GYM LIABILITY WAIVERS, P.2

Additionally, with respect to Sarnoff, the court discussed that the Court of Appeals had declared in another case that, "where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence."

Waivers Can't Supersede Existing Law

Lastly, the court rejected the co-op's argument that the exercise room membership contract signed by Roer relieved the co-op of any and all liability. The contract language provided as follows: "The undersigned hereby waives to the fullest extent permitted by law any and all claims which I/we may have against the Corporation, its directors, officers, agents and employees of any associated party, arising out of our use of the facilities, and injuries sustained in, or near the exercise room premises."
 
The court explained that such a waiver would not be enforceable because there was a statute in New York stating that any contract that exempts the owner or operator of a gym from liability for damages caused by its own negligence was "void as against public policy and wholly unenforceable."
 
Comments: A general waiver of liability for injuries that occur in the exercise room of a co-op may not be enforceable by law. Under New York statutory law, any contractual provision that exempts the owner or operator of an exercise room for liability for damages caused by its own negligence is unenforceable.
 
Therefore, the contract that the co-op required its shareholders to sign as a prerequisite for using the exercise room may not be enforced under all circumstances. It is imperative that co-op and condo boards using these general waivers of liability consult with their legal advisers to ensure that the agreements give the board the greatest protection available, and to make sure boards understand that full and complete protection may not exist.
 
Additionally, this case highlights that when the acts of a third person intervene, the connection between alleged wrongdoers is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the alleged negligence of the co-op or condo. Even if another person, such as Sarnoff, breaks the chain of causation, the issue will still be whether the exercise room was operated in a safe and reasonable manner.
 
Finally, there is no indication in the decision about whether the co-op's insurance carrier provided a defense or whether the actions described allowed the insurance carrier to disclaim liability or defend. It is advisable that boards have their insurance professionals review their policies to ensure that there is coverage and that the board comply with all requirements of the carrier concerning operation of the exercise facility.
 

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan. Dale J. Degenshein is a special counsel for that firm.

Illustration by Liza Donnelly 

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