The dissent in this case argues because the release was not presented to the plaintiff until he had traveled to the resort it should be void.

Case was moved from plaintiff’s town to the ski area home town based on the venue selection clause in equipment rental release. However the dissent would void venue selection clause because it was only presented to the plaintiff after the plaintiff traveled to the skis area. The dissenting judge had federal decisions that supported him.

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

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

Plaintiff: David Karlsberg

Defendant: Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain

Plaintiff Claims: failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility

Defendant Defenses: Release changes the venue

Holding: For the Defendant, venue changed

Year: 2015

This is a simple case. The plaintiff traveled to Hunter Mountain Ski Bowl, in upper New York. Upon arrival the plaintiff signed an equipment release. He rented a snowboard and took a snowboarding lesson. How he was injured was not in the decision.

The plaintiff filed suit in Suffolk County New York (Long Island). The equipment release the plaintiff signed had a jurisdiction clause that stated any lawsuits had to “be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”

The trial court transferred the case and the plaintiff appealed.

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

The decision, a New York Appellate court decision was short. It simply said the trial court was correct. The decision reviewed the claims of the plaintiff for the reasons why the release should be voided.

Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not contravene public policy  Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was made within a reasonable time after the commencement of the action

However, no reasons were given why the claims were denied.

The dissenting opinion was longer. The dissent basically argued “the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.”

The dissent then went through New York Law and case law from the federal courts in New York. The federal courts have upheld claims like the plaintiff’s that the release should be void because it was presented after the plaintiff had traveled and arrived at the destination.

However there was one prior case, almost identical to this one where the release was upheld even through claims of voiding the release because the plaintiff had traveled without knowing he or she would sign a jurisdiction and venue clause were denied. As such, the decisions from the state courts were controlling and basically “overruled” the federal court decisions because the decisions involved an interpretation of state law.

So Now What?

Avoid making the courts wonder about your relationship with the plaintiff and whether you attempted to hide information from the plaintiff or mislead the plaintiff. On your website and in your brochure tell prospective clients that they have to sign a release when they arrive.

Better, please the release online so they can review the release and see what they are signing. Releases are signed every day for all sorts of activities should it should be no shock that your clients will be signing one. Consequently don’t be afraid to be honest and tell them in advance.

If, upon arrival, a guest decides they don’t want to sign your release what are you going to do? The guest will have a valid claim for you to repay all of their money for the travel they incurred. Are you prepared to refund all of the money the guest spent with you and possibly repay what the guest spent to get to your destination?

Easier to post your release online and tell your clients in advance they have to sign it then to write a check when they find out and are upset about it.

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Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

David Karlsberg, appellant, v Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain, respondent. (Index No. 38816/11)

2014-05431

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

September 23, 2015, Decided

COUNSEL: [*1] The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Meir Katz of counsel), for appellant.

Carol A. Schrager, New York, N.Y. (Beth A. Willensky of counsel), for respondent.

JUDGES: JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ. LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.

OPINION

[***746] DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), entered March 24, 2014, as, upon reargument, adhered to a prior determination in an order of the same court dated December 3, 2012, granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.

ORDERED that the order entered March 24, 2014, is affirmed insofar as appealed from, with costs.

On March 19, 2011, the plaintiff sought beginner snowboarding lessons at the defendant’s facility, and signed an “Equipment Rental Form and Release of Liability” that provided, among other things, that

“all disputes arising under this contract and/or the use of this equipment and/or the use of the facilities [*2] at Hunter Mountain Ski Bowl, shall be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”

In December 2011, the plaintiff commenced this action in the Supreme Court, Suffolk County, alleging that an instructor employed by the defendant failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility. In September 2012, the defendant moved, inter alia, pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.

Upon reargument, the Supreme Court properly adhered to its original determination [***747] granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County. Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not [**2] contravene public policy (see Molino v Sagamore, 105 AD3d 922, 923, 963 N.Y.S.2d 355; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 651, 897 N.Y.S.2d 649; LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 N.Y.S.2d 657). Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was [*3] made within a reasonable time after the commencement of the action (see CPLR 511[a]; Medina v Gold Crest Care Ctr., Inc., 117 AD3d 633, 634, 988 N.Y.S.2d 578; Bonilla v Tishman Interiors Corp., 100 AD3d 673, 953 N.Y.S.2d 870).

LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.

CONCUR BY: DICKERSON

CONCUR

DICKERSON, J., concurs in the result, on constraint of Molino v Sagamore (105 AD3d 922, 963 N.Y.S.2d 355), with the following memorandum:

I vote with the majority on constraint of this Court’s precedent, but I write separately to express my view that the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.

