Summer is coming, and your business will be opening soon. Need a professionally written release?

Summit Magic Publishing LLC is selling releases written by attorneys for specific outdoor recreation businesses.

Written by an attorney with 25 years of experience writing releases for the outdoor recreation industry. Start here until you can afford and need a release specific to your needs of your business.

The releases are complete in every way. They come with instructions on how to fill in the blanks for your business and with information for you and your staff to understand how your release works and should be used.

Bicycle Demo Release

Rental Release for Renting Bicycles

Calm Water Canoe, Inflatable, Sit Upon Boat Rentals (Livery) Release

Challenge or Ropes Course Release with a Zip Line

Class I & II Paddlesports Release

Guided Class I & II Paddlesports Release

Guided Whitewater Rafting – Multi-Day Trips Release

Guided Whitewater Rafting Release Class III and Above

Indoor Climbing Wall Release

Mountain Bike Rental or Demo Release

Nature Walks or Day Hikes with Staff

Release for Use by Personal Trainer

Release for use by Personal Trainers Training for Outdoor Pursuits

US Based Scuba Diving Release

Zip Line Release

Learn more by going to Summit Magic Publishing LLC.

If you don’t see the release, you need, email info@summitmagicpublishing.com and ask for what you need.

What do you think? Leave a comment.

Copyright 2019 Summit Magic Publishing LLC

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If you can see that you can get hurt and you admit that you saw and knew that you assume the risk of your injuries.

In this obstacle course race the plaintiff could see if she fell off the apparatus she would land on a road and could get hurt. She also admitted she undertook the climb of the apparatus voluntarily, so she lost her lawsuit.

Citation: Ramos, et al., Michael Epstein Sports Productions, Inc., et al, 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

State: New York, Supreme Court of New York, Second Department

Plaintiff: Monica Ramos, et al.

Defendant: Michael Epstein Sports Productions, Inc., et al.

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2019

Facts

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.

The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up.

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

The court started by explaining the Doctrine of Assumption of the Risk as applied in New York.

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'”. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”. Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine. “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results”. A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff”

Then the court reviewed the plaintiff’s deposition where she stated.

She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway.

The plaintiff argued the Doctrine of Assumption of the Risk only applied to permanent designated venues. The court quickly threw out this argument. The plaintiff also did not submit any evidence showing the defendant had concealed or increased the risk of the activity.

The plaintiff lost.

So Now What?

So why write about this case? Because it shows how you can win if you just don’t try and hide the risks of the activity. In most states Assumption of the Risk is a defense to a negligence claim second to that of a release. In 7-8 states it is the only difference to an outdoor recreation negligence claim. Meaning Assumption of the risk is a defense that is good in all 50 states.

In the majority of states, it is the only defense to a claim by a minor.

Consequently, you should always create a situation where your customers can see the risk in advance, understand the danger presented by the risk and as in this case, opt out of the risk if they want.

If you do that, you create a simply effective defense that results in a simply easy to defend case and a short-written decision from the court in your favor.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

 


Ramos, et al., Michael Epstein Sports Productions, Inc., et al., 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

Ramos, et al., Michael Epstein Sports Productions, Inc., et al., 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

Monica Ramos, et al., appellants,

v.

Michael Epstein Sports Productions, Inc., et al., respondents.

Index No. 65423/15

No. 2018-02525

Supreme Court of New York, Second Department

June 19, 2019

Argued – March 15, 2019

D59831 G/htr

Michael Fuller Sirignano, Cross River, NY, for appellants.

Kowalski & DeVito (McGaw, Alventosa & Zajac, Jericho, NY [Andrew Zajac], of counsel), for respondents.

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated November 29, 2017. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.

The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up. The Supreme Court granted the defendants’ motion, and the plaintiffs appeal.

