How courts view recreational facilities' purpose can undermine the validity of some waivers.
While most state courts will uphold the validity of a waiver or release signed by a consenting adult, there are states (Louisiana, Montana and Virginia) where the use of any type of waiver has been ruled contrary to public policy. In addition, a number of other states have placed significant restrictions on the use of waivers. One such state is New York, which generally supports their use. Owners or operators of pools, gymnasiums, places of amusement or recreation, or similar establishments where users pay a fee to enter, however, have had a tough time convincing courts of their waivers' validity. Under New York General Obligation Law § 5-326, recreational facilities' use of any waiver in connection with, or collateral to, any contract, membership application or ticket of admission is prohibited. Still, the law doesn't stop facility owners from utilizing waivers - nor does it keep injured facility users from filing lawsuits. And, it should be noted, this seemingly black-and-white law masks several gray areas - including, as Debell v. Wellbridge Club Management [40 A.D.3d 248; 835 N.Y.S.2d 170 (2007)] shows, the courts' difficulty in interpreting the law in light of recreational facilities' occasionally educational focus. During a complimentary one-hour training session as part of his membership at The Peninsula Spa, Harlan Debell claimed that he was seriously injured while under the supervision of Eric Schreiber, a fitness trainer at the Spa. Schreiber, Debell alleged, insisted that an upper-body arm exercise on the "hang bar" was the best exercise for Debell's back - in spite of Debell's difficulty in using the hang bar and his complaints that it hurt his upper back, shoulders and neck. While using the equipment under the direct supervision of Schreiber, Debell tore the rotator cuff in his left shoulder and suffered a herniated disc in his cervical spine. As a result of his injuries, Debell sued Schreiber and the club for negligence. The trial court, however, rejected Debell's claims and granted Schreiber and the club summary judgment. In support of its decision to dismiss the complaint, the trial court ruled that Debell's claims were barred by the release he signed as part of his membership agreement. The release specified that members could not file suit for any injuries incurred during personal training sessions at the Spa. On appeal to the Supreme Court of New York, Appellate Division, Debell raised two arguments. First, he claimed that the release was ambiguous and therefore unenforceable. Second, he argued that under § 5-326, the release should be held void as against public policy. In addressing the first issue, the appellate court examined the release signed by Debell. The agreement provided that: "The Member hereby assumes all risks associated with the use of the Spa facilities, waives all rights ... and hereby agrees to release ... the Spa from the indemnify [sic] the Spa against, any and all claims, including, but not limited to personal injury, including bodily injury and death ... whether or not based on the acts or omissions of the Spa [emphasis added by the court], arising out of or in any way connected with the use of the Spa facilities." The waiver's grammatical errors notwithstanding, the language was clear and therefore enforceable, according to the court. While the release did not specifically bar suits for personal injuries resulting from personal trainers' or the club's negligence, it clearly conveyed a similar intent - and, the court held, its plain meaning should not be subverted by straining to find an ambiguity that otherwise might not be thought to exist. Therefore, the appellate court ruled, the trial court properly rejected Debell's claim that the release was ambiguous and unenforceable. As for Debell's second argument, that the release was void as against public policy, the trial court, citing Lemoine v. Cornell University [2 AD3d 1017, 769 N.Y.S.2d 313 (2003)] and Evans v. Pikeway Inc. [7 Misc 3d 348, 793 N.Y.S.2d 861 (2004)], held that since Debell was injured while undergoing instruction in strength-training exercises, not a recreational activity, the release was valid under § 5-326. In reviewing the question, the appellate court began by examining the statute's language, which provides that: "[E]very 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 [emphasis added by the court], 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." Based on the statute's language, the appellate court overturned the trial court's decision to enforce the waiver of liability. In particular, the appellate court, again citing Lemoine v. Cornell University, ruled that rather than focusing on whether Debell's activity was recreational or instructional, the trial court should have focused on whether the Spa's purpose was recreational or instructional. The court concluded that where a facility promotes a recreational pursuit, to which instruction is provided as an ancillary service, New York General Obligation Law § 5-326 applies even if the injury occurs while receiving instruction. To assist lower courts in determining whether a facility is instructional or recreational, the appellate court noted that courts should examine a number of factors such as the organization's name, its certificate of incorporation, its statement of purpose, and whether the money it charges is tuition or a fee for use of the facility. In applying these factors to the current case, the court ruled that the training sessions, while arguably instructional in nature, appeared to be ancillary to the recreational activities offered by the Spa. In support of this conclusion, the court pointed to the Spa's published advertisements, which proclaimed that the Spa provided the latest facilities and services in health and beauty. In addition, the court noted that by joining the Spa, members were required to pay an initiation fee plus a monthly membership fee. In exchange, members were entitled to use the exercise equipment, full-service beauty salon, swimming pool, whirlpool, sauna, steam room and skin-care treatments, and were also given a free introductory class and four free training sessions. The court, therefore, concluded that the Spa's purpose was recreational, not instructional, and on these grounds reversed the trial court's decision to dismiss the complaint. The appellate court's decision to apply § 5-326 to the release signed by Debell is significant in a number of ways. First, in the current case, it reinstates Debell's negligence lawsuit against Schreiber and the club. Of greater importance, especially to all health and fitness clubs in New York that employ personal trainers or fitness instructors, is the appellate court's decision to shift the emphasis of § 5-326 toward the question of whether the purpose of the facility, and not the activity involved in the facility, is recreational or instructional. As a result, any waivers or releases used by personal trainers or fitness instructors in health and recreation facilities in New York will now be voided as against public policy.