Signing a liability waiver and release is a common prerequisite to participating in recreational activities, from exercising in a gym to riding in a hot air balloon. Accidents do happen, and just because a participant has signed a release does not mean that an owner or operator of a recreational facility will not be faced with a lawsuit. Under New Mexico law and public policy, however, a properly drafted release may be enforceable, although the outcome is fact-dependent.
New Mexico's Second Judicial District Court recently enforced a recreational release signed in favor of Stone Age Climbing Gym, represented by Modrall Sperling. A Stone Age client fell while climbing, and brought suit for negligence. The client had signed a recreational release—one that specifically waived claims for negligence—on multiple occasions prior to his fall. The court, considering the factors for enforcing a release set forth by the New Mexico Supreme Court in Berlangieri v. Running Elk Corp., 2003-NMSC-024, 76 P.3d 1098, concluded the release was enforceable as a matter of law and granted summary judgment in favor of Stone Age. The court found the clarity of the release's waiver of negligence claims, and its annunciation of specific risks, including falling, as well as the undisputed fact that the plaintiff read and understood the release, required enforcement of the release and dismissal of the case