Tag Archives: New York

Adhesionary Contracts or Unconscionable Contracts: Are They Enforceable?

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By Doyice Cotten

A recent New York waiver case (Lobell v. Youtube, LLC and Google, Inc., 2017 U.S. Dist. LEXIS 127327) involved the allegation that a waiver was not enforceable because it was both an adhesionary contract and an unconscionable contract. The U.S. District Court for the Southern District of New York examined the issue in light of California law (as called for by the provisions of the contract).

Adhesionary Contract

The court defined an adhesionary contract as “a standardized contract,

Is the Word “Negligence” Required for Waivers in New York Courts?

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By Doyice Cotten

In 2016, Michelle Kalinkina, a professional model agreed to have a public haircut and styling demonstration. During the haircut, the stylist cut Kalinkina’s neck causing physical injury and scarring. She subsequently sued for damages alleging negligence and gross negligence (Kalinkina v. Martino Cartier Enterprises, LLC, 2017 U.S. Dist. LEXIS 95670).

Cartier provided a waiver signed by Kalinkina as a defense against the negligence claim. The waiver read:

I am providing modeling services for International Designs Corp.

Poorly Written New York Church Waiver Fails

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By Doyice Cotten

Panagiota Melis, a member of the Helenic Orthodox Church, slipped and fell on snow and ice in the Church’s parking lot after parking her vehicle. She filed suit against the church alleging negligence (Melis v. Helenic Orthodox Community, 2017 N.Y. Misc. LEXIS 981).

The church claimed protection from a waiver and assumption of risk document signed previously by the plaintiff. The court ruled that General Obligations Law (“GOL”) 5-326 did not apply and did not serve to prevent the enforcement of the waiver because the church was not a place of amusement or recreation.

Waivers and Volunteer Workers

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By Doyice Cotten

Certain types of special relationships can affect the enforceability of liability waivers. One such relationship is that between an employer and an employee – often referred to as the master-servant relationship.  Generally, waivers which employers require that their employees sign are unenforceable because of the economic hold that the employer has over the employee. Such waivers are generally deemed to be in violation of public policy.

In contrast, waivers between an employer and a volunteer worker are generally enforced.

A Good Approach to Electronic Waivers in New York State

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By Doyice Cotten

This electronic waiver case was discussed briefly a couple of weeks ago. Here it is examined in more detail.

A frequent question is “Are electronic waivers as good as paper waivers?” or “Are electronic waivers enforceable?” The answer seems to be “yes” for both questions. The writer has read electronic waivers in several states and has yet to find one that fails because it is electronic; in fact,

Test Yourself: Analyze this Waiver Case and Predict Whether the Waiver Protects

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By Doyice Cotten

Plaintiff Asabi L. Barner Jackson (Jackson), who lives in South Carolina, chose to have Black Ink apply a tattoo, based upon a reality TV series in which Black Ink allegedly represented itself to specialize and be experts in tattooing African American skin (Jackson v. Black Ink Tattoo Studio, Inc., 2016).

Jackson claims that she has permanent injury to her left breast. She says there is “deep tissue damage and a very large,

NY Tattoo Parlor Waiver and Informed Consent Ruling

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By Doyice Cotten

Asabi Jackson, a black woman, claimed injury resulting from a tattoo administered by Black Ink Tattoo Studio.  Prior to receiving the tattoo, she signed a waiver, but claims she was not given a copy and that no one signed as a witness;  she further claimed  that she “was never informed that she was accepting the risks of an inexperienced and careless employee, nor did she understand that she was waiving any right to sue defendants in the event that they were negligent,

NY GOL § 5-326 Does Not Apply to Triathlon Practice: Waiver Upheld

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By Doyice Cotten

Plaintiff Suzanne Conning fell while practicing for the bicycle leg of a triathlon, was struck by a passing car, and suffered injury. She fell as tried to return to the roadway from a gravel side surface. She filed suit against the automobile driver (Dietrich), the Brooklyn Triathlon Club (BTC), and John Stewart (the leader of the cycling training). (Conning v. Dietrich, 2011 N.Y. Misc. LEXIS 3481)

Conning had signed a waiver prior to the event intended to release BTC and its staff (including Stewart) from liability for any negligence.

2016 Health Club Cases in New York — No Waivers

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By Doyice Cotten

Injuries occurring in health clubs in the State of New York can be problematic for club owners since protection against liability for negligence is ineffective in many circumstances – one being in places of amusement or recreation.  New York statute G.O.L. Sec. 5-326, passed in 1976, deems waivers void as against public policy under specific circumstances.  Specifically, the law provides:

[e]very covenant, agreement or understanding in or in connection with, or collateral to,

LOST WAIVERS: What Happens If You Can’t Produce a Signed Waiver?

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LOST WAIVERS: What Happens If You Can’t Produce a Signed Waiver?

By Doyice Cotten

A recreation or sport provider is only half way home when they require that a client sign a liability waiver. The other half is being able to produce that waiver a year or two later when the lawsuit comes to trial.

Lost or missing waivers can be costly to the service provider.  In a New York case (Schaeffer v.