States that do not Support the Use of a Release.

Assumption of the risk is your best defense in these states.

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues/Article

Releases are Void
Louisiana C.C. Art. 2004 (2005) Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Virginia Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) Except for Equine Activities Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited
Oregon Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Use of a Release is Restricted
Arizona Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53
New Mexico Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48
P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
State created Equine Liability Statute so no need for release
West Virginia Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;
1994 W. Va. LEXIS 161
Use of Releases is Probably Void
Connecticut Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006
Conn. LEXIS 330
Mississippi Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375 Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.
Wisconsin Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 Wisconsin decision has left the status of release law in Wisconsin in jeopardy
Wisconsin Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121 Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.
Vermont Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127
Specific uses of Releases are Void
Alaska Sec. 05.45.120(a). Use of liability releases A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.
Hawaii King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004) Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release
New York General Obligation Law § 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.
Not Sure Where the Supreme Court Stands at This Time
Montana MCA § 27-1-701 Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.
However, Montana passed the Montana Recreation Responsibility Act which now allows the use of a release for Recreational activities. This Act has not been reviewed by the courts.
Utah Decisions for Releases
Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident

Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

Decisions Against Releases

Utah Supreme Court Reverses long position on releases in a very short period of time

Utah seems to be adopting a position against releases. So far, they are invalidating releases if the legislature has created a statute protecting an activity.
However, they have had several decisions supporting releases. Good luck

What do you think? Leave a comment.

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Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Michael Marino, an infant under the age of 18, by his Mother and Natural Guardian, Elena Marino, and Elena Marino, Individually, Plaintiffs,

v.

Richard Morrison, Jr, Carmela Morrison and Richard Bedrosian, Defendants.

No. 2016-31876

Index No. 10-11831

CAL. No. 15-00738OT

Supreme Court, Suffolk County

September 8, 2016

Unpublished Opinion

MOTION DATE 9-15-15

ADJ. DATE 3-1-16

SURIS & ASSOCIATES, P.C. Attorney for Plaintiffs.

JOHN T. McCARRON, PC Attorney for Defendant C. Morrison.

PENINO & MOYNIHAN, LLP Attorney for Defendant Bedrosian.

PRESENT: Hon. PETER H. MAYER, Justice

PETER H. MAYER, J.S.C.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by defendant Carmela Morrison, dated August 19, 2015, and supporting papers; (2) Notice of Cross Motion by defendant Richard Bedrosian, dated August 19, 2015, and supporting papers; (3) Affirmation in Opposition by plaintiffs, dated December 1, 2015, and supporting papers; (4) Reply Affirmations by defendants, dated February 28, 2016 and January 4, 2016, and supporting papers; (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. 001) by defendant Carmela Morrison and the motion (seq, 002) by defendant Richard Bedrosian are consolidated for purposes of this determination; and it is

ORDERED that the motion by defendant Carmela Morrison for summary judgment dismissing the complaint against her is granted; and it is further

ORDERED that the motion by defendant Richard Bedrosian for summary judgment dismissing the complaint against him is granted.

This action was commenced by plaintiff to recover damages for injuries infant plaintiff Michael Marino allegedly sustained as a result of an accident involving an all-terrain vehicle (ATV) on July 28. 2009. The complaint alleges that Mr. Marino was a passenger on the rear seat of the ATV, that he was caused to be ejected from the ATV, and that the accident took place on property located behind the address known as 29 Buckingham Drive, Dix Hills, New York. Elena Marino individually asserts a derivative claim for loss of love, services, companionship, and household support. Defendant Richard Bedrosian asserts cross claims against defendant Richard Morrison, Jr., who has tailed to appear in this action.

Defendant Carmela Morrison now moves for summary judgment in her favor on the grounds that she is exempt from liability pursuant to General Obligations Law §9-103. that Mr. Marino assumed the risk inherent in the activity, and that plaintiffs lack knowledge as to the location of the alleged accident or the manner in which it occurred. In support of her motion, Ms. Morrison submits copies of the pleadings and transcripts of the deposition testimony of Michael Marino, Richard Bedrosian, and herself.

Defendant Richard Bedrosian also moves for summary judgment in his favor on the grounds that he is exempt from liability pursuant to General Obligations Law § 9-103, plaintiffs lack knowledge as to the location of the alleged accident or die maimer in which it occurred, and he had no knowledge that Mr. Marino was present on his property, and Mr. Marino assumed the risk inherent in the activity. In support of his motion, he submits copies of the pleadings and transcripts of the deposition testimony of himself and Michael Marino.

At his deposition, infant plaintiff Michael Marino testified that, on the date in question, he was 15 years old and was spending time at the house of his school friend, Richie Morrison. Mr. Marino indicated that Mr. Morrison’s father purchased an ATV for Mr. Morrison “a few years” prior, which was parked on the premises next to a shed. Mr. Marino explained that he, Mr. Morrison, and Mr. Morrison’s cousin were waiting for a few friends to arrive at Morrison’s house. Mr. Marino testified that at some point, after it had gotten dark outside and when Mr. Morrison’s parents were not home, Mr. Morrison and his cousin began drinking liquor they had stolen from Mr. Morrison’s parents’ liquor cabinet, Mr. Marino explained that the young men had been playing video games in Mr. Morrison’s basement for a number of hours, but eventually went into the backyard, at which time Mr. Morrison and Mr. Morrison’s cousin began driving the ATV in question around the backyard of the premises. Mr. Marino, upon being offered a ride on the ATV, stated that he climbed aboard and sat behind Mr. Morrison and that neither one of them wore a helmet. Mr. Marino testified that after he sat down on the ATV, Mr. Morrison began driving it on the premises and the next thing he remembers is waking up in a basement with people “picking branches out of [his] head.” He stated that although they started out riding the ATV in Mr. Morrison’s backyard, due to his losing consciousness he is unable to identify exactly where the accident took place. Mr. Marino testified that he later came to learn from “mutual friends” that the accident occurred due to the ATV’s brakes failing, the ATV hitting something, and he and Mr. Morrison being thrown off the ATV. Mr. Marino further testified that he was later informed by his friend, Peter Frisina, that he, too, was injured in a similar way on that same ATV.

Regarding his experience with ATVs. Mr. Marino testified that his father owned one and he had both driven it and been a passenger on it “since [he] was young, ” Mr. Marino stated that neither Carmela Morrison nor Richard Bedrosian ever gave him permission to ride on Mr. Morrison’s ATV, and that neither parent was aware of any alcohol consumption by the young men.

At her deposition, Carmela Morrison testified that her partner, Richard Bedrosian, owns the subject premises. She further testified that she was not home at the time of the alleged ATV accident, but was told by various parties that, contrary to plaintiffs’ allegations, Mr. Marino had been the driver of the ATV and that her son was the rear passenger. Ms. Morrison indicated that she had taken her son and Mr. Marino to the beach earlier in the day with Mr. Marino’s mother’s permission. She stated that at approximately 6:00 p.m., after they all had returned to the subject premises, she left the house in order to attend a networking event. She explained that she asked Mr, Marino if his mother was coming to pick him up and he said “yes.” She informed him that he was welcome to stay to eat some pizza that she had recently ordered. She testified that she then left the young men at the premises with Mr. Morrison’s 20-year-old sister, Kristina, who was preparing to go out and was not present at the time of the accident. Carmela Morrison indicated that at approximately 8:00 p.m. she received a call saying that there had been an accident at the premises and she went home immediately. When asked whether her son obtained permission from her to use the ATV on the date in question, she replied “[a]bsolutely not.” Regarding prior accidents involving the ATV, Ms. Morrison testified that a few months prior to the date in question, Mr. Morrison’s friend, Peter, was driving it, fell off of it, and sustained scratch to his face. She further testified that after Peter’s fall, she “took the key and gave it to Bedrosian and said T don’t want this ATV used at alt.'”

At his deposition, Richard Bedrosian testified that he is the owner of the subject premises, but does not know exactly where the accident in question occurred, although he was told by his girlfriend, Carmela Morrison, that it happened “off property, ” on state land behind his backyard. He stated that his property is approximately 1.9 acres in size, completely fenced, with the backyard consuming % of that land. Of that backyard, he explained, Vi of it is ungroomed woods. Regarding the ATV in question, Mr. Bedrosian testified that it was a Christmas gift from Mr. Morrison’s biological father, defendant Richard Morrison, Jr., to Mr. Morrison, which he received approximately seven months before the accident. Mr. Bedrosian testified that he strongly disapproved of the ATV being on his property, but was told by Mr. Morrison’s father that he had no place to store it. Mr. Bedrosian indicated that Mr. Morrison would occasionally drive it around the backyard in circles or into the wooded area, but that Mr. Morrison’s father promised Mr. Bedrosian that he would take Mr. Morrison to off-premises locations to ride it and, based on that proviso, Mr. Bedrosian allowed the ATV to be stored on his property. Mr. Bedrosian testified that Mr. Morrison was forbidden from operating it if he or Carmela Morrison were not home.

Regarding the date in question, Mr. Bedrosian testified that he was told by Carmela Morrison, Mr. Morrison, and Tony Yacende that Mr. Marino was the driver of the ATV at the time and that Mr. Morrison was the passenger. Also, Mr. Bedrosian explained that no one was permitted to operate the ATV on the date in question because he had taken its only key and put it in a desk in his home office- a location that was “off limits to everybody.”

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 19 N.Y.S.3d 488 [2015]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra; see also Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Daliendo v Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept 1989]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).

It is axiomatic that for a plaintiff to recover against a defendant in a negligence action, plaintiff must prove defendant owed plaintiff a duty and that the breach of that duty resulted in the injuries sustained by plaintiff (see Lugo v Brentwood Union Free School Dist, 212 A.D.2d 582, 622 N.Y.S.2d 553 [2d Dept 1995]; Kimbar v.Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197 [1956]).

“The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of die sport generally and flow from such participation” (Shivers v Elwood Union Free Sch. Dist, 109 A.D.3d 977, 978 [2d Dept 2013] [internal quotation omitted]; see Trupia v Lake George Cent. School Dist, 14 N.Y.3d 392, 901 N.Y.S.2d 127 [2010]; Morgan v State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421 [1997]). “A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law” (id at 978; see Leslie v. Splish Splash at Adventureland, 1 A.D.3d 320, 766 N.Y.S.2d 599 [2d Dept 2003]; Morgan v State of New York, supra). “It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Cruz v Longwood Cent Sch. Dist., 110 A.D.3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013] [internal quotation omitted]).

“There is … a duty by a parent to protect third parties from harm resulting from [his or her] infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use” (Nolechek vGesuale, 46 N.Y.2d 332, 336, 413 N.Y.S.2d 340 [1978]), “Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments” (id. at 339). “In order for a third-party claim of this kind against a parent or guardian . . . negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities” (LaTorre v Genesee Mgmt, 90 N.Y.2d 576, 584, 665 N.Y.S.2d 1 [1997]).

Defendants Carmela Morrison and Richard Bedrosian, both relying on nearly identical arguments in support of their motions, have established a prima facie case of entitlement to summary judgment by offering sufficient proof that Mr. Marino voluntarily assumed die risks inherent in riding an ATV (see Shivers v Elwood Union Free Sch. Dist., supra; see generally Alvarez v Prospect Hosp., supra). Moving defendants proved that Mr. Marino voluntarily boarded the ATV, either as a driver or a passenger, having possessed significant prior experience with such machines. Further, there is nothing in the record indicating that Mr. Marino did not have full awareness of Mr. Morrison’s consumption of alcohol, if true, the weather and lighting conditions, and the landscaping of the backyard prior to riding on the ATV. Even if the Court were to assume, for the purposes of this decision, that Mr. Morrison’s consumption of alcohol, or some other factor, exceeded the level of risk Mr. Marino can be said to have assumed, plaintiffs have not proven the manner in which Mr. Marino allegedly sustained his injuries or even that Mr. Marino’s injuries were sustained on Mr. Bedrosian’s property. Accordingly, moving defendants, having established their entitlement to summary judgment on the ground of Mr. Marino’s primary assumption of the risk, the Court need not reach defendants’ other arguments.

Defendant having established a prima facie case entitlement to summary judgment, the burden shifted to plaintiff to raise an issue of fact necessitating a trial (see Alvarez v Prospect Hosp., supra). Plaintiffs argue that: (1) General Obligations Law § 9-103 does not apply to the facts of this case; (2) that enhanced risks were present at the time of Mr. Marino’s alleged injury, which he cannot be expected to assume; and (3) defendants owed a duty of care to Mr. Marino and failed to supervise him properly. In opposition, plaintiffs submit a copy of the Bill of Particulars and Michael Marino’s own affidavit.

Generally, “a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing [his or her] right to recover for [his or her] injuries as a plaintiff who can describe the events in question” (Menekou v Crean, 222 A.D.2d 418, 419, 634 N.Y.S.2d 532 [2d Dept 1995]; Sawyer v Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 502 N.Y.S.2d 696 [1986]; Santiago v Quattrociocchi, 91 A.D.3d 747, 937 N.Y.S.2d 119 [2d Dept 2012]). However, in order to invoke that lower burden of proof, plaintiff must not only make a prima facie case, but must also submit an expert’s affidavit demonstrating the amnesia through clear and convincing evidence (Menekou v Crean, supra). Plaintiffs have failed to meet that burden here. Therefore, plaintiffs’ attempts to raise triable issues will be evaluated in the usual manner (see Alvarez v Prospect Hosp., supra).

As Richie Morrison, Tony Yacende, and Peter Frisina have not been deposed, the Court must decide this matter solely on the three deposition transcripts and single affidavit submitted by the parties herein. The undisputed facts can be summarized as follows: (I) Mr. Bedrosian owned the subject premises, but was unaware of Mr. Marino’s presence there at the time of the incident; (2) Mr. Marino, Mr. Morrison, and Mr. Yacende were unsupervised for a period of time on the evening in question; (3) Mr. Marino voluntarily rode on an ATV while not wearing protective equipment; (4) Mr. Marino was knocked unconscious at some point in the evening and awoke in a basement surrounded by friends and his father; (5) Mr. Marino was transported to the hospital via ambulance; (6) Peter Frisina sustained an injury while riding the subject ATV on an occasion prior to plaintiffs alleged injuries; and (7) Ms. Morrison and Mr. Bedrosian took the keys for the ATV away from Mr. Morrison and forbade Mr, Morrison using the ATV after Peter Frisina’s injury.

Here, plaintiffs rely almost entirely on hearsay not subject to any exception, in an attempt to raise triable issues. Any reference by plaintiffs’ counsel to “defective” brakes is unfounded and speculative (see Daliendo v Johnson, supra). Further, plaintiffs have failed to provide any proof as to the mechanism of Mr. Marino’s alleged injury (see Passaro v Bouquio, 79 A.D.3d 1114, 914 N.Y.S.2d 905 [2d Dept 2010]}. Based upon the admissible, non-hearsay evidence submitted, it is just as likely that Mr. Marino jumped from the moving ATV; took an uneventful ride on the ATV, then attempted to climb a tree and fell to the ground; or was hit in the head by some unknown object, causing him to become unconscious, as it is that the ATV crashed and he was thrown from it. Furthermore, the “dangerous instrument” exception is inapplicable here, as plaintiffs have not submitted evidence that movants gave Mr. Morrison permission to use the ATV or supplied him with access to it (see Nolechek v Gesuale, supra). Instead, uncontroverted evidence has been submitted that movants took affirmative steps to deny use of the ATV to Richie Morrison.

Accordingly, the motions by defendants Carmela Morrison and Richard Bedrosian for summary judgment in their favor dismissing the complaint against them is granted.


States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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

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

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

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

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

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

Plaintiff Claims: allege negligent instruction and supervision

Defendant Defenses: Child assumed the risk and release

Holding: Decision was mixed concerning the evidentiary issues

Year: 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This case as of March 2017 is proceeding to trial.

So Now What?

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

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

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

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

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

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

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

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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

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

Bryan DiFrancesco as father and natural guardian of the infant minor, LD, Plaintiffs, v. Win-Sum Ski Corp., Holiday Valley, Inc., Defendants.

13CV148

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

2017 U.S. Dist. LEXIS 39695

March 20, 2017, Decided

March 20, 2017, Filed

PRIOR HISTORY: DiFrancesco v. Win-Sum Ski Corp., 2017 U.S. Dist. LEXIS 24784 (W.D.N.Y., Feb. 22, 2017)

COUNSEL:  [*1] For Bryan DiFrancesco, as father and natural guardian of the infant minor, LD, Bryan DiFrancesco, Individually, Plaintiffs: Philip L. Rimmler, LEAD ATTORNEY, Russell T. Quinlan, Paul William Beltz, P.C., Buffalo, NY.

For Win-Sum Ski Corp, Holiday Valley, Inc., Defendants: Maryjo C. Zweig, Steven M. Zweig, LEAD ATTORNEYS, Cheroutes Zweig, PC, Hamburg, NY.

JUDGES: Hon. Hugh B. Scott, United States Magistrate Judge.

OPINION BY: Hugh B. Scott

OPINION

CONSENT

Order

The parties then consented to proceed before the undersigned as Magistrate Judge, including presiding over a jury trial (Docket No. 37). Presently before the Court are the parties’ first round of motions in limine in preparation for a jury trial. Defendants first submitted their motion in limine (Docket No. 53). Plaintiffs’ then filed their motion in limine (Docket No. 56). Defendants then supplemented their motion in limine (Docket No. 58). As scheduled in the Final Pretrial Order (Docket No. 40), these initial motions in limine were due by January 3, 2017 (id.), later extended at the parties’ request to January 6, 2017 (Docket No. 42); responses initially were due by January 17, 2017, and they were to be argued with the Final Pretrial Conference on January 18, [*2]  2017, and then be deemed submitted (Docket No. 40). Responses to these motions were postponed then and were due by February 3, 2017 (Docket No. 63), which defendants submitted (Docket No. 65) and plaintiffs submitted (Docket No. 66); and reply by February 10, 2017 (Docket No. 63), which defendants submitted (Docket No. 67) and plaintiffs submitted (Docket No. 68); and argument was held on February 16, 2017 (Docket Nos. 63, 69 (minutes)). These motions were deemed submitted at the conclusion of oral argument. During that argument, scheduling for the Pretrial Conference and jury selection and trial were discussed with the trial reset for July 17, 2017 (Docket No. 69; see Docket Nos. 70, 71). The jury selection and trial of this case was scheduled for February 1, 2017 (Docket No. 40, Final Pretrial Order), but was later adjourned (Docket Nos. 63, 64).

Separately, this Court addressed plaintiffs’ motion for a protective Order and to quash two subpoenas (Docket Nos. 43 (motion), 70, Order of February 22, 2017), familiarity with which is presumed.

BACKGROUND

This is a diversity personal injury action. Plaintiffs are a Canadian father and daughter, while defendants are New York corporations [*3]  which operate Holiday Valley. Plaintiff LD (hereinafter “LD,” cf. Fed. R. Civ. P. 5.2) was a five-year-old in 2010 who skied at Holiday Valley. Plaintiffs allege that LD was injured falling when from a chairlift at Holiday Valley (Docket No. 1, Compl.; see Docket No. 43, Pls. Atty. Decl. ¶ 3, Ex. B).

According to plaintiffs’ earlier motion, LD was participating in a ski lesson at Holiday Valley on February 15, 2010, under the supervision of defendants’ employee, a ski instructor, when she fell from the chairlift sustaining injuries to her left leg and left hip. Plaintiffs allege negligent instruction and supervision during the course of that lesson resulting in LD’s fall. (Docket No. 43, Pls. Atty. Decl. ¶¶ 3, 9, Ex. E; see id., Pls. Memo. at 1-2.)

The Scheduling Order (after extensions, see Docket Nos. 14-15, 20, 23, 25, 27) in this case had discovery conclude on April 30, 2015 (Docket No. 27; see Docket No. 43, Pls. Atty. Decl. Ex. D). No motions to compel were filed and the parties reported on October 5, 2015, readiness for trial (Docket No. 30). Plaintiffs’ motion to quash subpoenas and for a protective Order led to the parties exchanging supplemental discovery, which was to be completed by April 5, [*4]  2017 (Docket No. 70, Order of Feb. 22, 2017, at 21, 22). Defendants’ First Motion in Limine (Docket No. 53)

Pursuant to the Final Pretrial Order (Docket No. 40), defendants filed their motion in limine, seeking preclusion of portions of the opinions of plaintiffs’ expert, Dick Penniman; evidence of defendants’ subsequent remediation; and evidence of prior and subsequent incidents similar to the accident at issue (Docket No. 53). Plaintiffs’ response and defendants’ reply will be addressed below at each particular item. Plaintiffs’ Motion in Limine (Docket No. 56)

Plaintiffs also filed their timely motion in limine (Docket No. 56), seeking to preclude evidence that infant LD assumed the risk of riding the chairlift, evidence from LD’s injury at Holimont in 2015, and evidence of a disclaimer that plaintiffs argue is against public policy (id.).

Defendants argue that plaintiffs’ motion in limine is in fact an untimely motion for summary judgment and that issues of fact exist, hence there is no basis to preclude evidence as to plaintiffs’ assumption of the risk or comparative negligence (Docket No. 65, Defs. Memo. at 5-6). They contend that the registration form with the release signed by [*5]  LD’s uncle is admissible because the release tracks the “Warning to Skiers” required by New York General Obligations Law § 18-106(1)(a) and regulations under 12 N.Y.C.R.R. § 54.5(l)(1) (id. at 7). They fault plaintiffs for not addressing Vanderwall v. Troser Management, Inc., 244 A.D.2d 982, 665 N.Y.S.2d 492 (4th Dep’t 1997), leave to appeal denied, 91 N.Y.2d 811, 694 N.E.2d 883, 671 N.Y.S.2d 714 (1998) (id.). That case charged the jury there with express assumption of the risk for exposure to drainage ditches even though those risks were not enumerated in “Warning to Skiers,” Vanderwall, supra, 244 A.D.2d at 982, 665 N.Y.S.2d at 493 (id.). Defendants’ Supplemental Motion in Limine (Docket No. 58)

Defendants later supplemented their motion in limine seeking preclusion of undisclosed expert testimony and to limit as expert testimony from LD’s parents as to her treatment (both past and future) and LD’s physical therapist testifying as to causation and diagnosis (Docket No. 58).

Plaintiffs’ respond that they did provide disclosure of future medical expenses; alternatively, they contend that defendants waived any objection to an omitted response by not moving to compel or for preclusion (Docket No. 66, Pls. Memo. at 16-18).

During oral argument of plaintiffs’ motion for a protective Order and to quash the two subpoenas (Docket No. 69), the parties submitted on their respective papers for these motions in limine (id.). They also discussed the need to supplement [*6]  their disclosure, especially LD’s future medical treatment and needs (id.).

