Waivers NOT Containing the Word “Negligence” Fail in 3 Recent New York State Cases

By Doyice Cotten

5361482953_3343d1a777_zSome waivers protect; others fail to protect. There are many reasons waivers fall short of providing the protection intended by the provider.  Some reasons include gross negligence involved, violation of statutory duty, unequal bargaining power, unconscionable contract, no opportunity to bargain, employer/employee relationships and many more. Most common, however, is that the language used in the waiver was ambiguous.  Courts in most states specify that to be enforced, the waivers must clearly and unambiguously describe the intent of the two parties.

A waiver can be ambiguous for many reasons. It may fail to name the parties; it may not be worded broadly enough; it may be worded too broadly; there may be conflicting statements in the waiver; and any number of other reasons. One common cause is that the waiver fails to specifically state that the waiver releases the provider from liability for injuries resulting from the negligence of the provider. Courts in about 20 states either 1) require that the word “negligence,” “fault,” or some word that is obviously synonymous appear in the document, or 2) strongly recommend and encourage the use of such language.

One state that has this requirement is New York. This is illustrated by the following recent cases:

Hilliard v. Sony Corporation of America and Health Fitness Corporation (2012 N.Y. Misc. LEXIS 5389)   A client exercising in a gym in NYC was walking towards an exercise ball on the floor when a ceiling tile supporting the net holding workout balls fell, striking the lady in the head. She sued alleging negligence on the part of the defendants. Defendants moved for summary judgment claiming protection from a liability waiver signed by the plaintiff. The court, however, ruled that the waiver was unenforceable because it failed to specifically state that the plaintiff was agreeing to exempt the defendant from liability arising out of its own negligence.

Tadmor v. New York Jiu Jitsu, Inc. (2012 N.Y. Misc. LEXIS 3904)    Erez Tadmor enrolled as a student in  the mixed martial arts academy, signed a liability waiver, and after a period of time was injured while competing. He sued alleging, among other things, that the academy had negligently mismatched him with a more experienced and more skilled student. The court stated that a waiver that claims to protect the provider from liability for “any and all claims” fails to advise the signing party that the waiver extends to injuries resulting from the negligence of the provider.

Rich v. Tee Bar Corp. and Rocking Horse Ranch (2013 U.S. Dist. LEXIS 10682)    Donna Rich was injured while she participated in snow tubing at the ranch. The starter, who was supposed to give each tuber a gentle nudge to get them started, allegedly gave Donna a mighty shove. This caused her to go at a higher speed and travel too far, striking a restraining barrier and suffering injury. She signed a “Participants Responsibilities of Activities and Assumption of Risk” agreement which declared that facilities “… are used at participants own risk…” and stated “I hereby … agree to assume the risk of any personal injuries….” The court pointed out that no specific risks were named in agreement and that the agreement made no reference to “negligence.”  The court held that the waiver was unenforceable.

Risk Management Take-away

Regardless of the state, best practice calls for the waiver to clearly state that the client is releasing the provider from liability for injuries resulting from the “negligence” of the provider. In fact, to take it a step farther, the document should specify release from the “ordinary negligence” of the provider so the court will not interpret the intent to include gross negligence as well.

Photo Credit: Thanks to gGraphy  at      http://www.flickr.com/photos/ggraphy/5361482953/sizes/z/in/photolist-9aM16g-9aQ8vE-9aQ8Kb-7uSyKo-cEDuo-9c3dMg-yhrCK-4edskJ-9c6pR9-yNRfR-9c3dLi-BsGqE-auLoiM-5Po5Le-61nMK1-5ZuAaU-4h3bsd-9qbMfc-9mqqgD-9mpYEk-9mt16o-9mt1bf-4xwQGg-7vaPHR-7veFwW-7veF17-7vaQFp-7vaQcv-7veC5d-7veBCE-7vaRaB-7vaP4K-6aDpAW-5Po6Mc-dQgzMH-9c3dUH-9c3e22-9c6iGq-9c6iAN-9c3dZg-GuPvb-7946s-5Po5mn-4oxEDr-5TQ2RZ-Akszi-dSt4A2-9c6iWw-DKGaG-9zHn6J-8mRrgz/