The opinion of the court was delivered by: Edward Korman, Chief Judge, District.
Plaintiff, Erin O'Connor, filed suit against the United States Fencing Association ("USFA"), alleging that she was severely injured while competing in a USFA-sponsored event as a result of a negligently prepared competition surface. USFA has moved to dismiss the complaint because it alleges an injury date on which Ms. O'Connor did not participate in any USFA event. In the alternative, USFA asks for summary judgment on the basis of two waivers signed by Ms. O'Connor and her mother, which expressly release USFA from all liability for any injuries incurred during USFA sponsored events.
Defendant, United States Fencing Association ("USFA"), is a Colorado corporation that nationally promotes the sport of fencing. USFA maintains affiliates throughout the country, including New York, and periodically sponsors fencing tournaments in various locations. The following information is accumulated from the USFA's official website (U.S. Fencing Online (visited Apr. 10, 2003), http://www.usfencing.org).
In keeping with its mission, the USFA sends teams to the World Championships, the World Under-20 Championships, the World Under-17 Championships, the Pan American Senior Championships and the Pan American Junior Championships. In addition, the USFA develops programs domestically to assist its top athletes towards achieving international results. These programs range from grassroots to coaching education and the sponsoring of regional tournaments throughout the country. The USFA also conducts the National Championships each year. This event attracts more than 900 fencers annually. The Nationals began in 1892 and were held in New York City until 1939, when they were held in San Francisco and began moving to other cities. Today, they are held in locations across the U.S. The USFA also has National Training Centers for each of the five Olympic fencing events, one of which is located in Rochester, New York. As alleged in the complaint, the USFA also maintains affiliate fencing clubs in New York, and advertises and promotes its activities in New York, including soliciting membership from New York domiciliaries like Ms. O'Connor.
Plaintiff, Erin O'Connor, is a New York resident and amateur fencer. Ms. O'Connor applied for membership in USFA in July of 2000, seeking membership for the 2000-2001 season. (Affidavit of Michael Massik, dated February 7, 2003, at ¶ 2). She had previously been a member in the years 1997 and 2000. (Defendant's Exhibit F). On July 19, 2000, in conjunction with her joining USFA, Ms. O'Connor signed a Waiver of Liability contained in the membership application. The Waiver stated:
YOU MUST SIGN WAIVER OF LIABILITY OR MEMBERSHIP WILL
BE NULL AND VOID
Upon entering events sponsored by the USFA and/or its
member Divisions, I agree to abide by the rules of
the USFA, as currently published. I understand and
appreciate that participation in a sport carries a
risk to me of serious injury, including permanent
paralysis or death. I voluntarily and knowingly
recognize, accept and assume this risk and release
the USFA, their sponsors, event organizers and
officials from any liability.
(Defendant's Exhibit D). This language appears in the same type-size as the print on the remainder of the application. Directly below the Waiver of Liability are two signature lines, one for the member to sign and one for the member's parent or legal guardian to sign, if the member is under the age of eighteen. Id. On July 19, 2000, plaintiff Erin O'Connor and her mother Sharon O'Connor both signed the Waiver of Liability (at that time plaintiff was under the age of eighteen). Id.
From March 16 through March 19, 2001, Ms. O'Connor competed in the NAC Division II/III/Veteran competition, in Overland Park, Kansas, sponsored by the USFA. (Defendant's Exhibit F). Ms. O'Connor participated in at least two events in that competition: the Division III Women's Saber event and the Division II Women's Saber event. Id.
ALL PARTICIPANTS MUST READ AND SIGN EACH OF THE
FOLLOWING STATEMENTS (for athletes under the age of
18, a parent or guardian must also sign)
Waiver of Liability: Upon entering this tournament
under the auspices of the USFA, I agree to abide by
the current rules of the USFA. I enter this
tournament at my own risk and release the USFA and
its sponsors, referees and tournament organizers from
any liability. The undersigned certifies that the
birth date of the individual is as stated on the
entry form and that the individual is a current
competitive member of the USFA for the 2000-2001
Id. The Waiver is in the same size type as the remainder of the Entry Form. Directly following the Waiver of Liability are two signature lines, one for the member and one for the parent or guardian. Ms. O'Connor signed the Waiver of Liability on May 13, 2001. Id. Since she was over eighteen years of age at the time, her mother was not required to also sign the Waiver. Ms. O'Connor paid a fee of $135 to enroll in the tournament. (Affidavit of Erin O'Connor, dated February 24, 2003, at ¶ 3).
