Do not waste paper if you are not going to do it right. Use the magic words needed for a release.

Challenge course in New York loses lawsuit because their release was poorly written. Besides New York General Obligations Law § 5-326 did not apply to a non-profit treatment facility.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Carol Barone

Defendant: St. Joseph’s Villa

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the plaintiff

Year: 1998

All we know in this three paragraph decision is the plaintiff was injured when she fell while “participating in a “challenge’” course” owned by the defendant.

The trial court dismissed the plaintiff’s complaint because of the release she signed. The plaintiff appealed arguing that New York General Obligations Law § 5-326 prevented the defendant from using a release and appealed.

Analysis: making sense of the law based on these facts.

In the second paragraph, the court looked at New York General Obligations Law § 5-326 and held that it did not apply in this case because “defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment”

New York 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.

[emphasize added]

The defendant was a non-profit residence for needy adolescents and provided mental health and community services. The challenge course was part of its therapeutic purpose.

The release was not voided because of the New York statute. The court on its own and not as part of the appeal, looked at the wording of the release at issue.

The release was void because under New York law, a release had to have clear and explicit language. The release used the language “plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant]”.

The court stated the release did not mention the word negligence. “Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence.”

If you read the release, you can see how the court could interpret the release to mean you can’t sue if you fall down in the hallway. However, if you fall down in the hallway because we tripped you, then the release was void because that was a negligent act not covered by the release.

The appellate court reversed the lower court because the language of the release was insufficient to top a claim of negligence because it did not use the word negligence in the release.

So Now What?

Figure it took three years for the appeal to be heard from the date of the accident, conservatively. Figure legal fees are roughly $50,000 a year more or less to get to this point.

Figure the owners/managers/directors of the defendant spent 500 hours fighting the lawsuit by prepping for and attending depositions, answering discovery, spending time with the attorneys, and worrying at night.

Think it was worth using a badly written release or would they have been better off spending a couple of thousand dollars have a release written properly?

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 manufactures 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 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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