Summer Fun and Accidents

If you attend the Daytona 500 race this year, you will see language on the back of your ticket that says:  

The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.

This language, called a "disclaimer", seeks to avoid lawsuits even if the employees working the event are careless and cause you physical damage or property damage.

This type of disclaimer language is unfair.  New York State has a law against them.  If you buy a ticket that has a disclaimer on it that tells you, in effect, that if you are hurt -- even because some employee was careless or negligent -- it is of no effect.  That means that in New York no matter what the language states on the back of the ticket, you may bring a claim against "...the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment ... 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."  (NY General Obligations Law 5-326)

Most people assume that because the disclaimer is on a ticket, that you're out of luck if you get hurt at any facility for which you have paid a fee.  Simply put, you may bring a claim for damages you have sustained if you paid a fee to get into the place and the owner or some employee, (or agent), was careless.

What brought this up in my mind recently was reading a decision by Judge Robert J. Muller, a Judge of the Supreme Court in Boland v. Riding High Dude Ranch, Inc.  In the Boland case, a novice horse back rider fell off her horse.  The defendant dude ranch wanted to introduce into evidence the language of a "written horse rental agreement and general release" that disclaimed any liability and claimed that the defendant could not be sued.  Conceding that the language could not prevent the lawsuit, the dude ranch argued that the language should be introduced as it would somehow show that the injured horseback rider knew the risks associated with horseback riding.  (Here, at issue, was a risk not so well known outside the horseback riding community:  if you do not cinch the saddle onto the horse properly the saddle might slip right around to the side and the rider will fall.  Horses are tricky.  If they know a saddle is being put on them they expand their chest so the saddle is not on too tight.)

Judge Muller, (pictured left), ruled that no mention of the language of the dude ranch's disclaimer should be mentioned at trial.  This is a just result, as the disclaimer language in these tickets, rental agreements, and notices that seek to absolve careless people from negligence is against public policy.  Moreover, in my opinion, if the language were allowed to be placed into evidence it would make the statute, General Obligations Law 5-326 useless.

But, I do have to give great credit to Matthew Kelly, who represented the dude ranch.  It was a clever argument:  that the unenforceable language could still be used to show the injured person's awareness that saddles loosen and riders fall.  However, I am glad that his argument did not win the day.

If you or a loved one have been injured while having summer fun, give us a call and we will meet with you at no charge to help you.
1-800-924-3529.  We can meet you at offices in Plattsburgh, New York; Malone, New York, or Potsdam New York.  We can also go to your home or any other convenient place if you have difficulty travelling.