By Mary Cotten
In New York, liability waivers relieving a service provider of liability for its own negligence are generally enforceable. However, sport, recreation, and fitness providers who do business in New York are familiar with one major exception, New York General Obligations Law § 5-326. This statute prohibits waiver enforcement in certain situations; most notably for places of amusement or recreation at which an admission fee is charged. The law provides:
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.
A 2017 case, Lee v. Brooklyn Boulders, LLC, illustrates how the law is applied. Lee was injured by a fall from a climbing wall. The court ruled that the release of liability was void under GOL 5-326 because the facility was recreational in nature.
It should be noted that there are situations in which the service provider asserted that, due to the particular circumstances of the case, GOL 5-326 did not apply and the waiver should be enforced. Several examples which illustrate exceptions follow.
In Marc v. Middle Country Ctr.Sch. Dist. (2017), the complaint in the flag football case was dismissed because no fee was paid for admission or to use the field where the injury occurred.
Similarly, GOL 5-326 did not apply in Hines v. City of New York (2016) because the entry fee Hines paid was for participation in a triathlon and not an admission fee to use the public park and roadway where the accident took place.
In another triathlon case, Conning v. Dietrich (2011), the court found that Conning did not sign a waiver to participate in a “place of amusement or recreation”; the fee was for training or instructional purposes, not recreation, so GOL 5-326 did not apply.
The instructional exception was also applied in granting summary judgment in Jo Hsu v. Krav Maga (2016). The plaintiff was participating in a self-defense training class and the fee was for instruction.
If the defendant is not a “place of amusement or recreation,” the statute does not apply. O’Connell v. Macy’s Parade & Entertainment Group (2016) and Jackson v. Black Ink Tattoo Studio (2016) are two such cases. It is interesting that the defendant did not cite the statute as a defense in either of these cases.
Sport, recreation, or fitness providers in New York will not be protected by a liability waiver due to GOL 5-326 unless they can show that GOL 5-326 does not apply. In these cases, 1) no fee was charged or 2) the fee was not for the use of the facility, 3) the function was educational, not for recreation, or 4) the facility is not a place of amusement or recreation. Other instances in which the statute does not apply include: 5) when equipment is rented and taken away, 6) when the party was not a “user” of the facility, 7) when the fee was paid by someone other than the signer of the waiver, 8) when the waiver protected against inherent risks and not negligence, 9) when the statute conflicts with another statute, and 10) when the waiver involves boarding a horse in a stable.
Photo Credit: Thanks to Comunidade Presbiterian via Flickr.