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” (Bukowski v Clarkson Univ., 19 N.Y.3d 353, 356, quoting Morgan v State of New York, 90 N.Y.2d 471, 484; see Altagracia v Harrison Cent. Sch. Dist., 136 A.D.3d 848, 849). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Bukowski v Clarkson Univ., 19 N.Y.3d at 356; see Falcaro v American Skating Ctrs., LLC, 167 A.D.3d 721, 722; Lee v Brooklyn Boulders, LLC, 156 A.D.3d 689, 690). Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine (Bukowski v Clarkson Univ., 19 N.Y.3d at 356; see Bryant v Town of Brookhaven, 135 A.D.3d 801, 802). “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Siegel v Albertus Magnus High Sch., 153 A.D.3d 572, 574 [internal quotation marks omitted]; see Ferrari v Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 938; Toro v New York Racing Assn., Inc., 95 A.D.3d 999, 1000). A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff” (Siegel v Albertus Magnus High Sch., 153 A.D.3d at 574 [internal quotation marks omitted]; see Ferrari v Bob’s Canoe Rental, Inc., 143 A.D.3d at 938; Bryant v Town of Brookhaven, 135 A.D.3d at 802).

Here, the defendants established their prima facie entitlement to judgment as a matter of law through the submission of the injured plaintiff’s deposition testimony. She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway. Contrary to the plaintiffs’ contention, the assumption of risk doctrine is not limited to “[permanent, ] designated venues,” but may also be applied when a plaintiff assumes the risks of “sporting events” or “sponsored athletic and recreative activities” (Custodi v Town of Amherst, 20 N.Y.3d 83, 89).

The plaintiffs failed to raise a triable issue of fact in opposition. They submitted no evidence demonstrating that the injured plaintiff was subjected to “unassumed, concealed or unreasonably increased risks” (Bryant v Town of Brookhaven, 135 A.D.3d at 803 [internal quotation marks omitted]). In addition, the injured plaintiff’s affidavit presents a “feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony” (Burns v Linden St. Realty, LLC, 165 A.D.3d 876, 877; see Odetalla v Rodriguez, 165 A.D.3d 826, 827; Meriweather v Green W. 57th St., LLC, 156 A.D.3d 875, 876), and is insufficient to defeat summary judgment.

Accordingly, we agree with the Supreme Court’s determination to grant the defendants’ motion for summary judgment dismissing the complaint.

The defendants’ alternative argument for affirmance has been rendered academic in light of our determination (see Palmieri v Town of Babylon, 167 A.D.3d 637, 641; Mason-Mahon v Flint, 166 A.D.3d 754, 759; Gentry v Mean, 166 A.D.3d 583, 584).

MASTRO, J.P., LEVENTHAL, CONNOLLY and IANNACCI, JJ., concur


Guiding too much and you really are a business. Need to make sure you don’t get sued for your hobby turned business?

Summit Magic Publishing LLC is selling releases written by attorneys for specific outdoor recreation businesses.

Written by an attorney with 25 years of experience writing releases for the outdoor recreation industry. Start here until you can afford and need a release specific to your needs of your business.

The releases are complete in every way. They come with instructions on how to fill in the blanks for your business and with information for you and your staff to understand how your release works and should be used.

Bicycle Demo Release

Rental Release for Renting Bicycles

Calm Water Canoe, Inflatable, Sit Upon Boat Rentals (Livery) Release

Challenge or Ropes Course Release with a Zip Line

Class I & II Paddlesports Release

Guided Class I & II Paddlesports Release

Guided Whitewater Rafting – Multi-Day Trips Release

Guided Whitewater Rafting Release Class III and Above

Indoor Climbing Wall Release

Mountain Bike Rental or Demo Release

Nature Walks or Day Hikes with Staff

Release for Use by Personal Trainer

Release for use by Personal Trainers Training for Outdoor Pursuits

US Based Scuba Diving Release

Zip Line Release

Learn more by going to Summit Magic Publishing LLC.

If you don’t see the release, you need, email info@summitmagicpublishing.com and ask for what you need.

What do you think? Leave a comment.

