Practice point: The Appellate Division affirmed the denial of defendant's motion to dismiss this action where plaintiff allegedly sustained injuries while engaged in a personal training
program, under a trainer's supervision and instruction, at a one-on-one
training facility owned and operated by defendant. Plaintiff alleges that the personal trainer negligently instructed and
supervised him in the lifting of an excessive amount of weight.
Plaintiff
had executed a release wherein he acknowledged that there were "inherent
risks in participating in a program of strenuous exercise" and released
defendant from "all claims . . . which [plaintiff]...may have against [defendant] . . . for all injuries . . .
which may occur in connection with my participation in the program."
However, the Appellate Division found that the language of the release does
not reflect a clear and unequivocal intent to limit liability for
negligence. While the
release warned of the risks inherent in undergoing a strenuous exercise
program, it does not exempt defendant from liability for injury which may result from its failure to use due care in its training methods.
Student note: General Obligations Law § 5-326 does not bar
enforcement of this release, as defendant's facility is an instructional,
and not a recreational, one.
Case: Kim v. Harry Hanson, Inc., NY Slip Op 08229 (1st Dept. 2014)
Here is the decision.
Monday's issue: Setting aside a jury verdict.
