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. The waiver language included
I ACKNOWLEDGE that there may be traffic or persons ON THE course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING OR PARTICIPATING IN ANY OTHER BTC EVENT. I also ASSUME ANY AND ALL OTHER RISKS associated with participating in BTC events including but not limited to falls, contact and/or effects with other participants, effects of weather including heat and/or humidity, defective equipment, the condition of the roads, water hazards, contact with other swimmers or boats, and any hazard that may be posed by spectators or volunteers. All such risks being known and appreciated by me, I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above . . . or of other persons [or] entities. I AGREE NOT TO SUE any of the person or entities mentioned above . . . for any of the claims, losses or liabilities that I have waived, released or discharged herein.
GOL § 5-326 Issue
The court stated that a plain reading of the waiver shows that it relieves BTC and Stewart from liability for any injury – whether or not it was caused by negligence. Conning, however, contended the waiver was not valid because GOL § 5-326 prohibits such waivers. The court pointed out that the statute did not apply because the fee was to train on the course route – not to use a “place of amusement or recreation” as provided by the statute. Further the court pointed out that the statute applied to “recreational” and not to “instructional activities.” The court granted summary judgment in favor of BTC and Stewart.
Dietrich’s Summary Judgment Motion
Regarding the claim against Dietrich, the court pointed out that the waiver language released BTC and its employees, representatives, and any agents – not drivers of passing vehicles; Dietrich’s motion was denied. The court stated that summary judgment is a drastic remedy and is to be applied only when there are no triable, factual issues. In this case, Dietrich had a duty to operate the vehicle in a safe manner; Dietrich failed to present expert opinion to show he had met his duty of safe operation of the vehicle.
GOL § 5-326 did not apply so the well-written waiver protected the club and staff from liability for negligence. The driver was not protected by the waiver, summary judgment for him was denied.
Photo Credit: Thanks to Gene Bisbee at Flickr.