Are Liability Waivers Enforceable in New Mexico?

A guest at a northern New Mexico lodge went out on a guided trail ride. Staff had asked about his experience and picked gentle horses because the group were novices. Somebody with twenty years around horses tacked them up. The guide told everyone they would travel at a walk and stay behind him. Near the end, close to the barn, one horse broke into a gallop and the rider came off, and the head injury he suffered was severe enough that he has no memory of signing the release the lodge had handed him that morning. New Mexico held the release unenforceable, and the reason is the part that should interest every guide: the statute the operator relied on for protection was the same statute that voided its waiver. The lesson generalises well beyond horses. For the wider comparison across states, see the liability and waivers hub. This page reads one decision and two federal sources in plain terms. It is background, not legal advice.

Are liability waivers enforceable in New Mexico?

Case by case, and this one was not.

The decision is Berlangieri v. Running Elk Corp., 2003-NMSC-024, 134 N.M. 341. The Court of Appeals had gone further than the Supreme Court was willing to go, holding that commercial operators of recreational premises are subject to a duty of ordinary care that cannot be disclaimed at all, and that a release can never bar a claim where serious physical injury or death is at stake. The Supreme Court agreed the release in front of it was unenforceable and expressly declined to adopt that broad rule, saying it did not believe a rule invalidating all liability releases in the recreational context was warranted. Instead it worked through a set of limiting factors and concluded that this release was contrary to public policy. So New Mexico is not a state where releases are void as a class. It is a state where they get examined closely and can fail for reasons that have nothing to do with how they were drafted.

Jackson Hole, WY

Two questions, asked in order

The framework has two stages. First the court strictly construes the language of the release against the party relying on it. Second, it asks whether the release is affected with a public interest such that enforcement would be contrary to public policy, and it notes that the policy can come from statute or from common law. The first stage is worth dwelling on because the lodge won it. The court described much of the release language as unhelpful, then said that considered as a whole it was sufficiently clear, and that strict construction was therefore not fatal. That is an unusual outcome in this series, where forms routinely die at the drafting stage. Here the paperwork was adequate and the operation still lost, which tells you where the real risk sits in this state.

Where the six factors come in, and how New Mexico uses them

For the public interest question the court adopted, for guidance, the well known six factor list first assembled by the California Supreme Court and long used to identify contracts affected with the public interest. Those factors are set out in the California analysis, so there is no point repeating them here. What matters is what New Mexico added. The court said it would be a rare case where a release exhibited all of the characteristics at once, and then made the point that decides cases: it does not believe a simple balancing test is appropriate, because it would be possible for only one of the factors to apply and for that single factor to be significant enough to make the release unenforceable. The six items are indicators helping answer the larger question of whether enforcement would be unjust. An operator cannot count factors and feel safe.

The statute the operator was counting on

New Mexico's Equine Liability Act says that no person, corporation or partnership is liable for personal injuries to or the death of a rider that occur as a result of the behavior of equine animals during equine activities. Then comes a second subsection saying no claim may be brought or recovery had against an operator, owner, trainer or promoter for injury, loss or damage resulting from equine behavior unless the acts or omissions of that person constitute negligence. And then a third subsection listing five situations the Act does not limit at all. The operator read the first subsection as a shield. The court read the whole thing as a statement of policy, and that reading is what decided the case.

Why a protective statute voided the release

The court's reasoning turns on the qualifier in the second subsection. The operator argued the phrase about negligence merely limited the definition of conduct it could not be held liable for. The court accepted that it does that, then said the legislative intent goes further, expressing a policy that equine operators should be accountable for their own negligence. Read as a whole, the subsection describes what operators may be held liable for and what they may not, stating one category in the negative and the other in the positive. Once the legislature has expressed that policy, a private contract cannot take it back. The operator had, in effect, asked the court to enforce a document that disclaimed the exact duty the statute had gone to the trouble of preserving. That is the transferable idea and it has nothing to do with horses.

The five exceptions read like an operations checklist

The subsections the Act leaves untouched are worth translating, because each has a direct equivalent on the water. Protection falls away where the gear came from the operator, the operator was aware or ought to have been aware that it was defective, and that defect is what caused the injury. It falls away again where the operator supplied the animal without taking sensible steps to work out whether this particular person could handle the activity at all, or could handle that particular animal given what they had said about themselves. Where the operator controls land or facilities and the injury came from a dangerous condition known to the operator. Where there was an act or omission constituting conscious or reckless disregard for the safety of a participant, and the injury was the proximate result. And where the operator intentionally injures a participant. Substitute boat for animal and gear for tack and you have a maintenance and screening programme written by a legislature.

Screening the guest is a legal duty, not just good manners

The second exception deserves separate attention because most guides do it casually or not at all. It asks whether reasonable and prudent efforts were made to determine whether the participant could safely engage in the activity, and whether they could handle the specific animal based on their own representations of ability. On a boat that means asking about swimming ability, wading experience, mobility, medical conditions and time on the water, and then matching the trip to the answers. The lodge in this case did exactly that, spoke to every guest, judged them novices and put them on quiet horses. Doing it is the point. Recording that you did it is what makes it useful eighteen months later, and a two line note against each guest on the trip sheet is the whole implementation.

Knew or should have known is the phrase to plan around

Two of the five exceptions turn on what the operator was aware of or ought to have been aware of, and that formulation does more damage to small operations than the reckless disregard language does. Nobody has to prove you knew the ladder bolt was working loose. It is enough that a reasonable operator in your position would have noticed. Anything visible on a walk round, anything a guest mentioned last month, anything already written on a list is inside that description. The response is unglamorous and cheap: a fixed inspection interval with a name against it, a written note when something is reported, and a rule that nothing goes back in service on the basis that it held up last time. Operators who keep that record can answer the question directly. Operators who do not are left arguing about what they would have noticed, which is an argument nobody wins. Neighbouring operators will find the same reasoning applied through a different statute in the Texas analysis.

