Legal Technicality Causes New York Acrobatics Instructional Waiver to Fail to Protect

By Doyice Cotten

Shana Guins, a 32 years-old woman who stood 5′ 3″ in height and weighed 180 pounds, was injured  and rendered a quadriplegic during an acrobatics class. She was asked to bounce on a mini-trampoline and land with a forward roll. She had been given instruction and had previously performed the task successfully.

Defendant pointed out that she made statements to the medical staff after the accident that she was tired after a previous class and after a night of hard drinking. Plaintiff argued that the teacher was not experienced nor qualified to teach the course. Plaintiff also relied on an expert witness who testified that the instruction did not meet the required level of care and that the dive roll was not appropriate for beginners.  In reply, defendant submits an expert report by Miles Avery, an expert, who opines that a dive role, contrary to Gardner’s expert report, is in fact an entry-level or beginners maneuver, and that the defendant met or exceeded industry standards. Guins filed suit as reported here (Guins v. Streb, Inc., 2020).

The Waiver

Guins had signed a waiver of liability prior to taking the class. The plaintiff argued that the waiver was not valid in the state of New York because of GOL § 5-326. It 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.

New York courts have ruled that the statute does not  apply to instructional courses taken in gymnasiums. Previous cases were cited in which waivers were enforced for self-defense classes, swimming instruction, and a rock climbing course. The court stated that plaintiff had not established a prima facie case supporting her motion that the waiver was void due to GOL 5-326.

Interestingly, the plaintiff alternatively argued that the affirmative defense of release or waiver is waived if it is not raised in a pre-answer motion to dismiss or in a responsive pleading. In other words, they argue that by failing to assert waiver and release as an affirmative defense, the waiver cannot be used because, without notice of the defense, the plaintiff had no opportunity to conduct discovery on the issue. The defense failed to counter the argument and the court barred the defense from raising the defense of waiver at the trial.

The defense had also claimed the defense of assumption of risk. Arguments were made that explain the assumption of risk defense in New York. In this case, the court found that there were factual issues that needed to be addressed by a jury; subsequently, the court rejected the defense motion to dismiss and sent the case to trial.


So in this case, it is a waiver that failed to protect because of the famous “technicality.” The failure of the attorney to present his defense properly will result in a costly trial in which the defense may not use the waiver as a defense – even though the waiver would not have been barred by GOL 5-326 (and would probably have resulted in a verdict for the defense and no trial.

Photo Credit: Thanks to West Point – The U.S. Military Academy  via Flickr.