Open for business during COVID19? How to draft a release to protect a business.
As of the end of July, there have been nearly 800 COVID-related lawsuits filed in New York. While most do not involve personal injury, it may only be a matter of time before they do. This is especially true as businesses begin to re-open and allow customers back onto their premises – notwithstanding COVID’s persistence. Now is a good time, then, to review the law on releases, which may provide some peace of mind to business owners.
In New York, courts will not hesitate to enforce a release relieving a business from negligence claims. Releases are seen most often in voluntary activities, like sports and other entertainment. So long as the language of a release clearly absolves a business from its own acts of negligence, a plaintiff who is injured during one of these activities will not be able to sue a business for damages for negligence.
In the seminal case of Gross v. Sweet, 49 N.Y.2d 102 (N.Y. 1979), the Court of Appeals revealed exactly what words needed to be in a release for a release to be effective against negligence claims. In that case, a skydiving student had signed a release purportedly absolving his skydiving school from negligence before he jumped and injured himself. After scrutinizing the release, the Court held that it plainly failed to use the word “negligence” or “neglect.” Instead it used the words “waive” and “assume”, which were insufficient. According to the Court, the latter words only “alerted the plaintiff to the dangers inherent in parachute jumping and that he entered into the sport with apprehension of the risks”; it did not alert him to “any enhanced exposure to injury occasioned by the carelessness of the” business. In other words, the release needed to clearly state that it was releasing the business from the business’s own “failure[s] to use due care”, rather than simply alerting the plaintiff of any assumed risk.
Although Gross was decided nearly thirty years ago, mistakes continue to be made in releases. In Kalinkina v. Martino Cartier Enters., 2017 U.S. Dist. Lexis 95670 (S.D.N.Y. 2017), a professional model had signed a release purportedly absolving a hairdresser from negligence. Unfortunately, during a public hair styling event, the hairdresser cut the model’s neck with scissors. Once again the release was scrutinized and once again it was held that the release had failed to use the word “negligence”. Instead it used the word “accident”, which was insufficient: “I hereby release [defendant] from all liability, including without limitation any accident or unforeseen incident.” As the Court of Appeals held in Gross, the Federal Court held the release only alerted the plaintiff to the risks involved in the hairdressing event; it did not clearly notify her that she was releasing any negligent act.
An example of a release that got it right can be seen in Schwartz v. Martin, 82 A.D.3d 1201 (2nd Dept. 2011). There a cyclist had been injured during a cycling event. The cyclist however had signed a release stating that he released the defendant cycling association from “any and all rights and claims including claims arising from the releasees’ own negligence.” The court in this instance held the release “clearly and unequivocally expressed the intention of the parties to relieve” the defendants for their own negligence.
It should be noted that there are certain businesses, most that serve the public, that are prohibited from using releases to absolve themselves from their own acts of negligence.Most can be found in Article 5 of the General Obligations Law (landlords, caterers, building service or maintenance contractors, those who maintain garages or parking garages, or pools, gymnasiums or places of public amusement or recreation).However, the list is narrow and should not prevent most businesses from exploring the use of releases to provide them with some peace of mind during New York’s reopening.
-Mat Paulose Jr., Esq.
Paulose & Associates PLLC is a litigation and general counsel law firm. The lawyers at the firm prosecute and defend matters involving commercial, contract, construction, lien law, and employment matters. We also help resolve business disputes, insurance coverage issues, and real estate litigation. We service the counties of Nassau, Kings (Brooklyn), Queens, Manhattan, Bronx, Westchester and Rockland. This publication is a service to our friends and family. It is designed only to give general information on the subjects covered. It is not intended to be a comprehensive summary of the law, provide legal advice, or render legal opinion. It may be considered attorney advertising in certain jurisdictions. Past results do not guarantee future results. Copyright 2020 Paulose & Associates PLLC. All rights reserved. If you need us, give us a call.