Copyright 2019 Summit Magic Publishing LLC

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Release, Waiver, Climbing Wall Release, Scuba Diving Release, Zip Line Release, Personal Trainer Release, Day Hike Release, Mountain Bike Release, Mountain Bike Rental Release, Indoor Climbing Wall Release, Whitewater Rafting Release, Multi-day River Trip Release, Class I & II release, Paddlesport Release, Guided Paddlesport Release, Bicycle Rental Release, Bicycle Demo Release, Zip Line Release, Challenge Course Release, Bike Demo Release, Canoe Release, SUP Release, Kayak Release, Release, Waiver, Climbing Wall Release, Scuba Diving Release, Zip Line Release, Personal Trainer Release, Day Hike Release, Mountain Bike Release, Mountain Bike Rental Release, Indoor Climbing Wall Release, Whitewater Rafting Release, Multi-day River Trip Release, Class I & II release, Paddlesport Release, Guided Paddlesport Release, Bicycle Rental Release, Bicycle Demo Release, Zip Line Release, Challenge Course Release, Bike Demo Release, Canoe Release, SUP Release, Kayak Release,



Do you need a Release (or waiver) for your business? Don’t want to pay an attorney to write one for you?

Summit Magic Publishing LLC is selling releases written by attorneys for specific businesses.

Written by an attorney with 25 years of experience writing releases for the outdoor recreation industry. Start here until you can afford and need a release specific to your needs of your business.

The releases are complete in every way. They come with instructions on how to fill in the blanks for your business and with information for you and your staff to understand how your release works and should be used.

Bicycle Demo Release

Rental Release for Renting Bicycles

Calm Water Canoe, Inflatable, Sit Upon Boat Rentals (Livery) Release

Challenge or Ropes Course Release with a Zip Line

Class I & II Paddlesports Release

Guided Class I & II Paddlesports Release

Guided Whitewater Rafting – Multi-Day Trips Release

Guided Whitewater Rafting Release Class III and Above

Indoor Climbing Wall Release

Mountain Bike Rental or Demo Release

Nature Walks or Day Hikes with Staff

Release for Use by Personal Trainer

Release for use by Personal Trainers Training for Outdoor Pursuits

US Based Scuba Diving Release

Zip Line Release

Learn more by going to Summit Magic Publishing LLC.

If you don’t see the release, you need, email info@summitmagicpublishing.com and ask for what you need.

What do you think? Leave a comment.

Copyright 2019 Summit Magic Publishing LLC

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Release, Waiver, Climbing Wall Release, Scuba Diving Release, Zip Line Release, Personal Trainer Release, Day Hike Release, Mountain Bike Release, Mountain Bike Rental Release, Indoor Climbing Wall Release, Whitewater Rafting Release, Multi-day River Trip Release, Class I & II release, Paddlesport Release, Guided Paddlesport Release, Bicycle Rental Release, Bicycle Demo Release, Zip Line Release, Challenge Course Release, Bike Demo Release, Canoe Release, SUP Release, Kayak Release, #ChallengeCourse, #CyclingLaw, #FitnessLaw, #IceClimbing, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps,



A well-written release is not enough; you have to present it to the participant in a way that the participant knows what they are signing.

Then you have to present the information to the court, so the court clearly sees what the participant saw, same size, same way, same color.

Citation: Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

State: New York; Supreme Court of New York, Kings

Plaintiff: Richard E. Scotti and Joseph Russo

Defendant: Tough Mudder Incorporated and Tough Mudder Event Production Incorporated

Plaintiff Claims: Negligence

Defendant Defenses: Arbitration Agreement and Release

Holding: For the Plaintiff

Year: 2019

Summary

A release is not a piece of paper to be written on a whim and thrown on line. Here the court blasted the defendant because the release was presented on-line in a bad way, and it was presented in court in a worse way.

Releases, Indemnification Agreements, Arbitration Agreements, etc., must be noticed to the consumer. Meaning the consumer MUST understand they are signing a legal agreement, they have to them be used online in a way that the consumer or guest has no doubt that they are signing one, and you must be able to prove that.

Besides, New York does not allow the use of a release!

Facts

The plaintiffs were both injured in a Tough Mudder event on the salmon ladder. The plaintiff’s sued and the defendant Tough Mudder answered and filed this motion to compel arbitration. The release contained an arbitration clause.

The release signed by the participants was signed online. The participants went through a registration page, part of which was a window where the release was contained. To read the release, you had to scroll through the window separately from the rest of the page. The release was in a window in the page.

The defendant attempted to prove the release was valid by presenting an affidavit of the Manager of Customer relations and black-and-white copies of the page and a separate copy of the release. The court did not have a copy of the page as it was seen by the participants.

