A negligence claim consists of the following elements: duty, breach of that duty, causation (of an injury), and damages (injury). Negligence is not the same as carelessness. Rather, negligence is conduct that falls short of what a reasonable person would do to protect another from foreseeable risks of harm. All of the elements must be proven by the plaintiff (or claimant, person who sues) in order to recover under a negligence claim. Thus, a deviation from the standard of care that results in no injury is not recoverable under the law. A defendant may test the ability of the plaintiff to prove one or more of these elements by motion to dismiss, motion for summary judgment, or demurrer. Types of damages applicable to negligence cases include special damages (quantifiable dollar losses that could be substantiated by an invoice, receipt, or other document), general damages (those which cannot be quantified in monetary terms, such as pain and suffering), and in rare cases, punitive damages (damages that are for the purpose of punishing the wrongdoer).
Common types of negligence cases include:
- Inadequate supervision
- Negligent hiring of employees
- Negligent retention of employees
- Negligent infliction of emotional distress
- Car collision
- Trip and fall due to broken sidewalk
- Slip and fall due to failure to appropriately clear snow and ice
Another type of negligence case may stem from recreational activities. It is common practice for people to sign up for karate classes, horse back riding, or gym classes and assume that they are entitled to the same protection under the law. However, the New York legislature made General Obligations Law section 5-326 (Release for Instructional Activity), which permits an entity that runs a program of these types to ask participants to waive their right to sue. In fact, almost all of the forms we consumers are provided and have to sign in order to participate have this waiver language in fine print at the bottom.
As the law in this area has evolved, the courts have determined that only instructional activities shall be permitted to be included in these waivers of liability. The courts have held in many cases that if the activity in question is recreational, then the release or form that the participant signs is invalid as against public policy.
Essentially, they are trying to restrict lawsuits when one truly is being instructed and likely more aware of the risk of the activity as opposed to taking a horse back riding stroll along the beach with friends for the first time.
Recently, and quite disappointingly, the First Department Appellate Division held in Hsu v. Krav Maga NYC, LLC that the participant in a self defense karate class was participating for instructional purposes and the signed release was valid.
At Leav & Steinberg, LLP, we have successfully litigated this issue to the Second Department Appellate Division of the State of New York. We were able to prove in an often cited case Fusco v. Now & Zen, 294 A.D.2d 466 (2nd Dept. 2002) that the plaintiff was taking a recreational class of karate and judo and as a result, the waiver should be invalid.