A Parent cannot sign away a minor’s right to sue in New Jersey, however, a parent can agree to arbitrate the minor’s claims.

Another trampoline park case where the plaintiffs are required to arbitrate their claim even though the release which included the arbitration clause was not enforceable in New Jersey.

Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

State: New Jersey

Plaintiff: David Johnson, an infant by his guardian ad litem, Shalonda Johnson, and Shalonda Johnson, individually

Defendant: Sky Zone Indoor Trampoline Park in Springfield, Sky Zone, LLC, Sky Zone Franchise Group, LLC, and Go Ahead and Jump 4, LLC

Plaintiff Claims: negligence

Defendant Defenses: release required arbitration of the claims

Holding: For the defendants, claims must be arbitrated

Year: 2021

Summary

The New Jersey Supreme Court held Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006), that a parent could not sign away a minor’s right to sue. See However, in Hojnowski the court stated a parent could agree to arbitrate a minor’s claims. This decision of the injuries received at a trampoline park held the same decision. When signing the release, the mother agreed to arbitration of any claims.

Facts

On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg. The appellate record did not include evidence of whether Johnson executed a second waiver.

The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.”

The mother filed a lawsuit for herself and her son. The defendant argued the arbitration clause in the release should apply. That would remove the litigation from the state court system and have a neutral arbitrator decide the case. Normally arbitrators do not hand out damages to the extend a jury would. The court agreed, leading to this appeal.

Analysis: making sense of the law based on these facts.

The argument was quite simple. The plaintiff argued that since the New Jersey Supreme Court had decided that a parent could not sign away a minor’s right to sue, that the release, including the arbitration clause should be thrown out.

The plaintiff first argued there was no real notice because the plaintiff had checked a box on the electronic form and that was not enough notice required to alert the plaintiff that she was going to have to arbitrate any claim. The defense countered that the plaintiff has completed the form giving the defendant a lot of contact information.

In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification.

The plaintiff then argued the arbitration clause was ambiguous and unenforceable as a matter of law.

As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.

The statement that the arbitration clause is only valid if the parties intended to arbitrate is good for arbitration clauses and contracts. The court also found the language requiring arbitration was not ambiguous or unenforceable.

Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced.

The court went further to state:

The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable.

The plaintiff then argued that forcing her to sign an exculpatory contract of adhesion right before a birthday party was a violation of the doctrines of procedural and substantive unconscionability.

We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent.

In New Jersey there is a four-part test to determine if an agreement is a contract of adhesion.

[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract.

The court’s response was they could not find anything in the agreement that rose to the level that the contract was a contract of adhesion under New Jersey law.

Although the case is not over, any damages will probably significantly reduce by requiring arbitration.

So Now What?

This is the second decision that is almost identical to this one. Can a release in New Jersey at a trampoline park require the parent to arbitrate the minor’s claim. See New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly. This decision does not mention the decision is Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206 which is almost identical in the facts.

There are two ways to limit damages in a state that does not allow a parent to sign a release giving up a minor’s right to sue. Assumption of the risk agreements and the defense of assumption of the risk. Did the parent AND the minor knowingly and voluntarily enter into the risk that caused the injury. This is only valid if you can prove the minor knew or you provided the minor with the education or knowledge to knowingly and voluntarily assume the risk. Voluntary is the easy part proving the minor knew of the risk is difficult.

Arbitration then is the next defense in this ladder to reduce damages. Most states do not allow an arbitrator to award more than the basic damages. Punitive damages cannot be awarded by arbitrators. Also, arbitrators are not over come by emotion or other factors that would influence them into awarding large damages.

Before putting an arbitration clause in your agreement, you need to determine two things.

  1. Is arbitration better than the court system in your state. If your state supports the use of a release, a release gets you out of a case without any damages. Even though arbitration will generally not give the plaintiff large awards, they usually award something.
  2. Are there benefits to arbitration in your state that outweigh other means of resolving the dispute.

In those states that do not support a parent signing away a minor’s right to sue, arbitration is probably a good result. See States that allow a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

DAVID JOHNSON, an infant by his guardian ad litem, SHALONDA JOHNSON, and SHALONDA JOHNSON, individually, Plaintiffs-Appellants,
v.
SKY ZONE INDOOR TRAMPOLINE PARK IN SPRINGFIELD, SKY ZONE, LLC, SKY ZONE FRANCHISE GROUP, LLC, and GO AHEAD AND JUMP 4, LLC, Defendants-Respondents.

No. A-2489-20

Superior Court of New Jersey, Appellate Division

December 6, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2021

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5446-20.

Edward M. Colligan argued the cause for appellants (Colligan & Colligan attorneys; Edward M. Colligan, on the brief).

Kelly A. Waters argued the cause for respondents (Wood Smith Henning & Berman, attorneys; Kelly A. Waters, of counsel and on the brief; Jill A. Mucerino and Sean P. Shoolbraid, on the brief).

Before Judges Fuentes, Gilson, and Gooden Brown.

PER CURIAM

David Johnson, a child under the age of eighteen, was injured while visiting a trampoline park owned and operated by Sky Zone, LLC, Sky Zone Franchise Group, LLC and Go Ahead and Jump 4, LLC (collectively, Park or defendants). Shalonda Johnson, individually and as guardian ad litem of her minor son (collectively, plaintiffs), [1] filed a civil action against defendants in the Superior Court, Law Division, in Union County, seeking compensatory damages. In lieu of filing a responsive pleading, defendants moved before the Law Division to enforce an arbitration clause contained in an electronic document Johnson signed as a condition of being permitted to enter the Park. After considering the arguments of counsel and the exhibits submitted, the Law Division judge assigned to the case granted defendants’ motion to enforce the arbitration clause and dismissed the case with prejudice in an order entered on March 24, 2021.

