The following situation is an occurrence that happens all too often: after having been seriously injured as a result of someone else’s negligence, someone walks into our office to discuss their legal options; yet, unbeknownst to them, their legal options are non-existent, and any potential case they may have had has already been foreclosed due to the fact that they had expressly given up their right to sue. Usually this comes in the form of a ‘waiver’ of some sort, though such a document can take on various other labels, such as ‘exculpatory agreement,’ ‘release,’ ‘hold-harmless agreement,’ or ‘assumption of risk,’ just to name a few.
Yet it has become clear that most people do not give much thought to the waivers they sign, if they are even aware in the first place that what they are signing is actually a waiver. Unfortunately, despite the fact that most other states have determined that such waivers are unenforceable as being inherently unfair, and although these waivers are ‘disfavored’ for obvious public policy reasons, they are still legal in New Jersey. In fact, the validity of contractual provisions limiting one’s right to sue has recently been affirmed by the New Jersey Supreme Court in Stelluti v Powerhouse Gym, 203 N.J. 286 (2010). In that case, a new fitness club member specifically informed the instructor that she was inexperienced and would require assistance, yet when she was injured during a spin class when the handlebars of her bike became dislodged, the Court held that one is presumed to understand the terms of an exculpatory agreement and therefore the injured person was precluded from suing the gym for its negligence.
As a result, waivers now permeate virtually any activity where liability is potentially involved, ranging from somewhat abnormal endeavors such as eating extremely spicy foods, to more normal everyday activities like going to a gym or getting your ears pierced. Thus, given their prevalence in today’s society, it is especially important to carefully read the language in anything to which you affix your signature so that you are aware of the consequences of signing a document.