Pennsylvania Waiver Fails Because Injury was not Caused by the Sport

By Doyice Cotten

David Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. The event had “multiple starting stations at which the charity participants would begin their shooting activities. Some participants at certain locations walked to those locations;” Martin and others were transported to their starting location in wagons pulled by vehicles. Mr. Sparling, one of the defendants, drove the vehicle which pulled the wagon in which Martin rode. Going to one station, the tractor stalled while ascending a steep incline. The wagon began skidding backwards. Martin leapt from the wagon and suffered injury.  As a result, this action resulted (Martin and Martin v. Hudson Farm Club, Inc. and others, 2021).


When Martin had arrived at the club, he signed a waiver of liability consisting of three sections contained on one page. Sections I and II required a signature.  Section I of the Release reads:


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.

Section II, entitled “FIREARM RENTAL USE” and required that the signatory 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 requires that the signatory certify to other statements relevant to the individual’s rental of a firearm.

Section III was entitled “CONSENT FOR USE OF LIKENESS.” It did not require Martin’s signature.

Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking summary judgment based on the affirmative defenses of release and waiver.  The major issued addressed was the validity of the waiver.

Sworn Statement

Interestingly, there was considerable discussion regarding Martin’s sworn statement that he had not had time to read the waiver, being rushed by a line of 20 or so, hurrying to get to the event. Concern arose when he later submitted  an affidavit stating that he had time to scan the document. The court set aside the affidavit as a sham.

New Jersey Plain Language Review Act,  N.J.S.A. 56:12

The court looked to determine if the waiver violated the New Jersey act regarding consumer contracts such as waivers. The act requires that a consumer contract “shall be written in a simple, clear, understandable and easily readable way.” N.J.S.A. 56:12-2. This is to see that the contract uses plain language.

According to the PLRA, one shall be liable to a consumer who is a party to the consumer contract for actual damages sustained, if the violation caused the consumer to be substantially confused about the rights, obligations or remedies of the contract. Six factors are considered in determining whether a consumer contract is “clear, understandable and easily readable.

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their     common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

The statute adds that the main language shall be in at least 10 point type. The Court maintains broad discretion in its determination of how much consideration should be given to the factors.

Plaintiffs made a number of claims, but only the font size seemed relevant, but the size is no less that the remainder of the document. The court thought the size was unimportant when one sees that the critical elements of the waiver are bolded and capitalized. The court added that

In any event, all of Plaintiffs’ complaints are academic: Martin could not have been confused by the Release because he never read it. Inherent in any violation of the PLRA is that a contract that is not “clear, understandable and easily readable” must “cause[ ]” a consumer’s “substantial confusion” regarding the contents of the contract…. Accordingly, the Release could not have served to “substantially confuse” Plaintiff, and his challenge under the PLRA must fail as  a matter of law. (Emphasis added.)

Waiver is Unenforceable

The court stated that in Pennsylvania, “contracting parties are afforded the liberty to bind themselves as they see fit.” Nevertheless, it explained that exculpatory clauses, are disfavored and thus have been subjected to close judicial scrutiny. Thus, New Jersey courts have identified four factors that need to be considered before enforcing a waiver:

(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.

The law imposes “a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm; the law does not favor exculpatory agreements because they 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.’

The law does put limits on waivers. For instance, waivers may protect against risks directly related to physical activities, but will not protect against injuries that are not specific to the risks of the activity.[Emphasis added.] For instance, in this case, the injury was due to transportation error, not shooting. In this case, the waiver specified risks related to firearms. The court likened it to the Walters case (437 N.J.super. 111) in which a patron was injured in a gym when they slipped on the stairs. Slipping on the stairs had nothing to do with the activities of the gym. The court pointed out that the Walters waiver “released from any claim arising while an invitee was on the property.” It stated:

 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. (Emphasis added.)

Other Factors Possibly Voiding the Waiver

The court went on to say that the enforceability of the waiver would be questionable on other grounds. They listed possible unequal bargaining power, unconscionability, and was not negotiated. It indicated that, perhaps more important, was  that there seems to be a question of material fact regarding whether Martin had a meaningful opportunity to review the document.


In any event, Defendants’ motions for summary judgment regarding those same affirmative defenses are denied. The waiver was not enforceable and the case was sent back for trial.

Risk Management Take-away

Generally broad waivers specifying language such as  “any and all claims” or “arising out of, related to, or in any way connected to” the sporting event are interpreted to cover most injuries occurring on the premises. There are a few exceptions and Pennsylvania is one of them. Pennsylvania courts are more likely to limit the coverage of the waiver to injuries directly related to the event in question. Pennsylvania courts have ruled that such waivers do not overcome the duty of care owed to invitees.

Photo Credit: Thanks to Matt Lemmon  via Flickr.