Tag Archives: New York

Tough Mudder’s Waiver Prohibited by NY GOL § 5-326

By Doyice Cotten

In the June 14 post (Do You Have a “Landmine” in Your Electronic Waiver?), we focused on electronic waivers. The case, Scotti v. Tough Mudder Inc. (2019), however, dealt also with whether the waiver was enforceable in light of New York’s General Obligations Law § 5-326. The law provides:

[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing,

New York Law that Can Prevent Enforcement of Waivers GOL § 5-326.

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,

Waiver Fails to Protect Sports club in a Trip and Fall Case

By JoAnn M. Eickhoff-Shemek, Ph.D., FACSM

Dr. Eickhoff-Shemek is Professor Emeritus, University of South Florida (USF) and is President of the Fitness Law Academy, LLC (www.fitnesslawacademy.com). This post originally appeared in the Fitness Law Academy Newsletter, Vol 1, Issue 4 (October, 2018). You may subscribe to the quarterly newsletter free of charge at www.fitnesslawacademy.com.

Case Brief: Crossing-Lyons v. Towns Sport International,

Niagara Jet Boat Patron Challenges Waiver on Negligence, Violation of a Safety Statute, Breaching a Condition of a Contract, and Gross Negligence

By Doyice Cotten

Scott and Sarah Witkowski and their son rode a Niagara Jet Adventures(referred to as Niagara) jet boat after having signed a waiver of liability. The boat hit a large wave throwing Scott and the son into Sarah causing injury.  The Witkowskis sued Niagara alleging negligence and gross negligence. They also alleged negligence per se claiming Niagara violated a safety statute (This was not properly pled and was dismissed.)

The Waiver

Pertinent parts of the waiver read:

“In consideration of participating in whitewater,

Court in New York Ski Case Rules that Parental Waivers Allowing Minors to Ski are Valid & Enforceable

By Doyice Cotten

Bryan DiFrancesco’s son was injured while on a ski lift with a ski instructor employed by the defendant Win-Sum Ski Corp [DBA Holiday Valley, Inc.]. The uncle of the boy had signed a waiver of liability and assumption of inherent risks so that the 5 year-old could ski. The boy fell from the lift and sustained severe injuries. The father subsequently filed a suit in federal court against the ski resort on behalf of the boy (DiFrancesco v.

CPR and AED Trained Athletic Trainers Save Two Collapsed Athletes

By Doyice Cotten

Are you prepared for an emergency at your sport, recreation or fitness facility? If a participant collapses during a workout and has no heartbeat, does someone at your facility know what to do? Do you have personnel trained in CPR? Do you have an AED on hand? And someone who in trained to use it? These are all important questions for management at sport, recreation, and fitness facilities. None of us want to stand by and watch someone die who could have been saved!

Adhesionary Contracts or Unconscionable Contracts: Are They Enforceable?

By Doyice Cotten

A recent New York waiver case (Lobell v. Youtube, LLC and Google, Inc., 2017 U.S. Dist. LEXIS 127327) involved the allegation that a waiver was not enforceable because it was both an adhesionary contract and an unconscionable contract. The U.S. District Court for the Southern District of New York examined the issue in light of California law (as called for by the provisions of the contract).

Adhesionary Contract

The court defined an adhesionary contract as “a standardized contract,

Is the Word “Negligence” Required for Waivers in New York Courts?

By Doyice Cotten

In 2016, Michelle Kalinkina, a professional model agreed to have a public haircut and styling demonstration. During the haircut, the stylist cut Kalinkina’s neck causing physical injury and scarring. She subsequently sued for damages alleging negligence and gross negligence (Kalinkina v. Martino Cartier Enterprises, LLC, 2017 U.S. Dist. LEXIS 95670).

Cartier provided a waiver signed by Kalinkina as a defense against the negligence claim. The waiver read:

I am providing modeling services for International Designs Corp.

Poorly Written New York Church Waiver Fails

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.

Waivers and Volunteer Workers

By Doyice Cotten

Certain types of special relationships can affect the enforceability of liability waivers. One such relationship is that between an employer and an employee – often referred to as the master-servant relationship.  Generally, waivers which employers require that their employees sign are unenforceable because of the economic hold that the employer has over the employee. Such waivers are generally deemed to be in violation of public policy.

In contrast, waivers between an employer and a volunteer worker are generally enforced.