DISCUSSION

I. Applicable Standards

In a diversity jurisdiction action, this Court initially must apply the substantive law of our forum state, New York, see Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1983); Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 116 n.4 (2d Cir. 2002), including its choice of law regime, Klaxon v. Stentor, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). This Court has to apply New York law as construed by the highest court of the state, the New York State Court of Appeals, not the local intermediate appellate court. When the New York State Court of Appeals has not ruled on the particular question, this Court then has to predict the direction the Court of Appeals would go if given that issue, see Gasperini v. Center for Humanities, Inc., 66 F.3d 427, 430 (2d Cir. 1995).

In personal injury actions, New York generally applies the law of the jurisdiction in which the injury occurred. See Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 612 N.E.2d 277, 595 N.Y.S.2d 919 (1993); Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972). “New York’s current choice-of-law rules require the court to consider the following three elements: the domicile of the plaintiff, the domicile of the defendant, and the place where the injury occurred.” Lucas v. Lalime, 998 F. Supp. 263, 267 (W.D.N.Y. 1998) (Heckman, Mag. J., R&R, adopted by Arcara, J.). Where more than one element is in the same state, that state’s law should apply. Id.; Datskow v. Teledyne Continental Motors, 807 F. Supp. 941, 943 (W.D.N.Y. 1992) (Larimer, J.). Under these choice of law rules “the first step in any case presenting a potential choice of law is to [*7]  determine whether there is an actual conflict between the laws of the jurisdiction involved.” Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 223, 613 N.E.2d 936, 597 N.Y.S.2d 904, 905 (1993).

Here, the accident and defendants are in New York, plaintiffs are from Ontario. As a second1 Neumeier situation, New York law would apply, Neumeier, supra, 31 N.Y.2d at 128, 335 N.Y.S.2d at 70; Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 72, 612 N.E.2d 277, 595 N.Y.S.2d 919, 922 (1993) (conduct-regulating laws, the law of the jurisdiction where the tort occurs applies while loss allocation laws have additional factors to determine which jurisdiction applies, citations omitted). In addition, the parties in effect have stipulated to apply forum (New York) law to this case. Both sides cite New York law and made no reference to any other jurisdiction’s law having application. Neither side has presented any law that conflict with New York law. New York courts enforce stipulations to choice of law, see Hamilton v. Accu-Tek, 47 F. Supp.2d 330, 343 (E.D.N.Y. 1999) (citing, among other cases, Tehran-Berkeley Civil & Envtl. Eng’rs v. Tippetts-Abett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir. 1989) (parties briefed New York law, court applies New York law based upon implied consent of parties)); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 834 n.2 (2d Cir. 1967) (Friendly, J.); Klein v. Jostens, Inc., No. 83 Civ. 5351, 1985 U.S. Dist. LEXIS 18115, at *6 n.1 (S.D.N.Y. July 9, 1985). As a result New York law applies and the legal issues surrounding these evidentiary disputes will be resolved under New York law.

1 The second Neumeier situation is the defendant is from state A, plaintiff from state B, state A is where tort occurs; state A allows recovery, defendant cannot invoke state B’s law, similarly if state A does not allow recovery, defendant is not liable, thus state A’s law applies; or, as stated in New York Jurisprudence Conflict of Laws § 57, 19A N.Y. Jur., where local law favors respective domiciliary, the law of the place of injury generally applies, Neumeier, supra, 31 N.Y.2d at 128, 335 N.Y.S.2d at 70.

II. Application

A. Plaintiffs’ Motion in Limine, Docket No. 56

1. Preclude Evidence of LD’s Assumption of Risk

The heart of [*8]  this case is whether this five-year-old child can assume the risk inherent with riding and dismounting from a chairlift under New York law. Cases from New York State courts leave as an issue of fact for the jury whether a particular infant (regardless of the child’s age) was capable of assuming the risk of his or her activities. New York courts do not create a bright line rule that minors at five years or older are incapable of assuming risk, but cf. Smith v. Sapienza, 115 A.D.2d 723, 496 N.Y.S.2d 538 (2d Dep’t 1985) (holding, as matter of law, that three and a half year old child victim of dog attack was incapable of being held responsible for his actions for contributory negligence). New York common law “has long disclaimed any per se rule with regard to the age at which a child cannot legally assume a risk and thereby not be responsible for comparative fault for his or her injury,” Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 340, 770 N.Y.S.2d 58, 60 (1st Dep’t 2003) (Tom, J., dissent). The majority of Clark court held that assumption of risk doctrine did not apply to a five-year-old playing around exposed construction equipment, “where the danger was even more accessible [than another case cited] and the risk at least as unappreciated by this five-year-old plaintiff,” 2 A.D.3d at 340, 770 N.Y.S.2d at 60 (emphasis supplied), citing Roberts v. New York City Hous. Auth., 257 A.D.2d 550, 685 N.Y.S.2d 23 (1st Dep’t), leave to appeal denied, 93 N.Y.2d 811, 716 N.E.2d 698, 694 N.Y.S.2d 633 (1999), concluding [*9]  that instructing the jury on assumption of the risk was error as a matter of law, Clark, supra, 2 A.D.3d at 340, 770 N.Y.S.2d at 60. In Roberts, the Appellate Division held a “six-year old under these circumstances” that is, a child exposed to a steam line fenced off by an easily breached fence next to the lawn where children played, did not have the doctrine of assumption of risk apply, 257 A.D.2d at 550, 685 N.Y.S.2d 23, 23. Roberts provided an opportunity for establishing an age-based bright line rule but the court decided on the specific facts of that case; hence the standard plaintiffs are in effect arguing was not adopted by New York courts.

Plaintiff argues that LD was just days away from being one year older than the non sui juris status of age four and being incapable as a matter of law being culpable (Docket No. 66, Pls. Opp. Memo. at 4-5). Assumption of risk is a distinct defense from contributory negligence, see Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 165, 480 N.E.2d 365, 490 N.Y.S.2d 751, 754-55 (1985), but both defenses are subject to the doctrine of non sui juris, see M.F. v. Delaney, 37 A.D.3d 1103, 1104-05, 830 N.Y.S.2d 412, 414 (4th Dep’t 2007) (assumption of risk and culpable conduct by plaintiffs should have been dismissed because plaintiffs were 2 and 3 years old and hence were non sui juris). Plaintiffs point to the concept of non sui juris that absolves children of a certain age or younger from culpability since (as [*10]  a matter of law) they are incapable of comprehending danger to be negligent or responsible for her actions, Republic Ins. Co. v. Michel, 885 F. Supp. 426, 432-33 (E.D.N.Y. 1995) (Azrack, Mag. J.). Over the age of four, the status of a child is a question of fact regarding the particular child’s ability to comprehend danger and care for herself, id. at 432; younger than four years of age, “an infant . . . may be so young that he is unable to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety. The law calls such a child, non sui juris,” id. at 433; see also id. at 433 n.8 (literal translation of Latin phrase is “not his own master,” quoting Black’s Law Dictionary 1058 (6th ed. 1990)). The non sui juris child is incapable of committing negligence, id. at 433. “Where an infant is older than four years of age, the status of that child as sui juris or non sui juris is to be determined by the trier of fact,” id. (citing cases), with factors of the child’s intelligence and maturity dictating that status, id. One federal court, applying New York contributory negligence doctrines, held that the status of a child over the age of four was a question of fact addressing “the particular child’s ability to comprehend danger and care for himself,” [*11]  Republic Ins. Co., supra, 885 F. Supp. at 432 (see Docket No. 67, Defs. Reply Memo. at 5-6). If there is a bright-line rule under New York law, the age is four years old, not five as was LD when she was injured.

The age of the plaintiff is a factor in determining whether they are capable of assuming risk of their actions, see Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 396, 927 N.E.2d 547, 901 N.Y.S.2d 127, 130 (2010); Clark, supra, 2 A.D.3d at 340, 770 N.Y.S.2d at 60 (error to instruct on assumption of risk for five-year-old on construction vehicle) (Docket No. 54, Pls. Tr. Memo. at 6); Roberts, supra, 257 A.D.2d 550, 685 N.Y.S.2d at 24; Trippy v. Basile, 44 A.D.2d 759, 354 N.Y.S.2d 235, 236 (4th Dep’t 1974) (error to instruct jury that five and half year old child contributorily negligent, and could be so charged only if he had the age, experience, intelligence development and mental capacity to understand the meaning of the statute violated and to comply therewith) (Docket No. 54, Pls. Tr. Memo. at 5-6). As noted by the Court of Appeals in Trupia, supra, 14 N.Y.3d at 396, 901 N.Y.S.2d at 130, in an almost 12-year-old child’s claim from sliding down a bannister, that court states that children often act impulsively or without good judgment, “they do not thereby consent to assume the consequently arising dangers” for assumption of risk. Plaintiffs distinguish DeLacy v. Catamount Dev. Corp., 302 A.D.2d 735, 755 N.Y.S.2d 484 (3d Dep’t 2003), due to the plaintiffs in that case being two years older than LD was in 2010 (Docket No. 68, Pls. Reply Memo. at 5; see also Docket No. 66, Pls. Memo. at 4; but cf. Docket No. [*12]  65, Defs. Memo. at 5-6). But the New York Court of Appeals has not ruled on this question, but the consensus of other New York courts do not recognize a bright line rule that at age five or six a child is incapable of having the requisite knowledge and maturity to assume the risks of their actions; non sui juris status is applicable to four years old and that age or older is an issue of fact.

Courts in New York have concluded that assumption of the risk is a question of fact for the jury, Moore v. Hoffman, 114 A.D.3d 1265, 1266, 980 N.Y.S.2d 684, 685 (4th Dep’t 2014), in particular, riding and dismounting a chairlift has risks that raises questions of fact, DeLacy, supra, 302 A.D.2d at 736, 755 N.Y.S.2d at 486 (questions of fact whether a seven-year-old novice skier fully appreciated the risks associated with using a chairlift) (Docket No. 65, Defs. Memo. at 6). One factual element in this case is the maturity and knowledge of LD as to whether she assumed the risk of riding the chairlift here despite being five years old. LD testified at her deposition that prior to the 2010 incident she rode chairlifts two or three other times, each time with her father plaintiff Bryan DiFrancesco who assisted her getting on and off the lift (Docket No. 56, Pls. Atty. Decl. ¶ 18, Ex. C, LD EBT Tr. at 9), even to having Bryan hold [*13]  his ski pole over LD’s lap until it was time to get off the chairlift (id., Tr. at 9). Whether LD in her circumstances could assume the risk of riding and disembarking from the chairlift by herself is an issue of fact and evidence regarding her maturity, age, experience, intelligence, literacy, and mental capacity to understand the risks she faced is relevant and admissible. As a result, plaintiffs’ motion precluding evidence of LD assuming the risk is denied.

This is notwithstanding defendants’ argument that plaintiffs’ motion in limine here is in fact an untimely motion for summary judgment (Docket No. 65, Defs. Memo. at 5-6; Docket No. 67, Defs. Reply Memo. at 2-3). As plaintiffs rebut (Docket No. 68, Pls. Reply at 2-4), they are not seeking entry of judgment to dismiss a defense, instead they properly seek preclusion of evidence. But the factual issues in this case under New York law require production of evidence of LD’s capacity to assume risk.

2. Preclude Evidence of LD’s 2015 Snowboarding Incident

Plaintiffs next seek excluded evidence from an accident LD had at Holimont in 2015 resulting in injuries to her clavicle, contending that the evidence is prejudicial and would be admitted [*14]  to show her to be accident prone (Docket No. 56, Pls. Memo. at 7-10). LD’s injuries in 2010 were to her left leg and hip and not to her clavicle (id. at 8). As argued in the motion to quash the subpoena to Holimont (Docket No. 43, Pls. Memo. at 7), LD did not waive the physician-patient privilege for LD’s treatment of the 2015 injuries (Docket No. 56, Pls. Memo. at 8, 9-10). Plaintiffs conclude that LD’s subsequent snowboarding accident is not relevant to her 2010 injuries (id. at 9).

Defendants contend that LD’s injuries are not limited to her leg and hip, but also include loss of enjoyment of life and emotional injuries (Docket No. 65, Defs. Memo. at 12, citing Docket No. 56, Pls. Atty. Decl., Ex. H, Response to Defs. Interrog. No. 1). Again, as argued to defend the subpoena upon Holimont, defendants contend that Second Department law provides that LD put her physical condition at issue, justifying admissibility of her 2015 injuries (Docket No. 65, Defs. Memo. at 13).

But as noted in deciding plaintiffs’ earlier motion (Docket No. 43), this Court in diversity is bound by the common law of New York as settled by the New York State Court of Appeals or this Court’s prediction of how the New York Court [*15]  of Appeals would decide the issue if brought to it (see Docket No. 70, Order of February 22, 2017, at 13). This Court has held that the Court of Appeals, if it addressed the waiver of physician-patient privilege, would limit that waiver to so much of LD’s physical or mental condition placed in controversy here (id. at 17; see id. at 16-17 (holding that plaintiffs have standing to object to the subpoena based upon the unwaived privilege)). This case is about LD’s injuries from the 2010 incident, with physical injuries to her lower body. Discussion of LD’s accident five years later and to an unrelated body part is not relevant to her claims and would prejudice plaintiffs, see Fed. R. Evid. 403. Admitting evidence of the 2015 accident would introduce character evidence that LD acted in accordance with a particular trait (clumsiness), see Fed. R. Evid. 404(a)(1). Defendants have other means of establishing the limits on LD’s loss enjoyment of life and limitations on her activities after the 2010 accident (such as her father’s deposition testimony as to her activities, see Docket No. 43, Pls. Atty. Decl., Ex. C, Bryan DiFrancesco EBT Tr.10-21, 23, 95-96)).

This Court ordered plaintiffs to produce for in camera inspection the Holimont medical records [*16]  from the 2015 incident for this Court to determine if there is anything applicable to this case, such as distinguishing 2010-caused injuries from 2015 injuries or the effects of the 2015 incident on LD’s 2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at 17-18). This in camera inspection was for this Court to determine if there is anything applicable to this case, such as discussion of LD’s 2010 injuries or distinguishing 2010-caused injuries from 2015 injuries or the effects of the 2015 incident had on LD’s 2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at 17-18). This Court received those in camera medical records (received March 6, 2017)2 and reviewed them and find that the following documents should be produced and those that should not. Below is Table 1, a spreadsheet listing the reviewed documents and their production status.

2 These documents were not Bates numbered or otherwise identified or paginated. Thus, this Court described the reviewed documents by their date and generic type, to avoid disclosure of contents.

[Chart Removed because it would not format for this site]

The documents ordered to be produced are those relevant to LD’s 2010 injuries, namely to her left leg and hips. Excluded are those documents that refer only to her 2015 clavicle injury. The documents that plaintiffs are to produce are the April 1, 2017, memorandum; the January 4, 2015, consultation report; notes from July 30, 2015; and the July 30, 2015, notes from Hamilton Health Sciences. The remaining documents exclusive involve the 2015 incident and injury and there was not connection made to LD’s 2010 injuries.

Thus, so much of plaintiffs’ motion (Docket No. 56) to preclude evidence from LD’s 2015 Holimont accident is granted in part, denied in part, with plaintiffs only to produce the documents identified above.

3. Preclude [*18]  Evidence as Against Public Policy

Plaintiffs point to General Obligations Law § 5-326 that render defendants’ disclaimers as the operator of a place of amusement void as against public policy (Docket No. 56, Pls. Memo. at 4-5), see Rogowicki v. Troser Mgmt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 (4th Dep’t 1995). Defendants counter that the statutory and regulatory scheme under the Safety in Skiing Code, N.Y. Gen. Oblig. L. § 18-106; Labor Law §§ 202-c (use of ski tows), 867 (Safety in Skiing Code), authorized the release warning given in the form signed by LD’s uncle (Docket No. 65, Defs. Memo. at 7), see Vanderwall, supra, 244 A.D.2d at 982, 665 N.Y.S.2d at 493.

Plaintiffs also argue that any release here would be ineffective as to LD since she never read or signed it, hence it could not serve as a waiver of liability for her injuries (Docket No. 56, Pls. Memo. at 5), see Franco v. Neglia, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004) (release invalid against 14-year-old participant, who signed release, in first kickboxing class); Kaufman v. American Youth Hostels, Inc., 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593 (2d Dep’t 1958) (release signed by father invalid for child’s injuries) (id.). Plaintiffs’ reply that defendants fail to address how LD’s uncle can bind LD on the registration form waiver (Docket No. 68, Pls. Reply Memo. at 4), by not distinguishing Franco, supra, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004), or Kaufman, supra, 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593 (2d Dep’t 1958) (id.). They note that General Obligations Law § 18-106(1)(a) lists the risks inherent in skiing but do not mention the risks inherent in riding a chairlift (id.). Specifically, [*19]  none of those risks include having a second child obey a sign to open the chairlift bar prematurely and the negligent location of that sign (see id. at 4-5). Plaintiffs argue that assumption of risk is not automatic for every personal injury case that a novice (regardless of their age) cannot as a matter of law assume a risk (id. at 6, citing Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 863, 686 N.Y.S.2d 143, 145 (3d Dep’t 1999) (injured 49-year-old woman who never been on treadmill)).

But in Franco the infant fourteen-year-old plaintiff signed the release, 3 Misc. 3d at 16, 776 N.Y.S.2d at 691. The Supreme Court, Appellate Term, held that an infant is not bound by releases which exculpate defendants from damages for personal injury “since they lack the capacity to enter into such agreements,” id., at 16, 776 N.Y.S.2d at 691 (citing Kaufman, supra, 6 A.D.2d 223, 177 N.Y.S.2d 587). The plaintiff’s decedent fifteen-year-old child in Kaufman, supra, 6 A.D.2d at 229, 225, 177 N.Y.S.2d at 593, 589, signed the release with her father. The Appellate Division, applying Oregon law, see id. at 225, 177 N.Y.S.2d at 589, held that the effect of the father’s signature was ambiguous, id. at 229, 225, 177 N.Y.S.2d at 593, 589. The decedent’s capacity there to sign the release by reason of her infancy “was effectively exercised by [her] by the act of commencing this action,” id., at 229, 177 N.Y.S.2d at 593. The Appellate Division upheld striking the defense of decedent’s release because she disaffirmed “the agreement by reason of her infancy” exercised by her father’s commencement [*20]  of this action but reversed regarding striking that defense for the father’s separate action against the hostel, id. at 229, 177 N.Y.S.2d at 593. Neither case held that the signature of the parent or guardian alone of a release was binding upon the infant for whom the guardian signed. Thus, these cases do not go as far as plaintiffs contend to render ineffective a release signed by a guardian on behalf of an infant participating in a risky activity.

a. Infant Disaffirmance of Release

“A minor is not bound by a release executed by his parent,” Alexander v. Kendall Cent. Sch. Dist., 221 A.D.2d 898, 899, 634 N.Y.S.2d 318, 319 (4th Dep’t 1995); I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. Supp. 3d 196, 209 (S.D.N.Y. 2015); Shields v. Gross, 58 N.Y.2d 338, 344, 448 N.E.2d 108, 461 N.Y.S.2d 254, 257 (conceding that infant, Brooke Shields, could under common law disaffirm consent executed by another on her behalf), rehearing denied, 59 N.Y.2d 762, 450 N.E.2d 254, 463 N.Y.S.2d 1030 (1983). The exception from this common law power of the infant to disaffirm written consents made on her behalf is where the New York State Legislature either abrogates this common law right or makes particular infant agreements binding upon the infant, Shields, supra, 58 N.Y.2d at 344-45, 461 N.Y.S.2d at 257.

While conceding that at common law an infant could disaffirm written consent made for her, the Court of Appeals in Shields recognized that the State Legislature could abrogate that right or create a right upon infants to enter into binding contracts, id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257. “Where a statute expressly permits a [*21]  certain class of agreements to be made by infants, that settles the question and makes the agreement valid and enforceable,” id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257, with that statute being construed strictly, id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257 (citing McKinney’s Consol. Laws of N.Y., Book 1, Statutes § 301(b)).

Here, the Safety in Skiing Code had as part of its legislative purpose

“(3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry,”

N.Y. Gen. Oblig. L. § 18-101. The act establishing this Code empowered the New York State Commissioner of Labor to promulgate “any and all rules and regulations necessary to the timely implementation [*22]  of the provisions of this act,” 1988 N.Y. Laws ch. 711, § 4. These regulations “applies to all skiers and ski areas” and owners and operators of ski areas to which the Code applied to, N.Y. Comp. Codes R. & R. tit. 12, § 54.1 (2017) (hereinafter cited as “12 N.Y.C.R.R.”), without special provision or exception for juvenile skiers. That same act authorized the Commissioner of Labor to make rules to guard “against personal injuries to employees and the public in the use and operation of ski tows, other passenger tramways and downhill ski areas,” N.Y. Labor Law § 202-c.

The Code also imposed on skiers the additional duties “to enable them to make informed decisions as to the advisability of their participation in the sport,” to

“seek out, read, review and understand, in advance of skiing, a ‘Warning to Skiers’ as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law [N.Y. Labor L. § 867(5)], which shall be displayed and provided pursuant to paragraph a of subdivision one of this section [N.Y. Gen. Oblig. L. § 18-106(1)(a)]; and . . . to obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce [*23]  the risk of injury in such sport,”

N.Y. Gen. Oblig. L. § 18-106(2), (a), (b); see N.Y. Labor Law § 867(5); 12 N.Y.C.R.R. §§ 54.5(l)(1), 54.4(c)(1); see also N.Y. Gen. Oblig. L. § 18-106(1)(a) (ski are operator’s duty to post conspicuously “Warning to Skiers”). “Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law,” N.Y. Gen. Oblig. L. § 18-107.

The Safety in Skiing Code and its regulations provide an abrogation of the common law right of an infant skier to disaffirm the release signed on her behalf. First, the State Legislature used the term “skier” without expressly distinguishing the age of skier. Second, the State Legislature authorized and directed the Commissioner of Labor to enact necessary rules and regulations. Pursuant to that authority, the Commissioner enacted 12 N.Y.C.R.R. § 54.1 to have the regulations under the Safety in Skiing Code apply to “all skiers,” again without distinction due to the age of the skier. The definitions under these regulations for “skier,” 12 N.Y.C.R.R. § 54.3(h) (“Skier means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing”), or “passenger,” 12 N.Y.C.R.R. § 54.3(d) (“Passenger means a person in or on or being transported by a tramway”), riding a “passenger tramway,” see 12 N.Y.C.R.R. § 54.3(e) (“Passenger [*24]  tramway means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor pursuant to Section two hundred two-c or eight hundred sixty-seven of the Labor Law [N.Y. Labor Law §§ 202-c, 267]”), also do not create a separate infant category. Although the Court of Appeals refers to the State Legislature either abrogating the infant’s common law right of disaffirmance or conferring upon the infant a recognized right to make binding contracts, Shields, supra, 58 N.Y.2d at 344, 461 N.Y.S.2d at 257, the State Legislature here enacted the code that delegated to the Commissioner of Labor the authority to enact rules and regulations necessary to implement the Code. The Commissioner, by requiring regulations to apply to “all skiers” either abrogated an infant’s common law right of disaffirmance or authorized infant skiers to enter into binding contracts with ski area operators, including the warning and release to authorize the infant skier to engage in the risky activities of skiing and the related, risky activities leading up to skiing.

