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First published: Jan 2016
John Oriogun v. Board of Managers of Hampton House Condominium and Hampton House CondominiumWhen a building wants to offer health club facilities to its apartment owners, it is important to consult insurance professionals, have them review maintenance contracts for equipment, and draft waivers, releases, and see that documents generally comply with the building’s governing documents and with applicable law. The GOL provision at issue here specifically provides that any waiver of liability as a result of the negligence of the operator of the gym – whether the condominium or a third-party operator – is void. We have seen cases where a failure to carve out negligent acts of the operator – or in the case of other GOL provisions, the owner of a premises – renders the entire provision void, so that even if the owner/operator was not negligent, there will be no enforceable waiver of liability. It is thus important that these provisions be drafted carefully. We note that the GOL provision, however, requires that some payment be made in consideration for using the gym facility. We presume Hampton House requires a payment, but do not know how the court would address the issue if maintenance or payment to the gym were merely a budget item in common charge calculations. Further, it appears as if the court in this case determined that the hold harmless provision be removed. We do not know what would happen if the provision were merely redrafted to comply with the GOL by carving out the negligence of the operator.
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