Don’t waste paper if you are not going to do it right. Use the magic words needed for a release.Posted: July 20, 2015
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.
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
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.
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, answers discovery, spending time with the attorneys, worrying at night.
What do you think? Leave a comment.
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