A state court on New York has dismissed a negligence action against a defendant gymnastics center, finding that a signed waiver, which expressly released the defendant from any and all liability and damages arising out of the gymnastics training at the premises.
The plaintiff sued after her daughter fell from the uneven bars at the Sports, Fitness & Fun Center and fractured her right arm.
The defendant moved for summary judgment based upon the express waiver of liability that was signed by the infant plaintiff’s mother and co-plaintiff. The plaintiffs relied upon New York’s General Obligations Law §5-326, which provides that a waiver exempting a gymnasium from liability for its own negligence is void against public policy.
The defendant, however, successfully argued that New York’s General Obligations Law §5-326 applies only in a place of amusement or recreation. See Fusco v. Now & Zen, Inc, 294 A.D.2d 466 (2d Dept. 2002); Lemoine v. Cornell Univ., 2 A.D.3d 1017, 1018-19, 769 N.Y.S.2d 313 (3d Dept. 2003). Since the infant plaintiff received gymnastics instruction at the time of the accident, the facility was a place of instruction, it argued, and not applicable to the facts of this case.
The court agreed, holding that the plaintiffs’ action was barred by the waiver and release and granted summary judgment in the defendant’s favor and dismissed the plaintiffs’ negligence action.
Fowler v. Sports, Fitness & Fun; S.Ct., Orange County; Index No.: 7956/05; 3/15/07
Attorneys of Record: Carla Varriale and Carlie Fitapelli represented the defendant.