Ms. O'Connor was scheduled to compete in three events at the National Championships, the Division III Women's Saber event on July 8, the Division I-A Women's Saber event on July 9, and the Division II Women's Sabre event on July 10, 2001. (Entry Form, Def. Ex. E). Fencing is performed on a narrow strip, which competitors must stay on or risk a penalty. The fencing strips at the Sacramento Convention Center were set up by rolling out a thin metal film onto the floor. (O'Connor Aff. at ¶ 5-6). Sabre fencing is an energetic European style of fencing that involves complicated footwork and small jumps. Thus, footing is a critical component of this style of fencing. Id. at 4.
On July 8, 2001, while competing in the Division III Women's Sabre event, Ms. O'Connor suffered a serious knee injury when she lost her footing on the metal fencing strips. Ms. O'Connor was executing a lunge, a maneuver where she propelled her right foot forward by pushing off her left foot. According to Ms. O'Connor, she lost her footing when executing this maneuver because the strip was not properly anchored. (O'Connor Aff. at ¶ 9). As a result of losing her footing, Ms. O'Connor's right knee twisted severely, requiring surgery to repair the injury. As a result of this incident, Ms. O'Connor will, in all likelihood, need knee replacement surgery by the time she is forty years old. Id.
Ms. O'Connor alleges that USFA prepared the fencing surface including the metal strips, and was negligent in either providing defective equipment, or in not properly preparing the fencing surface for the competition. (O'Connor Aff. at ¶¶ 9-10). Ms. O'Connor further contends that USFA was in a position of superior knowledge and control regarding safety at the tournament, and that she reasonably relied upon this knowledge and expertise because she was an inexperienced amateur who was competing in her first national tournament. Id. Michael Massik, the Executive Director of USFA, stated in response that the strips are obtained from a third-party, Illinois Fencing, and that USFA did not prepare the competition area, including the metal strips. (Massik Aff. at ¶ 7).
On October 17, 2002, Ms. O'Connor filed the instant action alleging negligence on the part of USFA in using unsuitable material for the fencing strips and failing to properly affix the strips to the ground. (Complaint ¶¶ 15-18, Defendant's Exhibit A). The complaint alleges that the injury occurred on July 3, 2001 (Complaint ¶¶ 12, 14), apparently as a result of a typographical error. (O'Connor Aff. at ¶ 11; Affidavit of Gary Port, dated February 24, 2003, at ¶¶ 10-14). USFA has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) because it alleges that the injury occurred on July 3, a day on which Ms. O'Connor admittedly did not participate in any USFA sponsored competitions. In the alternative, USFA also seeks summary judgment on the basis of the two waivers of liability signed by Ms. O'Connor.
I. EXPRESS WAIVER OF LIABILITY
USFA moves for summary judgment on the basis of two express waivers signed by Ms. O'Connor, which purport to release USFA and its sponsors from any liability for injuries that may occur while competing in a USFA sponsored event. Ms. O'Connor argues that under New York law such waivers are void and unenforceable as against public policy. USFA argues for the applicability of California law, which does enforce waivers releasing liability for participation in recreational activities.
A. Conflict Between New York, Colorado and California Law
Before proceeding to engage in a choice of law analysis it is necessary first to determine that, at a minimum, a facial conflict exists between the laws of the forum state and the laws of the foreign state(s) asserted by the parties. The laws of three states are implicated here: New York, where the plaintiff is domiciled; Colorado, where the defendant is organized and has its principal place of business; and California, where the accident occurred.
"New York has a longstanding policy disfavoring exculpatory contracts." Rivera v. Pocono Whitewaters Adventures, 241 A.D.2d 381, 660 N.Y.S.2d 723, 724 (1st Dep't. 1997). Indeed, the New York legislature passed a statute specifically disclaiming the legitimacy of exculpatory contracts in the ...