My son recently attended a birthday party held 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.”
In New Jersey, such “pre-injury releases,” when used to prevent the claims of minors against recreational businesses, are typically not enforceable. While the law allows parents and guardians to sign documents that legally bind their children in many circumstances, one important exception to the rule is when the document attempts to waive the right to assert a claim against a "commercial enterprise."
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 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 only 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 apply to all of the parties that are potentially responsible, such as product manufacturers, maintenance contractors, etc.
Finally, it is important to note that many recreational activities, such as school events, competitive sports, amusement park rides and certain equestrian events, are already governed by statutes or regulations, 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 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.
