Meier v. Ma-Do Bars, Inc.

• Decision Date: 31 January 1985
• Docket Number: MA-DO
• Citation: 106 A.D.2d 143,484 N.Y.S.2d 719
• Parties: John MEIER, Appellant, v.BARS, INC., Doing Business as Hunter Village Inn, Defendant, and Paul Solodar et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 719

484 N.Y.S.2d 719

106 A.D.2d 143

John MEIER, Appellant, v.MA-DO BARS, INC., Doing Business as Hunter Village Inn, Defendant and Paul Solodar et al., Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 31, 1985.

Simonson, Hess & Leibowitz, P.C., New York City(Alan B. Leibowitz, New York City, of counsel), for appellant.

Carpenter & Keefe, Cairo (James F. Keefe, Cairo, of counsel), for respondents.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

HARVEY, Justice.

This is an action for serious personal injuries sustained by plaintiff while attempting to ride a "mechanical bull" owned and operated by defendantClean Snow Corporation.There appears to be no significant issue on this appeal as to the respective liabilities and duties of defendantsPaul Solodar and Clean Snow Corporation.It is presumed that Paul Solodar was the owner and in complete control of Clean Snow Corporation.Because their interests are identical insofar as the issue on this appeal is concerned, we shall refer to both defendants collectively as "Solodar".

Solodar obtained permission from defendantMa-Do Bars, Inc. to install and operate a mechanical amusement device in Hunter Village Inn, a tavern owned by Ma-Do Bars, Inc.The device simulated the spinning and bucking of actual bulls as they perform when ridden in rodeos.The participants attempted to ride the device in the same manner as animals are ridden.It must be assumed that when the device was ridden by patrons of the bar, a rodeo atmosphere was created in which satisfaction was derived from being able to stay on the bull for the predetermined period of time.That it was anticipated that some riders would be unable to stay on the bull was indicated by the fact that air mattresses were spread on the floor surrounding the device.

After observing the mechanical bull being ridden by other patrons, plaintiff talked to the operator and was informed that he could ride the bull upon payment of a $2 fee and execution of a "Liability, Release, Indemnification and Authorization" agreement.He complied with both conditions.He mounted the device and was thrown from it under circumstances not material to the issue before us now.

After commencement of this action and the completion of certain discovery procedures, Solodar moved for summary judgment contending that the agreement was a complete bar to plaintiff's recovery of damages.Special Term granted the motion and plaintiff now appeals.For the purposes of this appeal, we assume that the agreement, if valid and enforceable, was completely exculpatory of any liability on the part of Solodar.

The main thrust of plaintiff's argument is that the exculpatory agreement must be deemed to be void as against public policy and wholly unenforceable because of section 5-326 of the General Obligations Law, which provides:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the...