By Doyice Cotten
Most state waiver law comes from court rulings but many state legislatures have passed statutes regarding liability waivers. Some statutes have a strong impact upon waivers in the state; others are less important, often affecting waivers for only one sport. A few of each are listed below:
High Impact Statutes
La Civ Code Ann art 2004 states:
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
This statute effectively prohibits the enforcement of waivers in Louisiana.
The Montana Legislature in 2015 passed a statute allowing the use and enforcement of liability waivers intended to protect providers against liability for injury resulting from provider negligence. This reversed previous legislation prohibiting waivers. It further declared that recreation and sport participants assume the inherent risks of the activity.
64th Montana Legislature (2015) revised Statutes 27-1-753 reads in part:
(b) This section does not prohibit a written waiver or release entered into prior to engaging in a sport or recreational opportunity for damages or injuries resulting from conduct that constitutes ordinary negligence or for risks that are inherent in the sport or recreational opportunity.
(c) Any waiver or release for a sport or recreational opportunity must:
(i) state known inherent risks of the sport or recreational opportunity; and …
The statute also provided that for a waiver to be enforceable, it must include the following statement in boldface type:
By signing this document you may be waiving your legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages you may suffer due to the provider’s ordinary negligence that are the result of the provider’s failure to exercise reasonable care.
So, for the first time, waivers can be enforced to protect providers from liability for injuries resulting from negligent acts by the provider.
In New York State, public policy supports the enforcement of liability waivers under most circumstances. There is, however, an extremely important legislative act that prohibits some waivers. This law, General Obligations Law § 5-326, reads as follows:
[e]very 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 void as against public policy and wholly unenforceable.
If the reader studies the statute carefully, the reader can see that the statute prohibits the enforcement of a great many waivers. Any place of amusement or recreation (or similar) charging a fee or compensation for its use is ineligible for waiver protection. A business falling under this statute will find their waiver void as against public policy.
NOTE: There are a number of exceptions to the rule. In fact the author spends seven pages discussing and explaining the statute in Waivers & Releases of Liability (2016, 9th edition). This should be of great interest to all New York readers or those associated with New York businesses. Order directly from the authors or order from this website; ordering information may be found elsewhere on this website.
Less Impactful Waiver Statutes
While the previous statutes have a major impact in their states, the following are examples of statutes prohibiting waivers in certain instances such as in one sport or activity.
Arkansas A.S. § 05.45.120 Prohibits Ski Operator waivers
Connecticut CGS § 29-211 Prohibits ski operator waivers
New Jersey N.J.S.A.5-13 Prohibits Ski Operator Waivers
West Virginia WVC 20-3B-1-8 Prohibit Outfitters & Guides Waivers
New Mexico NMSA 1978, sec. 42-13-4 Prohibits equine waivers
There are also many other statutes that permit the enforcement of waivers for a single sport or activity. The following are examples:
Michigan MCLA 691.1661 – 1667 Allows Equine waivers
Missouri MO ST 537.325 Allows Equine waivers
Kentucky KRS 247.4027(2)(a) Allows parental waivers for equine activities
Georgia O.C.G.A. § 4-12-1 Allows equine waivers
Florida F.S. 549.09 Allows parental motorsports waivers.
There are too many of these statutes to address each one here. Suffice it to say that you should be aware of such statutes in your state. These and many more may be found in the new 9th edition of Waivers & Releases of Liability.