Are Waivers of Liability Enforceable in NYC?
New York City has many businesses, activities, and sights to see, with many of them requiring waivers before participation to protect the business from lawsuits. Whether you are talking about access to a gym, an escape room, a haunted house, bungee jumping, or some other activity, a waiver might be required – but it might not always be enforceable.
New York law does generally allow waivers to be enforced, but there are some strict requirements. First and foremost, there needs to be clear language that what you signed is in fact a waiver; hidden fine print and confusing language might make the waiver unenforceable. Second, waivers are not allowed for certain industries. Lastly, there may be ways to sue that are not covered by a waiver in the first place.
For help with an injury case in NYC, call the NYC personal injury attorneys at The Carrion Law Firm today at (718) 841-0083.
Blocking Waivers for Ambiguous or Confusing Language in NYC
Waivers cannot be enforced if they are not clearly waivers. There is a lot of typical language used in waivers to highlight exactly what the waiver is requiring – that you give up your right to sue the other party for injuries. When different language is used or the waiver is buried somewhere inside another document, such as a rental agreement, the waiver might become unenforceable.
Headers and titles on documents are important for letting people know what document they are signing in the first place. If you are handed a contract that says “Rental Agreement” at the top, then you would likely have no clue that the third to last paragraph was actually a waiver of liability for the item you are renting. Instead, waivers often need to be separate documents or have a header calling the section a Liability Waiver, Release of Liability, Exculpatory Agreement, or some other such language that clearly indicates it is a waiver.
The language used in the waiver also needs to be clear and unambiguous. If there is a lack of clarity in what rights the signer is giving up by signing it, then it might be thrown out in court or potentially reinterpreted by the court to not actually give up any rights. The language in a waiver will usually say that it “releases” the party from liability or that the signer will “indemnify and hold harmless” the other party. This language might be confusing to you, though, so it is always best to discuss a waiver with our Queens personal injury lawyers before signing it.
If you are unclear or unsure about a waiver, it is best not to sign it. This may block you from being allowed to participate in the activity, but that might be better at the end of the day than getting injured and locking yourself out of a lawsuit. However, there are some other things that might help you get around a waiver, too.
Can You Negotiate a Waiver Before Signing It in NYC?
You can always try to negotiate or change any contract before signing it. In many cases, this will require the business or company to accept the changes – and they might be unwilling to do that. Companies can deny you access to their facilities or activities if you do not want to sign the waiver they give you, and they are under no obligation to amend or modify the language. However, you can always ask them or see if they will let you participate without the waiver.
What Businesses Can’t Use Waivers in NYC?
New York law actually blocks waivers from being enforceable in certain businesses.
First, G.O.B. Law § 5-326 says that waivers for swimming pools, gyms, and public amusement spaces are not allowed or enforceable. In fact, upon passage of this law, the government effectively undid all such waivers as well. This statute states that these waivers are “against public policy,” which is an argument that can be made to make other waivers unenforceable, too.
Courts are also unwilling to enforce waivers that are generally “against public policy” in other fields. This usually bars waivers from being enforceable for places and services that should be accessible to the public, like public transit. While you certainly do not need access to the subway to get around and there are alternatives, it would be against public policy to block every rider from accessing this public service unless they sign a waiver first. In contrast, something completely unnecessary, like a skydiving experience, is usually allowed to have a waiver.
Other arguments about public policy might make waivers for certain types of liability or other issues unfair and block enforcement of a waiver in those situations, too. This could include making waivers for a child’s death unenforceable or waivers for gross negligence void.
Is a Waiver on a Ticket or Sign Enforceable in NYC?
Some tickets and admission paperwork will say something on it about how using the facilities is done at one’s own risk. Similarly, signs and posters at a location might say that you participate at your own risk or that they are not liable for supervising children or preventing injury. In some cases, these might work, but they are not the same as a signed waiver.
In these cases, there is no “meeting of the minds,” and there is no contract in place to waive liability. Certainly, the business will argue that the poster was in a place that was obvious and easy to see, but it might be possible you never saw it and thus never could have agreed to such terms in the first place. It is also possible that, given the chance to sign the waiver, you might have rejected it, but you did not get the same chance to make that decision about a poster or fine print on your ticket.
Call Our Personal Injury Attorneys in NYC Today
If you were hurt in an accident, call The Carrion Law Firm at (718) 841-0083 for a free case review with our Bronx, NY personal injury attorneys.