Ciofalo v. Vic Tanney Gyms, Inc.

Citation220 N.Y.S.2d 962,10 N.Y.2d 294,177 N.E.2d 925
Parties, 177 N.E.2d 925 Joanne L. CIOFALO et al., Appellants, v. VIC TANNEY GYMS, INC., Respondent.
Decision Date19 October 1961
CourtNew York Court of Appeals

Jerome M. Kutner, David S. Sidikman, Levittown, for appellants.

E. Richard Rimmels, Jr., Mineola, and Lillian E. Cuff, Garden City, for respondent.

FROESSEL, Judge.

This action by plaintiff wife for personal injuries, and by plaintiff husband for medical expenses and loss of services, stems from injuries which the wife sustained as the result of a fall at or near the edge of a swimming pool located on defendant's premises. Plaintiff claimed that because of excessive slipperiness and lack of sufficient and competent personnel she was caused to fall and fractured her left wrist.

At the time of the injury, plaintiff wife was a 'member' or patron of the gymnasium operated by defendant, and in her membership contract she had agreed to assume full responsibility for any injuries which might occur to her in or about defendant's premises, 'including but without limitation, any claims for personal injuries resulting from or arising out of the negligence of' the defendant.

In addition to denying the material allegations of the complaint, defendant's answer set forth as an affirmative defense the provision of the contract above referred to. Defendant moved for summary judgment, and plaintiffs, by cross motion, moved to strike said defense, their attorney contending in an affidavit that the exculpatory clause is void as against public policy. Summary judgment was granted in favor of defendant, and the Appellate Division has affirmed.

Although exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting from his own negligence, are closely scrutinized they are enforced, but with a number of qualifications. Whether or not such provisions, when properly expressed, will be given effect depends upon the legal relationship between the contracting parties and the interest of the public therein. Thus such a provision has been held void when contained in the contract of carriage of a common carrier (Conklin v. Canadian-Colonial Airways, 266 N.Y. 244, 194 N.E. 692) unless a reduced fare was charged (Anderson v. Erie R. R. Co., 223 N.Y. 277, 119 N.E. 557); or in the contract of a public utility under a duty to furnish telephone service (Emery v. Rochester Telephone Corp., 156 Misc. 562, 282 N.Y.S. 280, affd. 246 App.Div. 787, 286 N.Y.S. 439); or when imposed by the employer as a condition of employment (Johnston v. Fargo, 184 N.Y. 379, 77 N.E. 388, 7 L.R.A.,N.S., 537).

On the other hand, where the intention of the parties is expressed in sufficiently clear and unequivocal language (Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41, 2 N.E.2d 35, 37), and it does not come within any of the aforesaid categories where the public interest is directly involved, a provision absolving a party from his own negligent acts will be given effect. This was the situation in Kirshenbaum v. General Outdoor Advertising Co. (258 N.Y.) 489, 180 N.E. 245, 84 A.L.R. 645), a landlord and tenant relationship; in Graves v. Davis (235 N.Y. 315, 139 N.E. 280), involving a contract for towage by the owners of a tug, and in the so-called contractor cases (Turner Constr. Co. v. Rockwood Sprinkler Co., 249 App.Div. 508, 293 N.Y.S. 551, affd. 275 N.Y. 635, 11 N.E.2d 793; Long Is. R. R. Co. v. American Bridge Co., 175 App.Div. 170, 161 N.Y.S. 543, affd. 225 N.Y. 692, 122 N.E. 886). In situations such as these, 'public policy does not condemn the immunity clause voluntarily agreed upon by these parties' (Kirshenbaum v. General Outdoor Adv. Co., supra, 258 N.Y. p. 495, 180 N.E. 247).

Of course, contracts may not be construed to exempt parties from the consequences of their own negligence in the absence of express language to that effect (Boll v. Sharp & Dohme, 281 App.Div. 568, 570-571, 121 N.Y.S.2d 20, 22, affd. 307 N.Y. 646, 120 N.E.2d 836; Kaufman v. American Youth Hostels, 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593, mod. 5 N.Y.2d 1016, 185 N.Y.S.2d...

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  • Schlobohm v. Spa Petite, Inc.
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    ...LaFrenz v. Lake County Fair Board, 172 Ind.App. 389, 394, 360 N.E.2d 605, 608 (1977); Ciofalo v. Vic Tanny Gyms, Inc., 10 N.Y.2d 294, 296-97, 220 N.Y.S.2d 962, 964, 177 N.E.2d 925, 926 (1961). In our view, there was no disparity in bargaining power. Schlobohm voluntarily applied for members......
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    ...689, 575 N.E.2d 107 (citing Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 (1979), and Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925 (1961)). Since the language of the exculpatory agreement expresses in unequivocal terms the intention of the pa......
  • City of Santa Barbara v. Superior Court
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    ...JJ.), the New York statute was enacted in part to abrogate the New York high court's decision in Ciofalo v. Vic Tanney Gyms, Inc. (1961) 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925. In that case, a gymnasium member signed a release of liability for negligence by the gym operator, and la......
  • Deutsche Bank Nat'l Trust Co. v. Morgan Stanley Mortg. Capital Holdings LLC (In re Part 60 Put-Back Litig.)
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    ...policy (see Lago v. Krollage, 78 N.Y.2d 95, 99–100, 571 N.Y.S.2d 689, 575 N.E.2d 107 [1991] ; Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 296–297, 220 N.Y.S.2d 962, 177 N.E.2d 925 [1961] ). Furthermore, " ‘[c]ontract terms providing for a sole remedy are sufficiently clear to establish that ......
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