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR. She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event. Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action

The box that held the release did not show the entire document unless the reader scrolled through the center window. What the court received in its copy of the page, obviously only showed the small part of the release that was visible when the page was printed.

The agreement was labeled:

ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS

Not identified in the heading and located several pages into the release was an arbitration provision.

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

The judge shredded the defense in an efficient point by point denial of the defendant’s defenses for two reasons. They did a lousy job of setting up the documents to be signed online, and they did a worse job of presenting that information to the court.

The court first looked at the motion to compel arbitration. To compel arbitration the party wanting arbitration must:

It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate”. When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement. The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists

Whether or not the online agreement was valid is based on the specific facts of the situation.

The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website. Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user

The court then went into an analysis of the four types of online consumer contracts: “(a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” Each type of agreement has different requirements to be valid.

Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services….

The court then found, because the defendants’ document was so bad, that this agreement was a clickwrap agreement. Since the printed copy of the webpage only showed a small part of the release, the court found it could only be a clickwrap agreement.

Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without scrolling through the agreement, but there is nothing in the record to support this claim.

For clickwrap agreements to be valid:

A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the … agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.”

“[a] court cannot presume that a person who clicks on a box that appears on a … screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) … The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous…. Clarity and conspicuousness of arbitration terms are important in securing informed assent.”

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation

The court simply found the “plaintiffs did not have actual notice of the arbitration provision at issue in this case.

As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) “a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ”

For the online agreement to be valid, the agreement must:

First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.”

The courts review of what was presented to the court was simple and a slam against the defendants.

Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period.

And then the court piled on the defense for doing a lousy job of presenting the information to the court.

In addition, the court notes that the purported copies of the plaintiffs’ respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process.

The court stated the important sections of the agreement needed to be identified so anyone reading the agreement would understand the importance of those sections. The court pointed out the heading identified the agreement as a release, but did not identify the agreement as containing an arbitration clause.

The court then slammed the door shut on the release itself because it violated GOL § 5-326.

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

The court threw out both the release, and the arbitration clause within the release. In a footnote, the court stated it’s holding was in line with other decisions.

[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.

So Now What?

This was not a case where the court wanted to make sure the defendant lost. This was a case where the defendant did a lousy job.

Microsoft gets away with this type of release and online crap because they are offering contracts where damages are the contract value; what you are paying for the software.

When you are dealing with torts, where thousands or hundreds of thousands of dollars are on then a simple click or shrink wrap agreement will not suffice.

Create this page in such a way you can show it to the court.

Then have a click at the bottom that states the participant understands they are giving up certain legal rights. Then have the participant click to go to the payment page. The credit card information verifies the participant is who they say they are because of the credit card agreements.

Finally, when you send the person their receipt for signing up for the event, include a paragraph stating they also signed a release and possible a link to the release.

Quit hiding legal documents and put them out there and in front of your participants, guests and customers.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

97 N.Y.S.3d 825

63 Misc.3d 843

Richard E. Scotti and Joseph Russo, Plaintiffs,

v.

Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, Defendants.

No. 2019-29098

522905/17

Supreme Court of New York, Kings

March 29, 2019

[97 N.Y.S.3d 828] Plaintiffs were represented by Brandon Michael Cruz THE BONGIORNO LAW FIRM, PLLC. Address

Defendants were represented by Joshua Cash WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Address

Opinion

Debra Silber, J.

Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated move for an order, pursuant to CPLR 7501 and 7503(a), to compel arbitration and to stay this action pending resolution of the arbitration proceeding. For the reasons which follow, the motion is denied.

Background and Procedural History

This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti (Scotti) and Joseph Russo (Russo) (collectively, plaintiffs) participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter, the TM Event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated (collectively, “Tough Mudder”) are the business entities that organized the TM Event. Plaintiffs commenced the within action on or about November 17, 2017 against Tough Mudder alleging that they each sustained injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a Verified Answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.

Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this Court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM Event when they completed an on-line internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the Manager of Customer Relations for Tough Mudder Incorporated (Affirmation of Joshua Cash, Exhibit C). Best avers that she is fully familiar with the TM Event on-line registration process as it existed in 2016 when the plaintiffs registered for the TM Event at issue.[1] Tough Mudder has submitted copies of the on-line registration forms that the plaintiffs allegedly completed for the TM Event (Cash Affirmation, Exhibit D). Best states that, during the on-line registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter, PWCR), a document version of which has been submitted herein (Cash Affirmation, Exhibit F). She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down, read as follows:

“Participant Waiver: Tough Mudder Incorporated

ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS. (Cash Affirmation, Exhibit E).

Best claims the PWCR contained the following “Mediation and Arbitration” provision:

Mediation and Arbitration: In the event of a legal issue, I agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation, I agree that all disputes, controversies, or claims arising out of my participation in the TM event shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect. The costs of such action shall be shared equally by the parties.

I further acknowledge and agree that any question, issue or dispute as to the arbitrability of any dispute, controversy, or claim arising out of my participation in the TM event, will be submitted to an arbitrator in accordance with the applicable rules of the American Arbitration Association then in effect. The Arbitration Rules of the American Arbitration Association are available on-line at http://www.adr.org (Cash Affirmation, Exhibit F).

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR (Cash Affirmation, Exhibit D at ¶ 5). She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event (id at ¶ 6). Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action. In opposition, plaintiffs argue that the arbitration provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the web page where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text (Exhibit F to Cash Affirmation). Plaintiffs further argue that Tough Mudder has failed to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.

Plaintiffs additionally argue that the arbitration clause in the PWCR is unenforceable because it contains a conflicting provision regarding disputes. Plaintiffs point out that the PWCR contains a clause entitled “Venue and Jurisdiction” located several paragraphs before the “Mediation and Arbitration” clause, which states [Exhibit F, Page 3]:

I understand that if legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM Event is held shall apply.

Plaintiffs argue that this provision clearly conflicts with the arbitration clause located many lines of type below it, thereby rendering it void and unenforceable.

Finally, plaintiffs argue that the entire PWCR agreement, including the purported arbitration provision, is unenforceable because the “Waiver of Liability for Ordinary Negligence” clause (on page three of the PWCR as Exhibit F) violates General Obligations Law (GOL) § 5-326, which prohibits contracts between the owner or operator of any “place of amusement or recreation” from exempting such 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.” In this regard, plaintiffs contend that Tough Mudder’s operation of the TM Event obstacle course was clearly operated as “a place of amusement or recreation” within the meaning of GOL § 5-326. Since the plaintiffs paid a fee to use the obstacle course and were injured while engaged in that activity, they argue that GOL § 5-326 renders the entire waiver of liability clause, and all remaining provisions of the PWCR, including the arbitration clause, void and unenforceable.

In reply, Tough Mudder points out that the plaintiffs do not dispute that they each did in fact register for the TM Event. In addition, Tough Mudder argues that GOL § 5-326 is not applicable herein and, therefore, does not invalidate the waiver or any other PWCR provision. In this regard, Tough Mudder maintains that the TM Event is distinguishable from the “recreational” activities intended to be covered under the statute, such as horseback riding, auto racing, cycling and skiing, which Tough Mudder characterizes as being “relaxed and undemanding” activities, which “do not necessitate any research or physical preparation.” Tough Mudder argues that the TM Event is distinguishable from the foregoing activities in that it is “a rigorous and grueling athletic competition that requires proper training and dedication” (Cash Reply Affirmation, at ¶ 8). Tough Mudder further argues that TM Events are “unique to their participants,” and pose risks and challenges exclusive to obstacle courses, thereby rendering such events completely distinct from the recreational activities engaged in by the “general public” as contemplated by GOL § 5-326.

In addition, Tough Mudder points out that the PWCR contains a “Severability” provision which states, in relevant part, as follows:

“I understand and agree that this … Waiver of Liability … is intended to be as broad and inclusive as is permitted by the state in which the TM Event is held and that if any provision shall be found to be … void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions.”

[97 N.Y.S.3d 831] In light of the foregoing provision, Tough Mudder argues that, in the event a clause is deemed unenforceable, it does not invalidate any of the remaining provisions of the PWCR, including the arbitration clause at issue.

