Waiver Clearly Specifying Risks Enforced in NY Case

By Doyice Cotten 3991578464_4ac61a0878_m-1

Last Week’s Post (Admiralty Law Trumps GOL 5-326 Statute in NY Jet Boat Waiver Case) focused on fact that federal admiralty law supersede  state law (including New York’s G.O.L. 5-326. We look at this case again (Brozyna v. Niagara Gorge Jetboating, LTD., 2011 U.S. Dist. LEXIS 111546) focusing this time on the language of the waiver and other risk management steps taken by the provider.Courts in many states require that the waiver language warn the signer of the inherent risks of the activity involved. Whether your state has such a requirement or not, this is a good policy to follow for a number of reasons.The customer was required to sign and initial the waiver which was titled “Participation Agreement.” Pertinent parts of the agreement follow:

YOUR SIGNATURE ON THIS FORM INDICATES YOU ACCEPT THE CONDITIONS OUTLINED BELOW AND UNDERSTAND THE RISK INHERENT IN THIS ACTIVITY.  You also acknowledge that you have read this document at your leisure and have had adequate time to decide whether to participate in this activity. THIS ACTIVITY IS NOT RECOMMENDED FOR PEOPLE SUFFERING FROM MEDICAL CONDITIONS INVOLVING THE NECK, BACK OR HEART.

. . . .

I, the Undersigned, on behalf of myself, my heirs, executors, administrators and assigns, in consideration of NIAGARA GORGE JET BOATING Ltd., carrying on business as WHIRLPOOL JET (the “Company”), permitting me to participate in its activity, do hereby RELEASE and forever DISCHARGE the Company, its agents, servants and employees, successors and assigns, from all manner of actions, causes of action, suits, debts, contracts, claims and demands whatsoever, which I now have, shall or may have for or by reason of any cause, matter or thing, including negligence on the part of the Company, its agents, servants and employees. I agree not to make any claim against any person or corporation who might claim contribution or indemnity against the Company, its agents or employees.

. . . .

I AM AWARE that there are risks, hazards and dangers inherent in jet boating (the “Company’s Activity”) including bumping and jolting of the boat. Notwithstanding such risks, hazards and dangers, I request the Company to allow me to participate in its Activity, and I hereby agree to assume all risks involved in engaging in the above Activity.

I AGREE, and am aware, that as a condition of being allowed to participate in the Company’s Activity, I do warrant that I am comfortable in and around the water while wearing a life jacket and that I am in good physical health. In particular, I warrant that I have no medical condition involving my neck, back or heart. I also warrant that I am NOT pregnant.

I HEARBY [sic] ACKNOWLEGE [sic] THAT I HAVE READ THIS AGREEMENT at my leisure and understand that it is a FULL AND FINAL RELEASE and waiver of all my claims for damages or injuries sustained as a result of my participation in the Company’s Activity, and that I am signing this Agreement voluntarily, knowing full well that I am releasing and forever discharging the Company and its agents, servants and employees of all liability for any losses and damages which I may sustain.

The court pointed out that the plaintiffs 1) did not dispute that they each willfully signed the agreement, and 2) did not challenge the clarity of the waiver and release language. The plaintiffs alleged negligence by the defendant 1) in the operation of the jet boat excursion, 2) inadequate warnings about dangerous conditions, and 3) inadequate training of the operator.

The court primarily examined the wording of the warnings and said the agreement gave plainly worded notice of the “risks, hazards and dangers inherent in jet boating . . . including bumping and jolting of the boat (see language in red). The court noted that the trip was not recommended for persons with certain conditions, including back problems (see language in green) and further, that she untruthfully denied having a previous back condition (see language in blue).  The court went on to state that the exculpatory language was such that “it would be difficult to imagine language more clearly drafted so as to put a person on notice of its legal significance and effect” (see exculpatory and assumption of risk language in orange).

Ms. Brozyna admitted in deposition that she did not read the Participation Agreement before signing. This is course irrelevant since it is well settled in contract law that parties are bound by a contract they sign whether they have read it or not – so long as there is no fraud, duress, or other wrongful act of the other party.

Risk Management Principles in Action

In addition to company policy requiring a signed waiver by customers, Niagara Gorge also required customers to attend a safety briefing prior to boarding. The briefing provides

  • a detailed description of the excursion,
  • an express warning of the risks associated with a jet boat ride in Class 5 whitewater rapids,
  • caution regarding participation in the excursion if they have any health concerns regarding their neck, back, or heart,
  • instruction as to how to best position themselves during the course of the excursion, and
  • warns that they could experience rougher conditions if they elect to sit in the first three rows of the boat (Ms. Brozyna sat in the first row).

In addition, Niagara Gorge’s handling of the emergency was excellent.

  • When the excursion leader noticed that Ms. Brozyna was in distress, he directed the captain to return the boat to the dock.
  • Brozyna was then taken by ambulance to the emergency room.

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