By Doyice Cotten
In last week’s post, A Look at the Instructional Element of New York’s G.O.L. 5-326 Statute Prohibiting Certain Waivers of Liability , we examined three cases involving New York’s G.O.L. 5-326. The statute reads:
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. (Emphasis added.)
As noted in the last post, a crucial point in determining whether the statute applies is whether the primary purpose of the defendant business is instructional or recreational. A number of cases will be presented illustrating how this is determined; also, the reader should note that some of the cases turn on whether the waiver unambiguously stated that the waiver applied to provider negligence.
When the Statute Does Not Apply
First, we will look at four cases in which the statute did not apply. In Deutsch v. Woodridge Segway, LLC. (2014), the waiver was enforced because the plaintiff paid a fee to rent the Segway, not for admission to a place of amusement or recreation. A year earlier in Lerner v. The Society for Martial Arts Instruction (2013), the plaintiff Lerner, a student at the mixed martial arts school, was injured while sparring with the instructor. The court ruled that the waiver signed by Lerner released the defendant from liability for any negligence. The court stated that G.O.L. 5-326 did not apply because the statute does not apply to instructional establishments; it noted that the fee was paid for instruction – not admission.
In Gallant v. Hilton Hotels Corp. (2014), the plaintiff was injured while taking an instructional course taught by one of the defendants (Kettleball Concepts, Inc.). The court ruled that G.O.L. 5-326 did not apply and does not void the waiver signed by Gallant. Nevertheless, the waiver failed to protect the defendants because it failed to state “plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility.”
In Layden v. Plante (2012), the plaintiff was injured while performing exercises prescribed by a personal trainer at a health club. Having advised Plante (a certified personal trainer) of back problems, Layden participated in a training session conducted by Plante. She was instructed as to a program of weight-lifting moves and performed them while being supervised by Plante. As instructed by the trainer, Layden repeated the program of exercises without supervision and suffered injury. Interestingly, the court did not address the statute, but found the waiver to be unenforceable because it, too, failed to make clear that the waiver applied to the negligence of the provider. Since the court failed to mention the statute, it is unclear whether the court felt the statute did not apply because instruction was involved, or whether it found the waiver unenforceable due to lack of appropriate language and felt no need to proceed further.
When the Statute Does Apply
A lady was injured when she fell from a horse while a guest at one of the defendant’s ranches (DiMaria v. Coordinated Ranches, Inc., 1988). The court ruled that the waiver was prohibited by G.O.L. 5-326 and could not protect the defendant because it applies to owners of recreational facilities. The court did allow the waiver (with the exculpatory language redacted) to be presented to provide evidence that the plaintiff was aware of the dangers in horseback riding. Pablo Torres was injured in a Motocross accident after signing a waiver (Torres v. Long Island Motocross Association, 2014). The defendant argued that the law should not apply since Torres was an experienced rider and was not a “user” of the facility as construed by the courts. The court disagreed saying the plaintiff is entitled to protection from the statute since the plaintiff was a “user” and the defendant was an owner/operator of a place of amusement. The waiver was not enforced.
In Vanderbrook v. Emerald Springs Ranch (2013), a woman was injured during a guided trail ride. The court ruled that the riding lesson was ancillary to the primary purpose of the ranch – the recreational activity of horseback riding. Hence, the waiver of liability fell under the auspices of G.O.L. 5-326 and was not enforced. In Tiede v. Frontier Skydivers, Inc. (2013), the plaintiff was injured on a skydiving trip when the plane crashed shortly after takeoff. The liability waiver signed by the plaintiff prior to the venture was not enforced due to the statute. The court, like the Vanderbrook court felt that the skydiving instruction involved was not the primary function of Frontier.
From these cases, one may conclude the following in regard to the enforcement of liability waivers and New York Statute G.O.L 5-326:
- G.O.L 5-326 does not apply to fees paid for rentals.
- G.O.L 5-326 does not apply when the primary purpose of the business in instructional in nature (e.g., MMA school, one-to-one personal training facility, kettleball instructional course).
- In New York, a waiver must clearly express the intent to protect the provider from liability for provider negligence. NOTE: It is always advisable to use the word “negligence;” even better “provider negligence.” This helps to eliminate ambiguity.
- G.O.L 5-326 does apply, and forbids the enforcement of waivers, for businesses such as a pool, gymnasium, place of amusement or recreation, or similar establishment (e.g., spa, gymnastics club, motocross event).
- G.O.L 5-326 does apply when both instruction and recreation are involved – unless instruction constitutes the primary purpose of the business (e.g., horseback riding, skydiving).