The Safety in Skiing Code statutory and regulatory scheme including “all skiers” makes releases signed by adults bind infant skiers and removes the [*25]  infants’ common law right to disaffirm the releases executed in their minority. On this basis, plaintiffs’ motion in limine to exclude the Holiday Valley release (Docket No. 56) is denied.

b. Effect of General Obligations Law § 5-326

As an alternative grounds for its decision, the Appellate Division, Fourth Department in Vanderwall, supra, 244 A.D.2d at 982-83, 665 N.Y.S.2d at 493, narrowed the scope of the general provisions for amusement or recreation sites under General Obligations Law § 5-326 to exclude ski resorts from that statute, with those resorts being governed by the Safety in Skiing Code and its Warning to Skiers codified in General Obligations Law § 18-106(1)(a) (Docket No. 65, Defs. Memo. at 7), see also N.Y. Gen. Oblig. Law § 18-107 (“unless otherwise specifically provide in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law”). Part of the Safety in Skiing Code includes use of a ski tow, N.Y. Labor Law § 202-c.

The Holiday Valley registration form (Docket No. 56, Pls. Atty. Decl. Ex. G) signed by LD’s uncle, Dean DiFrancesco, had the adult signer agree that he acknowledged (among other things)

“that I have read and understand the information contained in the brochure for the Holiday Valley Mountain Adventure Children’s Ski and Snowboard Program, and also understand [*26]  and am aware that there are inherent and other risks involved in participating in ski and snowboard lessons, skiing/riding, and use of lifts, which could cause death or serious injury to the registrant(s). This includes use of chairlifts and or tows or boardwalks with or without an instructor.

“[C]hildren may be required to ride chairlifts with other children in the class, ski patrol/hosts, or other persons in the lift line while loading assistance may be given by chairlift attendants. Riding a chairlift can be a hazardous activity for your child(ren). By allowing the registrant(s) to ride a chair lift, you acknowledge the dangers involved and accept any and all risks of injury to the registrant(s). Other risks include, but are not limited to, . . . boarding, riding and disembarking from moving chairlifts, rope tows or boardwalks. With full knowledge of the danger involved, I voluntarily request that the registrant(s) participate in the program. I have read this agreement to the registrant(s) and he/she has acknowledged that he/she understands its contents. On behalf of the registrant(s) and myself, I expressly assume all risks inherent in the sport of skiing and riding and any and all damages, [*27]  injury, illness, or harm which may result directly or indirectly from said risks.”

(Id., paragraphs 5, 6, emphasis added.) This release itself raises factual issues, such as whether Uncle Dean DiFrancesco actually read the release to LD and whether she understood its contents, including the risks stated therein (particularly, the risks in riding and dismounting a chairlift).

The statutory scheme for ski resorts provided in the Safety in Skiing Code provides a more specific regime that the General Obligations Law § 5-326 for other recreational facilities including the basis for the release executed by LD’s uncle. New York public policy carved out ski resorts from the general ban on releases by recreational facility operators. On this alternative ground, plaintiffs’ motion to exclude that release (Docket No. 56) is denied.

B. Defense Motions in Limine, Docket Nos. 53, 58

1. Excluding Evidence of Subsequent Remediation

In their initial motion in limine, defendants seek to exclude evidence of their subsequent remediation in changing signage at the chairlift (Docket No. 53, Defs. Memo. at 2-4). Federal Rule of Evidence 407 precludes admission of evidence of subsequent remedial measures to prove negligence, culpable conduct, or [*28]  a need for a warning (id. at 2). They also contend that evidence as a warning should be excluded under Rule 403 since the probative value is exceeded by its prejudice to them (id.). Plaintiffs counter that this evidence is admissible for impeachment or to contest the feasibility of relocating the sign to a safer location (Docket No. 66, Pls. Memo. at 1-3; see also Docket No. 68, Pls. Reply Memo. at 8), see Fed. R. Evid. 407; Pitasi v. Stratton Corp., 968 F.2d 1558 (2d Cir. 1992). Defendants reply that the impeachment exception to Federal Rule of Evidence 407 should be narrowly read, that it could only be used to avoid the jury being misled (Docket No. 67, Defs. Reply Memo. at 8-9). They conclude that plaintiffs also should be precluded from introducing evidence regarding the red light/green light system used by another ski resort, Holimont, arguing that Holimont installed this system four years after the 2010 incident at issue here (id. at 10; see also Docket No. 53, Defs. Memo. at 3-4; Docket No. 53, Defs. Atty. Decl., Ex. C).

The questions here under Rule 407 are at what point (if ever) may plaintiffs impeach defendants with the change in the sign location, and whether the sign location can be introduced by them as to feasibility. As for impeachment, whether plaintiffs can discuss relocation of the sign will depend [*29]  upon what defense witnesses testify about to the warnings provided on site on the chairlift. Rulings on this point will await trial testimony.

As for feasibility, plaintiffs may introduce sign location and alternative locations if defendants’ witnesses testify as to the feasible location for warning signs.

As to the probative/prejudice balance under Rule 403, evidence inadmissible under Rule 407 “would also likely lead to prejudice and confusion under Rule 403,” Bak v. Metro North R.R., No. 12 Civ. 3220 (TPG), 2015 U.S. Dist. LEXIS 60736, at *7 (S.D.N.Y. May 8, 2015), but remedial evidence may be admitted for rebuttal or impeachment evidence, id., without affecting the probative/prejudice balance of Rule 403.

Finally, Holimont currently uses a red light/green light on its chairlifts to advise skiers when to disembark from the chairlift. But that system was implemented years after this incident (Docket No. 53, Defs. Atty. Decl. Ex. C, Aff. of David Riley ¶¶ 1, 4-8 (Holimont general manager); Docket No. 53, Defs. Memo. 3-4). Holimont general manager David Riley stated that he had not seen this light warning system in United States slopes prior to his tour of Europe in 2014 (Docket No. 53, Defs. Atty. Decl. Ex. C, Riley Aff. ¶ 8). Thus, it was not feasible in 2010 to have such a light warning system and admission of evidence [*30]  of the Holimont lighting system would be prejudicial. Plaintiffs are precluded from introducing evidence of this system as a feasible alternative.

Defendants’ motion in limine (Docket No. 53) on this ground is granted in part, with some issues to be decided at trial upon the proffer or introduction of evidence at issue.

2. Prohibit Plaintiffs’ Liability Expert, Dick Penniman,

Defendants next seek to preclude testimony from plaintiffs’ expert, Dick Penniman, on various subjects. Plaintiffs globally respond that Penniman is a forty-year veteran of the ski industry, performing various duties as a member of ski patrol, lift operator, ski lift maintenance man, and “mountain manager/assistant operations manager” of a number of ski areas (Docket No. 66, Pls. Memo. at 11; Docket No. 66, Pls. Atty. Decl. ¶¶ 27-29, Ex. Q (Penniman curriculum vitae)). Penniman testified as an expert in Whitford v. Mt. Baker Ski Area, Inc., Case No. C11099112RSM, 2012 U.S. Dist. LEXIS 40166 (W.D. Wash. Mar. 23, 2012) (Docket No. 66, Pls. Memo. at 11), opining in that case about the lift attendant’s duties and whether a catch net used at that resort was adequate, id., 2012 U.S. Dist. LEXIS 40166, at *4. Plaintiffs conclude that defense objections to Penniman goes to the weight, not the admissibility, [*31]  of his expert testimony (id. at 10, 11). Plaintiffs do not provide a point-for-point refutation of defense objections to Penniman as an expert.

As noted by the court in Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *3, “the trial court must act as a ‘gatekeeper’ to ensure that proffered expert testimony is both relevant and reliable,” id. citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Where expert testimony is technical rather than purely scientific, “the Court must ensure that it ‘rests on a reliable foundation and is relevant to the task at hand,'” id. (quoting United States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002) (quoting in turn Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993))). As gatekeeper, this Court has to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterize the practice of an expert in the relevant field,” Kumho, supra, 526 U.S. at 152; Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *3-4. The Whitford court, in considering testimony for other specialized knowledge, construed Federal Rule of Evidence 702 liberally, 2012 U.S. Dist. LEXIS 40166, at *4 (citing 9 th Circuit case and Fed. R. Evid. 702 advisory committee note, 2000 amendment, rejection of an expert is the exception rather than the rule).

From Penniman’s curriculum vitae (Docket No. 66, Pls. Atty. Decl. Ex. Q), his expertise is ski patrol (including lift operation and hazard evaluation and mitigation), avalanche safety, and slope preparation. [*32]  He worked for two years supervising lift operations in Chile (id.). Since 1983, Penniman has been a consultant and expert witness; he was qualified as an expert in safe skiing including lift operations and ski instruction (id.). As a threshold matter, Penniman’s expert testimony comes from decades of performing various tasks at several ski resorts and evaluating skiing hazards.

Next, this Court turns to the specific defense objections to Penniman’s expert testimony.

a. Prohibit Penniman from Opining Regarding Relocation of Unload Sign

First, defendants seek to bar Penniman’s opinion about the proper location of signage for unloading or discharging skiers from the chairlift (the “unload/open restraint bar”) and changes in the text of the registration form (Docket No. 53, Defs. Memo. at 4-5, 6-7). As for Penniman opining on sign location, his expertise as a ski lift operator and evaluator of skiing accidents informs his opinions about such things. Penniman lists in his curriculum vitae experience in signage at two ski resorts (Docket No. 66, Pls. Ex. Q), but does not specify if this includes the location of chairlift instructions or warning signage. The bulk of his stated expertise and [*33]  experience involves avalanches, so the signage Penniman is familiar with appears to be for ski trails. In his deposition regarding signage, Penniman testified that applicable New York State regulations when the Creekside lift was erected in 2003 were based on the American National Standards Institute (“ANSI”) standards from 19993 , with a 20064 amendment of ANSI standards expressly calling for sign placement (Docket No. 53, Defs. Ex. F, Penniman EBT Tr. at 23). The 2006 ANSI amendments grandfathered pre-2006 construction to be governed by earlier standards (id., Tr. at 25), but the 2006 standard for sign location called for signs to be ahead of the off load point (id., Tr. at 25-26), while the 1999 standard did not require signage at all (id., Tr. at 24, 39). Penniman noted that one ski resort, White Pine, had its raise bar signs in front of shacks near the unload points (id., Tr. at 28), while at other resorts, Penniman observed these signs either on chairlift towers 20-30 feet before the unload area or as close to the unload area as possible (id., Tr. at 32-34; Docket No. 66, Pls. Ex. P, Tr. at 33-34). Penniman concluded that defendants violated New York State standards for the location [*34]  of Holiday Valley’s signs, violating ANSI 1999 and 2003 standards that signage be ahead of the offload area (Docket No. 53, Defs. Ex. F, Tr. at 37-38). Penniman did not know if New York State inspected the location of these signs (id., Tr. at 40-41). Penniman noted that New York law also required use of the restraint bar on chairlifts; requiring a rider to not use a restraint bar for 50 yards, Penniman opined, would require the rider to violate New York law (id., Tr. at 38).

3 Pls. Ex. 67.

4 Pls. Ex. 68; Defs. Exs. 56, 65.

From review of Penniman’s deposition testimony, the issue is whether placement of the offload warning sign should be at the offload area or in advance of that area (e.g., id., Tr. at 39). Penniman’s experience seems to be from his observations at various resorts, without knowing the written policies for sign placement at those areas. A foundation, therefore, will need to be established that Penniman has sufficient expertise in sign location of chairlift instructions to credit Penniman’s opinion as an expert. Penniman’s testimony also is limited regarding subsequent changes in the sign location, as indicated above. Defendants’ motion in limine (Docket No 53) on these grounds is granted.

b. Prohibit Plaintiffs’ Expert [*35]  Penniman from Opining on Risk of Chairlift Not Being Inherent to Skiing

Next, defendants seek to preclude Penniman’s opinion on the risk of using a chairlift not being inherent to skiing (Docket No. 53, Defs. Memo. at 5-6). Plaintiffs argue that the New York Court of Appeals decision in Trupia, supra, 14 N.Y.3d 392, 901 N.Y.S.2d 127, changed the standards for primary assumption of the risk that coincides with Penniman’s opinion that use of a chairlift is distinct from the sport of skiing (Docket No. 66, Pls. Memo. at 6-7).

There is a preliminary question whether this is an evidentiary issue or a matter requiring an expert opinion at all. New York cases recognize that use of a chairlift is an inherent part of skiing, with distinct risks from the sport of skiing. There are separate, but related, duties of care with operating a chairlift and downhill skiing, Morgan v. Ski Roundtop, Inc., 290 A.D.2d 618, 620, 736 N.Y.S.2d 135, 137 (3d Dep’t 2002) (hereinafter “Ski Roundtop”) (inherent risk in skiing and “some risk of injury inherent in entering, riding and exiting from a chairlift”); see Morgan v. New York State, 90 N.Y.2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421, 427 (1997); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 1707, 925 N.Y.S.2d 785, 787-88 (4th Dep’t 2011); see also Tone v. Song Mtn. Ski Ctr., 113 A.D.3d 1126, 1127, 977 N.Y.S.2d 857, 858 (4th Dep’t 2014) (claim from chairlift, assumption of risk applied for “athletic activity,” quoting Ski Roundtop, supra, 290 A.D.2d at 620, 736 N.Y.S.2d at 137). As defendants note (Docket No. 67, Defs. Reply Memo. at 4), riding and disembarking a chairlift is inherent in Alpine downhill skiing, [*36]  see also Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d 1306, 5 N.Y.S.3d 636 (4th Dep’t 2015) (assumption of risk for playing hockey applied to injury suffered in rink locker room).

Factually, Trupia involved horseplay on a bannister by a twelve-year-old, rather than engaging in a sporting activity or the steps leading to that activity (with the inherent risks of those steps), supra, 14 N.Y.3d at 393, 396, 901 N.Y.S.2d at 128, 129. Again, this is more akin to the ancillary dangers in the locker room preparing for participation in a sport, e.g., Litz, supra, 126 A.D.3d 1306, 5 N.Y.S.3d 636; but for the sporting activity, a participant would not be injured in the locker room or on the chairlift, each is necessary to prelude to athletic participation. This participant is only in these places to engage in a sport with its own inherent dangers and risks.

As noted in Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *9, wherein Penniman was accepted as an expert, he “is not required to be an expert in the law; he is only required to be an expert in the subject matter of his testimony,” id. Thus, as a matter of law, there are risks, distinct from those in alpine skiing, to riding a chairlift that are related to those of skiing. This does not require an expert opinion one way or the other. Defense motion in limine on this point (Docket No. 53) is granted.

c. Prohibit Penniman from Opining on the Registration Form

Defendants [*37]  next contend that Penniman lacked any foundation to make an opinion about the registration form used by Holiday Valley (Docket No. 53, Defs. Memo. at 6-7; Docket No. 53, Defs. Atty. Decl. Ex. E, Penniman’s Supp’al Expert Report at 5; see Docket No. 66, Pls. Atty. Decl., Ex. L, at 5). They object to Penniman’s supplemental opinion that noted defendants’ changes to the registration form to require a parent to initial the form at paragraph 6 on chairlift use (Docket No. 53, Defs. Memo. at 4-5; Docket No. 53, Defs. Atty. Decl. Ex. E, at 5; see Docket No. 66, Pls. Atty. Decl., Ex. L, at 5). Plaintiffs do not respond specifically to this objection. Penniman opined that the sentence about a child riding the chairlift without adult supervision was vaguely written (Docket No. 53, Defs. Atty. Decl. Ex. E, at 5; see Docket No. 66, Pls. Atty. Decl. Ex. L, at 5; Docket No. 53, Defs. Memo. at 6).

Again, looking at the actual registration form quoted above (at pages 19-20, supra), participants are warned that children may ride with other children on the chairlift, followed by a warning that riding the chairlift “can be a hazardous activity for your child(ren)” (Docket No. 56, Pls. Atty. Decl. Ex. [*38]  G, paragraph 6). That text implies that children may ride together without an adult. As noted in detail by defendants (Docket No. 53, Defs. Memo. at 7), Penniman lacks expertise in developing ski school policies, drafting registration forms, or have expertise in human factors, engineering, or psychology. Thus, his opinion on the text of the registration form is a little more informed than that of a layperson. Penniman’s opinion in this area is excluded; defendants’ motion in limine (Docket No. 53) on this ground is granted.

As for Penniman’s observation of the post-accident changes in the form (Docket No. 53, Defs. Ex. E, at 5; Docket No. 66, Pls. Ex. L, at 5), this also goes to proof of subsequent remediation and, unlike the impeachment use plaintiffs propose for the relocation of signs or feasibility of change, Penniman’s opinion on the changes in the registration form would only come as part of his direct testimony. Such introduction violates Rule 407 and its prejudice outweighs its probative value under Rule 403. Defendants’ motion in limine (Docket No. 53) as to Penniman’s opinion in this area is granted.

d. Prohibit Penniman from Opining on Human Factor

Defendants next argue that Penniman lacks [*39]  the qualifications to opine on the impact of the human factor in this incident (Docket No. 53, Defs. Memo. at 7-8). Penniman testified that generally an infant should have been accompanied by an adult on a chairlift based on “best practices.” Penniman based these best practices on his experience, observations, and involvement in ski schools and he concludes that a majority of ski areas “are concerned about small children riding up chairs alone, or with other kids without an adult accompanying them. There are some I have observed where they don’t care. But the majority do, and I call that best practices.” (Docket No. 53, Defs. Ex. F, Penniman EBT Tr. at 65-67, 66; Docket No. 66, Pls. Ex. P, excerpts of Penniman EBT Tr. at 65-67, 66.) Penniman testified that, from the age of 8, he had observed ski schools recruit adults to ride up with unaccompanied children, that the “vast majority [of resorts] do,” or so Penniman found (Docket No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Pls. Ex. P, Tr. at 67). He noted that other ski areas do not let small children on chairlifts and “the majority of ski resorts, when it’s not an instruction situation, leave that decision up to the parents” (Docket [*40]  No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Ex. P, Tr. at 67). But Penniman had not investigated the policies of individual ski resorts in New York whether they require adult accompaniment on chairlifts and he could not testify to written policies of ski resorts (Docket No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Ex. P, Tr. at 67). Penniman, however, admitted that he was not familiar with Holimont’s policies regarding adult accompaniment or the policies of other Western New York ski resorts on this issue (Docket No. 53, Defs. Ex. F, Tr. at 18-19).

Penniman’s opinion on how small children react on chairlifts may be informed by his experience operating ski lifts, observing at ski resorts, and investigating skiing accidents, but this expertise does not rise to the level that it should be credited as an expert. Similar to the registration form objection, Penniman’s expertise is in ski resort operations and not on how patrons will react. Defendants’ motion in limine (Docket No. 53) on this ground is granted.

e. Prohibit Penniman from Opining about the Operation of a Ski School

Defendants contend that Penniman cannot render an opinion about how to operate a ski school due to lack of qualifications [*41]  on how to operate such a program and not knowing Holiday Valley’s policies (Docket No. 53, Defs. Memo. at 9). Defendants point out that Penniman testified that he was only at level one (of three levels) as a certified ski instructor by the Professional Ski Instructors of America (or “PSIA”) (id.; Docket No. 53, Defs. Ex. F, at 11) and that Penniman was never employed as a ski instructor at any resort where he worked (Docket No. 53, Defs. Ex. F, at 12), but he later stated that he taught skiing informally and once at a resort as a ski patroller (id. at 41-42). Penniman also admitted that he never developed policies for a ski school (Docket No. 53, Defs. Ex. F, at 13). According to plaintiffs’ retort, Penniman performed several different tasks in the ski industry for forty years (Docket No. 66, Pls. Memo. at 10-11), including experiences with ski schools and policies of the White Pine Ski Area related to children riding chairlifts (Docket No. 66, Pls. Atty. Decl. ¶ 29.d., Ex. P, Penniman EBT Tr. at 19-20 (being familiar with policies of resorts regarding children on chairlifts), membership in the PSIA (id., Ex. Q), and as a private ski instructor (id., ¶ 29.e., Ex. P, Penniman EBT Tr. at 42-44). [*42]  He was qualified as an expert on skiing safety including chairlift operations and ski instruction (id.).

Reviewing his experience and stated expertise, Penniman essentially provided private ski lessons, “step[ped] in once at White Pine” ski resort as an instructor while a ski patroller and provided instruction, and instructed ski patrollers (Docket No. 53, Ex. F, at 42-43). He admits to never developing policies for a ski school. Given that the focus of Penniman’s expertise is more on trails (such as avalanches); his experience is only slightly more than a layperson regarding ski school policies. This is despite the fact that Penniman has testified as an expert in Whitford (but cf. Docket No. 66, Pls. Memo. at 11); in that case he testified about the lift attendant’s duties and the adequacy of the chairlift’s safety netting, supra, 2012 U.S. Dist. LEXIS 40166, at *4. Penniman there was not asked to opine on ski school policies (see Docket No. 67, Defs. Reply Memo. at 7).

Thus, defendants’ motion in limine (Docket No. 53) on Penniman rendering his opinion on ski school policies is granted.

f. Prohibit Penniman from Opining on the Custom for Chairlift Signage

Defendants next argue that Penniman should not be allowed to testify about customary [*43]  chairlift signage or sign location (Docket No. 53, Defs. Memo. at 9-10). Again, plaintiffs apparently rely upon Penniman’s forty years of experience operating ski lifts and in the ski industry generally and do not point to specifics as to his expertise regarding the customary location of warning signage (see Docket No. 66, Pls. Atty. Decl. ¶ 29.e., h., Ex. P, Penniman EBT Tr. at 33-34, 68-69). Penniman’s experience as to the location of unloading signage is at three North America ski areas and his 40 years of seeing where signs have been located at those and other ski resorts (Docket No. 66, Pls. Atty. Decl. ¶ 29, e. h.). Again, Penniman lists experience in “signing” at two ski resorts (Docket No. 66, Pls. Ex. Q) without specifying what signage he positioned. Continuing to review Penniman’s stated experience, most of his training focused on ski patrol, avalanches, and ski safety, with attendance at a congress for transportation by wire rope in 1999 and ski lift maintenance. He is affiliated with the International Society of Skiing Safety and the PSIA. These could be sources for Penniman’s opinion about the national or continental safety standards, but a foundation needs to be established [*44]  to confirm this before Penniman’s opinion on this subject is admissible. As noted above, the basis for Penniman’s opinions are from his observation of practices at ski areas and what he believes to be best practices. But he extrapolates this experience to conclude continental practices regarding where these signs are placed and should be placed without additional foundation. Absent such a foundation for a broader opinion, Penniman can only testify to his observations of what he observed at other ski resorts. Defendants’ motion in limine (Docket No. 56) on this issue is granted in part.

