Admiralty Law Trumps GOL 5-326 Statute in NY Jet Boat Waiver Case
By Doyice Cotten
In New York, liability waivers relieving a service provider of liability for its own negligence are generally enforceable, with a few exceptions. One major exception is New York General Obligations Law § 5-326, which provides:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
This statute prohibits waiver enforcement in certain situations; most notably for places of amusement or recreation at which an admission fee is charged.
In a 2011 case, Brozyna v. Niagara Gorge Jetboating, LTD. (2011 U.S. Dist. LEXIS 111546), Diane Brozyna was injured when the boat came down hard in a rapids. She sued for negligence and the defendant claimed a waiver of liability as a defense.
Since the incident occurred in navigable waters, the case fell under admiralty law jurisdiction (See last week’s post, Admiralty Law: How does it Relate to Recreation Waivers for an explanation of admiralty law). The court stated that a clear majority of federal cases considering liability waivers in admiralty situations hold that operators of inherently risky marine recreational activities may contract to disclaim liability for their own negligence. It went on to state that such a pre-accident waiver will absolve an owner or operator of liability for recreational accidents taking place on navigable waters provided the waiver meets three requirements: 1) the waiver is clear and unambiguous; 2) It is not inconsistent with U.S. public policy; and 3) the waiver is not an adhesion contract.
The plaintiff contended, however, that the waiver is void as against public policy under General Obligations Law § 5-326. The court stated that federal law ruled since the enforcement of GOL 5-326 would disrupt the uniformity of admiralty law – something that would be detrimental to the maritime industry. In addition, the court said that the waiver was 1) clear and unambiguous; 2) was not inconsistent with U.S. public policy; and 3) was not a contract of adhesion since the provider did not render an essential service.
While GOL 5-326 carries considerable weight in many New York waiver cases, it is trumped by admiralty law. Waivers meeting the required criteria the fall within the purvey of admiralty law will be enforced.