In this appeal, plaintiffs argue the arbitration clause contained in this electronic general liability release contract is unenforceable. After reviewing the record presented to the Law Division judge, we affirm the part of the order enforcing the arbitration clause, vacate the dismissal of plaintiffs’ complaint with prejudice, and remand for the court to stay judicial proceedings related to this case pending the outcome of the arbitration.[2]

I.

A.

On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg.[3] The appellate record did not include evidence of whether Johnson executed a second waiver.

The Agreement contains a general release provision “intended to release and provide other benefits, legal protections and consideration” to defendants. For example, it contains an “acknowledgement of potential injuries” provision, which places patrons on notice that “participating in trampoline and other activities is inherently and obviously dangerous.” The Agreement also includes a “voluntary assumption of risk acknowledgment” provision, which informs patrons that they “are participating voluntarily at [their] own risk” and could suffer “significant bodily injuries” or “die or become paralyzed, partially or fully, through their use of the Sky Zone facility and participation in Sky Zone activities.”

Finally, the Agreement contains a “release of liability” section, which requires patrons to “forever, irrevocably and unconditionally release, waive, relinquish, discharge from liability and covenant not to sue [Sky Zone]” for

any and all claims . . . of whatever kind or nature, in law, equity or otherwise, . . . related to or arising, directly or indirectly, from [their] access to and/or use of the Sky Zone [f]acility, . . . including, without limitation, any claim for negligence, failure to warn or other omission, . . . personal injury, . . . [or] bodily harm . . . .

The enforceability of these exculpatory provisions are not part of this appeal. We express no opinion as to whether these exculpatory provisions are enforceable under our State’s common law, as expressed by our Supreme Court in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), and Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006).

The dispositive issue in this appeal concerns the enforceability of the section in the Agreement entitled, in part, “arbitration of disputes.” The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.” This section also provides the following recitation of the rights plaintiffs agreed to waive as a precondition to enter the Park and participate in the activities available therein:

By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. Reciprocally, [the Sky Zone defendants] waive their right to maintain a lawsuit against [plaintiff] . . . for any and all claims covered by this [a]greement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD’S ACCESS TO AND/OR USE OF THE SKY ZONE PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE BROUGHT WITHIN ONE YEAR OF ITS ACCRUAL (i.e., the date of the alleged injury) FOR AN ADULT AND WITHIN THE APPLICABLE STATUTE OF LIMITATIONS FOR A MINOR AND BE DETERMINED BY ARBITRATION IN THE COUNTY OF THE SKY ZONE FACILITY . . . BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY [JUDICIAL ARBITRATION AND MEDIATION SERVICES (JAMS)] PURSUANT TO ITS RULE 16.1 EXPEDITED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. This [a]greement shall be governed by, construed and interpreted in accordance with the laws of the State of New Jersey, without regard to choice of law principles. Notwithstanding the provision with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this [a]greement shall be governed by the Federal Arbitration Act (9 U.S.C., Sec. 1-16). I understand and acknowledge that the JAMS Arbitration Rules to which I agree are available online for my review at jamsadr.com, and include JAMS Comprehensive Arbitration Rules & Procedures; Rule 16.1 Expedited Procedures; and, Policy On Consumer Minimum Standards Of Procedural Fairness.

[(Emphasis in original).]

The Agreement also contained a merger and a severability clause, in which Johnson acknowledged: “I have had sufficient opportunity to read this entire document. I have read and understood and voluntarily agree to be bound by its terms.” The clause further provided:

This [a]greement constitutes and contains the entire agreement between [Sky Zone] and [plaintiffs] relating to the . . . use of the Sky Zone Facility. There are no other agreements, oral, written, or implied, with respect to such matters. . . . If any term or provision of this [agreement] shall be held illegal, unenforceable, or in conflict with any law governing this [agreement] the validity of the remaining portions shall not be affected thereby. B.

Plaintiffs filed their personal injury complaint against defendants on August 13, 2020. The Law Division entered default against defendants on December 28, 2020, for failure to file a timely responsive pleading. On January 8, 2021, defendants’ counsel notified plaintiffs’ counsel he intended to file a motion to dismiss the complaint in lieu of an answer pursuant to Rule 4:6-2(e), based on plaintiffs’ failure to state a claim upon which relief may be granted. The attorneys thereafter entered into a Consent Agreement, stating in relevant part:

This matter having come before the [c]ourt upon the Consent of the parties, whereby the parties consent, stipulate, and agree that the default entered against Defendants, SKY ZONE FRANCHISE GROUP, LLC and GO AHEAD AND JUMP 4, LLC, be vacated and the time for Defendant to Answer or Otherwise Plead be extended until January 30, 2021 . . . .

[(Strikethrough in original).]

