[hammadown]

From the NEAR list. Glad to see the courts doing their job correctly!


PRE-ACCIDENT RELEASE IS VALID IN SUIT AGAINST MOTORCYCLE DRIVING
SCHOOL

Boateng v. Motorcycle Safety School, Inc.
2008 NY Slip Op 04455
Decided on May 13, 2008
Appellate Division, Second Department

The plaintiff enrolled in a two-day motorcycle riding course offered
and conducted by the defendant, paid a contract fee for the course,
and signed a liability release. The course was held on the premises
of Yonkers Raceway and included a classroom lecture, a written exam,
and outdoor riding exercises on a paved area behind the racetrack. On
the second day of the course, the outdoor lessons allegedly were held
during a rainstorm, and the plaintiff fell from a motorcycle while
performing a riding exercise.

The plaintiff commenced this action alleging that the defendant was
negligent, inter alia, in allowing her to operate a motorcycle in the
rain without proper instruction. The defendant moved for summary
judgment, arguing, among other things, that the plaintiff's action,
which was based solely on a theory of ordinary negligence, was barred
by the terms of the release. The Supreme Court, Kings County, denied
the defendant's motion. The Appellate Division reversed.

"The defendant made a prima facie showing that the release signed by
the plaintiff was not void under General Obligations Law § 5-326.
General Obligations Law § 5-326 prohibits an owner or operator of a
recreational facility from enforcing a release given by an individual
who has paid it a fee or other compensation for the use of the
facility. Here, the defendant submitted evidence that the raceway
premises, which the defendant leased to conduct its classes, were
used for instructional, not recreational or amusement, purposes.
Moreover, the defendant made an initial showing that the contract fee
paid by the plaintiff constituted tuition for a course of instruction
and not a use fee for use of a recreational facility as contemplated
by the statute. In response, the plaintiff failed to raise a
triable issue of fact."

"Further, we agree with the defendant that the terms of the release
are enforceable. The language of the release clearly and
unequivocally expresses the intention of the parties to relieve the
defendant of liability for personal injuries sustained by the
plaintiff by reason of its negligence. Moreover, the release is
similarly clear in reciting that the plaintiff was aware of and
assumed the risks associated with participating in the defendant's
motorcycle riding course. Accordingly, the Supreme Court should
have granted the defendant's motion for summary judgment dismissing
the complaint."

[l3uddha]

well DUH!

[mzdagrl]

Oh my god, hell froze over. The courts exercised common sense!