Was a fee paid in NYS Waiver Case?

Murat Marc, a participant in a flag football league, injured his ankle when he stepped on a sprinkler head. Alleging negligence, he sued the school district which owned the field. Prior to the game, he had signed a waiver and release of liability. The waiver unambiguously stated his intent to release the defendants from any liability arising from ordinary negligence. The trial judge granted summary judgment in favor of the school district. Plaintiff appealed claiming the waiver was not enforceable because it was barred by General Obligations Law § 5-326 because he had paid a fee to participate in the flag football league and this fee was paid to the school district for use of the field on which he played. Defense countered that no fee was paid for the use of the field (Marc v. Middle Country Central School District, 2020).

The appellate court unanimously agreed the trial court should have denied the defendants’ motion because the question of a fee being paid created an issue of fact which should be settled by a jury — whether the fee was paid. Thus the trial court ruling for summary judgment was reversed.

Pertinent Law

General Obligations Law § 5-326 is a very important statute in New York. It creates a significant impediment to the use of and enforcement of certain waivers in that state.

General Obligations Law § 5-326: Every 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 to be void as against public policy and wholly unenforceable.

So in this case, the effect of the waiver of liability will hinge on whether or not a fee was charged (and perhaps, on who paid the fee, and to whom).

Photo Credit: Thanks to Flickr and  Fort Drum & 10th Mountain Division (LI).