Summary
holding exculpatory clause unenforceable because it "states only that the parent releases all rights and claims for damages against defendant 'for any and all injuries suffered' by the child or the parent at the wrestling tournament"
Summary of this case from Walker v. Young Life Saranac Vill.Opinion
November 15, 1995
Appeal from the Supreme Court, Orleans County, Gorski, J.
Present — Denman, P.J., Pine, Wesley, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff, individually and as parent and natural guardian of her son, commenced this action against, inter alia, Ralph Perrigo (defendant), the president and head coach of the Kendall Youth Wrestling Club, alleging that her son was injured when he was driven from the mat and struck a scoring table during a match at a wrestling tournament. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Contrary to defendant's argument, the doctrine of primary assumption of the risk does not bar this action because plaintiff's expert raised questions of fact whether the placement of the scoring table at the wrestling tournament and the organization and operation of the tournament created risks beyond those inherent in the sport of wrestling that plaintiff's son assumed (see, Owen v R.J.S. Safety Equip., 79 N.Y.2d 967, 970; McCrorey v City of Buffalo, 210 A.D.2d 908; Lamey v Foley, 188 A.D.2d 157, 163-164).
With respect to the release allegedly signed by plaintiff or her husband, even assuming, arguendo, that it had been signed, it is void because the exculpatory clause therein does not "plainly and precisely" limit the liability of defendant for his own negligent acts (Gross v Sweet, 49 N.Y.2d 102, 107). The exculpatory clause states only that the parent releases all rights and claims for damages against defendant "for any and all injuries suffered" by the child or the parent at the wrestling tournament. Such "broad and sweeping language" is ineffective to bar an action against defendant for his negligence (Gross v Sweet, supra, at 108). Furthermore, a minor is not bound by a release executed by his parent (see, Santangelo v City of New York, 66 A.D.2d 880, 881; see also, Shields v Gross, 58 N.Y.2d 338, 344, rearg denied 59 N.Y.2d 762; Kotary v Spencer Speedway, 47 A.D.2d 127, 130). Thus, despite the absence of a cross appeal by plaintiff from the denial of her cross motion to dismiss the affirmative defense of waiver and release (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-112), we modify the order on appeal by granting that cross motion.