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A certain University in New Jersey is holding a conference and organising an afternoon of excursions and leisure activities. It requires that participants sign a waiver containing the clause (emphasis mine):

In exchange for {UNIVERSITY}’s grant of permission for Participant to participate as a registered Conference Participant in an excursion or activity, for himself or herself, his or her parents, guardians, heirs, assigns, agents, and all those in privity with Participant, do hereby release, waive, discharge, and covenant not to sue {UNIVERSITY}, its trustees, officers, employees, and agents from liability from any and all claims, including negligence, personal injury, accidents, assaults, kidnappings, or illnesses (including death) and property or economic loss related to or arising from, but not limited to, participation in the Seminar[sic].

and also:

I have read this waiver of liability and assumption of risk agreement, fully understand its terms, and understand that I am giving up substantial rights, including releasing the University from all liability related to or arising out of the Conference excursion or activity. I acknowledge that I was provided this document with sufficient time to consider its provisions, ask questions and to seek review of it counsel[sic]. I am signing the agreement fully and voluntarily, and intend by my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.

It isn't realistic for me to seek professional legal advice on a waiver for an afternoon's excursion. To what extent does NJ law allow an institution to demand a waiver from the negligence of itself or its agents?

  • This is not legal advice, but generally there is a legal principle known as assumption of risk which applies if it can be shown the person knew that there were potential risks and still went through it. You are under no obligation to attend this event, but if you do this company is informing you that it could be risky and you may suffer injuries. – Viktor Jun 5 '18 at 13:52
  • I am aware of the risks in a general sense, but I want to retain recourse to legal action if the institution providing the activity has been negligent. The agreement seeks to waive liability in this case. – user24890238 Jun 5 '18 at 14:31
  • that is exactly what I mean. They are telling you that their actions might be negligent and by going through with the activity you are assuming that risk – Viktor Jun 5 '18 at 14:34
  • Those clauses are basically only enforceable to the extent that they are conscionable anyway. Writing something in a contract doesn't automagically make it true. :) If the building falls apart due to the venue owner's gross negligence, for example, you can still sue if you get injured, not least because you can't reasonably be expected to hire a building inspector before you buy a ticket. – cHao Jun 6 '18 at 14:39
  • @cHao I completely agree with you. I assume that’s why the quoted language did not ask for release from “gross negligence” – Viktor Jun 7 '18 at 3:29
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The University is probably entitled to put a term like this in its contract.

In general, one can waive in advance, liability for negligence, but not gross negligence, willful and wanton misconduct, reckless conduct, or intentional conduct, from the person seeking the waiver. The New Jersey Supreme Court upheld the validity of these clauses in the case of Gina Stelluti v. Casapenn Enterprises LLC (August 5, 2010), which involved a negligence waiver in a contract with a private gym.

Also, since this is conditions on an afternoon of fun activities, rather than something mandatory or necessary, this waiver does not appear to be conditioned on giving up a substantial thing to which you are otherwise entitled. If the waiver were conditions upon something which you had an unconditional right to (e.g. a public high school education), it might not be valid because it would not be supported by valid consideration. In contrast, here, you get the right to participate in something fun, which you did not have an unconditional right to have, in exchange for the liability waiver.

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