Plaintiff’s counsel unilaterally struck “or Otherwise Plead” from the Consent Order. On February 2, 2021, the Law Division accepted the Consent Agreement and vacated the default. Defendants moved to dismiss the complaint and compel arbitration on January 30, 2021. Defendants’ motion came for oral argument before the Law Division on March 24, 2021. Plaintiffs’ counsel argued the arbitration clause presented to Johnson was unenforceable based on both the obscure, technical language used in the document, and by presenting it as part of an electronic document in a kiosk located outside the Park’s entrance. Plaintiff’s counsel also emphasized the circumstances under which Johnson allegedly waived her son’s constitutional right to a jury trial: “[M]y client went in July [2018] to be a guest at a birthday party. The . . . defense . . . alleges that she signed this Agreement at that time and at that time, they’re saying that she signed an agreement that was good forever.”

In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification. You have identifiers that Skyzone would not have gotten without the plaintiff.” The reference made by defense counsel to “Janay’s certification” relates to Michael Janay, the Managing Member of defendant Go Ahead and Jump 4, LLC., who averred:

As a matter of business practice, all patrons who enter the Park for the first time are required to electronically sign a Participant Agreement, Release and Assumption of Risk . . . at a kiosk, or online, as a pre-condition to entry. Patrons are not permitted entry into the Park unless a Participation Agreement has been executed on their behalf and there are signs throughout the Park indicating the same. . . . [A]ll patrons who enter the Park are required to provide a valid email address when electronically signing the Participation Agreement.

. . . [O]nce the Participation Agreement is electronically signed, a copy of the executed Participation Agreement is sent to the email address provided by the patron.

. . . .

Based on the information provided, a copy of this Participation Agreement was sent to Shalonda Johnson’s email following Shalonda Johnson’s execution of the Participation Agreement at the Park on July 14, 2018. As indicated, Shalonda Johnson listed her son David Johnson[, ] who is the Minor[-]Plaintiff, and another minor Kevin Johnson. On that basis, Shalonda Johnson, David Johnson, and Kevin Johnson were permitted entry into the Park on July 14, 2018.

After considering the arguments of counsel, the motion judge granted defendants’ motion on March 24, 2021. The judge explained the basis of his decision in a Statement of Reasons attached to the order.

II.

Against this factual backdrop, plaintiffs argue the arbitration agreement is ambiguous and unenforceable as a matter of law. We reject these arguments and affirm the part of the Law Division’s Order upholding the enforceability of the arbitration clause. Because the Law Division’s decision to enforce this arbitration provision is purely a question of law, our standard of review is de novo. Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020); see also Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 316 (2019) (“Whether a contractual arbitration provision is enforceable is a question of law, and we need not defer to the interpretative analysis of the trial . . . court[] unless we find it persuasive.”).

As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.'” Kernahan, 236 N.J. at 317 (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989)).

Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 443 (2014). “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” Id. at 444. If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced. Id. at 447. “The key . . . is clarity.” Barr v. Bishop Rosen & Co., 442 N.J.Super. 599, 607 (App. Div. 2015).

Here, plaintiffs claim the arbitration clause is ambiguous and therefore unenforceable because it contains “void, inaccurate, misleading and ambiguous language . . . .” and “confusing lower[-]case passages and all upper[-]case bold passages.” Plaintiffs argue Hojnowski, 187 N.J. at 327, “prohibits a parent of a minor child from releasing the child’s potential tort claims arising out of the use of a commercial recreational facility.” According to plaintiffs, JAMS, the named forum in the arbitration provision, is “not permitted to conduct arbitration in New Jersey” and thus the agreement should fail. We disagree.

The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable. See Flanzman, 244 N.J. at 137-38 (citing Atalese, 219 N.J. at 444-45).

Plaintiffs’ reliance on Hojnowski is misplaced. Writing for a unanimous Court, then Justice Zazzali[4] made clear “permitting arbitration of a minor’s claims is consistent with New Jersey case law discussing the enforceability of arbitration agreements that affect the rights of children.” 187 N.J. at 343. Here, plaintiff’s mother signed the Agreement that included an arbitration clause.

The unavailability of JAMS does not render the arbitration clause unenforceable. Although the parties agree JAMS is not available to arbitrate this case, the Agreement contains a severability clause that states: “If any term or provision of this [agreement] shall be held illegal, unenforceable, or in conflict with any law governing this [agreement] the validity of the remaining portions shall not be affected thereby.” Severability clauses “are indicative of the parties’ intent that the agreement as a whole survives the excision of an unenforceable provision.” Arafa v. Health Express Corp., 243 N.J. 147, 169 n.2 (2020). As the Supreme Court explained in Flanzman:

No New Jersey statutory provision or prior decision has elevated the selection of an “arbitral institution” or the designation of a “general process for selecting an arbitration mechanism or setting” to the status of essential contract terms, without which an arbitration agreement must fail.

To the contrary, the [New Jersey Arbitration Act (NJAA)] makes clear that its default provision for the selection of an arbitrator may operate in the absence of contractual terms prescribing such procedures. See N.J.S.A. 2A:23B-11(a). The NJAA reflects the Legislature’s intent that the parties’ omission of an arbitrator or arbitral organization, or their failure to set forth the method by which they will choose an arbitrator in the event of a dispute, will not preclude the enforcement of their agreement. Ibid.

[244 N.J. at 139.]

The arbitration clause at issue here must be interpreted in accordance with New Jersey law and the Federal Arbitration Act (FAA). The FAA and the NJAA provide for a court-appointed arbitrator if the designated arbitrator is unavailable. Id. at 141. The arbitration clause enables the parties to seek from a court “provisional remedies in aid of arbitration.” The language in the Agreement does not show the parties intended to forego arbitration if JAMS is unavailable. The designation of JAMS was not integral to the enforcement of the arbitration clause. Thus, the unavailability of JAMS does not invalidate the arbitration clause.

