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. The plaintiff, however, claimed the waiver was unenforceable because it did not expressly state that the Church’s own negligence was waived.
The church argued that the use of the word “negligence” of the provider was not required under NY law.
The waiver stated:
As such Contributing Member I may from time to time [be] permitted to park my automobile on the premises of the Church. I agree that I will do so at my own risk and will not hold the Church liable for any damage, vandalism, theft, etc., which may occur to my automobile, property or to myself or to any guest if any. I further agree that I will not permit the Church to be made a party defendant [*6] in any action brought against me by any person or persons claiming to be injured on the Church property or on exiting the Church property through my negligence or that of anyone driving my automobile.
I agree to hold the Church harmless under any and all circumstances. (Emphasis added)
Plaintiff argued citing several cases that “[U]nless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts (must be “absolutely clear;” must be “sufficiently clear and unequivocal language;” and, put another way, it must appear plainly and precisely that the “limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility.” The court cited Gross v. Sweet which ruled words such as “neglect” or “fault” of the defendant would suffice.
Subsequently, the court ruled the waiver language did not protect the church from liability for its negligence.
The church also claimed that the assumption of risk in the waiver included the risk of walking in the parking lot during winter conditions. The court ruled that the express assumption of risk within the waiver (I agree that I will do so at my own risk and will not hold the Church liable for any damage, vandalism, theft, etc., which may occur to my automobile, property or to myself …) did not protect the church from its acts of negligence and did not include risks presented by winter conditions.
Risk Management Take-Away
There is no substitute for a well-written waiver and there is often no protection provided by a poorly worded waiver. Make sure your waiver is worded in such a way that it will provide the sought-after protection. To do this, don’t borrow a waiver, copy one off the internet, or think you, as an individual untrained in writing waivers to comply with the law in your state, know how to write your own. Seek the help of someone with the training, experience in writing waivers, and an understanding of the risks faced in your sport business.