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, 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).

Stated briefly, the law prohibits the use of waivers of liability for negligence by operators of any pool, gymnasium, place of amusement or recreation or similar establishment.  The plaintiff claimed the waiver he signed was invalid pursuant to GOL § 5-326.

Tough Mudder first argued that TM Events are “unique to their participants,” and pose risks and challenges exclusive to obstacle courses, thereby rendering such events completely distinct from the recreational activities engaged in by the “general public” as contemplated by GOL § 5-326.

Interestingly, the second response of Tough Mudder drew more attention from the court; Tough Mudder claimed that their obstacle course by its nature is a “rigorous, athletic competition requiring proper training” and not a place of amusement or recreation. They argued that other activities, such as horseback riding, auto racing, cycling and skiing (activities which have been held to be covered by GOL § 5-326) were less demanding and more relaxed. The court stated that Tough Mudder’s assertion that such activities are “relaxed and undemanding” and “do not necessitate any research or physical preparation” was inaccurate and absurd; further, it pointed out that the statute makes no such distinction between types of activities.

The court then ruled that the waiver in question violated GOL § 5-326 and was void.

Photo Credit: Thanks to thecollectivity via Flickr.