We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent. Our Supreme Court has described the factors that constitute the doctrines of procedural and substantive unconscionability:

The defense of unconscionability, specifically, calls for a fact-sensitive analysis in each case, even when a contract of adhesion is involved. [The] Court has recognized that contracts of adhesion necessarily involve indicia of procedural unconscionability. [The Court has] identified, therefore, four factors as deserving of attention when a court is asked to declare a contract of adhesion unenforceable.

[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract. [Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40 (2006) (internal citations omitted) (quoting Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 356 (1992)).]

Here, plaintiffs merely recycle their arguments relying on the Agreement’s alleged ambiguity without applying or analyzing the factors established by the Court in Delta Funding. We discern no basis, in fact or in law, to conclude this arbitration provision is substantively unconscionable. Finally, plaintiffs’ allegations that defendants acted intentionally and recklessly have no basis in fact and are not worthy of further comment by this court. Plaintiffs’ remaining argument lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

The order of the Law Division upholding the enforceability of defendants’ arbitration clause is affirmed. However, we vacate the part of the order that dismisses plaintiffs’ complaint with prejudice and remand the matter to the Law Division to stay any judicial proceedings related to this case pending the outcome of the arbitration. GMAC, 205 N.J. at 584 n.7; N.J.S.A. 2A:23B-7(g).

Affirmed in part, reversed in part, and remanded consistent with this opinion. We do not retain jurisdiction. ———

Notes:

[1] In the interest of clarity, we will occasionally also refer to plaintiffs by their names; we will refer to the child by his first name and his mother by her last name. No disrespect is intended.

[2] Although an order entered by the Law Division compelling or denying arbitration is appealable to this court as of right, pursuant to Rule 2:2-3(a)(3), the trial court must stay any judicial proceeding pending the outcome of the arbitration. The court may also limit the stay to arbitrable claims if other claims are severable. GMAC v. Pittella, 205 N.J. 572, 584 n.7 (2011) (citing N.J.S.A. 2A:23B-7(g)).

[3] In a certification submitted to the motion judge, Johnson averred the injury damaged “the growth plate in my son’s leg . . . and his leg did not continue to grow properly. He has undergone surgery to shorten the opposite leg and may need additional treatment in the future.”

[4] In October 2006, Governor Jon Corzine appointed Justice Zazzali to succeed Deborah T. Poritz as Chief Justice. Chief Justice Zazzali served in this capacity until June 17, 2007, when he reached the mandatory retirement age for all members of the New Jersey Judiciary.

———


Trampoline Court Safety Act

§ 691.1731. Short title

This act shall be known and may be cited as the ‘trampoline court safety act’.”

Mich. Comp. Laws 691.1731 Short title (Michigan Compiled Laws (2021 Edition))

§ 691.1733. Operator; duties

An operator shall do all of the following:

(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.

(b) Comply with the safety standards specified in ASTM F2970 – 13, “Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts” published in 2013 by the American society for testing and materials.

(c) Maintain the trampoline court according to the safety standards cited in subdivision (b).

(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.

(Added by 2014, Act 11,s 3, eff. 2/18/2014.)…

Mich. Comp. Laws 691.1733 Operator; duties (Michigan Compiled Laws (2021 Edition))

§ 691.1735. Trampoliner; duties

While in a trampoline court, a trampoliner shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Read and follow all posted signs and warnings.

(c) Avoid bodily contact with other trampoliners or spectators.

(d) Not run on trampolines, over pads, or on platforms.

(e) Refrain from acting in a manner that may cause injury to others.

(f) Not participate in a trampoline court when under the influence of drugs or alcohol.

(g) Properly use all trampoline court safety equipment provided.

(h) Not participate in a trampoline court if he or she has a preexisting medical condition, a bone condition, a circulatory condition, a heart or lung condition, a back or neck condition, high blood pressure, or a history of spine, musculoskeletal, or head injury, if he or she has had recent surgery, or if she may be pregnant.

(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.

(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.

(k) Avoid crowding or overloading individual sections of the trampoline court.

(l) Use the trampoline court within his or her own limitations, training, and acquired skills.

(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.

(Added by 2014, Act 11,s 5, eff. 2/18/2014.)


Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

Scott Redmond, Plaintiff-Appellant,

v.

Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants,

and

Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights, Defendant-Appellee.

No. 349683

Court of Appeals of Michigan

May 6, 2021

UNPUBLISHED

Macomb Circuit Court LC No. 2016-004272-NO

Before: Gleicher, P.J., and K. F. Kelly and Riordan, JJ.

PER CURIAM.

In this tort action, plaintiff appeals as of right the circuit court’s order granting summary disposition in favor of defendant, Spring Loaded II, LLC (Spring Loaded II), under MCR 2.116(C)(10).[ 1] We affirm.

I. FACTS & PROCEDURAL HISTORY

Plaintiff, a 47 year-old, 275 pound man, sustained a severe ankle injury while jumping on a trampoline at a facility owned and operated by Spring Loaded II. Plaintiff’s injury was captured on a surveillance camera. Spring Loaded II’s trampoline court facility is a large room filled with trampolines that are connected to one another by padded frames. Plaintiff’s injury occurred as he attempted to jump from one trampoline to another. He gained momentum to hurdle a two-foot-wide section of padding by jumping near the edge of the trampoline. In doing so, his ankle buckled and he fell onto the trampoline. Although he was in close proximity to the padding, it does not appear that he touched the padding when he landed.

