Each state had its landmines on how releases are to be written
Posted: January 28, 2019 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: amusement, Arbitration, compel arbitration, Consumer, cross-motion, establishment, font, negligence liability, personal knowledge, Recreation, Release, Tough Mudder, urban mudder, Void, Waiver Leave a commentIn several states, New York as in this case, the land mines might be too many and other options should be explored.
A Tough Mudder event used a release in NY that required arbitration. The Release was thrown out by the court, consequently the requirement for arbitration was thrown out.
Arbitration works to reduce damages; however, you should only use an arbitration clause when you can’t win because you don’t have a release. In every other state other than NY, the arbitration clause might have been a worse decision.
State: New York, Supreme Court of New York, Kings County
Plaintiff: Isha
Defendant: Tough Mudder Incorporated d/b/a/ Urban Mudder
Plaintiff Claims: Negligence
Defendant Defenses: Contract
Holding: For the Plaintiff
Year: 2018
Facts
The plaintiff was injured in an Urban Mudder event, which appears to be something like a Tough Mudder but in a city? Other than that, there are no facts in the decision.
Analysis: making sense of the law based on these facts.
The defendant motioned to have the dispute arbitrated because the contract, the release, required arbitration.
Defendant contends that this dispute should be arbitrated pursuant to the contract be-tween the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy
The plaintiff argued that arbitration was invalid because a NY statute prohibits arbitration of consumer contracts.
Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.
Plaintiff also argued the contract was void because it violated NY Gen. Oblig Law § 5-326.
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The court found contract violated NY Gen. Oblig Law § 5-326 and was thrown out by the court. Once the agreement was thrown out in its entirety, the arbitration clause was also thrown out.
Two different statutes took the only defenses outside of assumption of the risk and through them out the door.
The court found because there was a dispute, a triable issue of fact, the motion to dismiss failed and the parties would proceed to trial on this fact alone. The size of the type font on the agreement was enough to throw the defendant into the courtroom.
So Now What?
When you have a release, in a state where releases are valid, arbitration clauses usually create a better position for the plaintiff. Most arbitrations do not allow the award of punitive damages or any special damages unless specifically allowed in a statute. However, most arbitrations split the middle and award damages to the plaintiff.
A well written release in a state where releases are upheld the plaintiff gets nothing, or less.
However, in a state like New York or the other states that do not support the use of a release, (See States that do not Support the Use of a Release), you must use an assumption of risk clause. Assumption of the risk is a defense in most states, again, for sporting and recreational activities. An assumption of the risk agreement does not run afoul of any statute that I have discovered or been made aware of and also works for minors who can understand the agreement and the risk.
Assumption of risk clauses can also contain arbitration clauses. When faced with a situation where you do not have the option of using a release, an assumption of the risk clause with an arbitration clause is your best defense position.
Typeface? If the judge can’t read it, your typeface is too small. Always use typeface in your release that is at least 10 pt. and may be larger. Small type face has been a joke for decades in dealing with the fine print in contracts. It is not a reality.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
Posted: January 21, 2019 Filed under: Legal Case, New York, Racing | Tags: amusement, Arbitration, compel arbitration, Consumer, cross-motion, establishment, font, negligence liability, NY General Obligations Law, personal knowledge, Recreation, Release, Tough Mudder, urban mudder, Void Leave a commentIsha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
[**1] Isha, Plaintiff, against Tough Mudder Incorporated d/b/a/ Urban Mudder, Defendant. Index Number 512947/2016
512947/2016
SUPREME COURT OF NEW YORK, KINGS COUNTY
2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
September 21, 2018, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
JUDGES: [*1] DEVIN P. COHEN, Acting Justice, Supreme Court.
OPINION BY: DEVIN P. COHEN
OPINION
DECISION/ORDER
Upon the foregoing papers, defendant’s motion to compel arbitration and plaintiff’s cross-motion for an order denying defendant’s motion and invalidating the Waiver Agreement between the parties, is decided as follows:
Plaintiff brings this action against defendant seeking damages for injuries she sustained when she participated in defendant’s “Urban Mudder” event. Defendant contends that this dispute should be arbitrated pursuant to the contract between the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy (159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176, 205, 71 N.Y.S.3d 87 [2d Dept 2018]). Defendant provides a copy of the contract, which states that all disputes between the parties shall be submitted to binding arbitration with the American Arbitration Association.
Plaintiff argues the arbitration contract is invalid pursuant to GBL § 399-c, which prohibits mandatory arbitration in consumer contracts. Defendant contends that the Federal Arbitration Act preempts GBL § 399-c because defendant’s business is involved in interstate commerce (Marino v Salzman, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [App Term, 2d Dept 2016] [**2] ; Ayzenberg v Bronx House Emanuel Campus, Inc. (93 AD3d 607, 608, 941 N.Y.S.2d 106 [1st Dept 2012]). However, defendant provides no evidence from someone with personal knowledge [*2] of this factual claim (cf Marino, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [holding that the FAA preempted GBL § 399-c in that case because an employee of defendant submitted an affidavit wherein he stated that defendant was a multi-state company with business in several states]). Accordingly, defendant has not established that the FAA applies and, as a result, whether the arbitration provision is enforceable here.
Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.
In opposition, defendant submits the affidavit of Johnny Little, the Director of Course and Construction with defendant, who states [*3] that the font used in the contract was 8-point, Times New Roman. Mr. Rosen further states that defendant forwarded a draft of the contract, in Microsoft Word format, to be professionally printed for the event, without any reduction in font size. Accordingly, there is a triable issue of fact as to whether the document is 8-point font.