In Molino, the injured plaintiff made a reservation to stay as a guest at a resort in Warren County (see id.). Upon arrival, and while registering for the stay, the injured plaintiff signed a document, entitled “Rental Agreement,” containing a provision stating that “if there is a claim or dispute that arises out of the use of the facilities that results in legal action, all issues will be settled by the courts of the State of New York, Warren County” (id.). After the injured plaintiff allegedly tripped and fell on the resort’s property, she, and her husband suing derivatively, commenced an action against the resort in the Supreme Court, Queens County (see id.). This Court held that the Supreme [*4] Court should have granted the defendant’s motion pursuant to CPLR 501 and 511 to change the venue of the action from Queens County to Warren County, concluding that the plaintiffs failed to demonstrate that: (1) enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy; (2) the clause was invalid because of fraud or overreaching; or (3) a trial in the selected forum of Warren County would, for all practical purposes, deprive them of their day in court (see id. at 923).

In so holding, the Molino Court cited Carnival Cruise Lines, Inc. v Shute (499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622) for the proposition that “the fact that the Rental Agreement containing the forum selection clause was presented to the plaintiffs at registration and was not the product of negotiation does not render it unenforceable” (Molino v Sagamore, 105 AD3d at 923). In Carnival Cruise Lines, the United States Supreme Court concluded that the United States Court of Appeals for the Ninth Circuit erred in refusing to enforce a forum selection clause contained on the face of cruise tickets issued to the plaintiffs in that case. However, the United States Supreme Court noted that it did not “address the question of whether [the plaintiffs] [***748] had sufficient notice of the forum selection clause before [*5] entering the contract for passage” (Carnival Cruise Lines, Inc. v Shute, 499 US at 590) because the plaintiffs had essentially conceded that they had notice of the forum selection provision and the Ninth Circuit had evaluated the enforceability of the forum clause under the assumption, although ” doubtful,'” that the passengers could be deemed to have knowledge of the clause (id., quoting Shute v Carnival Cruise Lines, 897 F2d 377, 389 n 11 [9th Cir]).

In Sun Trust Bank v Sun Intl. Hotels Ltd. (184 F Supp 2d 1246 [SD Fla]) and Foster v Sun Intl. Hotels, Ltd. (2002 WL 34576251, 2002 US Dist LEXIS 28475 [SD Fla, No. 01-1290-CIV]), the United States District Court for the Southern District of Florida concluded that forum selection clauses set forth in reservation forms that were not shown to consumers until they arrived at a resort were unenforceable because the consumers were not given an adequate opportunity to consider the clause and reject their contracts with the resort (see Foster v Sun Intl. Hotels Ltd., 2002 WL 34576251, *1, 2002 US Dist LEXIS 28475 *3-4; Sun Trust Bank v Sun Intl. Hotels Ltd., 184 F Supp 2d at 1261-1262). Similarly, in Ward v Cross Sound Ferry (273 F3d 520 [2d Cir]), the United States Court of Appeals for the Second Circuit held that a contractual statute of limitations clause set forth in a ticket issued to a cruise passenger just minutes before she boarded a ship, and then collected at boarding, was not enforceable because the circumstances did not permit the passenger to become meaningfully informed of the contractual terms at stake (see id. at 523-526). By contrast, where forum selection clauses have been sent [*6] to consumers or travel agents prior to the [**3] consumer’s arrival at the subject resort, or where consumers had visited the subject resort on previous occasions and signed forms containing similar forum selection clauses, the United States Court of Appeals for the Eleventh Circuit has found that the clauses were reasonably communicated to the consumers and, thus, enforceable (see McArthur v Kerzner Intl. Bahamas Ltd., 607 Fed. Appx. 845, 2015 WL 1404409, *1-2, 2015 US App LEXIS 5058, *6-7 [11th Cir, No. 14-138897]; Pappas v Kerzner Intl. Bahamas Ltd., 585 Fed Appx 962, 965-966 [11th Cir]; Estate of Myhra v Royal Caribbean Cruises, Ltd., 695 F3d 1233, 1246 [11th Cir]; Krenkel v Kerzner Intl. Hotels Ltd., 579 F3d 1279, 1282 [11th Cir]).

While I believe that the federal cases discussed above set forth the better rule, the doctrine of stare decisis dictates that we follow our prior decision in Molino, which is factually indistinguishable from this case in all relevant respects (see Matter of State Farm Mut. Auto Ins. Co. v Fitzgerald, 25 NY3d 799, 2015 NY Slip Op 05626 [2015]; Eastern Consol. Props. v Adelaide Realty Corp., 95 NY2d 785, 788, 732 N.E.2d 948, 710 N.Y.S.2d 840). Accordingly, I agree with the majority that the subject forum selection clause was enforceable, notwithstanding the fact that it was shown to the plaintiff for the first time upon his arrival at the defendant’s facility. I also agree with the majority’s other conclusions, and that, upon reargument, the Supreme Court properly adhered to its prior determination granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.