Plaintiff sought to recover damages from Spring Loaded II under a negligence theory and for Spring Loaded II’s alleged failure to comply with the Trampoline Court Safety Act, MCL 691.1731 et seq. After engaging in discovery, Spring Loaded II filed a motion for summary disposition under MCR 2.116(C)(10). The circuit court granted Spring Loaded II’s motion and this appeal followed.

II STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. When considering a motion under MCR 2.116(C)(10), the trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. “A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact.” Id. (citation omitted). “A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ.” Id. (citation and quotation marks omitted).

III. ANALYSIS

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10).

A. THE TRAMPOLINE COURT SAFETY ACT

Plaintiff argues that summary disposition was inappropriate because there were genuine issues of material fact regarding whether Spring Loaded II violated the Trampoline Court Safety Act and whether the alleged violations caused plaintiff’s injury.[ 2] We disagree.

The Trampoline Court Safety Act prescribes duties and liabilities of trampoline court operators and individuals who use trampoline courts. MCL 691.1737 provides that “[a] trampoliner, spectator, or operator who violates this act is liable in a civil action for damages for the portion of the loss or damage that results from the violation.” Thus, in order to recover under MCL 691.1737, a party must establish both a violation of the Trampoline Court Safety Act and causation. Under MCL 691.1733(b), a trampoline court operator shall “[c]omply with the safety standards specified in ASTM[3] F2970-13, ‘Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts’ published in 2013 by the American society for testing and materials.”

Plaintiff argues that a reasonable trier of fact could find that Spring Loaded II’s failure to develop and communicate patron size restrictions to employees and patrons violated ASTM F2970-13 §§ 6, 9.1, 16.21, 16.22, and A.1.1.4 as well as ASTM F770-11 §§ 4.2 and 4.2.1, thereby causing plaintiff’s injury. However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.

ASTM F2970-13 § 9.1 requires trampoline manufacturers to furnish operating and maintenance information to trampoline court operators, and ASTM F2970-13 § 9.2 requires trampoline court operators to permanently affix the operating and maintenance information in a visible location in the trampoline court. ASTM F2970-13 § 9.2.5 requires the operating and maintenance information to include the “[m]aximum total patron weight per trampoline bed and per trampoline court.” Spring Loaded II conceded that the information plate was not posted in the trampoline court facility, and explained that the omission was due to the manufacturer’s failure to provide an information plate for that trampoline. However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.[ 4]

ASTM F2970-13 § 16.21 provides that the operator of a trampoline court facility “may deny entry to the device to any person, if in the opinion of the owner/operator the entry may cause above normal exposure to risk of discomfort or injury to the person who desires to enter . . . .” ASTM F2970-13 § 16.22 provides that “[t]rampoline court attendants should be given guide[]lines on the special considerations concerning patron size, and patrons with physical or mental disabilities or impairments . . . .” However, the word “may” indicates that ASTM F2970-13 § 16.21 is a discretionary provision and does not require trampoline court operators to deny entry to individuals that may have above normal exposure of risk to discomfort or injury. Moreover, plaintiff presented no evidence that any employees at Spring Loaded II believed plaintiff to be at an above normal risk of injury and considered exercising their discretion to deny entry to plaintiff. Furthermore, although Spring Loaded II should have given trampoline court attendants guidelines on the special considerations concerning patron size, ASTM F2970-13 § 16.22 did not require Spring Loaded II to do so in the instant matter. See In re Forfeiture of Bail Bond, 496 Mich. 320, 328; 852 N.W.2d 747 (2014) (noting that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes mandatory). Therefore, no reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 §§ 16.21 or 16.22 by not advising its attendants regarding any risks associated with a 275 pound patron. In addition, the language in ASTM F770-11 §§ 4.2 and 4.2.1 is almost identical to the language in ASTM F2970-13 §§ 16.21 and 16.22, and therefore, that plaintiff’s arguments with respect to those provisions fail for the same reasons.

Plaintiff next argues that a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 §§ 6.1 and 14.2, as well as ASTM F770-11 §§ 4.1, 8.1, and 8.3, by failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury. We disagree.

ASTM F2970-13 § 6.1 applies to designers, engineers, and manufacturers of trampolines, and as previously stated, plaintiff presented no evidence that Spring Loaded II was anything other than an operator of a trampoline facility. Additionally, ASTM F2970-13 § 14.2 requires trampoline court owners and operators to “notify the appropriate manufacturer(s) of any known incident as specified in Practice F770-11 Section 8.3.” F770-11 § 8.3 requires notification of incidents that result in a serious injury within seven days of the occurrence of the incident and incorporates F770-11 § 8.1, which states that owners and operators should complete an incident report including information regarding the injury. The use of the word “should” indicates that completing an incident report in accordance with F770-11 § 8.1 is discretionary. See In re Forfeiture of Bail Bond, 496 Mich. at 328 (noting that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes mandatory). Additionally, Spring Loaded II’s obligation to notify the manufacturer of plaintiff’s injury could not have arisen until after plaintiff’s injury occurred. Thus, even assuming Spring Loaded II failed to notify the trampoline manufacturer of plaintiff’s injury, no reasonable trier of fact could find that the failure to do so caused plaintiff’s injury. Similarly, F770-11 § 4.1 requires owners and operators to “read and become familiar with the contents of the manufacturer’s recommended operating instructions and specifications, when received[, ]” and to prepare an “operating fact sheet” that shall be made available to trampoline court attendants. F770-11 § 4.1 does not mandate providing any information to patrons, and plaintiff failed to present any evidence that the manufacturer’s recommended operating instructions addressed an increased risk associated with jumping near the edge of a trampoline or jumping from one trampoline to another. Thus, no reasonable trier of fact could find that Spring Loaded II’s alleged failure to provide an operating fact sheet to trampoline court attendants caused plaintiff’s injury.