3. Exclude Prior and Subsequent Incidents at Holiday Valley

Finally in the initial motion in limine, defendants argue that evidence of prior and subsequent incidents of youths falling from chairlifts at Holiday Valley should not be admitted (Docket No. 53, Defs. Memo. at 10-17; Docket No. 56, sealed Exs. G-S). They argue that introducing all of these incidents would be prejudicial to them, Fed. R. Evid. 403 (Docket No. 53, Defs. Memo. at 15, 11-15). Defendants argue that the Creekside open restraint bar sign was moved to Tower 6 after LD’s accident. Therefore, subsequent incidents would allow plaintiffs, by the [*45]  “back door,” to introduce evidence of subsequent remediation (id. at 16). Further, only one incident (Docket No. 56, Defs. Ex. Q) involved Creekside chairlift, while other post-2010 incidents (id., Defs. Exs. R-S) are not substantially similar to LD’s incident (see Docket No. 53, Defs. Memo. at 16).

Plaintiffs argue that defendants did not cite federal cases on the admissibility of subsequent accidents (Docket No. 66, Pls. Memo. at 14). They claim one subsequent incident was similar (id. at 15; Docket No. 66, Pls. Atty. Decl. ¶ 35, Ex. X) (four-year-old fell from Mardi Gras chairlift on February 26, 2012).

Plaintiffs argue that evidence of prior incidents is admissible under Federal Rule of Evidence 401 to show the existence and notice of the dangerous condition (Docket No. 66, Pls. Memo. at 12). They also claim that proof of subsequent accidents also is admissible to show the existence of the dangerous condition (id.). They reviewed defendants’ reports of similar incidents both before and after LD’s 2010 accident and argue that several of them are admissible since they present examples of youth slightly older than five-year-old LD (ages six to ten years old before the 2010 accident, and a four-year-old after5) opening the restraining [*46]  bar prematurely due to the location of the signs instructing them to open that bar (id. at 12-14; Docket No. 66, Pls. Atty. Decl. ¶ 34, Exs. S, T, U, V, W; ¶ 35, Ex. X). Plaintiffs argue that pictures after 2010 showing relocation of the signs would be admissible only to rebut testimony regarding feasibility, impeaching the defense of culpable conduct (id. at 14). Their claim is that “very young children were needlessly exposed to serious injury by having the ‘open restraint bar’ sign posted too far away from the unload point, and resulting in the restraint bar being lifted at a point when the chairlift is too far above the ground,” hence it was unnecessary for plaintiffs to allege that the chairlift itself was defective (id. at 15); if there was any defect, it was in the location of the signage relative to the height of the chairlift.

5 According to the report for that accident, Feb. 26, 2012, the injured four-year-old was sitting next to his father on the chairlift when he fell, Docket No. 66, Pls. Atty. Decl. ¶ 35.a., Ex. X.

a. Prior Incidents

As for prior incidents at Holiday Valley, they are admissible in this case provided they are “substantially similar” to the 2010 accident on trial here, Bellinger v. Deere & Co., 881 F. Supp. 813, 817 (N.D.N.Y. 1995) (case citations omitted); see Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 336, 493 N.E.2d 920, 502 N.Y.S.2d 696, 701 (1986) (under New York law, similar prior accidents are admissible to show dangerousness of conditions and notice) (Docket No. 53, Defs. Memo. at 11). Defendants note (id.) that New York [*47]  law allows admission of proof of similar incidents to show dangerousness of conditions and notice, Sawyer, supra, 67 N.Y.2d at 336, 502 N.Y.S.2d at 701. The parties differ here on whether the prior incidents are substantially similar to LD’s 2010 accident. As defendants concede that one incident of the eleven prior incidents at Holiday Valley identified by defendants is substantially similar to LD’s situation (id.; see Docket No. 53, Defs. Atty. Decl. Ex. A, Pls.’ Response to Interrogatories, Interrogatory No. 11), that a five-year-old novice skier riding a chairlift unaccompanied by an adult fell between Towers 5 and 6 of the Creekside chairlift. The conceded incident is admissible. The ten other prior incidents (Docket No. 56, Defs. Atty. Exs. G-P) had one or two distinguishing facts that defendants conclude makes them not sufficiently similar to be admissible.

Table 2 below lists the factors defendants argue distinguish these ten prior incidents from LD’s 2010 incident, listing the youths as they were identified by defendants (Docket No. 53, Defs. Memo. at 12-15), cf. Fed. R. Civ. P. 5.2.

[Chart Removed because it would not format for this site]

 6 Injured youth #3 rode with a brother whose name was redacted by defendants, Docket No. 53, Defs. Memo. at 12; Docket No. 56, Ex. I. The report does not give the brother’s age; thus, it is presumed that he is a minor as well.

7 Defendants claim that this incident occurred at Creekside, Docket No. 56, Defs. Ex. H; see Docket No. 66, Pls. Ex. S, but defendants argue that it did not occur at a similar location, Docket No. 53, Defs. Memo. at 12. They distinguish this incident since there is no reference to use of a restraint bar, Docket No. 67, Defs. Reply Memo. at 11. The lift operator’s description of that incident, however, said that the restraint bar was up, Docket No. 56, Ex. H, at 2.

Two of the prior incidents are also distinct due to the greater expertise of the youth skier (#8, Docket No. 53, Defs. Memo. at 14-15; Docket No. 56, Defs. Ex. N) and the age of the skier as compared with LD’s age in 2010 (#10, 16 year old, Docket No. 56, Defs. Ex. P) who was involved in horseplay that led to the fall (Docket No. 53, Defs. Memo. at 15; Docket No. 56, Defs. Ex. P).

Plaintiffs argue that whether these prior incidents were during a ski lesson is immaterial to whether they are similar to LD’s 2010 experience (Docket No. 66, Pls. Memo. at 12). But one factor here is that LD was a relative novice in 2010 and had not ridden on a chairlift unaccompanied by an adult. Also, plaintiffs’ claim is for inadequate supervision by the ski instructor while LD was on the chairlift (Docket No. 1, Compl. ¶ 15); that inadequacy would not occur in prior incidents that were not ski lessons. Therefore, to be sufficiently similar to LD’s circumstances, the prior instances must factor in the experience of the youth involved, shown by defendants from whether the incidents [*49]  occurred during a ski lesson (as was for LD) as well as a review of the incident reports showing whether these youths were identified as being “novices” in the ability and days skied portions of the Holiday Valley incident reports.

To plaintiffs, “the similar circumstances at issue in this case are a very young child falling off a chair lift when the restraint bar was lifted at the point indicated by the ‘open restraint bar’ sign” (Docket No. 66, Pls. Memo. at 13). The prior incidents occurred at various chairlifts at Holiday Valley and the records for each incident does not indicate either where the “open restraint bar” signs were relative to where the youths fell or the distance they were from the appropriate discharge point. At least one youth, #3 (Docket No. 56, Defs. Ex. I) appears to have fallen shortly after boarding the chairlift. Another prior incident occurred at Tower 4 of School House chairlift, well before Towers 5 and 6 of Creekside where LD fell (Incident #5, Docket No. 56, Ex. K). Thus, it is difficult to determine if these falls at other chairlifts were similar to LD’s fall at Creekside.

Plaintiffs next point to five prior instances that they claim were substantially [*50]  similar to LD’s in which the restraint bar was opened prematurely and each child fell (Docket No. 66, Pls. Memo. at 13-14; Incident #2, 4, 6, 7, 9 (Docket No. 56, Defs. Ex. H, J, L, M, O; see also Docket No. 66, Pls. Atty. Decl. Exs. S, T, U, V, W). Defendants reply that plaintiffs’ parsing of these prior incidents focus on singular favorable points and did not meet the burden of establishing that any of these incidents were substantially similar to LD’s 2010 incident (Docket No. 67, Defs. Reply Memo. at 10-11). They again distinguish these five incidents from the 2010 incident (id. at 11-12).

Incidents where the child was riding with a parent or other adult are not substantially similar to LD riding without an adult. The location of the fall also has to be similar to the 2010 Creekside incident; one of the issues is the location of the warning signage and where the restraining bar was lifted or the youth attempted to dismount (see also Docket No. 67, Defs. Reply Memo. at 11, on Incident #4, Docket No. 56, Defs. Ex. J; Docket No. 66, Pls. Ex. T). While not considered by the parties, the age as well as the experience of the youth involved (shown by whether use of the lift was during a ski lesson [*51]  and the identified skiing ability on the Holiday Valley incident reports) is an important factor to determine if a prior incident was substantially similar to LD’s incident.

The next table (Table 3) lists the prior incidents at issue, the defense and plaintiffs’ exhibits identifications, the age of the youth, and their skiing experience (novice or not).

[Chart Removed because it would not format for this site]

Reviewing these prior incidents, the five identified by plaintiffs are not sufficiently similar to LD’s 2010 experience to admit them into evidence. These incidents each had an adult present (#2, 4, 7, 9, Docket No. 56, Defs. Exs. H, J, M, O; Docket No. 66, Pls. Exs. S, T, V, W); or were not during a ski lesson (#2, 4, 6, 7, 9, Docket No. 56, Defs. Exs. H, J, L, M, O; Docket No. 66, Pls. Exs. S, T, U, V, W); or were not at the Creekside chairlift or the youths did not fall at a point similar to where LD fell from the Creekside chairlift [*52]  (id.). But the child in Incident #9 was a six-year-old novice who skied for two days, describing the incident as lifting the safety bar “at prescribed point” (rather than earlier), slipped forward and left the lift (#9, Docket No. 56, Defs. Ex. O; Docket No. 66, Pls. Ex. W). Finally, LD is younger than any of the youth in the prior incidents.

One incident defendants attempt to distinguish, Incident #2, involves a fall by a seven-year-old novice skier (with two to nine days skied) at Creekside where the chairlift stopped thirty feet from the unloading ramp and the lift operator reported that the restraint bar was up (Docket No. 56, Defs. Ex. H; Docket No. 66, Pls. Ex. S). The lift operator went to the child and “waited for parents” prior to ski patrol arriving (Docket No. 56, Defs. Ex. H, at 2; Docket No. 66, Pls. Ex. S, at 3). It is unclear where defendants got the impression that the parents were with that child on the chairlift. This incident is similar to LD’s experience and thus is admissible.

Therefore, Incident #2 (Docket No. 56, Defs. Ex. H; Docket No. 66, Pls. Ex. S), and the incident conceded by defendants to be similar are admissible, but the other prior incidents identified [*53]  by defendants are not similar and are inadmissible. Defendants’ motion in limine (Docket No. 53) as to the admission of evidence of prior incidents substantially similar to LD’s 2010 incident is granted in part, save for the conceded prior incident.

b. Subsequent Incidents

As for subsequent incidents (Docket No. 56, Defs. Exs. Q-S; Docket No. 66, Pls. Ex. X (Feb. 26, 2012, incident), Table 4 lists these incidents, with this Court continuing the incident numbering scheme the parties used for the prior incidents.

[Chart Removed because it would not format for this site]

Plaintiffs argue that one incident, #13 (Docket No. 56, Defs. Ex. S; Docket No. 66, Pls. Ex. X) is similar to LD’s 2010 (Docket No. 66, Pls. Atty. Decl. ¶ 35). There, a four-year-old youth was riding with his father on February 26, 2012, and was on a different chairlift, Mardi Gras, approximately 32 yards from the bull wheel (Docket No. 56, Defs. Ex. S; Docket No. 66, Pls. Ex. X). According to the eight-year-old sister of that youth, that child wiggled in the chairlift seat and fell from it (id.). These differences [*54]  distinguish this incident from LD’s by the later child riding with a parent and no mention of the restraint bar having a role in the incident. This incident is distinct from LD’s.

As for the other two incidents, the youths were older than LD and had more skiing experience. Incident #11 (Docket No. 56, Defs. Ex. Q) is the closest to LD’s 2010 experience; that incident had a 6 1/2 year old youth fall from the Creekside chairlift 62 feet above Tower 5. That youth claimed he “never really got on chair” and the chair stopped and he fell (id. at 1). Witnesses reported that the restraint bar was down as other skiers held the youth until losing their grip (id. at 7). But this incident is sufficiently distinct from what LD experienced to not admit that subsequent incident into evidence.

Thus, the subsequent incidents are inadmissible. Defendants’ motion in limine on this ground (Docket No. 53) is granted as discussed above.

4. Defense Supplemental Motion (Docket No. 58), Exclude Non-Disclosed Expert Testimony

In their supplemental motion in limine (Docket No. 58), defendants next ask that undisclosed plaintiffs’ expert testimony be excluded (id., Defs. Memo. at 2-3). Plaintiffs contend that they did disclose regarding [*55]  future medical expenses; alternatively, they argue that defendants waived any objection to that disclosure by not moving to compel further disclosure (Docket No. 66, Pls. Memo. at 16-18; see also Docket No. 68, Pls. Atty. Reply Decl.¶ 3, Ex. A (supplementing plaintiffs’ discovery). Plaintiffs also argue that defendants overstate the scope of the witnesses defendants claim are plaintiffs’ experts (plaintiff Bryan DiFrancesco, wife Natascha DiFrancesco, and brother Dean DiFrancesco); for example, uncle Dean DiFrancesco would not testify as an expert regarding inadequate supervision but would testify as to his expectation regarding supervision of youth (Docket No. 66, Pls. Atty. Decl. ¶ 36). During oral argument, plaintiffs offered to supplement evidence of LD’s future medical requirements (see Docket No. 69). The parties reserved the right to file a new round of motions in limine regarding this supplementation (as well as other supplemented discovery).

Plaintiffs do not list the DiFrancescos as expert witnesses in their pretrial submissions (see Docket No. 54, Pls. Pretrial Memo. at 14-15), only expressly identifying Penniman as their expert witness (id. at 21). Defendants’ supplemental motion [*56]  in limine (Docket No. 58) on this ground is deemed moot, but subject to renewal upon receipt of the supplemental discovery.

5. LD’s Mother Is Not Qualified as an Expert to Opine on LD’s Future Treatment

Defendants next contend that LD’s mother, Natascha DiFrancesco is not qualified as an expert to render an opinion as to LD’s need for future treatments (Docket No. 58, Defs. Memo. Supp’al Motion at 3), since Mrs. DiFrancesco has degrees in sociology and physical therapy and lacks the medical qualification to opine as to LD’s physical care needs (id. at 3; id., Defs. Atty. Decl. ¶ 3, Ex. C, EBT Tr. Natascha DiFrancesco).

Plaintiffs respond that the parents would testify to medical expenses incurred but health care provider witnesses would testify to the medical necessity for future treatment of LD (Docket No. 66, Pls. Atty. Decl. ¶ 37). They also point out Dr. Bryan and Natascha DiFrancesco are both “health care professionals and have had extensive contact and conversations with the infant plaintiff’s health care providers, an understanding of immediate health care surveillance she requires and the fact that they have been informed that the infant plaintiff is a candidate for require [sic] future [*57]  medical surveillance, treatment, injections, surgery and imaging” (id.). Both parents discussed LD’s care and future medical needs with treating orthopedic surgeon, Dr. Devin Peterson (id. ¶¶ 40, 41).

Plaintiff Bryan and Natascha DiFrancesco can testify to the facts of LD’s past treatment and the recommended follow up, with health care providers testifying as to the necessity of future medical care. Plaintiffs, however, are not holding them out as “experts,” they claim that Natascha DiFrancesco would testify as to the necessity for LD having future medical care (see Docket No. 54, Pls. Trial Memo. at 15). Thus, they cannot invoke Dr. and Mrs. DiFrancesco’s respective experience in health care professions (according to defense moving papers, Natascha DiFrancesco has degrees in occupational therapy and sociology, Docket No. 58, Defs. Atty. Decl. ¶ 8) to bolster their factual testimony as to LD’s care that any other layperson could testify to their injured daughter or son. As refined, defendants’ supplemental motion (Docket No. 58) is granted in part.

6. Physical Therapist Emily Wray Cannot Offer an Expert Opinion on Causation or Diagnosis

Defendants caution that plaintiffs’ physical therapist, [*58]  Emily Wray, is not an expert as to the cause or diagnosis for LD’s injuries (Docket No. 58, Defs. Memo. Supp’al Motion at 3-4). Defendants produced a copy of plaintiff Bryan DiFrancesco’s business website for the Active Body Clinic. This website listed among the staff of that clinic Ms. Wray (Docket No. 58, Defs. Atty. Decl., Ex. B). Plaintiffs, however, offer Ms. Wray’s testimony as to her observations in treating LD in 2015 (Docket No. 66, Pls. Atty. Decl. ¶ 38, Ex. AA; see also Docket No. 54, Pls. Memo. at 23-24). Thus, she is being called as a treating witness rather than an expert. This Court notes that Wray’s employment with Bryan’s Active Body Clinic raises issues of bias but this goes to her ultimate credibility and not to the admissibility of her testimony. Again, as modified to restrict her testimony to her factual observations, defendants’ motion (Docket No. 58) is granted.

7. Plaintiff Father Dr. Bryan DiFrancesco Cannot Opine on Fractures, Surgical Procedures on LD

Finally, defendants move to preclude plaintiff Dr. Bryan DiFrancesco from testifying as an expert on LD’s fractures and surgical procedures (Docket No. 58, Defs. Memo. Supp’al Motion at 4). Defendants contend [*59]  that plaintiff Bryan DiFrancesco is a chiropractor, acupuncturist, and physical therapist and thus lacks the expertise to render an opinion as to LD’s treatment of her fractured femur (id.; Docket No. 58, Defs. Atty. Decl. ¶¶ 3, 8, Ex. B). Defendants point out that plaintiffs have not provided disclosure of the nature and extend of future treatments that LD requires (Docket No. 58, Defs. Memo. Supp’al Motion at 4).

Again, plaintiffs are not holding Dr. Bryan out as an “expert,” his anticipated testimony is regarding LD’s condition before and after the accident, including the necessity for future treatment (Docket No. 54, Pls. Trial Memo. at 14); thus, they cannot invoke his expertise in health care professions as a chiropractor, acupuncturist and physical therapist to bolster factual testimony as to LD’s care that any other parent not in a health care profession could testify for their injured daughter or son. It is unclear in this record the extend of Dr. Bryan DiFrancesco’s medical training that he received in obtaining his chiropractic and physical therapy degrees in Canada. As refined, defendants’ supplemental motion (Docket No. 58) is granted in part.

CONCLUSION

For the reasons stated [*60]  above, plaintiffs’ motion in limine (Docket No. 56) is granted in part, denied in part as specified above. Plaintiffs’ motion to exclude evidence of infant LD’s assumption of the risk is denied, as well as evidence of the release (as being contrary to New York State public policy) is denied but on different grounds; their motion to preclude evidence of LD’s 2015 clavicle injury at Holimont is granted in part with medical records first subject to this Court’s in camera review.

Defendants’ first motion in limine (Docket No. 53) is granted in part, denied in part as provided in detail above. Their supplemental motion in limine (Docket No. 58) is granted in part, denied in part as specified above.

Jury selection and trial is set for Monday, July 17, 2017, commencing at 9:30 am (Docket Nos. 69, 71), with a Final Pretrial Conference to be scheduled and a further Pretrial Order to be separately issued. The Interim Pretrial Conference (Docket Nos. 71, 63), remains set for Wednesday, April 19, 2017, 10:30 am (Docket No. 72).

So Ordered.

/s/ Hugh B. Scott

Hon. Hugh B. Scott

United States Magistrate Judge

Dated: Buffalo, New York

March 20, 2017

 


Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the course

A good procedure for tracking releases and bibs help prove the plaintiff had signed the release when she denied that fact in her claims.

Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)

State: New York, Supreme Court of New York, New York County

Plaintiff: SUPREME COURT OF NEW YORK, NEW YORK COUNTY

Defendant: City of New York, Korff Enterprises, Inc., and Central Park Conservancy

Plaintiff Claims: negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines.

Defendant Defenses: Release

Holding: For the Defendant

Year: 2016

This was a simple case where a triathlon course was closed, but a jogger ran into a cyclist. However, there was one quirk. The cyclist was para-athlete riding a push-rim racer.

Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive.

Although the rights of a para-athlete are identical to those of any other athlete, it is interesting to see if either side used the issue legally to their advantage. Neither did.

The plaintiff sued for her injuries.

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

The court first looked at how releases are viewed under New York law. New York has a statute voiding releases if those places using them are places of amusement charging for admission. See New York Law Restricting the Use of Releases.

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

However, the court found since this was a race it was not an admission fee but a participation fee; the statute did not apply.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law Language relieving one from liability must be unmistakable and easily understood. The waiver at issue here clearly and unequivocally ex-presses the intention of the parties to relieve defendants of liability for their own negligence and because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326

The next issue was the plaintiff claimed that she did not sign the release. However, the husband under oath testified that the release could have been his wife’s. “George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’.”

In addition, the procedures at the beginning of the race required a racer’s signature. A racer did not get a bib until they had signed the release and proving their identify.

Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib.

Whether the identification and procedures are in place to prevent fraud in case of an accident and subsequent suit or to prevent fraud among the racers is not clear.

The plaintiff also claimed the defendant was negligent in their cone placement and location of race marshals. She argued the cones should have been placed closer together.

On this claim, the court argued the plaintiff had assumed the risk by racing.

Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results”

The application of the doctrine of assumption of risk is to be applied based upon the background, skill and experience of the plaintiff. In this case, the plaintiff had considerable experience racing in triathlons.

Awareness of risk, including risks created by less than optimal “is not to be determined in a vacuum” but, rather, “against the background of the skill and experience of the particular plaintiff”. Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park.

Because the plaintiff was experienced in racing in triathlons and signed a release her claims were barred.

So Now What?

This case resolved around whether or not the defendant could prove the plaintiff had signed a release, when denied she had signed it. By having procedures set that proved who the person was and not allowing the person to receive a bib, and consequently, race, until a release had been signed was pivotal.

On top of that when a party to the suit, in this case the husband admitted the signature could have been the plaintiffs the court took that statement as an admittance against interest. The husband was a litigant because he was claiming damages as a spouse. A spouse’s claim, as in this case are derivative of the other spaces main claims. That means the plaintiff spouse must prove her claims or the derivative claims also fail.

