By Steven H. Rosenfeld, Partner, and Carla Varriale, Partner
In light of the constant growth of the spa and fitness industries and recognizing the liability exposure facing owners, a recent decision by the New York’s Appellate Division, First Department, wherein the court refused to enforce a signed release denying a spa’s motion for summary judgment, is worthy of consideration.
In Debell v Wellbridge Club Mgt. Inc., 2007 NY Slip Op 03833, the plaintiff was injured while participating in member activities at a spa while under the supervision of one of the spa’s trainers. During a complimentary one-hour training session, the trainer had the plaintiff do an upper body arm exercise on a “hang bar” even though the plaintiff had difficulty in using the hang bar and complained that it hurt his upper back, shoulders and neck. During that session, plaintiff tore the rotator cuff in his left shoulder and suffered a herniated disc in his cervical spine. The plaintiff had signed a release in the spa’s membership application which provided:
“[T]he 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, arising out of or in any way connected with the use of the Spa facilities . . . .” (emphasis added).
Based on this release, the spa moved for summary judgment dismissing the plaintiff’s action. The First Department found the release void as against public policy citing General Obligation Law §5-326, which provides:
Every 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, 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” (emphasis added).
Facilities that are places of instruction and training have been previously found to be outside the scope of the statute (see generally, Lemoine v Cornell Univ., 2 AD3d 1017 [2003], lv denied 2 NY3d 701 [2004]). Here, even though the plaintiff sustained his injury while being instructed by a spa trainer, the court found the instruction ancillary to the other “recreational” activities offered by the spa. The court noted that spa offered various services relating to health and beauty, and access to exercise equipment, a swimming pool, whirlpool, jacuzzi, sauna and steam. Although it offered a free introductory class and four free training sessions, there was no mention of training or instruction in its published advertisements. The court also took note that the plaintiff did not take a training session until nine months after joining the spa and that there was no evidence that the plaintiff enrolled at the spa for the purpose of receiving instruction.
Steven H. Rosenfeld (steven.rosenfeld@hrrvlaw.com) and Carla Varriale (carla.varriale@hrrvlaw.com) are partners at the law firm of Havkins, Rosenfeld, Ritzert & Varriale.
