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First published: May 2011
Jason Roer v. 150 West End Avenue Owners Corp.

A general waiver of liability for injuries that occur in the exercise room of a co-op may not be enforceable by law. Under New York statutory law, any contractual provision that exempts the owner or operator of an exercise room for liability for damages caused by its own negligence is unenforceable. Therefore, the contract that the co-op required its shareholders to sign as a prerequisite for using the exercise room may not be enforced under all circumstances. It is imperative that co-op (and condo) boards using these general waivers of liability consult with their legal advisers to ensure that the agreements give the board the greatest protection available, and to make sure boards understand that full and complete protection may not exist. Additionally, this case highlights that when the acts of a third person intervene, the connection between alleged wrongdoers is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the alleged negligence of the co-op or condo. Thus, even if another resident (such as Sarnoff) or outside actor breaks the chain of causation, the issue will still be whether the exercise room was operated in a safe and reasonable manner. Finally, there is no indication in the decision about whether the co-op’s insurance carrier provided a defense or whether the actions described allowed the insurance carrier to disclaim liability or defend pursuant to a reservation of rights (we note that the court filings indicate that a carrier may have been involved). It is advisable that boards have their insurance professionals review their policies to ensure that there is coverage and that the board comply with all requirements of the carrier concerning operation of the exercise facility.

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First published: May 2011
Jason Roer v. 150 West End Avenue Owners Corp.

A general waiver of liability for injuries that occur in the exercise room of a co-op may not be enforceable by law. Under New York statutory law, any contractual provision that exempts the owner or operator of an exercise room for liability for damages caused by its own negligence is unenforceable. Therefore, the contract that the co-op required its shareholders to sign as a prerequisite for using the exercise room may not be enforced under all circumstances. It is imperative that co-op (and condo) boards using these general waivers of liability consult with their legal advisers to ensure that the agreements give the board the greatest protection available, and to make sure boards understand that full and complete protection may not exist. Additionally, this case highlights that when the acts of a third person intervene, the connection between alleged wrongdoers is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the alleged negligence of the co-op or condo. Thus, even if another resident (such as Sarnoff) or outside actor breaks the chain of causation, the issue will still be whether the exercise room was operated in a safe and reasonable manner. Finally, there is no indication in the decision about whether the co-op’s insurance carrier provided a defense or whether the actions described allowed the insurance carrier to disclaim liability or defend pursuant to a reservation of rights (we note that the court filings indicate that a carrier may have been involved). It is advisable that boards have their insurance professionals review their policies to ensure that there is coverage and that the board comply with all requirements of the carrier concerning operation of the exercise facility.

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