Tough Mudder also argues that the “Venue and Jurisdiction” clause is not contradicted by the “Mediation and Arbitration” clause, as the latter clause only mandates arbitration regarding disputes “arising out of [one’s] participation in the TM event …” Therefore, Tough Mudder contends that there are clearly certain circumstances when a state or federal trial court would be the appropriate venue for claims that do not arise out of one’s participation in the TM Event. However, since plaintiffs’ claims do arise out of their participation, Tough Mudder maintains that arbitration of this matter is required.

Discussion

It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” (God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006] [internal quotation marks omitted]; seeMatter of Robert Stigwood Org. [Atlantic Recording Corp.], 83 A.D.2d 123, 126, 443 N.Y.S.2d 726 [1981] ). When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement (seeHarriman Group v. Napolitano, 213 A.D.2d 159, 162, 623 N.Y.S.2d 224 [1995] ). The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists (seeSeneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d 211, 212, 741 N.Y.S.2d 690 [2002]; Matter of Allstate Ins. Co. v. Roseboro, 247 A.D.2d 379, 380, 667 N.Y.S.2d 914 [1998] ). The court must draw all inferences in favor of the non-moving party. (Nicosia v. Amazon.com Inc., 834 F.3d 220, 229 [2d Cir. 2016] ).

“The creation of online contracts ‘has not fundamentally changed the principles of contract’ ” (Resorb Networks, Inc. v. YouNow.com, 51 Misc.3d 975, 981, 30 N.Y.S.3d 506 [Sup.Ct. N.Y. County 2016] quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 [2d Cir. 2004] ). The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website (seeSchnabel v. Trilegiant Corp., 697 F.3d 110, 120 [2d Cir. 2012] ). Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user (id. at 120; see Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 833, 835 [S.D.N.Y. 2012]; Starke v. Gilt Groupe, Inc., 2014 WL 1652225, *2, *3, 2014 U.S. Dist. LEXIS 58006, *6-7 [S.D.N.Y. 2014]; Jerez v. JD Closeouts, LLC, 36 Misc.3d 161, 168, 943 N.Y.S.2d 392 [Nassau Dist. Ct. 2012] ). In Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002), the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility” (id. at 35; seeStarke v. Squaretrade, Inc., No. 16-CV-7036 [NGG], 2017 WL 3328236, at *5 [E.D.N.Y. Aug. 3, 2017], affd 913 F.3d 279 [2d Cir. 2019] ).

In Berkson v. Gogo LLC, 97 F.Supp.3d 359, 394-403 (E.D.N.Y. 2015), the four “general types of online consumer contracts

are identified as (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” As explained by Judge Weinstein in Berkson:

Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services…. (Id. at 394-95). (seeApplebaum v. Lyft, Inc., 263 F.Supp.3d 454, 465 [S.D.N.Y. 2017] [applying New York law and denying motion to compel arbitration where notice of contract terms was insufficient to bind plaintiff] ).

Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without scrolling through the agreement, but there is nothing in the record to support this claim.[2]

A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the … agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.” (Serrano v. Cablevision Sys. Corp., 863 F.Supp.2d 157, 164 [E.D.N.Y. 2012]; see alsoWhitt v. Prosper Funding LLC, 15— CV— 136, 2015 WL 4254062, at *4 [S.D.N.Y. July 14, 2015]; Kai Peng v. Uber Techs., Inc., 237 F.Supp.3d 36, 47-48 [E.D.N.Y. 2017]; Berkson, 97 F.Supp.3d at 397). However, as stated by Judge Koeltl in Applebaum v. Lyft, Inc., 263 F.Supp.3d at 466,

“[a] court cannot presume that a person who clicks on a box that appears on a … screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) … The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous…. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (internal citations omitted)

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation [97 N.Y.S.3d 833] of assent is unambiguous as a matter of law (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d 17, 28 [2d Cir. 2002] ). Therefore, issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue (seeApplebaum, 263 F.Supp.3d at 465). Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry (id. ; seeMeyer v. Uber Techs., Inc., 868 F.3d 66, 76 [2d Cir. 2017], citing Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 [2d Cir. 2012] ).

