The Value of Disclaimers

by J. Russell Jackson, guest writer

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HERE ARE TWO CASES involving disclaimers of liability with regard to leisure activity.

In Stelluti v. CasaPenn Enterprises, LLC, 2009 WL 3353319 (N.J. Super. -- App. Div. 2009), a woman was injured less than an hour after she joined a local gym and signed a release and disclaimer of liability. During her first-ever spin class, the handlebars came off of the bicycle and she fell to the floor, sustaining longterm injuries.

The "Waiver and Release Form" that she had signed provided:

"You . . . agree that if you engage in any physical exercise or activity, or use any club amenity on the premises or off premises including any sponsored club event, you do so entirely at your own risk. . . . You agree that you are voluntarily participating in these activities and use of the facilities and premises and assume all risks of injury, illness, or death. . . . This waiver and release of liability includes, without limitation, all injuries which may occur as a result of, (a) your use of all amenities and equipment in the facility and your participation in any activity, class, program, personal training or instruction, (b) the sudden and unforeseen malfunctioning of any equipment, (c) our instruction, training, supervision, or dietary recommendations . . . To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence on the part of the Club, its agent, and employees."

That would seem to cover it, right? Not so fast. The court began its analysis by noting the general legal duty of health and fitness clubs to provide a safe environment for its members. It then noted the fact that the contract is one of adhesion, which is disfavored generally in the law. Using a four-part test, the court analyzed whether the contract was unconscionable. Although the court had concerns about the context in which the contract was presented to the plaintiff -- without any oral description of it being a release of liability -- it nevertheless concluded that the contract was not unconscionable. In part this was because plaintiff clearly had the ability to walk away and join another gym or exercise at another venue.

Interpreting the contract, the court concluded that it would only operate to release the gym for ordinary negligence; releasing gross negligence, recklessness and intentional torts would be contrary to public policy, the court opined. The court ultimately affirmed summary judgment for the defendant because there was only evidence of negligence, at best, of the club in failing to check whether the adjustable handlebars had "locked in" to position.

Across the border in New York, a trial court was faced with the issue whether to enforce a waiver and release signed by a participant in a one-day motorcycle "wheelie" school. See Estate of Duco v. McCabe, 2009 WL 3384461 (N.Y. Sup. Ct. -- Orange Co. Oct. 20, 2009). In New York, however, Section 5-326 of the General Obligations Law deems waivers of liability for operators of for-pay amusement or recreational facilities to be void as against public policy. Thus, one of the first issues was whether a motorcycle "school" operating on a closed portion of an airport was an amusement or recreational facility to which the General Obligations Law applies. The court concluded that it was not; rather, it was an educational program that would benefit motorcyclists in handling their bikes on the roadways.

Accordingly, the court granted defendant's motion to dismiss, enforcing the release.

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-- Russell Jackson is an attorney and partner with the New York law firm of Skadden & Arps. His blog may be found at this link: http://www.consumerclassactionsmasstorts.com.