Flag Football Waiver Effectiveness Depends on GOL 5-326 Ruling: Was a Fee Paid?

Marc injured his left foot in October, 2015, while playing in a League flag football game (Marc v Middle Country Ctr. Sch. Dist. 2017 NY Slip Op 51678(U)). He jumped to catch a pass, came down on a concealed sprinkler head, and suffered injury. He sued the school district since the league game was played on school district property. Prior to the game, he and the other team members had signed waivers intended to protect the school district from liability.  The waiver follows:

In return for my being allowed to participate in any way in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., I release and agree not to sue the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., its employees directors and non-employees such as referees, coaches, agents, sponsors, and owners of fields used, from all present and future claims made by me or my family, estate, heirs or assigns for property damage, personal injury, or wrongful death arising as a result of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and caused by the ordinary negligence of the parties above, wherever, whenever, or however the same may occur. I understand and agree that those listed above are not responsible for any injury or property damage arising out of my participation out of my participation (sic) in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., even if caused by their ordinary negligence. I understand that participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. involves certain risks including, but not limited to, serious injury, severe economic losses, permanent disability, and even death. I am voluntarily participating in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. with knowledge of the danger involved and agree to accept all risks of such participation. I certify that I am in excellent physical health, and may participate [*2]in strenuous and hazardous physical activities, including the flag football to be played in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. I agree that prior to participating, I will inspect the facilities and equipment to be used, and if I believe anything unsafe, I will immediately advise my coach of said condition(s) and refuse to participate. Permission is granted for me to receive medical treatment, if needed. I also agree to indemnify and hold harmless those listed above for all claims arising out of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and all related activities. I understand that this document is intended to be as broad and inclusive as permitted by the State of New York and agree that if any portion of this agreement is invalid, the remainder will continue in full legal force and effect. I further agree that any legal proceedings related to this waiver will take place in Suffolk County, New York. I am of legal age and am freely signing this agreement.

We have read this agreement and understand that by signing this form, we are giving up legal rights and remedies and that the terms of this release are binding on each one of us.

The school district  argued that the plaintiff assumed the risk of injury while playing in the game, and that by signing the Release, the plaintiff effectively released the defendants from liability for any injuries plaintiff allegedly sustained during the game.  Such waivers are effective in New York provided the terms of the release are clear, unambiguous and conclusively dispose of the matter. The court found the waiver is clear and unambiguous and is, therefore, valid, enforceable and binding on the parties.  New York law holds that “A release will not be treated lightly, and will not be set aside by a court without a showing of duress, illegality, fraud, or mutual mistake.”

Marc alleged that the Release is void as against pubic policy pursuant to GOL § 5-326 because GOL § 5-326 renders void and unenforceable agreements:

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 [*3]be void as against public policy and wholly unenforceable.

To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5—326, the plaintiff must provide evidence  showing that the individual paid a fee for use of the facility. In this case, the defendant produced a waiver signed by the plaintiff; on the other hand,  the plaintiff failed to show that he paid to use the field. Hence the trial court ruled that the waiver was not voided by GOL § 5—326. The complaint was dismissed.

The Appeal

The plaintiff appeals (Marc v Middle Country Cent. Sch. Dist. 2020 NY Slip Op 03654), contending that the waiver and release was barred by General Obligations Law § 5-326 because he had paid a fee to participate in the flag football league and this fee was paid to the school district for use of the field on which he played. The defendants argued that no fees were paid to the school district for use of the field.

The appellate court pointed out that this merely raised an issue of fact. They noted that when facts are at issue, the issue cannot be resolved at that stage of the proceeding.  Subsequently, the court held that the trial court judge should have denied defendant’s motion to dismiss.

The appellate court reversed the trial court ruling and returned the case to the trial court to resolve the issue regarding whether or not a fee was paid to use the property. If it is determined that a fee was paid to the owner or operator of the property for the use of the property, the waiver will not be enforceable and the trial will have to determine if the school district was negligent.

Photo Credit: Thanks to Germanna CC via Flickr.