Here, plaintiffs did not have actual notice of the arbitration provision at issue in this case. However, plaintiffs can still be bound by the contractual terms if there is inquiry notice of the terms and plaintiffs “assent[ed] to [the terms] through the conduct that a reasonable person would understand to constitute assent” (Plazza v. Airbnb, Inc., 289 F.Supp.3d 537, 548 [S.D.N.Y. 2018]; see alsoNicosia, 834 F.3d at 233). A person is on inquiry notice if a “reasonably prudent offeree would be on notice of the terms at issue” (Schnabel, 697 F.3d at 120 [” ‘[I]nquiry notice’ is ‘actual notice of circumstances sufficient to put a prudent man upon inquiry’ “] quoting Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 27 n.14 [2d Cir. 2002] ).

As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) “a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ” (Specht v. Netscape Communications Corp., 306 F.3d 17, 32 [2d Cir. 2002] [Sotomayor, J.] ). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways (Meyer v. Kalanick, 200 F.Supp.3d 408, 420 [S.D.N.Y. 2016] ). In Meyer, a putative class action claiming price-fixing, the district court found that adequate notice was not given to plaintiff of mandatory arbitration when he registered to use Uber. The screen had a hyperlink to the agreement, but plaintiff did not need to click on it to register as a user. Then, after clicking on it, you needed to click further to read the Terms of Service and the arbitration provision was at the bottom of page seven. This was determined to be a “browsewrap” agreement. The Second Circuit, on appeal,[3] determined that the issue was whether the plaintiff was on inquiry notice of the arbitration provision by virtue of the hyperlink on the screen, under California Law, and determined that adequate notice was given. The panel reversed the district court, finding the motion to compel arbitration should have been granted.

The court further notes that on-line agreements may be revised from time to time, so not only must the court determine whether the party seeking to enforce such an agreement has provided the version seen by the other party at the time the contract was made, but whether the court in any seemingly on point case cited actually rendered its decision based on the same version of the agreement (seePlazza v. Airbnb, 289 F.Supp.3d 537 [S.D.N.Y. 2018] [archived computer code for 2009 sign-up screen provided to court, along with screen shots of Terms of Service] ).

In Berkson, supra, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide a court’s inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement (Berkson, 97 F.Supp.3d at 401 [citingNguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] ). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.” Special attention should be paid to whether the site design brings the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. “When contractual terms as significant as … the right to sue in court are accessible only via a small and distant hyperlink … with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent” (Meyer v. Kalanick, 200 F.Supp.3d at 421-22 [internal quotation marks and citation omitted] ). A broad exculpatory clause waiving liability for negligence would also certainly qualify as a material term and one that alters a contracting party’s commonly-understood rights.

Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period. In this regard, the court finds that the affidavit by Ms. Best holds little evidentiary value, as she does not set forth the basis of her personal knowledge of Tough Mudder’s on-line registration process at the time the plaintiffs registered, or of her familiarity with the applicable computer generated documents (seeGogos v. Modell’s Sporting Goods, Inc., 87 A.D.3d 248, 253-254, 926 N.Y.S.2d 53 [2011] ). Additionally, absent from her affidavit is any indication that she was even employed by Tough Mudder at the relevant time period.

In addition, the court notes that the purported copies of the plaintiffs’ respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screen shot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms. In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, not screen shots, it is unable to discern how the subject arbitration clause actually appeared to the user. Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms” (Starke v. Squaretrade, Inc., 913 F.3d 279, 289-90 [2d Cir. 2019] citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] and Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 23 [2d Cir. 2002] [where court refused to enforce terms of use that “would have become visible to plaintiffs only if they had scrolled to the next screen”] ). Here, Tough Mudder’s submissions with respect to the “design and content” of its website and the relevant terms of the PWCR, especially the arbitration clause, are woefully inadequate.

The court further notes that the initially visible portion of the on-line text box containing the scrollable PWCR has an all-caps header stating: “ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.” However, while this header specifically draws the user’s attention to certain specified provisions (i.e., Assumption of Risk, Waiver of Liability and Indemnity) which appear at the beginning of the document (on pages one and three), it makes no reference to the arbitration provision, which appears on page four of the seven-page PWCR document.