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States that do not Support the Use of a Release

The most changes in this form have occurred in the last year over the last ten years.

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues/Article

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

 

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

State created Equine Liability Statute so no need for release

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

 

Mississippi

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Wisconsin

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release

New York

General Obligation Law § 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.

 

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States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues/Article

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

 

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

State created Equine Liability Statute so no need for release

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

 

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Wisconsin

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release

New York

General Obligation Law § 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.

 

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Facebook Page: Outdoor Recreation & Adventure Travel Law

 

 

 


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.


Don’t waste paper if you are not going to do it right. Use the magic words needed for a release.

Challenge course in New York loses lawsuit because their release was poorly written. Besides New York General Obligations Law § 5-326 did not apply to a non-profit treatment facility.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

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

Plaintiff: Carol Barone

Defendant: St. Joseph’s Villa

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the plaintiff

Year: 1998

All we know in this three paragraph decision is the plaintiff was injured when she fell while “participating in a “challenge’” course” owned by the defendant.

The trial court dismissed the plaintiff’s complaint because of the release she signed. The plaintiff appealed arguing that New York General Obligations Law § 5-326 prevented the defendant from using a release and appealed.

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

In the second paragraph, the court looked at New York General Obligations Law § 5-326 and held that it did not apply in this case because “defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment

New York General Obligations Law § 5-326 states:

§ 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.

[emphasize added]

The defendant was a non-profit residence for needy adolescents and provided mental health and community services. The challenge course was part of its therapeutic purpose.

The release was not voided because of the New York statute. The court on its own and not as part of the appeal, looked at the wording of the release at issue.

The release was void because under New York law, a release had to have clear and explicit language. The release used the language “plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant]”.

The court stated the release did not mention the word negligence. “Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence.”

If you read the release, you can see how the court could interpret the release to mean you can’t sue if you fall down in the hallway. However, if you fall down in the hallway because we tripped you, then the release was void because that was a negligent act not covered by the release.

The appellate court reversed the lower court because the language of the release was insufficient to top a claim of negligence because it did not use the word negligence in the release.

So Now What?

Figure it took three years for the appeal to be heard from the date of the accident, conservatively. Figure legal fees are roughly $50,000 a year more or less to get to this point.

Figure the owners/managers/directors of the defendant spent 500 hours fighting the lawsuit by prepping for and attending depositions, answers discovery, spending time with the attorneys, worrying at night.

Think it was worth using a badly written release or would they have been better off spending a couple of thousand dollars have a release written properly?

What do you think? Leave a comment.

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Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Carol Barone, Appellant, v. St. Joseph’s Villa, Respondent.

(Appeal No. 2.)

1430.

Supreme Court of New York, Appellate Division, Fourth Department

255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

November 13, 1998, Decided

November 13, 1998, Filed

Prior History: [***1]    (Appeal No. 2.) (Appeal from Order of Supreme Court, Monroe County, Bergin, J. – Reargument.)

Judges: Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Opinion: [*973] [**783] Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated.

Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.

General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95, 101; Gross v Sweet, 49 NY2d 102, 107; [***2] [*974] Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758; Chieco v Paramarketing, Inc., 228 AD2d 462, 463; Perelman v Snowbird Ski Shop, 215 AD2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides mental health and other community services; it maintains the “challenge” course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.

We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110; see also, Lago v Krollage, supra, at 99-100; Ciofalo v Tanney Gyms, 10 NY2d 294, 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release [***3] may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908, 908-909; Machowski v Gallant, 234 AD2d 933, 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Reargument.)

Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.


If you have a manual, you have to follow it, if you have rules, you have to follow them, if you have procedures, you have to follow them, or you lose in court.

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Defendant with spin cycle class loses this lawsuit because they simply failed to follow their own rules and procedures. Consequently the plaintiff did not know or understand the risks of riding a spin bike and could not assume the risk.

State: New York, Supreme Court of New York, New York County

Plaintiff: Wolf Scheck and Lynn Scheck

Defendant: – Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the risk

Holding: for the plaintiff

Year: 2012

This is interesting because of how the defendant lost the case. The plaintiff and his wife wanted to try spin classes for fitness. They registered for a spin class not knowing how or what a spin class was. New people in the class were told to arrive 15 minutes early to have an introduction and training in the equipment and the class.

The plaintiff argues he was not properly instructed on the use of the equipment, and the dangers of the equipment were not readily apparent. Those dangers were increased by the defendant’s actions by not properly instructing the class and training the plaintiff.

It appears that the plaintiff arrived late, as his wife was already there. The information provided to the plaintiff was not as comprehensive as the information provided to the plaintiff’s wife.

A spin cycle is a fixed gear bicycle meaning the pedals do not coast but rotate once each side for every wheel rotation.

The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still and let the wheel spin. Just pushing with your feet to attempt to stop the wheel is futile “unless you have very strong legs.”

During the class, the defendant stood up when told and injured his knee. Beginners are normally told not to stand up in spin classes. The plaintiff sued for his knee injury. The defendant filed a motion for summary judgement based on assumption of the risk, which was denied leading to this decision.

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

The first mistake is the defendant had a release but did not have either the plaintiff or the plaintiff’s spouse sign one. The validity of the release might have been at issue because the defendants paid a fee for an exercise class which might trigger General Obligation Law § 5-326 voiding the release. See NY court explains how it interprets § 5-326, which disallows releases in NY. Upholds release for a marathon for more about how this statute bars some releases in New York.

The defendant failed to follow numerous requirements for the class which it had set out either in how it dealt with people or in a manual it created for this situation. Those requirements included the following:

·        The defendant employee adjusted the seat height for the plaintiff and showed him where the brake was, however, the employee did not know how to use the brake.

·        Instructions were given to the defendant’s spouse, but not the defendant on several safety issues.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

·        Although they were requested to arrive 15 minutes early for training, the defendant’s employee only spent 2 minutes with them explaining the class and the spin cycle.

·        The instructors “…usually warn beginners not to get up out of the saddle. None of the defendant employees did give this warning to either defendant, and the plaintiff was injured when he stood up to pedal when the instructor told him too.

The defendant had a training manual to be used. The training manual required.

…instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.”

None of the items listed in the training manual were followed except for providing the plaintiff with free shoes.

Assumption of risk was defined according to New York law and how it was going to be applied in this situation. For assumption of risk to be effective, the risks cannot be increased. “A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks.” There is a duty on the dependent to make the conditions as safe possible. “Furthermore, the defendant has a duty to make the conditions as safe as they appear to be.”

The defendant’s duty, for the plaintiff to assume the risk, is measured against the risks known by the plaintiff. “…when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered.”

The court then pointed all the problems the defendant created by not instructing the new plaintiff in spinning. The court summed up its analysis of the failures of the defendant to instruct the plaintiff by pointing out the defendant had a manual that required the employees to do each thing the manual required “The Soul Cycle training manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.”

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation”

The court also found that use of a gym or health club was not a sporting event which allows for increased risks to be assumed by the plaintiff and allows for the plaintiff to not fully understand some of the risks. A player in a sporting event assumes the risk of the game; including those he or she may not fully understand.

In this case, defendants have failed to prove, as a matter of law, that plaintiff assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals; the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the risks which he was subjected to. There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment.

The case was set for trial.

So Now What?

Remember that assumption of the risk is accepting a known risk. By not instructing the plaintiff properly before the class began, the plaintiff could not assume the risk because the plaintiff did not know the risk. The defendant knew the risks, and had rules that required them to inform the plaintiff of the risks.

This fact was emphasized by the court several times pointing out the defendant’s manual required something to be done, which was not done.  

If you write it down and call it a manual, plan, standard, rules or regulations you better follow it every time.

What do you think? Leave a comment.

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Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

[**2] Wolf Scheck and Lynn Scheck, Plaintiff(s), -against- Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice, Defendant(s). Index No.: 104046/10

104046/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

July 26, 2012, Decided

August 2, 2012, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: bike, spin, cycle, wheel, brake, leg, assumption of risk, pedal, shoes, summary judgment, stationary, feet, gym, instructor, beginner, clerk’s, resistance, bicycle, spinner, front, heightened, sport, weighted, regular, street, online, minutes, rider, issues of fact, risks inherent

JUDGES: [*1] PRESENT: Hon. Judith J. Gische, J.S.C.

OPINION BY: Judith J. Gische

OPINION

Decision/Order

Upon the foregoing papers, the decision and order of the court is as follows:

Gische J.:

This is a negligence action for personal injuries. Now that issue has been joined and the note of issue was filed, defendants move for summary judgment. Plaintiffs raise the issue of the untimeliness of this motion, arguing that the motion was brought more than 120 days after the Note of Issue was served and filed.

CPLR 3212 provides that any party may move for summary judgment after issue has been joined and, If no date is set by the court, such motion shall be made “no later than [120 days] after the filing of the note of issue…” SCROLL (the Supreme Court Records On Line Library) shows that the Note of Issue was stamped “received” in the [**3] Trial Support Office on June 27, 2011, but the fee was paid and accepted by the New York County Clerk’s Office on June 29, 2011. Defendant’s motion was served by mail on October 26, 2011. A motion on notice is “made” when it is served (CPLR 2211). Papers are filed when they are delivered to the court clerk or the clerk’s designee (see Matter of Grant v. Senkowski, 95 N.Y.2d 605, 744 N.E.2d 132, 721 N.Y.S.2d 597 [2001]). Furthermore, [*2] not only does the Note of Issue have to be filed with the County Clerk, it must be accompanied by the payment of the appropriate fee, as prescribed by CPLR 8020 (Uniform Civil Rules for the Supreme Court and the County Court, 22 NYCRR 202.21).

Since the Note of Issue was paid for and filed with the County Clerk on June 29, 2011, and defendants’ motion was “made” on October 26, 2011, when it was served by mail, it was timely made within the 120 day statutory period (CPLR 3212 [a]; Gazes v. Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [1st Dept 2007]; see also, Nolan v. J.C.S. Realty, 79 AD3d 414, 910 N.Y.S.2d 906 [1st Dept 2011]). The motion, therefore, will be decided on its merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 [2004]).

Facts and Arguments

This action arises from events that occurred on December 25, 2009 (“date of the accident”) at “Soulcycle,” located on 83rd Street and Lexington Avenue in Manhattan during an indoor cycling class. The complaint alleges that Wolf Scheck was injured while in this “spin” class. According to Mr. Scheck, taking a spin class is not the same as just riding a regular street bicycle or stationary bicycle found at any gym. He did not, however, know this before he took the class. [*3] Mr. Scheck contends he was not properly instructed or supervised in how to use the equipment and that this constitutes negligence on the part of the defendants. Mr. Scheck denies he assumed the risk of [**4] injury just by participating in the class. He claims that the danger of this activity was not readily apparent to the casual observer and was increased by the defendants’ actions.

Defendants are Soul Cycle East 83rd Street, LLC (“Soul Cycle”), the company that owns, maintains, operates, etc., the Soul Cycle facility where the accident is claimed to have occurred and Julie Rice (“Rice”), a member of the Soul Cycle LLC. Defendants contend they are entitled to summary judgment dismissing the complaint because Mr. Scheck, by voluntarily participating in Soul Cycle’s spin class assumed the risks inherent to the participation of that recreational activity, thereby relieving them of any duty to prevent the type of accident he complains of. Defendants deny they improperly instructed Mr. Scheck in the use of the equipment. Defendants seek the dismissal of all claims against Ms. Rice on the basis that she was not personally involved in the happening of the accident and there are no factual allegations [*4] against Ms. Rice individually. They maintain she is corporate officer.

Mr. Scheck and Mrs. Scheck1 were each deposed about the accident. Mr. Scheck testified at his EBT that his wife suggested they try a spin class. Mrs. Scheck testified at her EBT that friends had told her how they lost weight “spinning” and she was eager to try it. Neither of the Schecks had any idea what it meant to “spin” or what kind of bicycle was involved. Both of them, however, have regular exercise routines. Mr. Scheck is a two-time marathon runner, he does weight training and plays tennis. Each of the Schecks has a gym membership and has belonged to other gyms in the past.

1 Mrs. Scheck has a derivative claims for loss of consortium/services.

Mrs. Scheck registered the couple for the class online after calling the facility and [**5] asking some questions. She was told on the phone they should come to class 15 minutes early so staff could go through “the whole [regimen] for you and explain everything carefully, because I said I don’t want there to be anything that goes wrong.” When Mr. Scheck arrived for the spin class, his wife was already there. He did not check himself in or do anything other than put his things [*5] in a locker. Mrs. Scheck testified that when she arrived, she learned that Soul Cycle showed only one of them was registered for the class, even though she had payed online for two participants. Apparently that was corrected and both Mr. and Mrs. Scheck were allowed to take the class.

Once inside the classroom, a female employee approached them and asked whether they had done a spin class before. Each of them said no. Mr. Scheck testified this person suggested they sit in the back because it might be easier for them to watch what everyone else was doing. This person told Mr. Scheck to get on the bike while she adjusted the seat for him. She also showed him where the brake was, but not how to use it. Mr. Scheck testified that he did not test the brake out to see how it worked. This process took about two (2) minutes. Noticing that he was not wearing the correct shoes, the female employee told Mr. Scheck to go get bike shoes from the front desk, which he did. These shoes (later described by others who were deposed), have a cleat that locks the rider’s shoes to the pedals, preventing their feet from slipping off.

The female employee who taught the class, later identified as Marybeth Regan, [*6] was someone different than the person who had shown Mr. Scheck the equipment. Ms. Regan was seated at the front of the class on a raised platform. Once the class was under way, some of the cyclists started pedaling very fast. Mr. Scheck, however, [**6] maintained a slow pace, pedaling very slowly. Five (5) or ten (2) minutes into the class, the instructor told the cyclists to stand up for the next exercise. Scheck obliged and as he raised himself with his right leg elevated and his left leg extended, “the machine grabbed my [right] leg and pulled it around…” The pedals kept revolving, almost on their own, all the while with Scheck’s feet strapped in. Scheck heard a “pop” and intense pain. One or two persons help extricate him from the bike and he was taken to the hospital by ambulance. He later discovered he had torn the quadriceps muscle in his right leg.

Madison Warren worked at the 83rd Street facility. She was the front desk associated on the day of the accident. Ms. Warren testified at her EBT that there were only three (3) people working that day, including herself, because it was Christmas Day. Ms. Warren was asked about the procedures for purchasing classes online and what new [*7] spinners usually do when they arrive for a class. According to Ms. Warren, new spinners are asked to sit in back of the class and this is reflected in a sheet showing that the Schecks were moved from one set of bikes to another in the back. She also testified that when purchasing classes online, someone can buy more than one class, or classes for more than one person. It is required, however, that the person making the purchase check a box indicating s/he has seen the waiver before s/he can complete the transaction. A hard copy of the waiver is at the front desk and participants are asked to sign and initial them upon arrival. Ms. Warren did not know whether Mr. Scheck was handed a hard copy of the waiver when he arrived for the spin class. No log of who trains each new person is maintained by the facility, Generally, the instructor teaches to the skill level of the class: if there are many beginners, the class is easier. Regardless, of the overall skill level, instructors usually warn beginners not to get up out [**7] of the saddle. Ms. Warren testified that there is a training manual instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, [*8] 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.” Ms. Warren does not recall who assisted Mr. Scheck that day and the two employees who worked there on the day of the accident are no longer with the company.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

Ms. Warren and Ms. Regan were each separately asked to describe the differences between a spin bike and a stationary bike. Ms. Warren responded that, unlike a regular [*9] bicycle, a spin cycle has a single fixed wheel. Unlike a regular stationary bike, each pedal will result in one revolution of the wheel. Ms. Warren testified that she had never ridden with anyone else who had used a similar bicycle. So long as the front wheel is spinning. The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still [**8] and let the wheel spin. Just pushing with your feet to attempt to stop the wheel Is futile “unless you have very strong legs.”

Ms. Regan testified that instructs beginners that the bike has a weighted wheel and “you know [how] on a bike you can coast and stop your legs, Not on this. It’s a weighted wheel, so if you stop your legs you’re going to keep going. So you need to either turn the resistance up, or push down on the brake.” standing up in the saddle, it is important that a rider not lean on the handlebars because “you can fall forward…” She also stated that the special shoes Mr. Scheck was wearing bound his feet to the pedals and, if you fall forward, “the legs would keep going…” from the momentum “until you push down on the brake.” Ms. Regan specifically recalled that [*10] did not give these instructions to Mr. Scheck or tell him that “righty tighty” is how resistance is increased. According to Ms, Regan, this is an Instruction she gives on an individual basis, not to the entire class. When asked whether the spinner had specific instructions or warning on it, setting forth these precautions, Ms. Regan replied “no.” She also testified that the weighted wheel bike looks different than a stationary bike.

Applicable Law

On a motion for summary judgment, it is the movant’s burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). The party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his/her/its failure so to do (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

[**9] Discussion

While the parties basically agree on the law, they dispute its application to the facts at bar. Plaintiff contends that by all appearances, the spin bike he voluntarily agreed to use during his class looks like any other stationary [*11] bike and that when he signed up to take a spin class he assumed It was like riding any other stationary bike he had seen in other gyms. Thus, his argument is he assumed a lower risk than it turned out to actually be. Taking this argument further, plaintiff urges the court to deny defendants’ motion because he did not assume the more heightened risk and, therefore, the doctrine of implied assumption of risk applies. Plaintiff cites extensively to the Court of Appeals opinion in Trupia v. Lake George Central School Dist. (14 NY3d 392, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010]), Trupia involved a 12 year old student enrolled in a summer school program. The child was injured when, while attempting to slide down a banister, he fell off. In the Court of Appeal’s lengthy opinion Chief Judge Lipmann wrote that:

We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school–only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable [*12] way enabled.

Plaintiff maintains, based on this language, that the doctrine of the assumption of risk is no longer a complete bar to recovery, except in very limited circumstances which are not present in this case. Defendants, on the other hand, urge the court to apply the doctrine of primary assumption of risk. The doctrine of primary assumption of risk is [**10] commonly applied in situations involving sports, both amateur and professional. A key distinction in these doctrines is that CPLR 1411, which addresses issues of comparative negligence, is applicable by its terms to implied assumption of risk (Abergast v. Board of Education, 65 NY2d 161, 480 N.E.2d 365, 490 N.Y.S.2d 751 [1985]) whereas a voluntary participant in a sporting event assumes the known risks normally associated with that sport (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Thus, defendants argue Mr. Scheck knew or should have known, and therefore consented to the foreseeable consequences of his participation in the spin class (Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]).

Plaintiff’s interpretation of the Trupia decision is unduly restrictive and ignores other, important language in that decision:

We have recognized that athletic and recreative [*13] activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation…

It is clear from the rest of the Trupia opinion that the doctrine of primary assumption of risk was not a possible defense for the defendant-school because the injury producing activity was unsupervised “horseplay” (i.e. school negligence) not an activity normally associated with the heightened risks attendant to sports activities. The Court did not, as plaintiff suggests, sweep away a legion of cases in which courts have [**11] recognized that certain sport activities present significantly heightened risk of injury. This point is evident from the Court of Appeals’ more recent decision in Bukowski v. Clarkson University (19 NY3d 353 [2012]). Bukowski involved a student whose jaw was broken [*14] when he was struck in the face with a baseball. The accident occurred when, for the very first time, he was pitching live in a cage. The court affirmed dismissal of plaintiff’s case because “there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or even enhanced risk . . .”

A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks (Morgan v. State, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [player tripped on torn net]). Furthermore, the defendant has a duty to make the conditions as safe as they appear to be (Gortych v. Brenner, supra, citing Turcotte v. Fell, 68 NY2d at 439). Thus, when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered (Turcotte v. Fell, supra at 438).

Mr. Scheck agreed to take a spin class that was led by an instructor in a gym like setting. He provided shoes he was unfamiliar with, the seat was adjusted for him and he was given preliminary instructions about how the resistance on the bike worked. He was also shown the brake on the bike. No one explained the relationship between the tension knob, the brake and [*15] how the weighted wheel worked, although the instructor and Ms. Warren each acknowledged the uniqueness of the bikes used at the facility. The entire instructional phase took two minutes, even though the person assisting him knew he was new to the class and had never “spun” before. The Soul Cycle training [**12] manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v. Fell, supra at 439). There is appellate authority that use of a gym facility is not participation in a sporting event (Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 686 N.Y.S.2d 143 [3rd Dept 1999]; Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998J). Furthermore, where the plaintiff is a neophyte, the level of his or her experience is taken into account (Petretti v. Jefferson Valley Racquet Club, Inc., supra). [*16] Although the doctrine of primary assumption of risk has been applied in a recreational setting where a biker is injured (Gortych v. Brenner, 83 A.D.3d 497, 922 N.Y.S.2d 14 [1 Dept 2011]; Cotty v. Town of Southampton, 64 A.D.3d 251, 880 N.Y.S.2d 656 [2nd Dept 2009]), a primary distinguishing factor is that those cases involved bikers pedaling outdoors and their injuries were due to a defective condition on the road or path they were on. In each of those cases, defendants were denied summary judgment because they failed to make a prima facie showing that the primary assumption of risk doctrine was applicable to the activity in which the plaintiff was engaged at the time of his or her accident.

In this case, defendants have failed to prove, as a matter of law, that plaintiff [**13] assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals, the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the [*17] risks which he was subjected to (Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998]). There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment. Therefore, defendants’ motion to dismiss the complaint against Soul Cycle is denied.

Defendants’ motion to dismiss the claims against Ms. Rice is granted, as plaintiff has presented no argument about why that branch of their motion should be denied. No factual claim is made that she was involved in the accident or that she acted outside her capacity as a member of the company. Therefore, the claims against Ms. Rice are hereby severed and dismissed in their entirety.

Conclusion

Defendants’ motion for summary judgment is granted only to the extent that the claims against Ms. Rice are severed and dismissed. The balance of defendants’ motion for summary judgment is, however, denied not only because Soul Cycle has failed to prove it is entitled to such relief as a matter of law, but also because there are triable issues of fact. The issue of the timeliness of this motion is decided in favor of the defendants and plaintiff’s objection to this motion as untimely is denied.

[**14] [*18] This case is ready to be tried. Plaintiff shall serve a copy of this decision and order on the Mediator who is assigned to this case and also on the Office of Trial Support so the case can be scheduled for trial.

Any relief requested but not specifically addressed is hereby denied. This constitutes the decision and order of the court.

Dated: New York, New York

July 26, 2012

So Ordered:

/s/ Judith J. Gische

Hon. Judith J. Gische, JSC


States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

 

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

 

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

 

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release

New York

General Obligation Law § 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.

