In this week’s article we examine an accident in which a minor child was injured while playing “trampoline dodgeball” at the “Rockin’ Jump” facility in Mt. Kisco, Westchester County, New York. At issue is the enforceability of a forum selection clause and a general release, both of which appear in an agreement electronically signed by the parent of the injured child. The case is Gosh v. RJMK Park LLC, New York Law Journal, January 7, 2016 (N.Y. Sup.). We have previously discussed forum selection clauses in travel contracts. [see Travel Law: Forum selection clauses in travel contracts: Should adequate notice be required?,eturbonews.com (11/25/2015); Travel Law: Travel Accidents: where to sue, eturbonews.com (3/27/2014); Travel Law: Where to Sue Part 2: Changing the playing field, eturbonews.com (4/3/2014); Travel Abroad: Sue at home again, eturbonews.com (4/9/2015)].
Travel Law Update
Terror Targets Update
In Blenkinsop & Guarascio, Attacks on Brussel airport, metro kill 34, msn.com (3/22/2016) it was noted that “Thirty-four people were killed in attacks on Brussels airport and a rush-hour metro train in the Belgian capital on Tuesday…triggering security alerts across Europe…A witness said he heard shouts in Arabic and shots shortly before two blasts struck a packed airport departure lounge at Brussels airport…The blasts occurred four days after the arrest in Brussels of a suspected participant in November militant attacks in Paris that killed 130 people”.
In Timur & Yeginsu, Istanbul Bombing Kills at Least 4 and Wounds Dozens, nytimes.com (3/19/2016) it was noted that “A suicide bomber struck at the heart of Istanbul’s most popular avenue on Saturday, killing at least four people, including two Americans and wounding 36, officials said…The blast hit an area favored by tourists on the central Istiklal Street, near shops, cafes and foreign consulates”. Yeginsu, Explosion in Ankara Kills at Least 34, Turkish Officials Say, nytimes.com (3/13/2016) it was noted that “A car filled with explosives blew up in a public square in the heart of Ankara…on Sunday evening, killing more than 30 people in the latest of a string of terrorist attacks that have destabilized the country…Devastating bombings, some liked to the extremists of the Islamic State and others to Kurdish militants who have been carrying out a long insurgency…have struck gatherings of activists, Turkish military targets and a landmark tourist site in Istanbul”.
Grand-Bassam, Ivory Coast
In Steinmetz, Terror Attack: They are going from hotel to hotel shooting tourists, eturbonews.com (3/13/2016) it was noted that “the Etoile du Sud Hotel in the heart of Grand Bassam… became the latest center of terror and a war against tourism when at least twelve people died in a senseless attack by Islamic fanatics…However the attack was not isolated to this hotel. ‘They shot at everyone’, a witness told Connexion Ivoirienne ‘They are going from hotel to hotel’…Security services from the National Police and French armed forces are now on the site and evacuating the beach”.
In Callimachi, Rubin & Fourquet, A View of ISIS’s Evolution in New Details of Paris Attacks, nytimes.com (3/19/2016) it was noted that “Investigators found crates’ worth of disposable cellphones. All around Paris, they found traces of improved bomb-making materials. And they began piecing together a multilayered terrorist attack that evaded detection until much too late…Now the arrest in Belgium on Friday of Sala Abdeslam, who officials say was the logistics chief of for the Paris attack, offers a crucial opportunity to address the many unanswered questions surrounding how they were planned…Much of what the authorities already know is in a 55-page report compiled in the weeks after the attack by the French antiterrorism police”.
FlyDubai Aviation Disaster
In FlyDubai: Pilot’s error-62 dead after crash, eturbonews.com (3/16/2016) it was noted “Most of the passengers were tourists. A passenger Fly Dubai Boeing 737-800 en route from Dubai to Russia’s Rostov-on-Don Airport in Southern Russia, crashed at the city airport missing the runway amid poor visibility, an emergency responder source said on Saturday. All passengers and crew members reportedly died”. Steinmetz, FlyDubai issues statement offering compensation for killed passengers, eturbonews.com (3/20/2016) it was noted that “Flydubai will additionally organize a program of hardship payments to the families amounting to USD 20,000 per passenger, in accordance with our Conditions of Carriage, with the aim of addressing immediate financial needs”.
