NY court explains how it interprets Section 5-326 which disallows releases in NY. Upholds release for a marathon

Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393

Language of General Obligations Law § 5-326 is interpreted

In this case, the plaintiff sued the New York Road Runners Club which puts on the ING New York Marathon. His injuries were not stated in the claim nor were his

claims. A New York statute restricts the use of releases. See States that do not Support the Use of a Releaseand no court has ever clearly defined how they get around the statute when a release is raised as a defense.

The Supreme Court of New York, Appellate Division which wrote this decision held that General Obligations Law § 5-326 did not apply.

General Obligations Law § 5-326 states:

§ 5-326.  Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

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 court then looked at the language of the statute and concluded the release applied in this case because the entry fee for the marathon was not a fee for admission into the streets of New York City. Further the court found the streets of New York City, where the plaintiff was injured were not places of amusement.

…General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run. Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation”

So Now What?

Although the interpretation by the court could be viewed in another light, clearly  most courts in New York want to uphold releases and if given the opportunity will write a decision which does so.

Make sure, if you are based in New York, that when your release is written it takes the statute into  consideration. You can have signors of the release agree to the release that you are not a place of amusement, and the fee paid is not for admission.

Other New York Articles:

Electronic Signature on release in NY upheld.

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling

Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.

How to fight a Bicycle Product Liability case in New York. One step at a time

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management

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and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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