inherently dangerous and can result in death, disfigurement, or serious injury to participants.”
Many may be surprised to learn that New Jersey courts often invalidate “pre-injury releases” signed by parents on behalf of minor children when the injury occurs on a commercial recreational facility. This is because children are legally prevented (the term often used is “incompetent”) from entering into contracts. While we recognize that parents and guardians often sign things that permit their children to do a variety of activities, courts still play a role in certain matters of legal importance, which is why personal injury settlements on behalf of minors will require court approval when any sum more than a statutorily established nominal figure is involved.
In the case of adults signing on their own behalf, releases and waivers of liability are generally, but not always enforceable. The New Jersey Supreme Court recently addressed the issue and upheld a release signed by a health club member waiving any claims for personal injury arising from an exercise class. There are limits to this rule, and courts will often consider a number of factors in deciding whether the signor of such a release gave up the right to sue “voluntarily, intelligently, and with the full knowledge of its legal consequences.”
Although the rule sounds simple enough, the analysis is very fact specific, and readers are should seek legal counsel before concluding that a release amounts to a legal waiver of any claim they might have. There are also circumstances where pre-accident releases are void depending on the nature of the conduct, i.e. whether the acts are intentional or reckless amount to “gross negligence.”
Another factor to consider is whether the person or entity presumably “released” from claims is the one responsible for the injury. If for example, the accident occurred because of a defective product or safety device, or the failure of some other party to maintain premises, provide lighting or shelter, etc., the release might not even apply because the party responsible for the accident is not even named in the release.
Finally, it is important to note that many recreational activities, such as certain horseback events, amusement park rides and competitive sports, are already governed by statutes or regulations that address the manner in which they are operated, and the enforceability of waivers may well depend on whether a specific incident implicates other rules of law. These laws may even impose a strict time limit for asserting a claim. For example, The Carnival Amusement Ride Safety act (which by broad application covers a number of recreational facilities in addition to boardwalk type rides) requires claimants to file a report with the operator of the facility within 90 days of the accident.
In conclusion, there are many factors that bear on the legal right to assert a claim even though the injured party may have signed what appears to be an enforceable agreement not to pursue such a claim. The status of the party signing the release, the circumstances of the agreement, the conduct alleged and the nature of the accident and injury all bear on this fact sensitive analysis, and readers should seek legal counsel to learn their rights.
NOTE: The post above is part of an ongoing series designed to cover legal issues that arise in every day occurrences. The purpose of this piece is not to provide legal advice for a specific situation a reader may have, as the law will yield a different result depending on the facts of a particular case. If you believe that you may need legal advice for your own situation, you should contact Mr. Coughlin.