Going Where There is no Liability

September 28, 2011
 

Where is there no liability (on the part of the premise owner or operator)? Some facilities require patrons to sign waiver clauses or exculpatory clauses before partaking in the activities they offer. Whether these clauses will apply is fact dependent.

The General Obligations Law section 5-326 explicitly voids certain exculpatory clauses. It specifically names "pools, gymnasiums, places of public amusement or recreation" and also "similar establishments". Here is the wording of the statute:

"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."

As can be seen, there is ambiguity. What qualifies as a place of public amusement or recreation and what qualifies as a similar establishment? What satisfies the fee requirement? What if the plaintiff fails to provide evidence of payment of a fee for admission to, or use of, the facilities? Then is the use in connected with or collateral to a fee for admission so as to implement the applicability of the statute? Will a facility of "instruction" (a driving school, a scuba lesson facility, a horseback riding instruction facility) be held by a court to be within the ambit of the statute? What if the facility has characteristics of both amusement and instruction? Who is a user?

The next best thing for a gym, when it cannot exculpate itself from personal injury claims, is to add a forum selection clause and a jury waiver clause to the contract. A forum selection clause allows the gym to transfer all personal injury claims to the venue that they perceive will be the most favorable to them and will compensate the injured party the least. Here is a provision from a New York gym membership agreement:

"...4.5 Governing Law; Jurisdiction. These terms and conditions shall be governed in all respects by the substantive laws of the state in which the cause of action arises, without regard for conflict of law principles of such state. With respect to personal jurisdiction, you hereby irrevocably submit to personal jurisdiction in any action brought in any court, federal or state having subject matter jurisdiction arising under this contract within the location set forth below, and you hereby waive, to the fullest extent permitted by law, the defense of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any action. You hereby waive your right to a trial by jury...."

New York Courts have upheld these provisions, even when the gym member did not read the provision and/or did not intend to enter into this agreement. As for where your case will be transferred pursuant to this gym agreement (State of Where Cause of Action Arises-Venue/Jurisdiction):


  • Connecticut-Fairfield County, CT
  • District of Columbia-District of Columbia, DC
  • Maryland-Montgomery County, MD
  • Massachusetts-Worcester County, MA
  • New Jersey-Bergen County, NJ
  • New York-County of Westchester, NY
  • Pennsylvania-Bucks County, PA
  • Rhode Island-Providence, PA
  • Virginia-Fairfax County, VA
  • For baseball games, no signature is required, according to the back of the ticket. By using the ticket, it states, you are agreeing to the terms. There are provisions agreeing (for you) that by using the ticket, you will not transmit (or aid in transmitting) any information about or related activities by photo, video, audio, etc.; that your name, image, likeness, voice, portrait, and picture may be used in broadcast "for all purposes", as well as for advertising and promotion without written consent of the event operator. With regard to personal injury, here is an excerpt from the back of a ticket to a New York baseball game held this season. The font on the actual ticket is probably 6 point, but you can read it here in 12:

    "WARNING- The ticketholder assumes all risk, danger and injury incidental to the game of baseball or other event and all warm-ups, practices, competitions, entertainment and promotions associated therewith, at all locations in and around the ballpark and surrounding areas and parking lots, whether occurring prior to, during or subsequent to the playing of the game or other event, including (but not limited to) the danger of thrown bats, fragments thereof, and thrown, propelled or batted balls and other objects, and agrees that no persons or entities (including but not limited to [names of entities omitted] and their member Clubs, management of the Clubs, the City of New York, and their respective agents, agencies, owners, officers, affiliates and employees) are liable for any injuries, death, or loss of property resulting from such causes, and releases and holds harmless all such persons and entities..."

    The parking pass does not appear to deal with personal injury, but does mention property damage:

    "...4. The [names of entities omitted] are not responsible for, and assume no liability arising from fire, theft, damage to, or loss of the vehicle or any article therein while on the ballpark parking lots..."

    Likewise, here is an excerpt from the back of a ticket to a New York football game that was held this season (albeit in New Jersey). The font on the ticket is slightly larger than on the baseball ticket, and may actually be as large as 7 point:

    "...3. Ticket holder assumes all risks incident to the game or related travel and events, including the risk of lost, stolen or damaged property or personal injury..."

    It is not always feasible to avoid these waivers. Whether a waiver will apply will depend on the unique facts surrounding the waiver and the injury, among other things. When there is no written waiver, the doctrine of assumption of the risk may apply and may preclude liability on the part of the owner or operator of the premises. If there is a written waiver, it may be void pursuant to the statute or on other grounds. For those who currently have a personal injury claim, whether in suit or not, always contact your attorney before signing any kind of waiver. Even if you are told by the owner or operator of the premises that the waiver does not apply to your personal injury claim, or the waiver is being signed as a result of a seemingly irrelevant claim (i.e. a housing claim), always consult your attorney first. A failure to do so could result in the forfeiture of your ability to recover compensation for your injury.

    By Kathleen Beatty