A Look at the Instructional Element of New York’s G.O.L. 5-326 Statute Prohibiting Certain Waivers of Liability

By Doyice Cotten

Rac photos 020The rulings in three 2014 New York State cases ride on whether the purpose of the business or institution is primarily instructional or primarily recreational.

One-on-One Training Facility

In Kim v. Hanson (2014 N.Y. App. Div. LEXIS 8187), the plaintiff was engaged in a personal training program under the supervision and instruction of the trainer when he suffered an injury. The injury occurred at a one-on-one training facility; the plaintiff had previously signed a waiver of liability.

The court ruled that G.O.L. 5-326 did not apply to forbid enforcement of the waiver because the facility was primarily instructional in nature (and was not a pool, gymnasium, place of amusement or recreation, or similar establishment).

New York’s G.O.L. 5-326 states:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable. (Emphasis added.)

Unfortunately for the defendant, the waiver was not enforceable because it mentioned only inherent risks and did not clearly express an intention to protect the defendant from negligence.

Spa or Health Club

In contrast, in Debell v. Wellbridge Club Management, Inc. (2014 App. Div. LEXIS 5480) a waiver signed by the plaintiff was ruled to be unenforceable because G.O.L. 5-326 applied.

The trial court ruled that, since the plaintiff was being instructed in strength-training exercises, G.O.L. 5-326 did not apply; it thereby deemed the waiver enforceable. The appellate court held that ruling to be in error because the court focused on whether plaintiff’s activity was recreational or instructional; the focus should have been on what was the primary purpose of the business – recreational or instructional.

While the training session might have been instructional in nature, advertisements of the business focused on health and beauty services, a full service beauty salon, and complete body and skin care treatments. In fact, Debell did not participate in a training session for nine months after joining the spa.

Student-run Gymnastics Club

In the third case (Duchesneau v. Cornell University, 2014 U.S. App. LEXIS 4728), the plaintiff, a student, was injured when trying to perform a back flip on a trampoline-type surface (TumblTrak) at the University’s student-run gymnastics club. Duchesneau had signed a waiver of liability prior to the injury. The court ruled that the waiver fell under G.O.L. 5-326 and was unenforceable. While they did not specifically state their reasoning, one might assume the court felt that the gymnastics club was primarily a place of amusement.

Worthy of note, however, the court did allow the waiver (redacted of exculpatory language) to be admitted to show that the student was aware of the risks in participating in gymnastic-type activities.

G.O.L. 5-326

This statute is a broad statute that prohibits the enforcement of waivers in many situations and under certain circumstances. These cases illustrate one exception to the prohibition – when the primary purpose of the business in instructional in nature.