What You Need To Know If You Sign A Pre-Accident Release In New York
Prior to skiing, snowmobiling, taking a trail ride, rollerskating, or engaging in other "recreational activities," participants are asked to sign a release form. If you are injured while participating in that activity in New York, you need to know whether that release form prevents you from winning a negligence suit (laws vary from state to state regarding the enforceability of such releases).
Releases signed by recreational participants prior to an accident are regulated in New York by statute in certain situations.
General Obligations Law ? 5-326 provides that: "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."
The legislative intent of this statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect. Lemoine v. Cornell University, 2 A.D.3d 1017, 769 N.Y.S.2d 313, lv. to appeal denied 2 N.Y.3d 701, 778 N.Y.S.2d 459. Establishments which are instructional as opposed to recreational have been found to be outside the scope of the statute. And, significantly, releases signed in favor of establishments which are not recreational or amusement in nature, are not barred by the statute.
Therefore, for example, in Evans v. Pikeway, Inc., 7 Misc.3d 348, 793 N.Y.S.2d 861, plaintiff was a member of a fitness center who was injured during supervised weight lifting exercises. Plaintiff had signed an agreement when he joined the center which read, "I, John N. Evans have volunteered to participate in a program of physical exercise under the direction of Janet Kaiser, which will include, but may not be limited to, weight and resistance training. In consideration of Janet Kaiser's agreement to instruct, assist, and train me, I do hereby and forever release and discharge and hereby hold harmless Janet Kaiser/JPVC, and their respective agents, heirs, assigns, contractors, and employees from any and all claims, demands, damages, rights of action or causes of action, present or future, arising out of or connected with my participation in this or any exercise program including any injuries resulting therefrom." In granting summary judgment to defendants, the Court held that, "While it has been held that such a release is subject to judicial scrutiny, such a release will be enforceable where, as here, the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant's negligence."
Another case, this one from the Appellate Division, upheld such a release in dismissing a suit for personal injuries signed by a participant in a charity go-kart race. In Blog v. Battery Park City Authority, 234 A.D.2d 99, 650 N.Y.S.2d 713 (1st Dept 1996), plaintiff attempted to escape the effect of the pre-accident release by claiming that she thought it was just a sign-up form, didn't read it, was rushed into signing it because the race was about to begin, and was coerced into participating in the race by her employer (not a party to the action). All these arguments were rejected. The defendant was not a business engaged in recreation or amusement and moreover, people are responsible for knowing what they are signing, whether the claim to have read it or not.
Another example of the application of the statute - in this case, illustrating when it does not apply -- is found in Bufano v. National Inline Roller Hockey Ass'n, 272 A.D.2d 359, 707 N.Y.S.2d 223 (2d Dept 2000). Plaintiff was a member of an inline roller hockey league. To become a member of the league Bufano paid $25 annual dues and signed a registration form, which contained a release of liability. Bufano was injured in a fight with another player during a game. " Contrary to the plaintiffs' contention," held the Court, "General Obligations Law section 5-326 does not void the release Bufano signed, since the $25 he paid was not paid to the owner or operator of a recreational facility... The liability release he signed expressed in clear and unequivocal language the intent to relieve the defendants of all liability for personal injuries to Bufano caused by the defendants' negligence. Thus, the release is enforceable. Moreover, by voluntarily participating in the game, Bufano assumed the risk of the injuries he sustained."
Whether or not a particular pre-accident release will relieve a defendant of liability for a particular type of accident is not always clear enough for a court to decide on summary judgment. Numerous cases have held that it is a question for the jury as to whether the type of risk which injured the plaintiff was covered by the release. An example is Machowski v. Gallant, 234 A.D.2d 933, 651 N.Y.S.2d 832 (4th Dept 1996), where plaintiff dropped dead of a heart attack during a test to receive a black belt in karate. His widow claimed that the test given by his instructor involved unusual moves not normally associated with a black belt test and that the instructor continued to encourage the plaintiff to go on even after he was allegedly gasping for breath and in physical distress. The Court held that it was for a jury to decide whether his pre-accident release covered this kind of negligence.
In summary, then, pre-accident releases are void under New York statute when signed in favor of a facility which is in the business of amusement or recreation. If the defendant is not principally engaged in one of these businesses, or if the activity involved is more in the way of instruction rather than purely amusement (e.g., horseback riding lessons, weight training, karate instruction), then these releases are valid as far as they describe the type of risk for which the defendant is being released.
Lawrence N. Rogak, Esq. Oceanside, New York Lawrence N. Rogak writes and publishes THE ROGAK REPORT, a daily newsletter which summarizes and comments on the latest New York court decisions and legislative enactments affecting the insurance and legal professions. THE ROGAK REPORT website includes a searchable archive accessible at no charge. For a free subscription, go to: http://groups.yahoo.com/group/TheRogakReport