New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

This is not enough law to rely on, but it is a start to build upon to argue that a parent can sign a release for a minor for skiing activities, and the minor cannot sue.

DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695

State: New York, United States District Court for the Western District of New York

Plaintiff: Bryan DiFrancesco as father and natural guardian of the infant minor, LD,

Defendant: Win-Sum Ski Corp., Holiday Valley, Inc.,

Plaintiff Claims: allege negligent instruction and supervision

Defendant Defenses: Child assumed the risk and release

Holding: Decision was mixed concerning the evidentiary issues

Year: 2017

This is a motion in limine decision. That means it was the judge’s response to motions by both sides to include or exclude evidence. Meaning one party files a motion in limine to prevent the other party from introducing a document, testimony or in some cases witnesses at trial.

This answer covered numerous motions for both parties. The analysis here will only cover issues relevant to the outdoor industry in general and not cover the purely legal arguments.

The case is about a five-year-old girl who suffered injuries when she fell out of the chairlift while taking a ski lesson from the defendant. The suit was filed in Federal District Court in New York because the plaintiffs are from Canada.

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

The first issue that the court reviewed was whether a five-year-old  could assume the risk of her injury. Each state has different age groups that have been determined over the years for when a child can assume the risks of their injuries. In New York, a child cannot assume the risk of their injury under the age of 5. Children 5 and above, the issue has not been determined to set a real standard a court could rely upon. If there was a set age, a jury would still have to determine if the child assumed the risk.

The plaintiffs were arguing the plaintiff was too young to assume the risk.

Over the age of four, the status of a child is a question of fact regarding the particular child’s ability to comprehend danger and care for herself, younger than four years of age, “an infant . . . may be so young that he is unable to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety.

The plaintiff argued that assumption of the risk should not be a defense in the case because the injured child was 5. Since the child had been skiing in the past, the defense wanted to bring the defense of assumption of the risk. The child has skied, been injured skiing previously and had written chairlifts before, although always with an adult. The court found it was a subject the jury had the right to determine.

One factual element in this case is the maturity and knowledge of LD as to whether she assumed the risk of riding the chairlift here despite being five years old. LD testified at her deposition that prior to the 2010 incident she rode chairlifts two or three other times, each time with her father plaintiff Bryan DiFrancesco who assisted her getting on and off the lift his ski pole over LD’s lap until it was time to get off the chairlift. Whether LD in her circumstances could assume the risk of riding and disembarking from the chairlift by herself is an issue of fact and evidence regarding her maturity, age, experience, intelligence, literacy, and mental capacity to understand the risks she faced is relevant and admissible. As a result, plaintiffs’ motion precluding evidence of LD assuming the risk is denied.

The next argument the plaintiff made was the release was void as against public policy in New York. This was confusing because no release was presented or explained. However, it appears that the New York Safety in Skiing code allows for releases in the statute. By the end of the discussion, it seems the uncle of the injured child signed a release on her behalf.

The plaintiff argued that the New York law that voided releases in general applied and should void this release, New York General Obligations Law § 5-326. However, the court agreed with the defendant that the New York Safety in Skiing code authorized the release and over ruling New York General Obligations Law § 5-326.

The plaintiff’s also argued that since the injured plaintiff has never read or signed the release, she could not be held to it.

The court broke down its analysis of the issue first by looking at whether the injured five-year-old  disaffirmed the release. In this case, disaffirmance means the child can argue a release signed on their behalf is invalid. In New York that is normally the case. However, the legislature has created exceptions to that rule.

“The exception from this common law power of the infant to disaffirm written consents made on her behalf is where the New York State Legislature either abrogates this common law right or makes particular infant agreements binding upon the infant,….

While conceding that at common law an infant could disaffirm written consent made for her, the Court of Appeals in Shields recognized that the State Legislature could abrogate that right or create a right upon infants to enter into binding contracts. “Where a statute expressly permits a certain class of agreements to be made by infants that settles the question and makes the agreement valid and enforceable….

The court then looked at the New York Safety in Skiing code and found the statute specifically created that exception.

The Safety in Skiing Code and its regulations provide an abrogation of the common law right of an infant skier to disaffirm the release signed on her behalf. First, the State Legislature used the term “skier” without expressly distinguishing the age of skier. Second, the State Legislature authorized and directed the Commissioner of Labor to enact necessary rules and regulations. Pursuant to that authority, the Commissioner enacted 12 N.Y.C.R.R. § 54.1 to have the regulations under the Safety in Skiing Code apply to “all skiers,” again without distinction due to the age of the skier.

The court held that a minor could be held to a release signed by a parent or in this case, a temporary guarding uncle.

The Safety in Skiing Code statutory and regulatory scheme including “all skiers” makes releases signed by adults bind infant skiers and removes the infants’ common law right to disaffirm the releases executed in their minority. On this basis, plaintiffs’ motion in limine to exclude the Holiday Valley release is denied.

However, this was not a blanket decision saying the release eliminated all claims of the plaintiff. The court found the uncle had to have read the release to the injured plaintiff. Whether she understood its contents, and the risks outlined there was a question to be determined at trial.

This release itself raises factual issues, such as whether Uncle Dean DiFrancesco actually read the release to LD and whether she understood its contents, including the risks stated therein (particularly, the risks in riding and dismounting a chairlift).

The court then reviewed the defense’s motions in limine which were mostly legal in their scope and not of value here.

This case as of March 2017 is proceeding to trial.

So Now What?

First, this decision was made by a Federal District Court magistrate applying New York State law. The New York courts can ignore the law and until the New York Supreme court rules on the issues, this is not binding to any major degree on other courts. However, it is a start and quite interesting in the analysis of the issues.

The first is assumption of the risk is a valid defense in New York possibly applies to children as young as five. You can develop ways for five year olds to understand the risk; you can use that defense against claims. Probably the easiest way is a video, or maybe two videos. The first video is shown to the children which shows them the risk of the activity they are about to undertake. The second video is of the children watching the video.

This should always be backed up with as many other options as you can create. Have your release state the parent has explained the risks to the child and that the parent, and the child accept them. Put those risks in the release and have the parent state they reviewed the release with the child. Place the risks on your website in different ways and have the parent state they have reviewed the risks on the website with the child and agree to that in the release.

Any way you can show that the child knew of the risks, can create a defense for you for a claim by an injured minor.

The second issue is actually more interesting. 1.) that an adult can sign away a minor’s right to sue in New York and 2.) that adult does not have to be a parent as long as the adult reviews the release with the minor.

Again, this was a preliminary motion hearing in a Federal district court; however, the ruling was explained and supported by case law. As such, it may have some validity and lead to further decisions like this.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

Copyright 2017 Recreation Law (720) Edit Law


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By Recreation Law      James H. Moss

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