Niagara Jet Boat Patron Challenges Waiver on Negligence, Violation of a Safety Statute, Breaching a Condition of a Contract, and Gross Negligence

By Doyice Cotten

Scott and Sarah Witkowski and their son rode a Niagara Jet Adventures(referred to as Niagara) jet boat after having signed a waiver of liability. The boat hit a large wave throwing Scott and the son into Sarah causing injury.  The Witkowskis sued Niagara alleging negligence and gross negligence. They also alleged negligence per se claiming Niagara violated a safety statute (This was not properly pled and was dismissed.)

The Waiver

Pertinent parts of the waiver read:

“In consideration of participating in whitewater, and, or river tours / cruises with Niagara Jet Adventures, LLC (‘Niagara JetAdventures‘) I represent that I understand the nature of this experience in a U.S. Coast Guard certified water craft that operates on water . . . .

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 [*3]  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 . . . Niagara Jet Adventures LLC, any sponsors, advertisers . . . (collectively, ‘Releases’ 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 JetAdventures‘ or otherwise . . . . and I furthermore agree that if, despite this release, waiver, of liability, and assumption of risk I . . . make[ ] a claim against Niagara Jet Adventures or any Release, I will indemnify, save and hold harmless the Releases from any loss, liability, damage or cost which any of them may incur as a result of such claim . . . .

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 . . . .

NY State Law or Admiralty Law

The question of law was addressed and it was determined that since the injury occurred on navigable waters, the proper law was Admiralty Law. Thus NY 5-326 (which bars recreational facility operators to disclaim liability for their own negligence with a waiver) did not apply. Under admiralty law, risky marine recreational activity providers may contract to disclaim liability for their own negligence.

The court ruled that under admiralty law, Niagara was protected from liability for its own negligence by the waiver. Note the clarity of the waiver language.

Breach of a Condition of a Contract

Plaintiffs argued that the statement in the waiver that Niagara had “made every effort to keep this experience safe” was a condition — the breach of which renders the Release unenforceable. The court disagreed quoting Williston on Contracts§38:13 (4th ed.) stating that “Contract conditions are generally disfavored . . . and conditions therefore will not be found unless there is unambiguous language indicating that the parties intended to create a conditional obligation.” It went on to add

If Niagara Jet Adventures could only avail itself of that waiver of negligence claims if it had “made every effort to keep this experience safe”, then the waiver would be pointless, since under those circumstances it would not have been negligent. . . . Accordingly, a condition will not be implied if it “would impose an absurd or impossible result will not be implied if it “would impose an absurd or impossible result”. Williston, §38:13.

Issue of Gross Negligence

Applicable law holds that “In order to establish a prima facie case in gross negligence, a plaintiff must prove by a fair preponderance of the credible evidence that the defendant not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.”

It was determined that Niagara employees had allowed all three Witkowskis to share the same seat – a violation of Niagara policies.  Plaintiffs argued that this evidence provided an issue of fact regarding Defendant’s recklessness. The court agreed stating “If the jury finds that Niagara Jet Adventures‘ staff knew that it was improper to seat three people in a seat but nevertheless allowed that to occur, they could conceivably conclude that such action was grossly negligent or reckless.” The court added that gross negligence is generally a question of fact for the jury to decide; subsequently, it denied the Niagara motion for summary judgement on the issue of gross negligence.


The court dismissed plaintiffs’ claims for negligence, but did not dismiss the gross negligence claim. He left that for a jury to determine.

Risk Management Take-aways

  • Don’t take short cuts on your waiver. Take care to be sure to have a good one.
  • Nothing should be in the waiver promising or suggesting safety. Niagara was fortunate to dodge a bullet here.
  • See that your employees always know and comply with company safety policies and any state or local safety statutes.

Photo Credit: Thanks to William Klos via Flickr.