By Doyice Cotten
[e]very 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 void as against public policy and wholly unenforceable (emphasis added).
In Deutsch v. Woodridge Segway, LLC (2014 N.Y. App. Div. LEXIS 3417), the plaintiff was injured when the Segway vehicle on which she was riding caused her to fall when it became stuck in the mud. The plaintiff had rented the Segway, signed a waiver of liability, and was taking a tour when the injury occurred. The tour was conducted by two of the defendant’s employees on a public trail in Sullivan County.
The plaintiff alleged that her injuries were caused by the negligence of the defendant in, among other things, conducting the tour along a trail that was too muddy for Segway vehicles to traverse safely. The court examined the waiver and release and found that it unambiguously expressed the intent to release the defendant from liability for injury even if the injury was caused by the negligence of Woodridge Segway. The trial court (the Supreme Court) denied the defendant’s motion for summary judgment. On appeal, however, the appellate court reversed the ruling and dismissed the complaint against the defendant.
The appellate court stated that General Obligations Law § 5-326 does not invalidate the release because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission fee for the use of the public trail over which the tour was conducted. It went on to quote another court saying that “Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced.”
So, while General Obligations Law § 5-326 is a very powerful force in New York waiver law, it does not prohibit the enforcement of all waivers.
Photo Credit: Thanks to Howard Ignatius on Flickr.