Caution to NJ Waiver Users: NJ Courts Continue to be Consistent in Limiting the Breadth of Waivers

 By Doyice Cotten

In 2017, David Martin entered a charitable clay shooting event. When he arrived at the event, he signed a waiver of liability (Martin v. Hudson Farm Club, Inc., 2021). The waiver stated:


In return for the use of the premises and equipment, I agree to indemnify, hold harmless and defend [G&H], [HFC] and [non-party] IAT Reinsurance Company Ltd. and its instructors, employees, directors, officers, agents, representatives, heirs, successors, and assigns from and against any and all claims, demands, causes of action, personal injury (including death), damages, costs, and expenses (including attorney’s fees), arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms. I hereby further agree, on behalf of myself, executors and assigns, that I will not make any claim or institute any suit or action at law or in equity against [G&H], [HFC] and IAT Reinsurance Company Ltd. Related [sic] directly or indirectly to my use of the firearm referenced in this document or from my use or participation in any activity on this property. I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.

The second part, entitled  “FIREARM RENTAL USE” required that the signer attest that they are “not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3,” concerning the purchase of firearms, and further required that the signatory certify to other statements relevant to the individual’s rental of a firearm.

The clay shooting event utilized what is called a shotgun start which means that all participants begin at about the same time at different starting stations.  Some starting stations were near the starting point, but others were far enough away as to require transportation to the stations. Martin was transported on a wagon pulled by a tractor. While in route to his station, “the tractor ascended an incline and, during the ascent, the vehicle stalled. While Sparling engaged the vehicles’ brakes, the vehicle and attached wagon began skidding backwards. Martin at some point during the descent leapt from the wagon and suffered injuries as a result.”

 Violation of the NJPLRA Issue

There were a number of issues addressed; among them was whether Martin had read the waiver before signing. After denying having read the waiver, he eventually testified that he tried, but had insufficient time to do so. The court determined that the waiver did not violate the New Jersey Plain Language Review Act. The court found the language was plain and easily understood. The court then pointed out the whether the waiver was clear or not was academic because the plaintiff never read it. To violate the act, the fact that it is unclear or unreadable is academic because the act provides that the lack of readability must cause “substantial confusion” regarding its contents. Martin could not have been confused by the waiver because he never read it.  Accordingly, the court ruled that the waiver could not have served to “substantially confuse” Plaintiff, and his challenge under the PLRA must fail as a matter of law.

Unenforceability or the Waiver

The primary issue regarding the effect of the waiver involved the breadth of the waiver. New Jersey law had been very clear that waivers are disfavored and must be subjected to close judicial scrutiny (see Walters v. YMCA, 2014; Stelluti v Casapenn Enterprises, 2010).

New Jersey courts use four considerations in determining the enforceability of waivers. They will be enforceable if:

(1) it does not adversely affect the public interest;

(2) the exculpated party is not under a legal duty to perform;

(3) it does not involve a public utility or common carrier; or

(4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

New Jersey law holds that business owners have a duty of care to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm. Therefore, waivers are not favored because they can encourage a lack of care.   “[T]he law recognizes that for certain activities conducted by operation of some types of business, particularly those that pose inherent risks to the participant, the business entity will not be held liable for injuries sustained so long as [the business] has acted in accordance with ‘the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.’ ” For example,  the court clarified that when it comes to physical activities in the nature of sports—physical exertion associated with physical training, exercise, and the like—injuries are not an unexpected, unforeseeable result of such strenuous activity.”

The court referred to Stelluti  which stated that there remains a standard for liability even in contact recreation sports. T]here is also a limit to the protections that a private fitness center reasonably may exact from its patrons through the mechanism of an exculpatory agreement.”). In particular, Stelluti requires that business owners be held “to a standard of care congruent with the nature of their business.”

In Walters, the appellate court looked at a waiver that attempted to release the health club from liability for all injuries while on the premises. In that case, the person fell because of an alleged negligently maintained stair tread leading to the pool. In refusing to enforce the broader clause of the exculpatory agreement—concerning injuries sustained “while on any YMWCA premises”—the Appellate Division found that “if applied literally, [the clause] would eviscerate the common law duty of care owed by defendant to its invitees, regardless of the nature of the business activity involved.” Id. at 118–19. This, the Walters panel continued, “would be inimical to the public interest because it would transfer the redress of civil wrongs from the responsible tortfeasor to either the innocent injured party or to society at large, in the form of taxpayer-supported institutions.”

Ruling of the Court

The court looked at other court rulings in New Jersey and found that “New Jersey courts will set aside waivers when the claim arises from an activity that is not squarely within the ambit of the risky activity of the establishment.” The waiver signed by Martin seemed to focus on waiving liability for injury caused by firearms and nothing in the waiver referred to dangers related to transportation. Accordingly, the exculpatory clause of the Release is void and unenforceable as to Plaintiffs’ claims.

A Post Script from the Court

Interestingly, the court noted that summary judgment would not have been granted on other grounds:

Even if the Court accepted that transportation to the shooting range is covered under the Release, the application of the final factor relevant to the enforcement of an exculpatory clause under New Jersey law—that the contract does not grow out of unequal bargaining power or is otherwise unconscionable—gives rise to a dispute of material facts.


Businesses relying on liability waivers in New Jersey should reconsider relying too heavily on broad waivers. Waiver enforcement is greatly restricted. Even with statements like “waive liability for any injury occurring on the premises …” The protection granted will most likely be restricted to the actual risks of the activity and will not likely be extended to reduce the duty of care to maintain a safe premises.

This is nothing new for the state of New Jersey; the NJ courts have been consistent in the way they handle such waivers. Similar rulings may be encountered in some other states, however New Jersey is probably most consistent in following this policy.

Photo Credit: Thanks to Fogcat5 via Flickr.