Prior to signing up for participation in a recreational activity like bungee jumping, zip lining or skydiving the vendor is likely to require you to sign a waiver of liability or an exculpatory agreement. Likewise, if your child would like to participate in youth sports like football, soccer, or cross-country you are also likely to be required to sign a waiver before they participate. Unfortunately, many people do not think about the things they sign in order to participate until they are faced with a catastrophic injury like a TBI, broken bones, or even wrongful death.
People should not simply sign a waiver before understanding the impact it may have on your legal rights or your child’s legal rights should a catastrophic injury occur. In fact, your legal rights can differ depending on the state the injury occurred in, who is attempting to waive their rights and many other factors. Consulting with an experienced attorney can be an essential step in helping you understand the impact your decision to sign a waiver may have or challenging its enforceability after an injury.
Adults Can Waive Their Legal Rights in New Jersey and Pennsylvania
In Pennsylvania, adults may waive their legal rights. In Vinikoor v. Pedal Pennsylvania Inc., the framework for whether a waiver is enforceable was explored. For an exculpatory clause to be enforceable in Pennsylvania the waiver:
- Must be unambiguous in its intent to relieve any and all legal liability including the liability for negligence. The wording of the waiver must be clear.
- The waiver must be prominently displayed. It cannot be hidden or concealed within the fine print.
- The waiver must be signed by the specific individual to which the waiver targets.
In Vinikoor the waiver read:I hereby waive and discharge Pedal Pennsylvania, Inc. and any organizations associated with this event (including but not limited to municipalities, colleges and universities, high schools, sponsors, and any employees or associates thereof), from all liability as a result of my participation in Pedal Pennsylvania, whether caused by negligence or otherwise. I understand that accidents, with fatalities, serious bodily injury and/or property damage can occur during bicycle touring, as a result of negligence or otherwise. Knowing the risks involved I nevertheless agree to assume those risks and to release all of the persons or entities mentioned above for any injury, death, illness or property damages occurred [sic] on this tour or in the travel to and from this tour. I also release Pedal Pennsylvania from all damage or injuries as a result of weather conditions during the tour. I understand that if I leave before the posted daily starting time or bicycle a course different from than mapped or marked, that, I will not receive the services as published or advertised, and that I will be riding at my own risk and release the aforementioned entities from liability for any injury, death, or damages which may occur to me or anyone else.
While Vinikoor contended that the foregoing language was ambiguous, the trial court disagreed and the Commonwealth Court of Pennsylvania affirmed the lower court’s decision. The language explicitly disclaims all liability, includes negligence, and includes other languages that extended the waiver to all claims. The courts agreed that the language presented in the contract was unambiguous and that Vinikoor had waived his right to recovery for his injuries which included a dislocated pelvis and the loss of cartilage in the joint.
While waivers have historically been disfavored by New Jersey courts, they are often enforceable in. Stellutti v. Casapenn Enterprises, LLC adopted the test as formulated by the Appellate Division requiring that enforceable waivers:
- Are not adverse to the public interest.
- The benefitting or exculpated party does not have another legal duty to perform.
- It does not involve a common carrier, like NJ Transit, or a utility company, like PSEG or South Jersey gas.
- Bargaining power was not unequal and the contract was not unconscionable
The court held in Stellutti that liability for negligence can be waived in New Jersey but recklessness, gross negligence, or statutory-imposed duties cannot.
Furthermore, a recent decision by New Jersey courts has held that the common law duty of care cannot be waived in New Jersey. That is, in Walters v. YMCA a gym member slipped and fell on a stairway in the building because the friction tape had apparently worn away. Although a waiver was executed that read that the YMCA “will not be responsible for any personal injuries or losses sustained by me while on any [YMCA] premises or as a result of [YMCA]-sponsored activities” the court decline to enforce the waiver. The court reasoned that this was a typical slip and fall case that could have occurred at any business type. Further, the court was also concerned that applying the YMCA’s exculpatory clause as requested “would eviscerate the common law duty of care” and be against the public interest as enforcement would shift liability from the responsible party to the injured individual or society.
Children and Minors Often Protected from Waiver of Rights
While the legal rights of an adult can often be freely bargained away, courts are more suspect when it comes to the rights of children. While New Jersey and Pennsylvania take different approaches to the matter, they both decline to apply these types of agreements to children.
In Pennsylvania, this reluctance is based on contract law. That is, both the child and the parent have a cause of action against the negligent party. This means that while the parent can waive his or her rights, they do not have the authority to waive the child’s rights. If the child should sign the waiver, the agreement is typically voidable as the child has not reached adulthood. However because the contract is voidable, it is not automatically void. Therefore additional legal action is likely to be required.
New Jersey courts will likewise decline to enforce the waiver or liability for a commercial facility, but it may still uphold certain elements like an arbitration clause.
In situations like these, the guidance of an experienced personal injury lawyer, like those of The Reiff Law Firm, can be invaluable.
If You’ve Signed a Waiver and Suffered a Serious Injury, Call The Reiff Law Firm
As the above has made clear even if you have signed a waiver allowing the other party to disclaim, the waiver may be unenforceable in whole or in part. If you have suffered a catastrophic injury, an experienced personal injury attorney can review the circumstances surrounding your matter. He or she can then advise you if it is likely that your lawsuit will survive the defense of the waiver or exculpatory clause. For your free and confidential personal injury consultation call The Reiff Law Firm at (215) 246-9000 or contact us online today.