By Carla Varriale of Havkins Rosenfeld Ritzert & Varriale
In Siegel v. Albertus Magnus High School et al., the issues on appeal involved the application of assumption of the risk to the facts of the case, and whether contractual indemnity should have been granted based upon the facts and the agreement (a license).
Briefly, plaintiff slipped and fell on white or cream-colored “cushiony” tile covering a metal drainage gate located on a grassy field on the grounds of Albertus Magnus College in Rockland County. Plaintiff was a volunteer assisting the coaching staff of the New City Generals baseball team (the “Generals”) during batting practice. Plaintiff slipped and fell on the tile as he attempted to retrieve a foul ball and sustained personal injuries.
The Supreme Court correctly granted summary judgment based on assumption of the risk since that doctrine encompasses risks associated with the construction of the playing field and any open and obvious conditions on it (such as the tile). Furthermore, the Appellate Division, Second Department held that a plaintiff need not have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.
Applying the case law to the facts of the case, the Appellate Division reasoned that this plaintiff in particular was aware of and appreciated the risk of injury (he had visited the field at least three prior time and had sat along the third-base foul line, which was close to the accident site). The court also noted that the cream-colored tile was in stark contrast with the grassy area and constituted an open and obvious condition. Plaintiff failed to raise a triable issue of fact in opposition to the motion for summary judgment with respect to his knowing, voluntary assumption of an obvious risk.
Of further interest was the Appellate Division’s decision regarding the enforceability of the contractual indemnification clause. The Appellate Division, Second Department held that the school defendants established that the plaintiff’s accident (which occurred on the warning track during a practice) triggered the indemnification clause with the Generals as set forth in their license agreement to use the baseball field. The Generals were, therefore, required to indemnify Albertus Magnus for “any and all liability and injuries which occur or arise out of the General’s use of the fields while organizational games, practices and events…including reasonable attorney’s fees.”
Although the Generals had argued that the indemnification clause was void pursuant to New York General Obligations Law Sections 5-321 and 5-322.1, the Appellate Division, Second Department held that those arguments lacked merit.
The subject agreement with the Generals constituted a license and not a lease agreement and, therefore, Section 5-321 was not applicable.
Section 5-321 is a frequent provision invoked in order to avoid the effect of exculpatory clauses. Here is its straightforward text:
§ 5-321. Agreements exempting lessors from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable. (emphasis added)
Next, Section 5-322.1 was likewise inapplicable because the agreement with the Generals was not a maintenance or a construction contract. Here is the text of Section 5-322.1:
§ 5-322.1. Agreements exempting owners and contractors from liability for negligence void and unenforceable; certain cases
1. A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable; provided that this section shall not affect the validity of any insurance contract, workers’ compensation agreement or other agreement issued by an admitted insurer. This subdivision shall not preclude a promisee requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of a party other than the promisee, whether or not the promisor is partially negligent.
2. A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to condition a subcontractor’s or materialman’s right to file a claim and/or commence an action on a payment bond on exhaustion of another legal remedy is against public policy and is void and unenforceable; provided that this subdivision shall not affect the validity of any insurance contract, workers’ compensation agreement or other agreement issued by an admitted insurer.
3. The provisions of this section shall only apply to covenants, promises, agreements or understandings in, or in connection with or collateral to a contract or agreement, as enumerated in subdivision one hereof, entered into on or after the thirtieth day next succeeding the date on which it shall have become a law. (emphasis added).
This case was interesting, not only because the question of whether a plaintiff assumes the risk of injury associated with the conditions of field or a playing surface comes up so often, but also because it underscores the importance of contracts and indemnification clauses and understanding when they (and exculpatory clauses) are enforceable. This is a good reminder, in particular regarding the lease/license distinction.