 

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The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff

Plaintiff’s rented a canoe and sued when they did not make the takeout and became stuck. The plaintiff’s took 4 hours to paddle 2.5 miles

Ferrari v. Bob’s Canoe Rental, Inc., 2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)

State: New York, Supreme Court of New York, Suffolk County

Plaintiff: Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually

Defendant: Bob’s Canoe Rental, Inc.

Plaintiff Claims: negligent in permitting them to rent the canoe and launch so close in time to low tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.

Defendant Defenses: Assumption of the Risk and Release

Holding: Defendant

Year: 2014

The facts are pretty simple, even if expanded by the plaintiffs. The plaintiff wanted to rent a canoe on the Nissequogue River in Suffolk, New York. The Nissequogue River is affected by tides. At low tide, the river disappears and the ocean rushes in. The plaintiff/deceased/husband had canoed the river several times before. The plaintiff/husband and wife contacted the defendant the day before and arrived the day of the incident in the morning. However, the defendant was not at the put in, but located at the takeout. The plaintiff’s drove to the take out where they left their car and were taken back to the put in by the defendant where they started canoeing.

Prior to starting the trip each plaintiff signed a release, and the wife signed a rental agreement for the canoe.

A canoe livery if you are not familiar with one is really a rental operation like a car rental operation where you rent a car and go anywhere you want. A canoe livery you rent the canoe and paddle down a specific section of a specific river. At the end of the trip, the livery picks you up and takes you back to your car. Some liveries start by taking you upriver where you paddle down to your car.

Generally, courts look at canoe liveries as outfitters, not as rental shops. Consequently, liveries are held to a slightly higher degree of care for their guests because of their control over the boat, the river and transportation.

The time prior to putting in, the husband questioned the employee of the defendant about whether they had enough time to canoe the river before the low tide. The employee confirmed they did.

From the put in to the take out is a distance of five miles. Witnesses and the defendant testified it could easily be canoed in 2.5 hours.

After 4 hours of canoeing, the plaintiffs on the day in question had made it 2.5 miles. The tide went out leaving them stranded. According to the wife, the pair started drinking the vodka and wine they had with them to stay warm.

Eventually, they were found and treated for hyperthermia.  

The plaintiff sued for basically not stopping them from renting the canoe. The court also looked at their complaint and defined one of their allegations as a negligent misrepresentation claim.

At the time of the trial, the husband had died; however, his death was not part of this case or caused by the facts in this case.

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

The court looked at the degree of care the defendant owed to the plaintiff and found the plaintiff was voluntarily participating in a sporting or recreational activity. As such, the participants “consent to the commonly appreciated risks that are inherent in and arise out of, the nature of the sport generally and flow from participation therein.” Consequently the participants consent to injury caused by events which are “known, apparent, or reasonably foreseeable risks of the participation.”

If the plaintiff fully comprehends the risks, then the plaintiff consents to them. Stated another way “the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks…”

The court found the defendant husband was an experience canoeist and understood the tides, and the risks presented by both. Therefore, the plaintiff’s assumed the risk of injury.

The court then looked at the releases.

It must appear absolutely clear that the agreement extends to negligence or other fault of the party. “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear”

Under New York law once the defendant has presented the release, and it has passed the test to exclude negligence the plaintiff must produce evidence, admissible at trial, “sufficient to require a trial of the material issues of fact.”

Here the plaintiff had not submitted any evidence other than the testimony of the plaintiff’s. More importantly the court wanted to know why it took four hours to go half way on the trip.

The court then looked at the remaining allegations and determined those sounded like a claim of negligent misrepresentation. To prevail on a negligent misrepresentation claim the plaintiff must prove “a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided

Here the court found that no evidence had been submitted by the plaintiff to prove the information supplied by the defendant was false.

The plaintiff’s complaint was dismissed.

So Now What?

This case was short but very interesting. The plaintiff did not attack the releases. The court even commented about the fact the plaintiff did not try to have the releases thrown out or voided. Additionally, the plaintiff simply tried to say that the defendant was liable because they got stuck. This is a belief that many plaintiffs have now days. I suffered an injury; therefore, you must be liable.

To win a negligence claim you must prove negligence. Here the plaintiff had not argued there was a breach of the duty owed to them.

There are several abnormally that make this interesting. The first is the standard of care applied to this case is significantly lower than normally that a canoe livery must meet. However, that same standard of care was only at issue on a small part of the claim so the claim would have failed anyway.

The second is the experience of the husband as a canoeist was held to prevent the plaintiff wife from her claims also. Normally, assumption of the risk must be known and understood by each injured plaintiff.  Here, because there were two people in the canoe both working together, the court applied the experience and knowledge of one party in the canoe to the other party in the canoe.

The court did not rely on the release or any other document to make this decision as to the wife assuming the risk that caused their injuries.

Granted, the defendants should have clearly won this case. Whenever in a deposition, the plaintiff argues, they did not start drinking until after they had run out of water to canoe, to stay warm, you should be a little suspect.  

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To sue a Vermont ski area, there must be more than a web presence to sue in New York.

Plaintiff injured at Killington ski area tried to sue Killington in New York court because Killington had a website that the New York plaintiff could access online. New York’s long arm statute requires more than a website to bring a foreign defendant to a New York court.

Haffner, et al., v Killington, Ltd., 119 A.D.3d 912; 990 N.Y.S.2d 561; 2014 N.Y. App. Div. LEXIS 5452; 2014 NY Slip Op 05522

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

Plaintiff: Claudia Mejia-Haffner and her husband, Steven R. Haffner

Defendant: Killington, Ltd.

Plaintiff Claims:

Defendant Defenses: The court had no personal jurisdiction over it.

Holding: For the defendant

Year: 2014

The plaintiff was a resident of New York. The defendant is a ski area in Vermont. The plaintiff signed up for a ski race camp at the defendant’s ski area online through a third party American Ski Racing Association. The ski race camp was taught at Killington by Killington employees.

During the camp the plaintiff was instructed to try turning with her boots unbuckled. She did, falling and injuring herself. She and her husband sued Killington in a New York court. The trial court dismissed the case for lack of personal jurisdiction over the defendant Killington.

The plaintiff’s appealed.

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

The court first reviewed the requirements of the New York Long Arm Statute and what is required to bring a foreign, non-New York, defendant into a New York courtroom.

A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of doing business’ here that a finding of its presence’ in this jurisdiction is warranted” Mere solicitation of business within New York will not subject a defendant to New York’s jurisdiction Instead, a plaintiff asserting jurisdiction under CPLR 301 must satisfy the standard of “solicitation plus,” which requires a showing of ” activities of substance in addition to solicitation'” (

A long-arm statute is the law that outlines under that state’s law the amount of presence a foreign defendant must have and how a foreign defendant can be brought into the state and sued.

Advertising alone is not enough to establish jurisdiction in New York. The foreign defendant must engage in substantial activity within the state.

…the section of New York’s long-arm statute at issue in this case, grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries’ “transact[ion of] any business within the state or contract [] . . . to supply goods or services in the state”

For substantial activity to occur, the acts within the state must be purposeful.

Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws

Obviously purposeful will have a different definition and result for a manufacturer than for an outfitter. That means a manufacturer knows its products will be in the state, versus an outfitter who will be guiding its guests someplace out of state. Knowing your product will be sold inside the state increases the amount of activity according to the courts.

Based on the allegations in the complaint and the statements in the injured plaintiff’s affidavit, there is no substantial relationship between Killington’s maintenance of a website through which a person in New York could purchase services and the alleged tort that occurred. Such allegations are “too remote from [Killington’s] alleged sales and promotional activities to support long-arm jurisdiction under CPLR 302(a)(1)”

The court affirmed the trial court decision and dismissed Killington from the case.

So Now What?

Jurisdiction, whether a court has the ability to bring a defendant in front of it so that its orders are binding on the defendant varies by state. Therefore, you need to understand what states you may be brought into court in and how. In New York, this decision indicates it is not as easy as in other states.

If the plaintiff’s wants to sue Killington, they will have to go and sue in Vermont. That places a substantial burden on the plaintiff to find an attorney in Vermont and to finance litigation in Vermont. Jurisdiction can be a very effective defense against a lawsuit.

Here Killington did not do enough to be brought into a New York court.

What was not brought into the case was whether the plaintiff’s had signed a release? However, Vermont has been anti release with the ski industry so a release may have limited value.  Maybe only of value for use in an out of the state court.

Other Articles on Jurisdiction

A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit.                                                                                                     http://rec-law.us/zfpK8Z

Buy something online and you may not have any recourse if it breaks or you are hurt    http://rec-law.us/1rOEUQP

Four releases signed and all of them thrown out because they lacked one simple sentence!     http://rec-law.us/vZoa7x

Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.    http://rec-law.us/1ggLMWR

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.   http://rec-law.us/zdE1uk

What do you think? Leave a comment.

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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, Ski Area, Killington Ltd., Killington, Ski Racing, Race Camp, Jurisdiction, New York, Vermont,

 


Haffner, et al., v Killington, Ltd., 119 A.D.3d 912; 990 N.Y.S.2d 561; 2014 N.Y. App. Div. LEXIS 5452; 2014 NY Slip Op 05522

Haffner, et al., v Killington, Ltd., 119 A.D.3d 912; 990 N.Y.S.2d 561; 2014 N.Y. App. Div. LEXIS 5452; 2014 NY Slip Op 05522

Claudia Mejia-Haffner, et al., appellants, v Killington, Ltd., respondent, et al., defendants. (Index No. 30370/10)

2012-02569

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

119 A.D.3d 912; 990 N.Y.S.2d 561; 2014 N.Y. App. Div. LEXIS 5452; 2014 NY Slip Op 05522

July 30, 2014, Decided

COUNSEL: [***1] Gordon & Haffner, LLP, Bayside, N.Y. (Steven R. Haffner, Pro se, of counsel), for appellants.

Ryan Smith & Carbine, P.C., Glens Falls, N.Y. (Mark F. Werle of counsel), for respondent.

JUDGES: MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ. DILLON, J.P., DICKERSON, AUSTIN and SGROI, JJ., concur.

OPINION

[**562] [*912] DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Grays, J.), dated December 19, 2011, which granted the motion of the defendant Killington, Ltd., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff Claudia Mejia-Haffner and her husband, the plaintiff Steven R. Haffner, enrolled in a ski racing instructional camp operated by Killington/Pico Ski Resort Partners, LLC, sued herein as Killington, Ltd. (hereinafter Killington), at Killington’s ski resort in Vermont. The plaintiffs made their reservations through the American Ski Racing Association. While participating in the camp, Mejia-Haffner (hereinafter the injured plaintiff) was injured, and the plaintiffs commenced this action [***2] against, among others, Killington.

Killington moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, inter alia, that it was not subject to personal jurisdiction in New York. The Supreme Court granted Killington’s motion for summary judgment finding, among other things, that New York did not have jurisdiction over Killington.

[**563] [HN1] “A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of doing business’ here that a finding of its presence’ in this jurisdiction is warranted” (Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28, 33, 565 N.E.2d 488, 563 N.Y.S.2d 739, quoting Laufer v Ostrow, 55 NY2d 305, 309-310, 434 N.E.2d 692, 449 N.Y.S.2d 456; see [*913] Cardone v Jiminy Peak, 245 AD2d 1002, 1003, 667 N.Y.S.2d 82; Sedig v Okemo Mtn., 204 AD2d 709, 710, 612 N.Y.S.2d 643). [HN2] Mere solicitation of business within New York will not subject a defendant to New York’s jurisdiction (see Cardone v Jiminy Peak, 245 AD2d at 1003; Sedig v Okemo Mtn., 204 AD2d at 710). Instead, a plaintiff asserting jurisdiction under CPLR 301 must satisfy the standard of “solicitation plus,” which requires a showing of ” activities of substance in addition to solicitation'” (Arroyo v Mountain School, 68 AD3d 603, 604, 892 N.Y.S.2d 74, quoting Laufer v Ostrow, 55 NY2d at 310; see Cardone v Jiminy Peak, 245 AD2d at 1003; Sedig v Okemo Mtn., 204 AD2d at 710).

Even assuming that Killington engaged in substantial advertising in New York, as the plaintiffs claim, the plaintiffs have not demonstrated that Killington also engaged in substantial activity within this State sufficient to satisfy the solicitation-plus standard. Contrary [***3] to the plaintiffs’ contention, this Court’s decision in Grimaldi v Guinn (72 AD3d 37, 49-50, 895 N.Y.S.2d 156) does not stand for the principle that a business’s interactive website, accessible in New York, subjects it to suit in this State for all purposes. Instead, the Grimaldi decision stands only for the more limited principle that [HN3] a website may support specific jurisdiction in New York where the claim asserted has some relationship to the business transacted via the website (see id.; see also Paterno v Laser Spine Inst., 112 AD3d 34, 973 N.Y.S.2d 681). Here, even Killington’s alleged substantial solicitation in New York constitutes no more than solicitation (see Cardone v Jiminy Peak, 245 AD2d at 1004; see also Arroyo v Mountain School, 68 AD3d at 603-604; Sedig v Okemo Mtn., 204 AD2d at 710; Chamberlain v Jiminy Peak, 155 AD2d 768, 547 N.Y.S.2d 706).

[HN4] CPLR 302(a)(1), the section of New York’s long-arm statute at issue in this case, grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries’ “transact[ion of] any business within the state or contract [] . . . to supply goods or services in the state” (CPLR 302[a][1]). [HN5] Pursuant to CPLR 302(a)(1), jurisdiction is proper “even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Fischbarg v Doucet, 9 NY3d 375, 380, 880 N.E.2d 22, 849 N.Y.S.2d 501 [internal quotation marks and citations omitted]; see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, 850 N.E.2d 1140, 818 N.Y.S.2d 164; Kreutter v McFadden Oil Corp., 71 NY2d 460, 467, 522 N.E.2d 40, 527 N.Y.S.2d 195; Muse Collections, Inc. v Carissima Bijoux, Inc., 86 AD3d 631, 927 N.Y.S.2d 389). “Purposeful activities are those [***4] with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within [*914] the forum State, thus invoking the benefits and protections of its laws'” (Fischbarg v Doucet, 9 NY3d at 380, [**564] quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382, 229 N.E.2d 604, 283 N.Y.S.2d 34; see Grimaldi v Guinn, 72 AD3d at 44; Sedig v Okemo Mtn., 204 AD2d at 710).

[HN6] Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint (see Fischbarg v Doucet, 9 NY3d at 381 n 5; Halas v Dick’s Sporting Goods, 105 AD3d 1411, 964 N.Y.S.2d 808; Cadle Co. v Ayala, 47 AD3d 919, 920, 850 N.Y.S.2d 563; Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408, 796 N.Y.S.2d 126), where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff (see Halas v Dick’s Sporting Goods, 105 AD3d at 1411; Arroyo v Mountain School, 68 AD3d at 604; Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624, 885 N.Y.S.2d 88; Stardust Dance Prods., Ltd. v Cruise Groups Intl., Inc., 63 AD3d 1262, 1264, 881 N.Y.S.2d 192; Ying Jun Chen v Lei Shi, 19 AD3d at 407; Armouth Intl. v Haband Co., 277 AD2d 189, 190, 715 N.Y.S.2d 438).

Here, the plaintiffs alleged that Killington’s negligence stemmed from the injured plaintiff being injured after having been instructed by ski instructors to unbuckle her ski boots as part of a training exercise so that when she fell, her ski bindings failed to release. They also alleged that Killington was negligent due to the instructors’ failure to warn her of the dangers of such activity. Further, the injured plaintiff submitted an affidavit, in opposition to Killington’s motion, stating that her injury occurred when another skier ran over the tails of her skis, causing her to fall and her bindings to fail to release, since she had been skiing with her boots unbuckled as instructed and that she was unaware that skiing with her boots unbuckled would disable the ski bindings [***5] until she was informed of this information by the ski patrol. Based on the allegations in the complaint and the statements in the injured plaintiff’s affidavit, there is no substantial relationship between Killington’s maintenance of a website through which a person in New York could purchase services and the alleged tort that occurred. Such allegations are “too remote from [Killington’s] alleged sales and promotional activities to support long-arm jurisdiction under CPLR 302(a)(1)” (Sedig v Okemo Mtn., 204 AD2d at 710-711; see Meunier v Stebo, Inc., 38 AD2d 590, 591, 328 N.Y.S.2d 608). Thus, Killington is not subject to long-arm jurisdiction under CPLR 302(a)(1).

The plaintiffs’ contention that the complaint contains a breach of contract cause of action relating to their purchase of reservations in New York is improperly raised for the first time on appeal, and therefore is not properly before this Court.

[*915] Furthermore, contrary to their contention, the plaintiffs have not made ” a sufficient start'” to warrant holding the motion in abeyance while discovery is conducted on the issue of jurisdiction (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467, 310 N.E.2d 513, 354 N.Y.S.2d 905; see Amigo Foods Corp. v Marine Midland Bank-N.Y., 39 NY2d 391, 395, 348 N.E.2d 581, 384 N.Y.S.2d 124; Stardust Dance Prods., Ltd. v Cruise Groups Intl., Inc., 63 AD3d at 1265; Ying Jun Chen v Lei Shi, 19 AD3d at 408). The plaintiffs have not alleged facts which would support personal jurisdiction under either CPLR 301 or under CPLR 302(a)(1), and thus have failed to indicate how further discovery might lead to evidence showing [***6] that [**565] personal jurisdiction exists here (see Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794, 866 N.Y.S.2d 313).

In light of the foregoing, we need not reach the parties’ remaining contentions.

DILLON, J.P., DICKERSON, AUSTIN and SGROI, JJ., concur.


Ferrari v. Bob’s Canoe Rental, Inc., 2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)

Ferrari v. Bob’s Canoe Rental, Inc., 2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)

[**1] Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually. Plaintiffs, – against – Bob’s Canoe Rental, Inc., Defendant. INDEX No. 09-6690

09-6690

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)

July 31, 2014, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: river, canoe, trip, low tide, summary judgment, stranded, deposition, tide, rented, canoeing, paddling, safe, launch, minutes, mile, issue of fact, nonparty, high tide, entitlement, newspaper, decedent, halfway, paddle, facie, launched, arrived, canoed, times, stuck, woman

COUNSEL: [*1] For Plaintiffs: ELOVICH & ADELL, ESQS., Long Beach, New York.

For Defendant: GORDON & SILBER, P.C., New York, New York.

JUDGES: PRESENT: Hon. DENISE F. MOLIA, Acting Justice of the Supreme Court.

OPINION BY: DENISE F. MOLIA

OPINION

ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further

ORDERED that the motion by the defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is granted, and it is further

ORDERED that the motion by the defendant for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari is denied as academic.

This action was commenced to recover damages for personal injuries allegedly sustained by the plaintiff Kathleen Ferrari, and her husband, the decedent Dennis Ferrari, when they were exposed to the elements after becoming stranded at low tide while canoeing on the Nissequogue River in Suffolk County, New York. The Ferraris had rented the canoe used by them that day from the defendant. In the complaint, the Ferraris allege, among other things, that the defendant was negligent in permitting them to rent the canoe and launch so close in time to low [*2] tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.

[**2] The following facts involving this incident are undisputed. The Ferraris rented a canoe from the defendant on October 27, 2008, intending to make a one-way trip on the Nissequogue River from a launching site located in a park in Smithtown, New York to a park in Kings Park, New York. Both sites were used by the defendant in its business of renting canoes to the public. The defendant’s employee, Geoffrey Lawrence, met the Ferraris, both signed the defendant’s release of liability form, and Dennis Ferrari signed a written lease agreement for the canoe.

The defendant now moves for summary judgment on the grounds that the Ferraris assumed the risk of their activities and that the defendant did not breach a duty of care. In support of the motion, the defendant submits, among other things, the pleadings, the deposition transcripts of the parties, the deposition transcripts of three nonparty witnesses, and an affidavit from an expert. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, [*3] tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties’ competing interest must be viewed “in a light most favorable to the party opposing the motion” (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]).

At his deposition, Dennis Ferrari testified that he had canoed approximately 12 times when he was younger and a Boy Scout, and that, before this incident, he had canoed as an adult on the Nissequogue River two times. He indicated that his first trip took four to four and one-half hours to travel the length of the river, and that his second trip took five hours to complete. He stated that he rented canoes for those trips, that he “believes” they were rented from the defendant, and that the rental company “schedule[s] you around the tides.” Dennis Ferrari further testified that he called the defendant the day before this trip to rent a canoe, that he believes that he was told it would be high tide for his trip at either 9:00 or 10:00 a.m, and that he was aware that low tide was generally six hours [*4] after high tide. He stated that he himself checked the time of high tide in the local newspaper, and that he does so “every day, because I do a lot of fishing.” He indicated that, on the day of this incident, he awoke at 7:30 or 8:00 a.m. and had breakfast, that he packed a lunch with wine and vodka, that he left his home at 9:30 a.m. to travel to Smithtown to rent the canoe, and that no one from the defendant was there when he arrived at approximately 10:00 a.m. He declared that neither he or his wife had cell phones, that they waited approximately one hour and then contacted the defendant by pay phone, and that he was told to travel to the mouth of the river in Kings Park. Dennis Ferrari further testified that he arrived at Kings Park at 11:30 or 11:45 a.m., that “there was somebody waiting there,” and “by this time, I’m thinking that its getting a little late, and I asked him if it was going to be a problem.” He stated that the person then drove them back to Smithtown, that they arrived “probably close to 12:30,” and “I just asked if we had enough time to make it down river. He said, yeah, it won’t be a problem.” He indicated that he and his wife launched the canoe a little after [*5] 12:30, that both were paddling the canoe, and that they did not eat or drink anything before they “got stuck” at approximately 4:30 p.m. Dennis Ferrari further testified that, for the approximately four hours before they were stranded, he and his wife were paddling [**3] “leisurely, because the river … takes you,” and that he noticed the tide “going out fast” approximately 20 minutes before they got stuck in the mud. He indicated that he and his wife paddled “maybe a couple of hundred yards” in that last 20 minutes, that, “as the water started to go out,” he tried to paddle closer to the shore, and that they became stranded near the Smithtown Landing Country Club. He stated that the Country Club was approximately three or four miles from the launch site in Smithtown and more than halfway to Kings Park, that he did not have any difficulties with the canoe before he and his wife were stranded, and that, after they were stuck, he got out of the canoe to attempt to pull it to shore. He was unsuccessful and re-entered the canoe. He declared that the sun went down at approximately 5:00 or 5:30 p.m., and that he and his wife were not rescued for hours after they were stranded.