B. DUTY TO WARN

Plaintiff argues that there is a genuine issue of material fact regarding whether Spring Loaded II breached its duty to warn plaintiff of the risks associated with jumping on a trampoline at higher weights or the risks associated with jumping from one trampoline to another. We disagree.

MCL 691.1736 provides: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoliner that are not otherwise attributable to the operator’s breach of his or her common[-]law duties.

The surveillance video shows that plaintiff’s injury occurred just before he attempted to jump from one trampoline to another. Plaintiff jumped on the trampoline in order to gain momentum to traverse a small section of padded frame that joined the two trampolines. While jumping near the padded section, but before traversing the frame, plaintiff’s ankle buckled and he fell onto the trampoline. Based upon the surveillance video, there is no genuine issue of material fact regarding whether plaintiff accepted the inherent danger of sustaining an injury from landing on the trampoline or trampoline pad. Accordingly, plaintiff cannot recover unless his injury was otherwise attributable to Spring Loaded II’s breach of its common-law duties. MCL 691.1736.

Plaintiff contends that product sellers have a duty to transmit safety-related information when they know or should know that the buyer or user is unaware of the information, and this duty may be attributed to a successor in possession of the product. Plaintiff posits that Spring Loaded II had a duty to transmit safety-related information to its patrons regarding the increased risks associated with patron weight and jumping from one trampoline to another because Spring Loaded II was a successor in possession of trampolines. In support of this premise, plaintiff relies upon Foster v Cone-Blanchard Mach Co, 460 Mich. 696, 707; 597 N.W.2d 506 (1999), in which our Supreme Court held that “in certain circumstances a successor may have an independent duty to warn a predecessor’s customer of defects in a predecessor’s product.” However, plaintiff failed to present any evidence that there were defects in the trampoline, and therefore, plaintiff’s reliance on Foster is misplaced. Thus, there is no genuine issue of material fact regarding whether Spring Loaded II had a duty to warn in this regard.

Moreover, there is no genuine issue of material fact regarding causation because plaintiff failed to present any evidence that he would not have used the trampolines if he had been warned about the increased risk of injury associated with higher weight or jumping from one trampoline to another.[ 5]

IV. CONCLUSION

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.

Gleicher, J. (concurring in part and dissenting in part)

Plaintiff Scott Redmond sustained a devastating ankle injury when he landed improperly on a trampoline. Redmond brought a negligence claim against defendant Spring Loaded II, LLC, the owner and operator of the trampoline park where the accident occurred. The Trampoline Safety Act, MCL 691.1731 et seq., governs Redmond’s claim. The act imposes certain safety standards on trampoline manufacturers and operators, but also limits liability through an assumption of the risk provision, as follows: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline are that are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 691.1736.] [1]

Despite this provision, if an injured plaintiff establishes a violation of one of the specific duties of care imposed under the act, the plaintiff may recover damages to the extent that the defendant’s violations caused the injury. MCL 691.1737; see also Rusnak v Walker, 273 Mich.App. 299, 304; 729 N.W.2d 542 (2006) (construing virtually identical language in the in the Ski Area Safety Act, MCL 408.321 et seq.).

The majority holds that defendant did not violate any of the specific safety standards set forth in the act, and I agree. Unfortunately for trampoline users, few of the safety standards referenced in the act apply to trampoline court operators. But despite that plaintiff’s claim for damages arising from defendant’s alleged safety standard violations must fail for the reasons discussed by the majority, I would hold that plaintiff’s common-law failure to warn claim survives.

Plaintiff alleges that his injury occurred when he landed on the foam padding between two trampolines as he attempted to jump from one trampoline to the other, and that defendant failed to warn of the danger of jumping from trampoline to trampoline. The majority rejects that plaintiff landed on the foam padding. According to the majority’s interpretation of a surveillance video, “[a]lthough he was in close proximity to the padding, it does not appear that he touched the padding when he landed.”

I disagree with the majority’s interpretation of the video, and I further object to the majority’s usurpation of the fact-finding role reserved to the jury. I have watched the video at least a dozen times, and it appears to me that a portion of Redmond’s foot did, in fact, come in contact with the foam padding. It is a close question: a paradigmatic issue of fact. The video was created from a single camera pointed in a single direction. It captures only one angle of view. It is impossible to discern from the video exactly where Redmond’s foot landed as he completed his final jump. Redmond testified that he landed on the foam padding, and the video does not blatantly contradict his testimony. For that reason, the majority errs by finding otherwise. See Scott v Harris, 550 U.S. 372, 378-381; 127 S.Ct. 1769; 167 L.Ed.2d 686 (2007). Viewing the evidence in the light most favorable to Redmond, a question of fact exists regarding where his foot made contact. For summary disposition purposes, we must assume that Redmond landed on the pad between trampolines, as he testified, rather than on the trampoline itself.

