Doyice Cotten and Mary Cotten
In Roer v. 150 West End Avenue Owners Corp. (2010 N.Y. Misc. LEXIS 6353), Jason Roer brought action seeking damages for personal injuries sustained in the basement gym of the apartment building where he and his wife reside. While exercising on a treadmill in the gym, he was caused to fall and suffer injury when a loose exercise ball was pulled beneath the belt of his treadmill. He had signed a waiver intended to relieve management of liability for negligence contained in his gym membership contract. New York case law states, however, that “it is well settled that, in order for an exculpatory clause to be deemed as insulating a party from liability for its own negligence, such provision must contain plain and unmistakable language to that effect” (Gross v. Sweet, 49 NY2d 102, 107 ).
The court went on to state
“. . . moreover, even if the waiver could be read to provide that the Co-op is not liable for any claims resulting from its own negligence, such a waiver would be unenforceable under General Obligations Law (“GOL”) 5-326. That statute provides that any contractual provision which exempt, inter alia, the owner or operator of a gymnasium from liability for damages caused by its own negligence is “void as against public policy and wholly unenforceable.”
The court’s description of GOL 5-326 is not quite complete. The actual statute states
“. . . [e]very covenant, agreement or understanding in or in connection with . . . any contract . . . entered into between the owner or operator of any . . . place of amusement or recreation . . . 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.)
The pertinent question seems to be “did the plaintiff pay a fee for the use of the facility?” If he did, GOL 5-326 would apply and the waiver would not be enforceable. No fee is mentioned, but the court seems to be suggesting that an additional fee was paid to use the facility. No New York cases have been found suggesting that the apartment rent constitutes such a fee.
Two things can be learned from this case. 1) In New York, one should be sure your waiver clearly states that it applies to the negligence of the provider and 2) if your exercise facility is a “perk” of the building, be sure no additional fee is charged.
Photo Credit: Marlith