Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the coursePosted: September 12, 2016 Filed under: Assumption of the Risk, Cycling, New York, Racing, Release (pre-injury contract not to sue) | Tags: #race, Central Park, New York, New York City, Para-Athlete, Triathalon Leave a comment
A good procedure for tracking releases and bibs help prove the plaintiff had signed the release when she denied that fact in her claims.
Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)
State: New York, Supreme Court of New York, New York County
Plaintiff: SUPREME COURT OF NEW YORK, NEW YORK COUNTY
Defendant: City of New York, Korff Enterprises, Inc., and Central Park Conservancy
Plaintiff Claims: negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines.
Defendant Defenses: Release
Holding: For the Defendant
This was a simple case where a triathlon course was closed, but a jogger ran into a cyclist. However, there was one quirk. The cyclist was para-athlete riding a push-rim racer.
Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive.
Although the rights of a para-athlete are identical to those of any other athlete, it is interesting to see if either side used the issue legally to their advantage. Neither did.
The plaintiff sued for her injuries.
Analysis: making sense of the law based on these facts.
The court first looked at how releases are viewed under New York law. New York has a statute voiding releases if those places using them are places of amusement charging for admission. See New York Law Restricting the Use of Releases.
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
However, the court found since this was a race it was not an admission fee but a participation fee; the statute did not apply.
Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law Language relieving one from liability must be unmistakable and easily understood. The waiver at issue here clearly and unequivocally ex-presses the intention of the parties to relieve defendants of liability for their own negligence and because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326
The next issue was the plaintiff claimed that she did not sign the release. However, the husband under oath testified that the release could have been his wife’s. “George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’.”
In addition, the procedures at the beginning of the race required a racer’s signature. A racer did not get a bib until they had signed the release and proving their identify.
Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib.
Whether the identification and procedures are in place to prevent fraud in case of an accident and subsequent suit or to prevent fraud among the racers is not clear.
The plaintiff also claimed the defendant was negligent in their cone placement and location of race marshals. She argued the cones should have been placed closer together.
On this claim, the court argued the plaintiff had assumed the risk by racing.
Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results”
The application of the doctrine of assumption of risk is to be applied based upon the background, skill and experience of the plaintiff. In this case, the plaintiff had considerable experience racing in triathlons.
Awareness of risk, including risks created by less than optimal “is not to be determined in a vacuum” but, rather, “against the background of the skill and experience of the particular plaintiff”. Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park.
Because the plaintiff was experienced in racing in triathlons and signed a release her claims were barred.
So Now What?
This case resolved around whether or not the defendant could prove the plaintiff had signed a release, when denied she had signed it. By having procedures set that proved who the person was and not allowing the person to receive a bib, and consequently, race, until a release had been signed was pivotal.
On top of that when a party to the suit, in this case the husband admitted the signature could have been the plaintiffs the court took that statement as an admittance against interest. The husband was a litigant because he was claiming damages as a spouse. A spouse’s claim, as in this case are derivative of the other spaces main claims. That means the plaintiff spouse must prove her claims or the derivative claims also fail.
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