Additionally, the court notes that the “Venue and Jurisdiction” clause, which appears on page three of the PWCR states that if “legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction….” This provision clearly conflicts with the arbitration clause at issue, which mandates that all claims “arising out of [one’s] participation in the TM Event shall be submitted to binding arbitration….” Given that the plaintiffs would have viewed (in the scrollable text box) the “Venue and Jurisdiction” provision first, the court finds it highly unlikely that they would have been placed on inquiry notice of the arbitration provision, which appeared on a subsequent page in the agreement. As noted above, the party seeking to compel arbitration bears the burden of establishing that an agreement to arbitrate exists (see Seneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d at 212, 741 N.Y.S.2d 690), which Tough Mudder has failed to do. Under the circumstances presented here, the court finds that the arbitration provision was not sufficiently conspicuous to place the plaintiffs on inquiry or constructive notice and, therefore, is not enforceable (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d at 32; Applebaum, 263 F.Supp.3d at 465). Further, due to the conflicting provisions regarding litigation and arbitration, the arbitration provision is void due to ambiguity. Accordingly, Tough Mudder’s motion to stay the action and compel arbitration is denied.

General Obligations Law § 5-326

As to plaintiffs’ argument that the waiver and release provision set forth in the PWCR [Exhibit F Page 3] is invalid pursuant to GOL § 5-326, the court agrees. That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee is paid (GOL § 5-326; seeRogowicki v. Troser Mgt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 [1995]; Blanc v. Windham Mtn. Club, 115 Misc.2d 404, 454 N.Y.S.2d 383 [1982], affd 92 A.D.2d 529, 459 N.Y.S.2d 447 [1983] ). The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation (seeLeftow v. Kutsher’s Country Club Corp., 270 A.D.2d 233, 234, 705 N.Y.S.2d 380 [2000] ). Indeed, the nature of the TM Event as described by Tough Mudder — a rigorous, athletic competition requiring proper training — is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by GOL § 5-326. Furthermore, Tough Mudder’s assertion that, unlike the TM Event, such activities are “relaxed and undemanding” and “do not necessitate any research or physical preparation” is an inaccurate and absurd distinction. Thus, the PWCR’s waiver provision, waiving defendants’ liability for “ordinary negligence” violates GOL § 5-236 and is therefore void (seeGarnett v. Strike Holdings LLC, 64 A.D.3d 419, 882 N.Y.S.2d 115 [2009] [applying § 5— 326 where plaintiff paid a fee to use the recreational facility]; Alibey v. Tough Mudder Inc., 2018 WL 5298473, at *2 [Sup.Ct., Kings County, Oct. 24, 2018]; Hansen v. Tough Mudder, Inc., [Sup Ct Kings Co. 2018, Ind. 515072/15] ).

However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. Where an agreement consists partially of an unlawful objective, “the court may sever the illegal aspect and enforce the legal one, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.” (Mark Hotel LLC v. Madison Seventy-Seventh LLC, 61 A.D.3d 140, 143, 872 N.Y.S.2d 111 [2009] ). “[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being.” (Matter of Wilson’s Estate, 50 N.Y.2d 59, 65, 427 N.Y.S.2d 977, 405 N.E.2d 220 [1980] ).

Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.

Conclusion

For the reasons state above, Tough Mudder’s motion to compel arbitration and stay the action is denied.

The parties are directed to appear on May 1, 2019 in the Intake Part for a Preliminary Conference.

The foregoing constitutes the decision and order of the court.

Notes:

[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.

[2] In any event, as the court states in Meyer v. Uber Tech., Inc., 868 F.3d 66, 76 (2d Cir. 2017).: Classification of web-based contracts alone, however, does not resolve the notice inquiry. See Juliet M. Moringiello and William L. Reynolds, From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 Md. L.Rev. 452, 466 (2013) (“Whether terms are classified as clickwrap says little about whether the offeree had notice of them.”). Insofar as it turns on the reasonableness of notice, the enforceability of a web based agreement is clearly a fact-intensive inquiry. SeeSchnabel, 697 F.3d at 124.

[3] Meyer v. Uber Techs., Inc., 868 F.3d 66 (2017)