When is a Signed Release/Liability Waiver Valid & Enforceable?
Both our corporate and individual clients often ask us whether the waiver they have prepared or signed is valid and binding in a Court of law. Our clients are specifically interested in the validity of a clause in a release waiving any the rights to sue for any injuries, even if those injuries are caused by the negligence of the party seeking the release.
In New York State, the short answer is that such releases are valid and binding, but only for instructional classes. Such releases will not be binding in connection with purely recreational activities, such as event spectators and amusement park customers.
Our firm recently prevailed on an appeal in which the Appellate Division, Second Department affirmed the Supreme Court's decision granting summary judgment to our client, a go-kart track owner. Plaintiff had been injured during an instructional driving school when he lost control of his go-kart. We were able to convince the Court that New York State law mandated dismissal of claims where a plaintiff has signed a clear and unequivocal release and was participating in an instructional class at time of his injury. See Thiele v. Oakland Val. Inc., 2010 NY Slip Op 03110 (2nd Dept. 2010).
The three controlling cases upholding the validity of a signed waiver are Lago v. Krollage, 78 N.Y.2d 95, 575 N.E.2d 107 (1991) (holding that where the language of an exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant's negligence, the agreement will be enforced); Castellanos v. Nassau/Suffolk Dek Hockey, 232 A.D.2d 354, 648 N.Y.S.2d 143 (2nd Dept. 1996) (holding that the language of the exculpatory agreement clearly expressed the intention of the parties to relieve the organizers, sponsors, supervisors, participants, owners of the business and owners of the premises of liability for injury related to the game of deck hockey); and Boareng v. Motorcycle Safety School, Inc., 51 A.D.3d 702, 858 N.Y.S.2d 312 (2nd Dept. 2008) (granting defendant's motion for summary judgment where plaintiff signed a release and the premises were used for instructional, not recreational or amusement, purposes).
The Boareng Court essentially relied on a two part test in determining whether a release is valid: (1) The release signed by plaintiff must clearly and unequivocally expressed the intention of the parties to relieve the defendant/respondent of liability for personal injuries sustained by plaintiff/appellant by reason of its negligence; and (2) The plaintiff must have been participating in an instructional course or school as opposed to a recreational activity. If the Court finds that the activity was instructional rather than recreational, the release will likely be found in compliance with General Obligations law § 5-326 which prohibits an owner or operator of a recreational facility from enforcing a release given by an individual who has paid it a fee or other compensation for the recreational use of the facility.
So, how do you prove that a particular activity was instructional rather than recreational? In determining whether a facility is recreational or instructional in nature, relevant factors include the certificate of incorporation of the corporate defendant, the statement of purpose contained therein and the typical method of payment, that is, whether a tuition fee is paid for a course of instruction, or a use fee is paid for use of the facilities. Fusco v. Now & Zen, Inc., 294 A.D.2d 466, 742 N.Y.S.2d 650 (2nd Dept. 2002); Baschuk v. Diver's Way Scuba, 209 A.D.2d 369, 618 N.Y.S.2d 428 (2nd Dept. 1994).
It is also of note that Courts will not enforce an otherwise valid release if there is evidence of gross or willfully negligent conduct. Courts have defined reckless conduct as conduct that borders on intentional wrongdoing and is different in kind and degree from ordinary negligence. Lemoine v. Cornell University, 2 A.D.3d 1017 (3rd Dept. 2003). Therefore, in the context of an instructional class, without some extraordinary proof of gross incompetence or willful conduct, a duly executed release should be valid and binding.