Wednesday, May 21, 2014

The effectiveness of a waiver and release from liability for negligence.

Practice point:  The plaintiff allegedly was injured when the Segway vehicle on which she was riding became stuck in the mud, causing her to fall. The plaintiff had rented the vehicle from the defendant and, at the time she was injured, she was taking a tour, conducted by two of the defendant's employees, along a public trail. Prior to the tour, the plaintiff had signed a waiver and release unambiguously expressing her intent to release the defendant from liability, even if injury was caused by the defendant's negligence.

The Appellate Division found that the defendant established its prima facie entitlement to judgment as a matter of law by producing the waiver and release signed by the plaintiff.  Contrary to the plaintiff's contention, General Obligations Law § 5-326 does not invalidate the release because the fee she paid to the defendant was for the rental of the vehicle, and was not an admission fee for the use of the public trail over which the tour was conducted.

Student note:  In New York, absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced.

Case:  Deutsch v Woodridge Segway, LLC, NY Slip Op 03475 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The effectiveness of a a notice of claim in a playground accident.