In Lee v. Brooklyn Boulders, LLC, the plaintiff alleged she was injured at defendant’s indoor rock climbing facility when her foot landed in a gap between two safety mats. Defendant moved for summary judgment under the theory of assumption of risk; however, the lower court denied the motion and defendant appealed.

The Appellate Division, Second Department considered defendant’s assumption of risk theory, namely that by engaging in a sport or recreational activity, participants consent to the commonly appreciates risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. For example, those who engage in rock climbing can expect to fall awkwardly and injure themselves.

But the Second Department rejected defendant’s argument and found a question of fact. The fact that there was a gap in the mats where plaintiff fell constituted a concealed risk and moreover, there was a question of fact whether plaintiff’s injury a result of the generally accepted assumption of the risk.

Defendant further argued plaintiff signed a waiver that would release the defendant from any liability. However, the Second Department cited to General Obligations Law 5-326 that exempts any agreement on liability with pools, gyms, and places of public amusement or recreation. The legislature enacted GOL 5-326 for public policy reasons as the state did not want businesses to avoid liability by having their customers sign waivers. A such, the waiver signed by the plaintiff in this action was ruled to be void and unenforceable.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.