Plaintiff’s expert witness, Dr. Marc Rabinoff, authored a lengthy report detailing the dangers of jumping from one trampoline to another. He explained that “[t]rampolines are not designed to have persons jump on the edge of the trampoline bed near the frame,” and generally “are not designed for lateral movement, including the lateral movement required to jump from one bed, over the frame, and on to another bed.” Dr. Rabinoff opined that “there is a substantial increase in the risk of injury to persons who jump on the edge of the trampoline bed near the frame or who are jumping laterally from one trampoline bed to another.” He stressed: Notably, there is nothing inherent about a trampoline park that requires a user to jump near the edge of a trampoline bed. Nor is there anything inherent about a trampoline park that requires a user to jump from one trampoline bed over the frame and padding and on to another trampoline bed.

Dr. Rabinoff concluded that “the proximity of the trampoline beds, coupled with the absence of any signage prohibiting the practice, supports the conclusion that jumping from one bed to another was promoted by the owner/operator at the time of Mr. Redmond’s injury,” and that Spring Loaded failed to warn “that jumping near the edge of the trampoline bed, or using the trampoline for lateral propulsion, or jumping over the frame from one trampoline bed to another, materially increased the risks to users beyond the risk that is normally associated with jumping on a single trampoline bed.”

Based on Dr. Rabinoff’s testimony, I would hold that Redmond has established a jury question regarding whether jumping from one trampoline to another is an inherent risk of the activity. If it is not, Redmond did not accept a risk of injury by attempting this maneuver, and should be entitled to present his negligence claim to a jury.

My analysis considers the language of MCL 691.1736, which states that “obvious and necessary dangers” that “inhere[]” in the sport of trampolining include “injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline that are not otherwise attributable to the operator’s breach of his or her common law duties.” I am aware that this Court has applied the last antecedent canon in interpreting a similarly worded statute in the Roller Skating Safety Act, MCL 445.1721 et seq., holding that the Legislature meant to eliminate a cause of action for a breach of a common-law duty only when an “object or artificial structure” is in the path of travel. Dale v Beta-C, Inc, 227 Mich.App. 57, 69; 574 N.W.2d 697 (1997) (“[W]e hold that the only enumerated risk that is limited by an operator’s breach of a common-law duty is for injuries ‘which involve objects or artificial structures properly within the intended travel of the roller skater.’ “).

In my view, Dale improperly applied the last antecedent canon, and this Court should not make the same mistake in the context of the statute now at issue. Our Supreme Court has cautioned that “the last antecedent rule should not be applied if ‘something in the statute requires a different interpretation’ than the one that would result from applying the rule.” Dye v Esurance Prop & Cas Ins Co, 504 Mich. 167, 192; 934 N.W.2d 674 (2019), quoting Hardaway v Wayne Co, 494 Mich. 423, 428; 835 N.W.2d 336 (2013). “[T]he last antecedent rule does not mandate a construction based on the shortest antecedent that is grammatically feasible; when applying the last antecedent rule, a court should first consider what are the logical metes and bounds of the ‘last’ antecedent.” Hardaway, 494 Mich. at 429.

A natural construction of the language of MCL 691.1736 suggests that the clause “that are not otherwise attributable to the operator’s breach of his or her common law duties” qualifies the term “injuries” and should be applied to all forms of trampolining “injuries,” rather than being artificially limited to the statute’s final clause. [2] Indisputably, common-law duties of care attend to all facets of trampolining, including the conduct of “other trampoliners or other spectators,” maintenance and inspection of the “trampoline, pad, or platform,” and the substance of the warnings owed to trampoliners at a commercially operated trampoline park. It makes no sense, logically or linguistically, that the Legislature would carve out a single aspect of trampolining for common-law application, leaving the others unaffected.

In Dale, 227 Mich.App. at 69, this Court’s analysis centered on the absence of a comma at the end of the last “injuries” clause: “Proper syntax provides that commas usually set off words, phrases, and other sentence elements that are parenthetical or independent.” The absent comma, the Court ruled, meant that the phrase “not otherwise attributable to the operator’s breach of his or her common law duties” applies only to the last clause. Id. at 68-69. I cannot agree that punctuation is decisive, particularly when the sense of the paragraph leads to a different conclusion than would be dictated by a rigid application of the last antecedent rule. “When the sense of the entire act requires that a qualifying word or phrase apply to several preceding or succeeding sections, the word or phrase will not be restricted to its immediate antecedent.” 2A Sutherland, Statutes and Statutory Constructions (7th ed), § 47.33.

The context of MCL 691.1736 supports that all four described forms of trampolining injuries (resulting from “collisions with other trampoliners or other spectators,” “falls,” “landing on the trampoline, pad, or platform,” and those that involve “objects or artificial structures properly within the intended travel of the trampoliner”) are inherent risks of the activity unless they are “otherwise attributable to the operator’s breach of his or her common law duties.” That “duties” is plural reinforces my view that the term applies to more than just the final form of injury. See, e.g., Duffy v Dep’t of Natural Resources, 490 Mich. 198, 221; 805 N.W.2d 399 (2011). I would reverse the trial court’s grant of summary disposition and would remand for trial regarding whether Redmond accepted an inherent risk when he attempted to jump from one trampoline to the next, and whether a common-law duty required defendant to warn him of the risks of that activity.