At her deposition, [*6] Kathleen Ferrari testified that she had never been canoeing before, that her husband told her that he had canoed on the Nissequogue River twice before, and that he rented a canoe and said that they had to be at Smithtown at either 9:00 or 10:00 a.m. on the day of this incident. She stated that they waited approximately 15 minutes for someone from the defendant to show up, that they called from a pay phone, and that they were told that they had to go to Kings Park. She indicated that they met the man in Kings Park at approximately 11:00 a.m., that her husband asked if they were getting out too late and if it was safe, that the man said that they were fine, and the man told them to leave their car so that he could drive them back to Smithtown. Kathleen Ferrari further testified that, because they were approximately 20 minutes away from Smithtown, her husband kept asking about the tides and told the man that “we’re not going to be actually going out until 11:30,” and that the man kept assuring him that it was safe. She stated that they launched from Smithtown at approximately 12:00 p.m., that they paddled at “quite a pace” because her husband was “concerned that we kept moving,” and that [*7] when her husband mentioned that tide was changing fast they were almost at the end of their trip. She indicated that she and her husband did not have any alcohol to drink until well after they were stranded and in order to combat the cold, and that it took hours before they were rescued.

Geoffrey Lawrence (Lawrence) was deposed on March 7, 2011, and testified that he was a seasonal full-time employee of the defendant in 2008, that he canoed the Nissequogue River daily that year, and that the length of the river from Smithtown to Kings Park is five and one-half miles. He stated that the defendant always launches its canoes from Smithtown, and that the average time to complete the trip to Kings Park at a moderate rate of paddling is two and one-half hours. He indicated that high tide was at approximately 10:30 a.m. on October 27, 2008, that low tide was at 4:30 p.m., and that the time for return of canoes was 4:30 p.m., as it is always at the time of low tide. Lawrence further testified that the Ferraris signed the releases and lease agreement in his truck at Kings Park, that he gave them general instructions, and that Dennis Ferrari said he was experienced, he had done this before, and [*8] he knew where he was going. He stated that he recalled Dennis Ferrari asking if they still had time to launch, and that, generally, the latest time that he would rent a canoe to someone, depending on the tide and time of sunset, would be 2:00 p.m. He indicated that he advised Dennis Ferrari that they could not be in later than 4:30 p.m. that day, that he did not know of any other incidents where someone was stranded on the river, and that he waited in Kings Park for the Ferraris after they launched. He declared that he became anxious when the Ferraris did not arrive at 4:30 p.m., that he went looking for them in his truck, and that he found them stranded near the Smithtown Landing Country Club.

[**4] Nonparty witness Ann Schumacher was deposed on September 3, 2010, and testified that she was employed by the Smithtown Fire Department as an EMT-B in 2008, that she was also a registered nurse, and that she had training in hypothermia and intoxication. She stated that she and her crew responded to an emergency call on October 27, 2008, that this was the first time she had been called to rescue someone stuck on the Nissequogue River, and that she completed a patient care record regarding Dennis [*9] Ferrari. She indicated that Dennis Ferrari did not appear intoxicated, that she did not smell alcohol on his breath, and that he was not slurring his speech.

At his deposition, nonparty witness Edward Springer (Springer) testified that he was employed by the Smithtown Fire Department as an EMT-Critical Care in 2008, that he responded to an emergency call on October 27, 2008, and that he completed a care record regarding Kathleen Ferrari that date. He indicated that he recorded her blood pressure as 80/60, that she was hypothermic, and that her pupils were normal. He stated that if she was intoxicated her pupils would be “different [than] normal,” and that he did not smell alcohol on her breath. Springer further testified that he has rented canoes on the Nissequogue River, that he was verbally told when high tide would be, and that he was aware that low tide is six hours later. He stated that “he believed” it took him three hours to complete a trip on the river, and that the Smithtown Landing Country Club is a little more than halfway to the end of the river.

Nonparty witness Greg Krockta (Krockta) was deposed on September 1, 2011, and testified that he was fishing on the Nissequogue [*10] River on the day of this incident, that he observed a man and a woman in a canoe, and that the woman was slumped over and looked “ill or something.” He stated that the man was paddling the canoe, that the woman was not paddling, and that the man was yelling at the woman to “get up and paddle.” He indicated that he did not know if the couple that he saw are “the same two people [involved in this lawsuit],” that he thinks that the two were the only “male and female combination” that he saw that day, and that he believes that he could identify the couple if shown photographs. Krockta further testified that he lives near the river less than one mile from the launching area, that he often fishes and boats on the river, and that it would take a novice approximately two hours to get from the Smithtown … launching area to the end of the river.”

In an affidavit dated December 8, 2011, the defendant’s expert witness, David Smith (Smith), swears that he is a retired commander with the United States Coast Guard and, among other things, a member of the National Safe Boating Council. He states that he has reviewed the complaint and bill of particulars, the depositions of the Ferraris, Lawrence [*11] and Krockta, and the tidal data for the Nissequogue River. He indicates that he inspected the river on June 14, 2011, when he paddled a canoe from the Smithtown launch site to the vicinity of the Smithtown Landing Country Club. Smith further swears that he chose the June date because the tidal times were substantially the same as on the date of this incident, that he was provided a 17-foot aluminum canoe, and that he took a companion but that “he was the sole paddler of the canoe at all times.” He states that he was 73 years old at the time, and that the combined weight of he and his companion was 426 pounds. He indicates that his review of the Ferraris depositions reveals that their combined weight was 302 pounds, and that Dennis Ferrari was 49 years old on the day of this incident. Smith further swears that he launched his canoe at 11:38 a.m., encountered a headwind of 5-10 miles per hour, and arrived at the Smithtown Landing Country Club at 1:03 p.m. having covered a distance of 3.2 miles in 1 hour and 25 minutes. He states that he estimates that he would have completed the 5 Vi miles from Smithtown to Kings Park in 2 hours and 26 minutes. Smith [**5] opines that, with a reasonable degree [*12] of boating and aquatic safety certainty, the Ferraris had “ample time to complete the course of the Nissequogue River well before the onset of low tide” on the date of this incident.

As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein (see Morgan v State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 NYS2d 421 [1997]; Mendoza v Village of Greenport, 52 AD3d 788, 861 NYS2d 738 [2d Dept 2008]; Paone v County of Suffolk, 251 AD2d 563, 674 NYS2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Cotty v Town of Southampton, 64 AD3d 251, 880 NYS2d 656 [2d Dept 2009]; Rosenbaum v. Bayis Ne’Emon, Inc.., 32 AD3d 534, 820 NYS2d 326 [2d Dept 2006]). In addition, the plaintiff’s awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Maddox v City of New York, 66 NY2d 270, 487 N.E.2d 553, 496 NYS2d 726 [1985]; Kremerov v. Forest View Nursing Home, Inc.., 24 AD3d 618, 808 NYS2d 329 [2d Dept 2000] Dept 2005]; Gahan v Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 [2d Dept 1997]). If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 NYS2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 NYS2d 499 [2d Dept 2006]; Lapinski v Hunter Mountain Ski Bowl, 306 AD2d 320, 760 NYS2d 549 [2d Dept 2003]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 NYS2d 663 [2d Dept 1992]).

Here, the defendant has established [*13] that Dennis Ferrari was an experienced canoeist, with experience regarding the tides on the Nissequogue River, and with knowledge about the risk involved in canoeing at low tide. Dennis Ferrari testified that he had specific knowledge that low tide would occur at approximately 4:30 p.m. that date, and he indicated that it was his experience that a trip on the river could take five hours. Nonetheless, he decided to launch the rented canoe as late as 12:30 p.m., and apparently urged his wife to paddle at “quite a pace” to ensure that they accounted for the tides. It is determined that getting stranded at low tide, whether in a river or on a sand bar near a beach, is an inherent risk in canoeing and arises out of the nature of the sport. Accordingly, the defendant has established its prima facie entitlement to summary judgment on the ground that the Ferraris assumed the risk of canoeing on the river.

In addition, it is undisputed that, prior to their commencing their trip on the river, the Ferraris signed a release of liability form which states, in part:

2. I KNOWINGLY AND FULLY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASES or others, [*14] and assume full responsibility for my participation; and

* * *

[**6] 4. I, for myself and on behalf of my heirs … HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE Bob’s Canoe Rental, Inc. … WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent of the law.

Exculpatory provisions in a contract, including a release or a covenant not to sue, are generally enforced although they are disfavored by the law and closely scrutinized by the courts (Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]). Thus, the language of the exculpatory agreement must express the intention of the parties in unequivocal terms in order to relieve a defendant from liability for negligence (Lago v Krollage, id.; Gross v Sweet, 49 NY2d 102, 400 N.E.2d 306, 424 NYS2d 365 [1979]). It must appear absolutely clear that the agreement extends to negligence or other fault of the party (Gross v Sweet, id., Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 189 N.E.2d 693, 239 NYS2d 337 [1963], Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 177 N.E.2d 925, 220 NYS2d 962 [1961]). “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear” (Gross v Sweet, supra). Here, the defendant has established its prima facie entitlement to summary [*15] judgment on the ground that the Ferraris are bound by the release of liability herein.

Having established its entitlement to summary judgment dismissing the complaint, it is incumbent upon the plaintiff to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill, supra). In opposition to the defendant’s motion, the plaintiff submits, among other things, four newspaper articles, the pleadings and bill of particulars, the deposition transcripts of the parties, and the affirmation of her attorney. The newspaper articles relied on by the plaintiff are plainly inadmissible and they have not been considered by the Court in making this determination (Young v Fleary, 226 AD2d 454, 640 NYS2d 593 [2nd Dept 1996] [newspaper articles submitted on summary judgment motion constitute inadmissible hearsay]; see also P & N Tiffany Props. Inc. v Maron, 16 AD3d 395, 790 NYS2d 396 [2d Dept 2005]; Platovsky v City of New York, 275 AD2d 699, 713 NYS2d 358 [2d Dept 2000]).

In his affirmation, counsel for the plaintiff contends that the defendant had a duty to warn the Ferraris that it was essential that they complete their trip on the river “well before the 4:30 low tide,” and that the Ferraris justifiably relied on the defendant’s material misrepresentation that it was safe to leave as late [*16] as they did that day. The affidavit of an attorney who has no personal knowledge of the facts is insufficient to raise an issue of fact on a motion for summary judgment (Sanabria v. Paduch, 61 AD3d 839, 876 NYS2d 874 [2d Dept 2009]; Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 826 NYS2d 152 [2d Dept 2006]; 9394, LLC v Farris, 10 AD3d 708, 782 NYS2d 281 [2d Dept 2004]; Deronde Prods., Inc. v. Steve Gen. Contr., Inc., 302 AD2d 989, 755 NYS2d 152 [4th Dept 2003]). The plaintiff has not submitted any evidence that individuals canoeing on the Nissequogue River must fully complete the trip “well before” low tide, or that the Ferraris could not have completed their trip on the river having left as late as 12:30. In addition, the plaintiff has not submitted any evidence why it took approximately four hours to traverse a little more than halfway on their trip, or to rebut the [**7] testimony of Lawrence and the nonparty witnesses, as well as the opinion of the defendant’s expert, that the entire trip takes three hours or less to complete, paddling at a moderate rate.

The plaintiff’s remaining contention sounds in negligent misrepresentation. In order to prevail on her claim, the plaintiff must establish that the defendant had a “duty to use reasonable care to impart correct information due to a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided [*17] (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 863 N.E.2d 585, 831 NYS2d 364 [2007]; MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 929 NYS2d 571 [1st Dept 2011]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 736 NYS2d 737 [3d Dept 2002]; see also Fresh Direct, LLC v Blue Martini Software, 7 AD3d 487, 776 NYS2d 301 [2d Dept 2004]; Grammer v. Turits, 271 AD2d 644, 706 NYS2d 453 [2d Dept 2000]). As noted above, the plaintiff has failed to submit any evidence that the information provided by Lawrence was incorrect or false. In addition, the testimony of Dennis Ferrari and Kathleen Ferrari establishes that they did not reasonably rely on Lawrence’s general statement that it was safe to leave as late as 12:30 p.m. that day. Dennis Ferrari testified as to his knowledge that low tide was at 4:30 p.m. that day, and that, according to him, the trip could take five hours. Kathleen Ferrari testified that her husband was concerned that they paddle at more than a moderate pace. Despite this, the plaintiff has failed to submit any evidence why they were only able to traverse a little more than halfway on their trip before becoming stranded, and how Lawrence’s general statements mislead them.

In addition, despite the fact that this is not a wrongful death case, counsel for the plaintiff also contends that the Ferraris are entitled to every inference that can reasonably be drawn from the evidence in determining whether a prima facie case of negligence is made as against the defendant (see Noseworthy v City of New York, 298 NY 76, 80, 80 NE2d 744 [1948]). Setting [*18] aside the issue whether the doctrine is applicable herein, even with the reduced burden of proof thereunder, the plaintiff is required to submit proof from which the defendant’s negligence may be inferred (see Sanchez-Santiago v Call-A-Head Corp., 95 AD3d 1292, 945 NYS2d 716 [2d Dept 2012]; Barbaruolo v DiFede, 73 AD3d 957, 900 NYS2d 671 [2d Dept 2010]; Martone v Shields, 71 AD3d 840, 899 NYS2d 249 [2d Dept 2010], and the plaintiff is not absolved from demonstrating the existence of a triable issue of fact to avoid summary judgment (Albinowski v Hoffman, 56 AD3d 401, 868 NYS2d 76 [2d Dept 2008]; Blanco v Oliveri, 304 AD2d 599, 600, 758 NYS2d 376 [2d Dept 2003]). In any event, the subject doctrine is not applicable under the circumstance herein as the defendant’s knowledge as to the cause of the decedent’s accident is no greater than that of the plaintiff (Knudsen v Mamaroneck Post No. 90, Dept. of N.Y. – Am. Legion, Inc., 94 AD3d 1058, 942 NYS2d 800 [2d Dept 2012]; Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]; Martone v Shields, supra; Kuravskaya v Samjo Realty Corp., 281 AD2d 518, 721 NYS2d 836 [2d Dept 2001]).

Finally, the plaintiff has not submitted any evidence to dispute the efficacy of the signed release of liability, and does not address the issue in her opposition to the defendant’s motion. New York Courts have held that the failure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 817 NYS2d 295 [2d Dept 2006]; Weldon v Rivera, 301 AD2d 934, 754 NYS2d 698 (3d Dept 2003]; Hajderlli v Wiljohn 59 LLC, 24 Misc3d 1242[A], 901 N.Y.S.2d 899, 2009 NY Slip Op 51849[U] [Sup Ct, Bronx County 2009]) [**8] . Accordingly, the defendant’s motion for summary judgment dismissing the complaint is granted. [*19]

The Court now turns to the defendant’s motion for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari. The computerized records maintained by the Court indicate that the parties entered into a stipulation to amend the caption to reflect Kathleen Ferrari’s appointment as the executrix of the estate of Dennis Ferrari. Said stipulation was so-ordered by the undersigned on October 17, 2013, and recorded with the Clerk of the Court on October 21, 2013. Accordingly, the defendant’s motion is denied as academic.

Dated: 7-31-14

/s/ Denise F. Molia

A.J.S.C.


Buy something online and you may not have any recourse if it breaks or you are hurt. Sell stuff without a plan to sell in a specific state may prevent you from being sued in that state.

Personal jurisdiction is the term given to whether or not a defendant can be sued in a particular location. What that means is the legal issue is whether the court has the legal right to have the defendant brought before it. Another way of defining it is whether or not the defendant has done enough to have the minimum contacts with the state or the people of the state to be brought into the state for a lawsuit.

Boyce v. Cycle Spectrum, Inc., et al., 2014 U.S. Dist. LEXIS 96545

State: New York, US District Court for the Eastern District of New York

Plaintiff: Timothy Boyce and Courtney Boyce

Defendant: HL Corp is the party in the motion. The following defendants were sued: Cycle Spectrum, Inc.; AZ Velo Imports, Inc.; CS Velo AZ Inc.; AZ Desert Velo, Inc.; CS Bike, Inc.; CS Velo HT, Inc.; Velo Bdbi Support, Inc.; Cycle Support, Inc.; Spratt Cycle Support, Inc.; Windsor America Corporation; and (USA)

Plaintiff Claims: Probably negligence but it does not say

Defendant Defenses: Jurisdiction, whether the court has the legal authority to compel the defendant HL Corp to a trial in New York

Holding: for the defendant

Year: 2014

This is a mixed emotion’s case, but it is also an “I told you so” case. The plaintiff purchased a bicycle online. While riding the bike the handlebars broke injuring the plaintiff. The defendant HL Corp manufactures and sells bicycle parts, and the plaintiff attempted to sue the defendant.

The defendant, however, did not sell parts in New York or to someone knowing that they would be sold in New York. The defendant HL filed a motion to dismiss for lack of personal jurisdiction.

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

Whether a court has jurisdiction over a defendant is a two-part test. The first is whether the law of the state, the long-arm statute, allows the defendant to be brought to a local court and how. The second is whether bringing the defendant to a local court would violate the defendant’s 14th Amendment of the US Constitution.

Under New York Law jurisdiction is established when the defendant “…”expects or should reasonably expect [its actions] to have consequences in the state and derives substantial revenue from interstate or international commerce.” The test for this has five steps.

(1) the defendant’s tortious act was committed outside New York, (2) the cause of action arose from that act, (3) the tortious act caused an injury to a person or property in New York, (4) the defendant expected or should reasonably have expected that his or her action would have consequences in New York, and (5) the defendant derives substantial revenue from interstate or international commerce.

The fourth element was at issue here, “the defendant expected or should reasonably have expected that his or her action would have consequences in New York

The court found that bicycles are a local product, not like cars, which can be sold in one state and the seller can reasonably expect to show up in another state. Therefore, there was no reasonable expectation that a product sold for a bicycle in one state would show up in another state. Nor did the defendant have distribution or sales agreements with its customers who would create an expectation that the defendants’ products would show up in New York.

Consequently, it was not foreseeable or reasonable under New York law that the defendants’ products would show up in New York.

The allegations and conceivable facts are insufficient to establish specific jurisdiction under New York law. (“The ‘reasonable expectation’ test . . . is not satisfied by ‘[t]he mere likelihood that a product will find its way into the forum state . . . .”

The next issue was whether or not by allowing the defendant to be sued in New York it would violate the defendant’s Fourteenth Amendment. The Fourteenth Amendment is:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Fourteenth Amendment is usually heard in modern society when looking at voting laws and laws that may treat a member of another state differently than the residents of a state. More importantly, it is the civil rights amendment.

The jurisdiction test under the Fourteenth Amendment has been defined as:

In a recent opinion, a plurality of the Supreme Court addressed this argument: “The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. . . . [A]s a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.”

The Fourteenth Amendment protects defendants “without meaningful ties to the forum state from being subjected to binding judgments within in its jurisdiction” This is a two-part test, whether the defendant has (1) minimum contacts and (2) whether this analysis is reasonable. The test for minimum contacts is whether the defendant has sufficient contacts with the state to “justify the court’s exercise of personal jurisdiction.”

The reasonableness test is:

..whether the assertion of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice’–that is, whether it is reasonable to exercise personal jurisdiction under the circumstances of the particular case.”

Again, the court found that the requirements for the defendant to be sued in New York in this case would violate the defendant’s Constitutional rights under the Fourteenth Amendment.

So Now What?

It is extremely difficult to explain, “minimum contacts” and how someone in one state can be sued in another. It is a nightmare in law school and one of the basic hurdles for first-year law students. students. Understand minimum contacts and continue moving down the path to being a lawyer.

Here is what you should come away with. As much as a manufacturer wants to sell products, doing so may cost you more than it is worth. Investigate the liability of selling in a state by looking at how easy it is to be drawn into a state court there, the number of products you have to sell there to justify the risk and whether your products are already there.

From a consumer standpoint, remember no matter how good the deal, if it goes bad, you just can’t walk down the street and exchange the broken product for a new one.  Not much comes from China, Taiwan or Vietnam with a warranty. Any warranty is going to come from the US business that brings it in. If you bring it in, you are supplying the warranty.

No insurance follows most products from the foreign manufacturer as exemplified here. Consequently, if you are injured, you better have good health insurance because you won’t be recovering from the manufacturer.  Make sure the money you save, pays for the health, life and disability insurance you may need.

What do you think? Leave a comment.

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#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, New York, Minimum Contacts, Fourteenth Amendment, Cycling, Handlebar, Long Arm Statute, US Constitution,

 


Boyce v. Cycle Spectrum, Inc., et al., 2014 U.S. Dist. LEXIS 96545

Boyce v. Cycle Spectrum, Inc., et al., 2014 U.S. Dist. LEXIS 96545

Timothy Boyce and Courtney Boyce, Plaintiffs, – against – Cycle Spectrum, Inc.; AZ Velo Imports, Inc.; CS Velo AZ Inc.; AZ Desert Velo, Inc.; CS Bike, Inc.; CS Velo HT, Inc.; Velo Bdbi Support, Inc.; Cycle Support, Inc.; Spratt Cycle Support, Inc.; Windsor America Corporation; and HL Corp (USA), Defendants.

14-CV-1163

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

2014 U.S. Dist. LEXIS 96545

July 14, 2014, Decided

July 15, 2014, Filed

COUNSEL: [*1] For Courtney Boyce, Timothy Boyce, Plaintiffs, Counter Defendant: Gary A. Zucker, LEAD ATTORNEY, Zucker & Bennett, P.C, Brooklyn, NY.

For Velo BDBI Suport, Inc., Spratt Cycle Support, Inc., Defendant, Cross Claimants, Cross Defendants: Angelantonio Bianchi, LEAD ATTORNEY, Cohen Kuhn & Associates, New York, NY.

For HL Corp (USA), Defendant, Cross Defendant, Cross Defendant: Cynthia K. Messemer, George S. Hodges, Hodges Walsh Messemer & Moroknek, LLP, White Plains, NY; Paul E. Svensson, Hodges, Walsh & Slater, LLP, White Plains, NY.

For Advanced Sports, Inc., Defendant, Cross Defendant, Cross Claimant: Richard H. Bakalor, LEAD ATTORNEY, Quirk & Bakalor, New York, NY.

JUDGES: Jack B. Weinstein, Senior United States District Judge.

OPINION BY: Jack B. Weinstein

OPINION

MEMORANDUM, ORDER, & JUDGMENT

Jack B. Weinstein, Senior United States District Judge:

Contents

I. Introduction
II. Facts
III. Law
A. Personal Jurisdiction Generally
B. Specific Jurisdiction in New York
C. Constitutional Limits on Personal Jurisdiction
IV. Application of Law to Facts
A. Specific Jurisdiction in New York
B. Constitutional Limits on Personal Jurisdiction
V. Conclusion

I. Introduction

Plaintiffs sue Defendant HL Corp. (USA), among others, for injuries plaintiff [*2] Timothy Boyce he sustained while riding a bicycle. Defendant HL Corp. (USA) moves to dismiss for lack of personal jurisdiction.

