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Avoiding negligence issues with liability waivers

From gyms to water parks, there are many places in New York where members, customers or visitors are typically asked to sign a liability waiver. It's a step a retail or property owner often takes in an attempt to avoid legal responsibility should an injury occur. As for whether or not such waivers can hold up in court, the answer is, "it depends."

It's really the language of the liability wavier that matters. It often comes down to what activities, actions or responsibilities are referenced in the document. For instance, a waiver for joining a gym might reference an acknowledgement that a gym owner is not responsible if someone uses a piece of equipment incorrectly and sustains an injury. However, courts have a tendency not to favor liability waivers.

This being said, there have been many instances where waivers were upheld because the resulting incidents were determined to be within the scope of what was covered in the documents. Even if this is the case, a court may look at whether or not a waiver violates public policy. For example, one court ruled that a motorcycle safety instructor and ski area operator worked within highly regulated professions. Therefore, they were unable to waive ordinary negligence by contract. But a court upheld a waiver signed by a college student who died while studying abroad since the document referenced any loss "including injury and death."

It's often wise to have a premises liability attorney familiar with contract preparations prepare or review documents that will waive certain rights to pursue legal action. If an injury does occur, a lawyer might look at the way a waiver is worded. Consideration may also be given to whether or not the acknowledgement of giving up certain legal options was clearly spelled out or buried within another document.

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