Zika In Puerto Rico
In McNeil, Puerto Rico Braces for Its Own Zika Epidemic, nytimes.com (3/19/2016) it was noted that “Intensive efforts to stop the virus have begun on the island, where a quarter of the population will get it within a year, the C.D.C. predicts. On an inexorable march across the hemisphere, the Zika virus has begun spreading through Puerto Rico, now the United States’ front line in a looming epidemic. The outbreak is expected to be worse here than anywhere else in the country. The island, a warm, wet paradise veined with gritty poverty, is the ideal environment for the mosquitoes carrying the virus”.
Zika And Travel Insurance
In Tierney, Zika Risk? Probably Not Covered by Your Travel Policy, nytimes.com (3/7/2016) it was noted that “Standard policies usually do not include coverage for calling off a trip even if the traveler is at heightened risk from a disease outbreak. Even a letter for a patient’s doctor might not sway the providers…The safest bet, experts say, is to buy a more comprehensive package, known as cancellation for any reason. But those policies typically cost about 20 percent more than other policies and cover only 75 percent of your cancellation penalties, said Dan Skilken, the president of Tripinsurance.com, which sells policies from four of the largest insurance underwriters in the United States”.
Airbnb In Cuba
In Steinmetz, Homestay in Cuba-Airbnb opens Cuba to the American Visitor, eturbonews.com (3/21/2016) it was noted that “Airbnb announced today that it will open up its listings in Cuba to all visitors…including Americans on April 2nd. Staying at a Cuban home becomes reality for US tourists, backpackers and those wanting to get a feel for the real Cuba thanks to an executive order by US President Obama who is currently visiting the Republic if Cuba”.
Airbnb Best & Worst U.S. Cities
In Huston, The best and worst cities for Airbnb, marketwatch.com (3/18/2016) it was noted that “Homeowners looking for extra income without added risk might do well to live in Galveston, Texas or Savannah, Ga. These two cities scored highest-netting 97 out of 100 possible points-in a study of regulations for short-term rentals on Airbnb and rivals across 59 U.S. cities…The company stated in 2007 and has expanded across the U.S. and internationally, but there isn’t a clear standard of regulation limiting who can rent and for how long. Instead, as is the case with ride-hailing company Uber, regulation is largely decided on a state and city level and ranges widely. Airbnb is banned in some cities, while others have adopted a framework specifically for short-term rentals and still others don’t have any framework in place. The study covered implications for all short-term rental companies including vacation rental sites HomeAway, Inc., which was bought by Expedia, Inc… FlipKey and even rooms listed on Craigslist”.
17 Epic Cruise Fails
In 17 Epic Cruise Fails, cruisesafety/com/17-epic-cruise-fails (3/21/2016) it was noted that cruisecritic.com surveyed “their readers to fess up about their (cruise) slip-ups”
Anti-App Rally In Indonesia
In Steinmetz, more than 10,000 taxi drivers in Jakarta expected to rally on Tuesday, eturbonews.com (3/21/2016) it was noted that “Thousands of public transport and taxi drivers have postponed a second massive anti-app based transportation rally until Tuesday after failing to secure police permits in time. The rally is expected to bring even more protestors than last week, which saw 2,000 drivers protest against Uber and GrabCar, claiming the apps fail to comply with the 2009 Road Traffic Law”.
Saving SeaWorld’s Orca Whales
In Triedman, SeaWorld’s Decision on Whale Shows Followed Decades of Legal Battles, New York Law Journal (3/21/2016) it was noted that “Due to regulatory challenges and lawsuit tied to SeaWorld Entertainment’s famous orca shows, the company has had to rely on lawyers from several top law firms willing to jump through legal hoops for SeaWorld’s whales. Those days may be fading. On Thursday, SeaWorld announced that it would phase out its balletic orca performances and stop breeding the creatures. With orca life spans reaching 50 years, it may be decades before the company’s captive population of 29 animals is gone-and new legal fights are sure to come”.