Finally, plaintiff argues that the waiver of liability clause in her contract with defendant is void because violates N.Y. Gen. Oblig. Law § 5-326, which prohibits contracts between the “owner or operator of [**3] any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” 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”. Plaintiff does not object to the substance of any other portion of the contract.
Defendant contends that the Urban Mudder event is not a place of amusement or recreation. While the statute does not define these terms, courts have applied them to a range of activities, such as rock climbing (Lee v Brooklyn Boulders, LLC, 156 AD3d 689, 690, 67 N.Y.S.3d 67 [2d Dept 2017]), motocross (Sisino v Is. Motocross of New York, Inc., 41 AD3d 462, 463, 841 N.Y.S.2d 308 [2d Dept 2007]), automobile racing (Knight v Holland, 148 AD3d 1726, 1727, 51 N.Y.S.3d 749 [4th Dept 2017]), sky diving (Nutley v SkyDive the Ranch, 65 AD3d 443, 444, 883 N.Y.S.2d 530 [1st Dept 2009]), spa activities (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 250, 835 N.Y.S.2d 170 [1st Dept 2007]), and horseback riding (Filson v Cold Riv. Trail Rides Inc., 242 AD2d 775, 776, 661 N.Y.S.2d 841 [3d Dept 1997]).
Defendant’s attempt [*4] to distinguish the Urban Mudder event from these activities is unavailing. As an initial matter, defendant counsel’s description of the event holds no evidentiary value, as counsel does not establish his personal knowledge of these events. Secondly, even if this court were to accept counsel’s description, the event’s “rigorous” and “athletic” nature is no different than the other activities listed above. Furthermore, counsel’s assertion that these other applicable activities did not require “physical preparation” is simply baseless. Accordingly, this court finds that the contract’s waiver of negligence liability violates N.Y. Gen. Oblig. Law § 5-326.
[**4] For the foregoing reasons, defendant’s motion to compel arbitration is denied and plaintiff’s cross-motion is granted to the extent that the contract’s waiver of negligence liability is deemed void.
This constitutes the decision and order of the court.
September 21, 2018
DATE
/s/ Devin P. Cohen
DEVIN P. COHEN
Acting Justice, Supreme Court
Twenty Years ago, releases were void in New York, here; a release stopped a claim for an injury from a plaintiff playing flag football
Posted: January 29, 2018 Filed under: New York, Release (pre-injury contract not to sue), Sports | Tags: amusement, Binding, causes of action, conclusively, dispose, documentary evidence, duress, enforceable, entitlement, establishment, exempt, facie, flag, Flag Football, Football, gymnasium, illegality, league, matter of law, mutual, participating, Place of Amusement, playing, producing, Public Policy, Recreation, recreational facilities, Release, Release / Waiver, signing, supporting papers, unambig-uous, unenforceable, Void Leave a commentNew York has a statute that voids releases if used by places of amusement where you pay to enter. Issue in this case was, did the plaintiff pay to enter the field or pay the league.
By paying the league, he did not pay a place of amusement, and the release stopped his claims.
State: New York: Supreme Court of New York, Suffolk County
Plaintiff: Murat Marcf
Defendant: Middle Country Center School District, Long Island Flag Foot-Ball League, Inc. and Long Island Flag Football, Inc.,
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the Defendant
Year: December 2017
This case is one of many showing how release law has changed over the years. New York was a state that once barred releases and now easily enforces them. If you use releases, you must stay current on the law affecting your release. You probably also need to have your release updated. Contact me if you need your release checked.
Summary
New York GOL § 5-326 states that in New York places of amusement, where the patrons pay to enter or play are void. Here the place of amusement was a football field owned by the defendant. However, the plaintiff did not pay the defendant to play on the field; he paid the flag football league so the release he signed was valid and stopped his claims.
Facts
The plaintiff was injured playing flag football. His flag football game was part of a league. The plaintiff paid the league to play, and the league organized games and places to play.
The plaintiff jumped to receive a pass and landed on a concealed sprinkler head inuring is foot. He sued to recover for his injuries. The field he was playing on was owned by the defendant school district.
Before playing the plaintiff signed a release. The defendants filed a motion to dismiss the plaintiff claims based upon the release. The following is the court’s analysis and dismissal of the plaintiff’s complaint.
Analysis: making sense of the law based on these facts.
The court thoroughly went through release law in New York. The court referred to the release as documentary evidence that must resolve all factual issues if the motion was to be granted.
For the release to be valid, the terms of the release must be clear, unambiguous and conclusively dispose of the matter. A release is a contract and will be governed by contract law. If the release is not void by statute or public policy a release absolving a party of negligence will be enforced.
The court found the language of the release was clear and unambiguous and thus enforceable and binding upon the parties. The release is valid and enforceable unless the plaintiff claims duress, illegality, fraud or mutual mistake. Here the plaintiff did not plead any of those.
Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against public policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of the plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain places of public amusement, recreation and similar establishments from liability.
General Obligations Law § 5-326 was enacted to stop gyms from using a release. The courts have not looked at the statute from stopping places of amusement from using a release.
In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the individual paid a fee for use of the facility…
Here the plaintiff did not pay to use the field, the place of amusement. The plaintiff paid to join the league. The field was used for free by the league.
A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred…
Because the plaintiff did not pay the “place of amusement” the owner of the field, GOL §5-326 did not apply.
So Now What?
Release law evolves, constantly. The evolution of releases in New York went from they were void because of GOL §5-326, to unless the plaintiff can prove an exact relationship to the defendant and the statute the release will be valid.
If you use a release, you must stay current on release law. Read these articles and if your release has not been updated in a while contact me.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
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,
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