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Is a Pre-Injury Waiver and Release Enforceable?

Dec 14, 2016

By Peter J. Weishaar

Your child was invited to another birthday party. This time, the party is at the trampoline place. Maybe next time the party will be at a stable and involve horseback riding. Or maybe it will be at some other place of amusement. Before the party, you need to fill out a release and waiver of liability form before your child can participate. What if your child is injured during the party? Will the waiver and release you signed earlier prevent you from bringing a lawsuit?  Maybe not. We’ve all seen exculpatory clauses like this.  What many people may not realize is that many of these clauses are not enforceable in New York because they are against public policy. Section 5-326 of the General Obligations Law provides that:

"Every 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 to be void as against public policy and wholly unenforceable."

While this statute quite clearly voids many exculpatory clauses, courts will not invalidate all exculpatory clauses. One area often litigated involving the enforceability of these clauses is the question of whether or not a defendant-facility is an instructional facility as opposed to a recreational facility.  When a facility is used for purely instructional purposes, the statute does not apply even if the instruction it provides relates to a recreational activity. To determine whether a facility is instructional or recreational, courts have considered factors including the facility’s name, certificate of incorporation, statement of purpose and whether it charges money as tuition or as a fee for facility use.   

Even when an exculpatory clause is not voided by this statute, it still may not be construed to exonerate a defendant for its own negligence absent clear and explicit language to that effect in the waiver itself. Such clauses also can never waive claims for willful conduct or gross negligence. While a clause like this may ultimately be unenforceable under New York law, some facilities use forum selection and choice-of-law provisions to require application of another, perhaps more defendant-friendly state’s laws to analyze whether or not an agreement will be enforced by the courts. Each clause must be analyzed under the circumstances of a particular case. 

For more information about a waiver you may have signed or our firm’s representation of those seriously injured by the negligence of others, please contact a member of our personal injury practice.


This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.