By Doyice Cotten

In 2016, Sarah Witkowski and her husband, Scott, were passengers on a jet boat operated by Niagara Jet Adventures, LLC, (“Niagara Jet”) when she suffered injury. They sued alleging negligence or willful and reckless conduct. Niagara Jet moved for summary judgment based on the waiver of liability signed by Sarah (Witkowski v. Niagara Jet Adventures, LLC, 2020).

Upon arrival, they noticed a safety video playing in the background;  Sarah “looked at” and signed a waiver of liability. It read:

I fully understand that although Niagara Jet Adventures has made every effort to keep this experience safe, this experience could involve risks of serious bodily injury . . . which may be caused by . . . the conditions in which the experience takes place, or the negligence of any of the “Releases” listed below; and that there may be other risks either not known to me or not readily foreseeable at this time; and I fully accept and assume all such risks and all responsibilities for losses, costs and damages I incur as a result of my participation in the experience.

I hereby release [and] discharge . . . Niagara Jet Adventures LLC . . . from all liability, claims, demands, losses, or damages . . . caused or alleged to be caused in whole or in part by the negligence of the “Niagara Jet Adventures” or otherwise . . . .

I have read this RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement, or assurance of any nature and intend it to be a complete and unconditional release of liability to the greatest extent allowed by law . . . .

“At Sarah’s request, Niagara Jet seated her on a ‘bench seat’ with her son and her husband. Near the end of the ride, the vessel master took the vessel upstream through the Niagara River rapids, attempting to drive the vessel into a wave to force water onto passengers on board the vessel.” When they struck the waves, “Sarah was forced up from her seat.” Id. Her arms were pinned under a metal bar, she hit another metal bar on her right side, and she collided with her family members.

Sarah was taken to the hospital and the next day, Niagara Jet offered to pay for the costs of the hospital visit and,  according to Scott, said that “three in a seat is a big-no-no on this boat[,] . . . and my staff knows this.”

The Judge made several rulings, most important of which was that federal maritime law, not New York law, had jurisdiction. The reason that this ruling was important was because waivers are enforceable under maritime law, but waivers such as this one are not enforceable under New York law.

Appeal

The plaintiffs objected to the court ruling that federal maritime law governs the enforceability of the release. The court discussed that federal law trumps state law, but  noted 1) that state law may nonetheless apply to the extent that it “would not disturb the uniformity of [federal] maritime law”; 2) state law applies where no applicable admiralty rule exists or when local and state interests predominate and the uniformity principle is not crucial. The appellate court held, however, that in this case, the established federal admiralty rule is that “a pre-accident waiver will absolve an owner or operator of liability for recreational accidents taking place on navigable waters where the exculpatory clause

• is clear and unambiguous;
• is not inconsistent with public policy; and
• (3) is not an adhesion contraction.”

In contrast, N.Y. Gen. Oblig. Law§ 5-326[1], which bars a waiver of this type seems to be an outlier as the law in most states permits such waivers. For these reasons and others discussed in the case, the court held that maritime law trumps New York State Law – therefore the waiver fell under maritime law and was enforceable against the Witkowski’s.  The reader is referred to the case for more detail.

[1] G.O.L. 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence are void and unenforceable. 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.