Saving The Elephants
In 114 global travel companies commit to stop elephant rides and shows, eturbonews.com (3/19/2016) it was noted that “A campaign by International animal charity, World Animal Protection to end the cruel abuse of elephants in the tourist entertainment industry has secured the help of over 100 travel companies. World Animal Protection has been engaging with tour operators around the world revealing the cruelty that goes on behind the scenes at venues where tourists ride elephants and see shows where elephants are forced to perform”.
Travel Law Article: The Gosh Case
In the Gosh case, supra, the Court noted that “On or about January 23, 2015, plaintiff Irina Gosh electronically signed an agreement (the Agreement) with defendant RJMK Park LLC to allow infant p]laintiff A.G. to participate in activities at the Rockin’ Jump facility in Mt. Kisco, Westchester County, New York owned by RJMK Park LLC. On or about January 31, 2015, infant plaintiff A.G. was injured while playing a game of ‘trampoline dodgeball’ at the Rockin’ Jump facility”.
“Paragraph 2 of the Agreement contained the following clause purporting to release Rockin’ Jump from liability: Despite all known and unknown risks, I hereby expressly and voluntarily remise, release, acquit, satisfy and forever discharge Rockin’ Jump on my own behalf, that of my child…and anyone acting on my and/or my child’s…behalf and agree to hold Rockin’ Jump harmless from all manner of action(s) or omission(s), cause(s) and cause of action…including, but not limited to, any and all claims which allege negligent acts and/or omissions committed by Rockin’ Jump”.
Forum Selection Clause
“The Agreement also provided in paragraph 7 as follows: In the event a lawsuit is filed against Rockin’ Jump, I agree to the sole and exclusive venue of the County of Westchester. I further agree that the substantive law of New York shall apply without regard to any conflict of law rules. I also agree that if any portion of this agreement is found to be void or unenforceable, the remaining portion shall remain in full force and effect”.
Motion To Change Venue
“[D]efendants move for an order changing venue pursuant to CPLR 501 which provides that a ‘written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial’. Forum selection clauses including clauses selecting venue, are ‘prima facie valid’ and ‘are not to be set aside unless a party demonstrates that the enforcement of such ‘would be unreasonable and unjust or that the clauses is invalid because of fraud or overreaching, such that a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court’ (citing) Sterling National Bank v. Eastern Shipping Worldwide, Inc., 35 A.D. 3d 222 (1st Dept. 2006)”.
“[T]he defendant’s motion…is granted as the parties have entered into a written agreement fixing the place of trial in Westchester County before the action was commenced and plaintiffs have failed to demonstrate any grounds for invalidating the forum selection clause…or that trial in Westchester County would be ‘so gravely difficult and inconvenient’ that plaintiffs would be deprived of their day in court…Plaintiffs’ argument that the forum selection clause in the Agreement is invalid on the ground that the Agreement itself is void pursuant to General Obligations Law (GOL) 5-326, which invalidates certain agreements purporting to release the owners or operators of recreational facilities from liability for negligence, is without merit”.
“Initially, the court finds that the provision in the Agreement releasing Rockin’ Jump from liability for its own negligence is unenforceable pursuant to (GOL) 5-326 which provides as follows: [E]very covenant, agreement or understanding in…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 user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge…shall be deemed to be void as against public policy and wholly unenforceable”.
Release Clause Severable
“Although plaintiffs are correct in their assertion that the provision of the Agreement between the parties releasing Rockin’ Jump from liability for its negligence is unenforceable, plaintiffs have not established that the entire agreement is void based on the unenforceable provision. While an agreement consists partially of an unlawful objective, ‘the court may sever the illegal aspect and enforce the legal one, so long as the illegal aspects are incidental; to the legal aspects and are not the main objective of the agreement (citing Mark Hotel LLC v. Madison Seventy-Seventh LLC, 61 A.D. 3d 140 (1st Dept. 2009)”
“In the present case, the court finds that the unlawful provision in the Agreement releasing Rockin’ Jump from liability is severable from the remainder of the Agreement on the grounds that the unlawful provision is incidental to the legal aspects and not the main objective of the Agreement…Accordingly, the moving defendants’ motion to change venue from New York County to Westchester County is granted”.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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