Case No. 66 EXCULPATORY CLAUSE Gross v. Sweet Court of Appeals 49 N.Y.2d 102,424

Question

Case No. 66 EXCULPATORY CLAUSE Gross v. Sweet Court of Appeals 49 N.Y.2d 102,424 N.Y.S.2d 365 (1979) FACTS: Plaintiff Bruce Gross (Gross) was a student at a parachute training school own operated by Defendant William Sweet (Sweet). As a prerequisite for admission to the course, Gross signed a form entitled "Responsibility Release" which read as follows: I, the undersigned, hereby and by these covenants, do waive any and all claims that I, my heirs, and/or assignees may have against Nathaniel Sweet, the Stormville Parachute Center, the Jumpmaster and the Pilot who shall operate the aircraft when used for the purpose of parachute jumping for any personal injuries or property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from an aircraft. I also assume full responsibility for any damage that I may do or cause while participating in this sport During Gross' first practice jump he was seriously injured. He sued Sweet for negligence in failing to provide adequate training, and failing to sufficiently warn Gross of the dangers of parachute jumping. Sweet denied liability, claiming the responsibility release signed by Gross released Sweet from any liability for negligence. ISSUE: Does the responsibility release relieve Sweet from liability for negligence? DECISION: No. REASONING: Contract terms that seek to free a person from the consequences of that person's own negligence are not favored by the law. If the exculpatory clause applies by its erms to gross negligence, it is unenforceable. Concerning ordinary negligence, an exculpatory clause will be enforced only if the clause clearly and conspicuously states that the limitation of liability applies to negligence. emphas risks injuries resulting from negligence. ase like the one in this case, which does not mention negligence, serves only t ize that a person who signs it cannot sue for injuries resulting from the ordinary of the activity undertaken. Such a release, however, does not prevent a lawsuit for QUESTIONS*** (See back of text for answers) ) What is an exculpatory clause? How could Sweet strengthen his position in another similar lawsuit?

Explanation / Answer

1. Exculpatory clause: is something in a contract, sale invoice, ticket etc which eliminates or shields one party (generally the organizer) from the liabilities that might arise due to any damages during the execution of contract, event.

An example is during a music concert, the organizing party prints such a clause at the back of the ticket stating they would not be liable for any damages happening during the event like stampede, fire, hurricane etc.

This clause does provide a considerable shield to one party but can still be challenged in the court.

2. Sweet or his lawyer can strengthen his position by quoting logical arguments from previous similar judgments (related to extreme sports) in favor of the defendants. Also they could cite the examples of other participants in the same batch who never got hurt. The other participants can be brought as witness to testify whether enough training was given and thy were adequately aware of the dangers involved etc.

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