ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, November 30, 2006

On Urban Cowboys, Tanning Beds and Exculpatory Clauses

Zeus In preparation for a class discussion about public policy and the enforceability of exculpatory clauses, I did a little research on New York Law.  N.Y. General Obligations Law § 5-326 provides that:

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.

In other words, an agreement waiving liability for negligence on the part of an owner or operator of a pool, gymnasium or place of amusement or recreation (or similar establishment) is not enforceable. 

My research revealed that the statute has (quite unsurprisingly) lead to litigation about what constitutes a “place of public amusement or recreation, or similar establishment.”  And, this question of statutory interpretation leads to a story about mechanical bulls (Meier v. Ma-Do Bars, Inc., 106 A.D.2d 143 (3d Dept. 1985). 

Here’s what happened.  It is the early 1980’s, presumably after or around the time of John Travolta’s brilliant performance in Urban Cowboy.  Plaintiff goes to a bar and observes other patrons riding a mechanical bull.  Here's a description of the scene:

The device simulated the spinning and bucking of actual bulls as they performed when ridden in rodeos. The participants attempted to ride the device in the same manner as animals are ridden. It must be assumed that when the device was ridden by patrons of the bar, a rodeo atmosphere was created in which satisfaction was derived from being able to stay on the bull for the predetermined period of time. That it was anticipated that some riders would be unable to stay on the bull was indicated by the fact that air mattresses were spread on the floor surrounding the device.

After observing other patrons ride the mechanical bull, plaintiff paid a $2 fee and signed a waiver of liability.  Plaintiff took a ride, leading to serious injuries (and I am in no way intending to make light of plaintiff's injuries, which are not specified in the court opinion).  Is the exculpatory clause enforceable?  Is this the type of situation/setting contemplated by the statute?  The appellate court held:

In our view, the instant case is a classic example of those situations which the Legislature had in mind when it extended the declaration of public policy in the General Obligations Law to apply to places of amusement and similar establishments. The mechanical bull was an amusement device for which plaintiff paid a fee to use and enjoy. That a potential danger existed is exemplified by the owner and operator's requirement that an exculpatory agreement be signed by a user. Defendant created a place of amusement or recreation by the installation of the device. * * * Section 5-326 of the General Obligations Law is controlling and that the agreement is null and void.

What’s the next case?  Ah, the beauty of a system of precedent.  A hairstyling salon with a tanning bed.  Does this constitute a “place of public amusement or recreation, or similar establishment”? (emphasis added).  Held: No.

A hairstyling salon with a tanning bed is not "similar" to a place of entertainment or recreation. The tanning bed may be considered part of the cosmetic service supplied by the defendant. Thus, a properly drafted exculpatory clause would not necessarily be void under the statute. Thus, the cross motion to dismiss the defense is denied.

There have been other interpretations of what constitutes a “place of public amusement or recreation, or similar establishment,” and establishments for educational purposes (even if teaching skydiving) are not within this definition.  (see, e.g., Gross v Sweet, 49 N.Y.2d 102 (NY 1979) (parachuting school held educational and not within scope of statute; exculpatory clause could be enforced); Gaskey v Vollertsen, 110 A.D.2d 1066 (4th Dept 1985) (motor speedway held to be within the scope of the statute; exculpatory clause not enforceable)).

[Meredith R. Miller]

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