For the reasons stated below, the motion is granted.

II. Facts

On April 25, 2010 plaintiff Timothy Boyce purchased a Windsor Timeline bicycle from bikesdirect.com, a website operated by Velo BDBI from outside New York. See Am. Compl. ¶ 36. The bicycle was shipped to his residence in New York from a place outside New York. See Pl’s Aff. in Opp., Ex. B.

In July 2012, plaintiff, a New York resident, was riding the bicycle across the Manhattan Bridge when the handlebar broke, causing him injuries. See id. ¶ 51-52.

The alleged manufacturer of the handlebar part is HL Corp (Shenzhen), an organization operating outside of New York. See Pl. Mem. in Opp. 3; Def.’s Reply, Ex. A. HL Corp. (USA) (hereinafter “HL”) is a California Corporation that sells bicycle parts, sporting goods, and medical equipment manufactured by HL Corp. (Shenzhen), presumably in China. See Def.’s Reply Aff. These bicycle components are sold to companies in California, Wisconsin, Minnesota, Florida, and Idaho. See id. HL does not sell bicycle parts in New York. It has sold medical equipment in New [*3] York in quantities and at a time not yet revealed. See Def. HL’s Answers ¶ 9. HL does not sell handlebars for the Windsor TimeLine model bicycle used by plaintiff. See Def.’s Reply Aff.; Def.’s Reply Mem., Ex. A.

III. Law

A. Personal Jurisdiction Generally

“District courts resolving issues of personal jurisdiction must engage in a two-part analysis.” Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (internal quotation marks and ellipses omitted). First, the court looks to the personal jurisdiction law of the forum state and determines whether it is satisfied. See Metro. Life Ins. C. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). Once state law is found to confer personal jurisdiction over the defendant, the court determines whether the exercise of personal jurisdiction comports with constitutional due process requirements. Id.

There are two traditional foundations for personal jurisdiction in the forum state, New York: general and specific, the latter known as long-arm jurisdiction. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.15, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Plaintiff relies on specific jurisdiction. See Pl’s Opp. Mem. 7.

B. Specific Jurisdiction [*4] in New York

Plaintiff supports its claim for jurisdiction by subsection 302(a)(3)(ii) of the New York Civil Practice Law and Rules (“N.Y.C.P.L.R.”), which provides specific personal jurisdiction over a non-domiciliary that “expects or should reasonably expect [its actions] to have consequences in the state and derives substantial revenue from interstate or international commerce.” N.Y.C.P.L.R. 302(a)(3)(ii). Establishing jurisdiction under this subsection requires satisfaction of five elements: “(1) the defendant’s tortious act was committed outside New York, (2) the cause of action arose from that act, (3) the tortious act caused an injury to a person or property in New York, (4) the defendant expected or should reasonably have expected that his or her action would have consequences in New York, and (5) the defendant derives substantial revenue from interstate or international commerce.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010). In the instant case, the parties dispute the fourth element.

C. Constitutional Limits on Personal Jurisdiction

The Due Process Clause of the Fourteenth Amendment “protects a person without meaningful ties to the forum state from being [*5] subjected to binding judgments within in its jurisdiction.” Metro. Life Ins. C. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). To decide whether this requirement is met, courts analyze two factors: (1) minimum contacts; and (2) reasonableness. Id. An inquiry into minimum contacts asks “whether the defendant has sufficient contacts with the forum state to justify the court’s exercise of personal jurisdiction.” Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010). The second component, reasonableness, involves consideration of “whether the assertion of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice’–that is, whether it is reasonable to exercise personal jurisdiction under the circumstances of the particular case.” Id.

“The import of the ‘reasonableness’ inquiry varies inversely with the strength of the ‘minimum contacts’ showing–a strong (or weak) showing by the plaintiff on ‘minimum contacts’ reduces (or increases) the weight given to ‘reasonableness.'” Bank Brussels Lambert, 305 F.3d at 129 (citations omitted). For example, “[a]ssuming that a constitutional threshold of contacts has been demonstrated, fewer [*6] contacts may be necessary where the ‘reasonableness’ factors weigh heavily in favor of an exercise of jurisdiction.” City of New York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 335 (E.D.N.Y. 2007) (citing Metro. Life Ins. Co., 84 F.3d at 568).

IV. Application of Law to Facts

A. Specific Jurisdiction in New York

Plaintiff claims that the court has specific jurisdiction under C.P.L.R. 302(a)(3)(ii) because HL should have expected that New York residents would purchase bikes outfitted with its products. See Pl’s Opp. Mem. He does not directly rely on HL’s sales of medical equipment at some time in New York. Defendant responds that it has no distribution or sales agreements for bicycle parts in New York, had no knowledge or expectation that its customers would sell bicycle products containing its parts to individuals in New York, and has not established any contact with New York. See Def.’s Mem.

There is no HL contact with New York supporting a finding of specific jurisdiction. Bicycles are generally limited, unlike cars, to local use. Expansion of jurisdiction to this case would exceed New York statutory limits.

Foreign and out-of-state manufacturers have been held amenable to product liability [*7] suits after their products were distributed to New York through third parties and caused injury within the State. In those cases, the defendants had distribution or sales agreements with its customers that gave rise to the reasonable expectation that its product would be used in New York. See, e.g., LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214-16, 735 N.E.2d 883, 713 N.Y.S.2d 304 (2000) (Texas manufacturer of rear-loading device subject to specific jurisdiction based on agreement with New York-based distributor that sold device to plaintiff’s employer); see Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 242-44 (2d Cir. 1999) (Japanese manufacturer of hot stamping press subject to specific jurisdiction based on targeting North American market generally, including New York, with its products through an “exclusive sales rights agreement” with a Pennsylvania distributor).

In the instant case, HL did not enter into any distribution or sales agreements with its customers leading to an expectation that its product would be sold to or used by a person in New York. Def. Reply Mem. 1, 3; Id., Ex. D.

The allegations and conceivable facts are insufficient to establish specific jurisdiction under New York law. See Kernan, 997 F. Supp. at 372 [*8] (“The ‘reasonable expectation’ test . . . is not satisfied by ‘[t]he mere likelihood that a product will find its way into the forum state . . . .” (quoting Cortlandt Racquet Club, Inc. v. OySaunatec, Ltd., 978 F. Supp. 520, 523 (S.D.N.Y. 1997)); see also Jash Raj Films (USA) Inc. v. Dishant.com LLC, 2009 U.S. Dist. LEXIS 116431, 2009 WL 4891764 (E.D.N.Y. 2009) ([T]he Second Circuit requires “a discernible effort [by the defendant] to directly or indirectly serve the New York market.” (quoting Kernan, 175 F.3d at 241).

B. Constitutional Limits on Personal Jurisdiction

Even if plaintiff could show specific jurisdiction under New York law, the case would still warrant dismissal on due process grounds. Plaintiff’s theory is that defendant established the requisite minimum contacts with New York by placing its goods into the national stream of commerce. See Pl’s Mem. in Opp. 10-12.

In a recent opinion, a plurality of the Supreme Court addressed this argument: “The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. . . . [A]s a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum [*9] State.” J. McIntyre Mach., Ltd V. Nicastro, 131 S. Ct. 2780, 2788, 180 L. Ed. 2d 765 (2011) (plurality opinion). Concurring in the opinion, Justice Breyer explained that jurisdiction is lacking when:

there is no “‘regular . . . flow’ or ‘regular course’ of sales in [the State]; and there is no ‘something more,’ such as special state-related design, advertising, advice, marketing, or anything else. . . . And [defendant has not] ‘purposefully avail[ed] itself of the privilege of conducting activities’ within [the State], or that it delivered its goods in the stream of commerce ‘with the expectation that they will be purchased’ by [the State’s] users.”

Id. at 2792 (Breyer, J. concurring) (citations omitted).

Plaintiff has failed to allege facts sufficient to establish minimum contacts. Absent are any arrangements with companies incorporated or doing business in New York to sell bicycle parts or bicycles containing their parts in New York. HL did not target the New York market. See id. at 2788 (“The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum.”) (plurality opinion).

V. Conclusion

For the foregoing reasons, defendant HL [*10] Corp. (USA)’s motion to dismiss due to lack of personal jurisdiction is granted.

SO ORDERED.

/s/ Jack B. Weinstein

Jack B. Weinstein

Senior United States District Judge

Dated: July 14, 2014

Brooklyn, New York


New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim. The release stopped the claims the plaintiff suffered running in a half marathon.

The plaintiff slipped and fell on ice while trying to leave the course to tie his shoe. He sued the City of New York, NYC Department of Parks, New York Road Runners, Inc. and Road Runners Club of America for his injuries. He alleged gross negligence for having him leave the course if he had a problem where he fell on ice.

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Plaintiff: Jonathan Zuckerman

Defendant: The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Runners Club Of America

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: release

Holding: for the defendants

 

At the beginning of this half marathon that ran through Central Park in New York City, the plaintiff was instructed with other runners to leave the course if they had a problem. This was done so runners would not run into each other.

The plaintiff was an experienced runner who had participated in 100 events. During the race, he left the course to tie his shoe. He slipped on ice next to the course suffering this injury.

The release in this case was short; however, it was long enough to cover the important points according to the court. The release specifically mentioned “falls” as a risk of the activity and had the plaintiff agree to release claims due to negligence.

The release was signed by the plaintiff electronically. The signors had to elect to accept the terms or reject the terms. If they runner rejected the terms of the release, they could not register for the race.

Summary of the case

The court started by looking at the legal requirements in New York that affect the validity of a release.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable were not expressly prohibited by law.

Language relieving one from liability must be unmistakable and easily understood.

Agreements to indemnify for gross negligence or willful behavior, however, are void.

The court also defined the requirements to support a claim for gross negligence in an effort to overcome a release. “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference to the rights of others.”

It is refreshing to see the court recognize the claim as one trying to evade the release as a defense. The court stated, “I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver.”

The court reviewed the release and found the risk the plaintiff undertook was specifically identified in the release, a fall. The court also found the instructions the race official gave to the participants to leave the race course were reasonable. There was no greater liability attributed to the race promoter for having runners leave the course because to fail to do so would have runners running into each other on the course.

Having looked at the facts and the release, the court found that gross negligence could not reasonably be drawn from those facts.

City of New York’s Motions

The City of New York moved to amend its complaint to include the defense of Release. The city was named in the release as an entity to be protected by the release but had not pled the defense of release. As such the court had to grant the cities motion to amend its answer so it could plead the additional defense.

In another action that is rarely done in courts, the court reviewed the law on granting motions to amend and then granted the motion. The court then said since it had already ruled that a release stopped the plaintiff’s claims against the sponsor, it would also stop the plaintiff’s claims against the city and dismissed the city from the case.

So Now What?

It is rare to see a court take the initiative to do undertake these two actions. The first to throw out the gross negligence claims and the second to throw out the negligence claims of the city without a motion for summary judgment. Courts are reluctant to take such acts or the rules of civil procedure will not allow a court to do so.

The decision is also valuable because it defines what gross negligence is in New York.

Here an electronic release that was well written stopped the plaintiff’s claims against the race promoter and the entities the release also protected.

What do you think? Leave a comment.

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Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

[**2] Jonathan Zuckerman, Plaintiff, -against- The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Road Runners Club Of America, Defendants.

105044/2010

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

February 18, 2011, Decided

February 23, 2011, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: runner, marathon, gross negligence, affirmative defense, amend, enforceable, reply, factual issues, participating, oppose, ice, exit, nunc pro tunc, risks associated, reckless indifference, grossly negligent, collectively, spectators, humidity, website, weather, traffic, invoked, waive, heat, void, registration, disbursements, encompassed, registrant

COUNSEL: [*1] For Plaintiff: Frank Taubner, Esq., Jasne & Florio, LLP, White Plains, NY.

For defendant NYRR: Deborah Peters Jordan, Esq., Havkins, Rosenfeld et al, New York, NY.

For defendant City: Anthony Bila, ACC, Michael A. Cardozo, Corporation Counse, New York, NY.

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

DECISION & ORDER

By notice of motion dated August 20, 2010, defendants New York Road Runners, Inc. and Road Runners Club of America (collectively, NYRR) move pursuant to CPLR 3212 for an order summarily dismissing the complaint, and defendant Road Runners Club of America, Inc. (RRCA) moves pursuant to CPLR 3211(c) for an order dismissing the complaint. Plaintiff opposes as to NYRR, and does not oppose as to RRCA. Defendants City and New York City Department of Recreation (collectively, City) move separately pursuant to CPLR 3025(c) for an order granting leave to amend their answer nunc pro tunc to add an affirmative defense, and pursuant to CPLR 3211(a)(5) and (a)(7) for an order dismissing the complaint. Plaintiff opposes City’s motion.

[**3] I. FACTS

NYRR conducts more than 100 events a year, including the Manhattan Half Marathon (Half Marathon). (Affirmation of Kenneth L. Winell, Esq., dated Aug. 20, 2010 [Winell [*2] Aff.], Exh. D). Participants in the Half Marathon register through NYRR’s website which contains the following provision:

I know that participating in NYRR events is a potentially hazardous activity. I agree not to enter and participate unless I am medically able and properly trained. I agree to abide by any decision of an event official relative to my ability to safely complete the event. I am voluntarily entering and assume all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course, all such risks being known and appreciated by me. I grant to the Medical Director of this event and his designee access to my medical records and physicians, as well as other information, relating to medical care that may be administered to me as a result of my participation in this event. Having read this Waiver and knowing these facts, and in consideration of your acceptance of this application, I, for myself and anyone entitled to act of my behalf, waive and release New York Road Runners Club, Inc., Road Runners Club [*3] of America, USA Track & Field, the City of New York and its agencies and departments, the Metropolitan Athletics Congress, and all sponsors, and their representatives and successors, from present and future claims and liabilities of any kind, known or unknown, arising out of my participation in this event or related activities, even though such claim or liability may arise out of negligence or fault on the part of the foregoing persons or entities. I grant permission to the foregoing persons and entities to use or authorize others to use any photographs, motions pictures, recordings, or any other record of my participation in this event or related activities for any legitimate purpose without remuneration.

(Id., Exhs. C.F. [emphases added]). The registrant must then either select “I accept and agree to the above waiver,” or “I do not accept and do not agree to the above waiver.” (Id.) If the registrant selects the latter, he cannot register. (Id., Exh. C).

Plaintiff, a member of NYRR, is an experienced runner, having participated in over 100 NYRR events. (Affirmation of Frank Taubner, Esq., dated Oct. 11, 2010 [Taubner Aff.]). He registered for the 2009 Half Marathon online approximately [*4] one week earlier, and recalls seeing [**4] a waiver as part of the registration procedure. (Id.).

At approximately 8:00 a.m. on January 25, 2009, plaintiff arrived at the starting area of the Half Marathon in Central Park. (Id.). Snow banks flanked the course’s pathways. (Id.). An NYRR official orally instructed the participants that if they had to stop for any reason, they were to exit the course and proceed to the shoulder of the roadway so as not to block other participants. (Id.). While running, plaintiffs shoe became untied and seeing no designated exit areas, he stepped off the path as instructed and proceeded to what he believed to be a patch of dirt. (Id.). There, he slipped on ice that he had not seen, and fell backward, seriously injuring himself. (Id.).

II. NYRR’S MOTION

A. Contentions

NYRR contends that it is entitled to summary dismissal as plaintiff executed a valid and enforceable waiver of liability, and because it did not organize, supervise or control the half marathon. (Memorandum of Law in Support of Defendants’ Motion to Dismiss, dated Aug. 2010 [NYRR Mem.]). In support, it annexes the affidavits of three of its employees, (id., Exhs. C, D, E), a copy of the waiver (id, [*5] Exh. F), and proof of plaintiffs registration (id., Exh. F).

Plaintiff argues that in light of defendants’ gross negligence and his compliance with the instructions given at the commencement of the half marathon that he exit the course if he needed to stop, the waiver is unenforceable. He also denies having assumed the risk of slipping on ice when exiting the course. (Taubner Aff.).

In reply, NYRR asserts that plaintiff’s injury is encompassed by the waiver and that plaintiff has failed to establish that NYRR’s conduct rises to the level of gross negligence. (Reply [**5] Affirmation of Deborah Peters Jordan, Esq., dated Nov. 18, 2010).

B. Analysis

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law. (Gross v Sweet, 49 NY2d 102, 105, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]). Language relieving one from liability must be unmistakable and easily understood. (Id. at 107). Agreements to indemnify for gross negligence or willful behavior, however, are void. (Id. at 106). “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference [*6] to the rights of others.” (Sommer v Fed. Signal Corp., 79 NY2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 [1992]; Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 77 A.D.3d 431, 433, 908 N.Y.S.2d 654 [1st Dept 2010]).

As plaintiff does not deny that he agreed to the waiver or that it is generally enforceable and not void as a matter of law or public policy, I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver. That the waiver references the “conditions of the course” does not remove plaintiff’s accident from its scope as the waiver extends to “all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course.” The breadth of the provision permits the inference that plaintiff was aware that by executing the waiver, he assumed the risks of running through Central Park in the winter, where the presence of ice is reasonably anticipated, which risks are reasonably deemed part of the activity, and not just of the course. (See Bufano v Nat. Inline Roller Hockey Assn., 272 A.D.2d 359, 707 N.Y.S.2d 223 [**6] [2d Dept 2000] [*7] [plaintiff assumed risk of injury during fight while playing inline roller hockey]), Nothing in the provision precludes its application to accidents incurred by a participant who momentarily steps off the course.

And, although plaintiff acted in compliance with defendants’ instruction to leave the race course if he needed to stop, such an instruction constitutes a sensible means of protecting participants from colliding with one another, and neither invites nor would naturally lead to an accident sufficient to constitute reckless indifference. Consequently, an inference of gross negligence is not reasonably drawn therefrom. (See Lemoine v Cornell Univ., 2 AD3d 1017, 769 N.Y.S.2d 313 [3d Dept 2003], lv denied 2 N.Y.3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2005] [plaintiff fell from wall after rock-climbing instructor told her where to place her hands and feet; waiver of liability enforced; not gross negligence]). And, assuming that NYRR had a duty to keep the park free of slippery substances, the failure to do so constitutes ordinary negligence at best.

Given this result, I need not address RRCA’s alternative argument that it did not organize, supervise, or control the half marathon.

III. CITY’S MOTION

A. Contentions

City argues that it should [*8] be granted leave to amend its answer to add an affirmative defense that the action is barred by plaintiffs execution of a written release. It observes that leave is freely granted, that plaintiff will no suffer no prejudice, and that, although this motion was served after joinder of issue, it is procedurally proper as City moves pursuant to CPLR 3211(a)(7) as well as (a)(5). (Affirmation of Anthony Bila, ACC, dated Sept. 29, 2010).

Plaintiff asserts that City is not entitled to dismissal given the factual issues as to City’s [**7] gross negligence and whether plaintiff’s accident is encompassed by the waiver, and that the motion to amend should be denied because the affirmative defense is meritless and prejudicial. (Taubner Aff.).

In reply, City maintains that as it moves only pursuant to CPLR 3211, the existence of factual issues is immaterial. It contends that the amendment is meritorious and will not prejudice plaintiff, and that plaintiffs accident falls squarely within the scope of the waiver and that there is no evidence of gross negligence. (Reply Affirmation of Anthony Bila, ACC, dated Nov. 18, 2010).

B. Analysis

Although objections pursuant to CPLR 3211(a)(5) are waived if not invoked [*9] in the movant’s answer (CPLR 3211 [e]), a motion to amend an answer may be granted in order that the affirmative defense be addressed on the merits. (Siegel, NY Prac § 274, at 435 [3d ed]; Marks v Macchiarola, 221 AD2d 217, 634 N.Y.S.2d 56 [1st Dept 1995]). Thus, and absent any discernible prejudice given plaintiffs having addressed the substance of the motion above (II. A.), leave is granted. (Cf Young v GSL Enter., Inc., 170 AD2d 401, 566 N.Y.S.2d 618 [1st Dept 1991] [Supreme Court properly addressed merits of proposed affirmative defense in motion to amend]; Scheff v St. John’s Episcopal Hosp., 115 AD2d 532, 534, 496 N.Y.S.2d 58 [2d Dept 1985] [same]).

Although plaintiff executed the waiver on NYRR’s website, City was expressly included therein. (See Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008], lv denied 11 N.Y.3d 704, 894 N.E.2d 1198, 864 N.Y.S.2d 807 [upholding waiver against NYRR and City]; cf Tedesco v Triborough Bridge and Tunnel Auth, 250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept 1998] [bicycle tour waiver included party not specifically named in release]). Moreover, the waiver of liability is a release within the meaning [**8] of CPLR 3211(a)(5). (See Brookner, 51 AD3d 841, 858 N.Y.S.2d 348).

Having already determined that the waiver is enforceable as against plaintiff, and as NYRR’s [*10] conduct was not grossly negligent, the same result is reached as to City.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that the motion for summary judgment by New York Road Runners, Inc. and Road Runners Club of America is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; it is further

ORDERED, that the motion by City of New York and New York City Department of Parks and Recreation for leave to serve an amended answer is granted, and the annexed answer is deemed timely served, nunc pro tunc; and it is further

ORDERED, that the motion for dismissal as against City of New York and New York City Department of Parks and Recreation is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs.

This constitutes the decision and order of the court.

/s/ Barbara Jaffe

Barbara Jaffe, JSC

DATED: February 18, 2011

New York, New York

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New lawsuit filed over fatality at NY Ski Area

Not sure if the NY Ski Area Statute applies by Assumption of the Risk based on the article.

A 53 year old man died skiing last year at Windham Mountain Ski Resort (Ski Windham Operating Corp.). The deceased supposedly left the trail and skied into a ditch and then an embankment. The plaintiff is arguing that it was a trail based on how the map looks and because it was a trail the resort was negligent for “hazardous design and negligent maintenance of the ski trail.”

I should sue the state because I drove into the farmer’s field were the road should have gone…..

The obvious defense the defendant will plead is assumption of the risk. Whether or not the New York Ski Safety Act applies is difficult to determine. However it appears to say the deceased assumed the risk. Another issue is whether he had a season pass and signed a release.

There is no violation of the statute that creates duties on the part of the ski area: § 18-103. Duties of ski area operators. The risk set forth in the act that a skier assumes do not directly cover but definitely surround the facts set forth in the article.

It is sad when someone dies participating in a sport they love. However it is sadder when a lawsuit starts over the death, one where the chances of winning seem slim.

See Staten Island forensic expert’s death in upstate skiing accident spurs lawsuit

What do you think? Leave a comment.

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