Two different jobs your document is doing

The case makes a distinction that is easy to miss. Warning a guest that horses are unpredictable is about the activity's own dangers, and that part of a New Mexico release sits on solid ground. Asking the guest to give up any claim arising from the operator's own carelessness is a different proposition entirely, and it is the part that ran into the statute. Write the document so those two jobs are visibly separate, with the risk description doing the work it can do and the release clause kept narrow and honest. A form that blurs them invites a court to treat the whole thing as an attempt to disclaim the duty the legislature preserved, and in this state that is the argument that decides the outcome rather than any question about clarity or type size.

Royal Coachman, AK

What happens after a release falls

It is worth being clear about what losing the release actually means, because operators often imagine it decides the case. It does not. It removes a defence and sends the dispute back to ordinary negligence, where the questions become whether the operator met the standard of care and whether any failure caused the injury. In this case that means the trial will turn on the sort of things the statute lists: the condition of the gear, the screening of the rider, the management of the ride, whether anything about that horse should have prompted a different decision. So the practical planning assumption in New Mexico is that a serious claim gets decided on the operating record. That is not a comfortable position, but it is a workable one, and it is entirely within an operator's control in a way that the enforceability of a document is not.

What the Supreme Court refused to say

It is worth being precise about the limits of this case, because the appellate ruling underneath it was much broader. The Court of Appeals had held that releases should never be enforceable where a risk of serious physical injury or death to the person signing is at stake, and said explicitly that its holding was not limited to equine activities, so that commercial operators of recreational or sports facilities generally would lose the ability to disclaim their duty of due care. The Supreme Court affirmed the outcome on different grounds and declined to adopt that rule, agreeing instead with the dissenting appellate judge that releases should be considered case by case. So a New Mexico release is worth having. It simply cannot be assumed to survive contact with a statute aimed at your activity.

Find the statute aimed at what you do

The practical instruction for an operator anywhere is to go and read the liability statute covering your activity, and to read it twice: once for the protection it offers and once for the duties it implies. Many states have an equine act, a ski act, a whitewater or river outfitter act, an agritourism act, a shooting sports act. Operators tend to know only the headline, which is always some version of participants assume the inherent risks. The parts that matter are the qualifiers and the exceptions, because those describe what the legislature decided you remain answerable for, and a release trying to cover that ground is arguing with the legislature. The Colorado analysis and the Arizona piece both show the same interaction working out differently.

The industry knew what was at stake

One detail in the caption tells you how much attention this case attracted. The amici included the state's ski area operators association, a river outfitters association, an anglers business, a balloon fiesta, bicycle and sports retailers, a winter sports alliance and the state tourism association, alongside the trial lawyers on the other side. Every recreation business in New Mexico understood that a broad rule would change how they operate. The result they got is the moderate one, and the price of that moderation is uncertainty: each release is judged on its own facts against its own statutory background. An operator who wants predictability in this state will find more of it in the operating record than in the document.

Good practice was not enough, and that is the point

Look again at what the lodge did. It assessed experience. It matched horses to riders. It warned about unpredictability. It had an experienced hand tack the horses, and the evidence was that the saddle and tack were in good serviceable condition and properly positioned. The guide briefed the group that they would walk and stay behind him. That is a better run operation than many, and the release still fell. But notice what all that good practice actually protects. It goes directly to the statutory exceptions, which is where the case now gets decided on remand. The release was the part that failed. The practice is the part that still stands up, and in a state that examines each waiver on its own facts, the practice is what an operator should be investing in.

Drafting for this state anyway

None of this argues for abandoning the document. Write it to cover the inherent risks of the activity, which is uncontroversial ground everywhere. Describe those risks specifically for the water and the trip. State plainly that the guest accepts them. Then stop short of language purporting to disclaim duties any statute aimed at your activity has preserved, since that is the clause that drew the court's attention here. Keep the release as its own signed document rather than a paragraph inside booking terms. And record the screening conversation, because in New Mexico that conversation is not merely good service, it is one of the five things the legislature said an operator remains answerable for. New operators can build the base from the waiver basics and the common failure modes are catalogued in the piece on waivers that do not hold.

The crew layer sits outside all of this

A guest release says nothing about employees, and the consequences on that side are not measured in the same way. Under 29 U.S.C. 666, an employer who willfully or repeatedly violates the federal requirements, standards, rules or orders may be assessed a civil penalty for each violation, with a floor for each willful violation and a substantially higher ceiling. That is a separate machine from the one this article describes, running on its own rules, and no waiver signed by a customer touches it. Keep the crew file and the guest file apart, because they answer different questions and get produced to different people.

Before the season

Four jobs. Read the statute covering your activity and write its exceptions on one page, because that page is your operating standard. Build the guest screening into the booking process and record the answers. Walk the equipment with the faulty tack exception in mind, because knew or should have known is a low bar for anything that has been on a list since last year. Then take the document itself to a New Mexico lawyer and ask specifically whether any clause reaches into territory the statute preserved. Coverage for what the paperwork cannot reach is in the captain insurance explainer, and the guidance on business insurance makes the general point that coverage should follow the risks the business actually runs. Verify the exact current requirements for any outfitter registration or permit with the relevant New Mexico agency before you take bookings, because those change independently of the case law. Weather and cancellation practice belongs in the same file as everything else, which is the routine in the storm season planning piece, and local material sits in the New Mexico guide hub.