Notes:

[ 1] Spring Loaded I, LLC, Spring Loaded II, LLC, and Spring Loaded III, LLC are separate franchises of an entity named Airtime International, and are owned by the parent company Spring Loaded LLC. Spring Loaded I, LLC and Spring Loaded III, LLC were dismissed from the case below and are not part of this appeal.

[ 2] Plaintiff argues in his reply brief that the issue of causation was not properly before the circuit court because it was not raised by Spring Loaded II when seeking summary disposition. We disagree. Under MCR 2.116(G)(4), “[a] motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact.” Spring Loaded II addressed the issue of proximate cause in its April 17, 2019 supplemental brief in support of its motion for summary disposition. Specifically, Spring Loaded II rebutted the opinion of plaintiff’s expert that Spring Loaded II’s failure to develop and communicate weight restrictions contributed to plaintiff’s injuries. Spring Loaded II argued that the expert’s opinion regarding causation was mere speculation and plaintiff’s injury was caused solely by plaintiff’s improper landing technique rather than any alleged violation of the Trampoline Court Safety Act.

[ 3] ASTM is an acronym for the American Society for Testing and Materials.

[ 4] Although plaintiff stated in an affidavit that he would not have used the trampolines if he had been warned about the increased risk of injury associated with higher weight, plaintiff’s affidavit was filed as part of plaintiff’s motion for reconsideration after the circuit court granted summary disposition in favor of Spring Loaded II. When reviewing an order granting or denying summary disposition, we consider only the evidence that was properly presented to the trial court in deciding the motion. Village of Edmore v Crystal Automation Sys Inc, 322 Mich.App. 244, 262; 911 N.W.2d 241 (2017). We will not consider evidence on appeal that was first presented in a subsequent motion for reconsideration. Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 474 n 6; 776 N.W.2d 398 (2009). Thus, we do not consider plaintiff’s affidavit here.

[ 5] Although plaintiff stated in an affidavit that he would not have used the trampolines if he had been warned about the increased risks, plaintiff’s affidavit was filed after the circuit court granted summary disposition in favor of Spring Loaded II. Thus, we will not consider it in this appeal. Village of Edmore, 322 Mich.App. at 262; Innovative Adult Foster Care, Inc, 285 Mich.App. at 474 n 6.

[1] In Felgner v Anderson, 375 Mich. 23, 39-40; 133 N.W.2d 136 (1965), the Michigan Supreme Court eliminated the assumption of the risk defense in tort cases. The Trampoline Safety Act resurrects the doctrine in trampoline-associated negligence claims.

[2] By way of reminder, here is the language. I have highlighted the words leading to the mosty natural reading: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline are that are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 691.1736.]


Michigan Trampoline Statute protects Trampoline Operator from claims that he violated ANSI standards.

Statute did not require nor did the ANSI requirement state that the defendant trampoline park needed to tell the plaintiff, he was too fat and unskilled to jump on the trampoline.

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

State: Michigan

Plaintiff: Scott Redmond

Defendant: Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants, and Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights

Plaintiff Claims: Failure to comply with Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.

Defendant Defenses: It complied with the Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.

Holding: For the Defendant

Year: 2021

Summary

A 47-year-old 275 man was injured while attempting to jump from one trampoline to another at the defendant’s trampoline facility. He claimed the defendant had a duty to warn him of the risks and failed to follow ANSI standards.

The court found the plaintiff assumed the risks, so there was no duty to warn and ANSI standards were created for manufacturers and designers of trampolines, not operators.

Facts

Plaintiff, a 47 year-old, 275 pound man, sustained a severe ankle injury while jumping on a trampoline at a facility owned and operated by Spring Loaded II. Plaintiff’s injury was captured on a surveillance camera. Spring Loaded II’s trampoline court facility is a large room filled with trampolines that are connected to one another by padded frames. Plaintiff’s injury occurred as he attempted to jump from one trampoline to another. He gained momentum to hurdle a two-foot-wide section of padding by jumping near the edge of the trampoline. In doing so, his ankle buckled and he fell onto the trampoline. Although he was in close proximity to the padding, it does not appear that he touched the padding when he landed.

Analysis: making sense of the law based on these facts.

This is simply an interpretation of a surveillance video and the application of a statute to what the court saw on the video. The statute is the Michigan Trampoline Court Safety Act, § 691.1731 et. seq.

§ 691.1731. Short title This act shall be known and may be cited as the ‘trampoline court safety act’.”

Mich. Comp. Laws 691.1731 Short title

§ 691.1733. Operator; duties

An operator shall do all of the following:

(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.

(b) Comply with the safety standards specified in ASTM F2970 – 13, “Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts” published in 2013 by the American society for testing and materials.

(c) Maintain the trampoline court according to the safety standards cited in subdivision (b).

(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.

§ 691.1735. Trampoliner; duties

While in a trampoline court, a trampoliner shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Read and follow all posted signs and warnings.

(c) Avoid bodily contact with other trampoliners or spectators.

(d) Not run on trampolines, over pads, or on platforms.

(e) Refrain from acting in a manner that may cause injury to others.

(f) Not participate in a trampoline court when under the influence of drugs or alcohol.

(g) Properly use all trampoline court safety equipment provided.

(h) Not participate in a trampoline court if he or she has a preexisting medical condition, a bone condition, a circulatory condition, a heart or lung condition, a back or neck condition, high blood pressure, or a history of spine, musculoskeletal, or head injury, if he or she has had recent surgery, or if she may be pregnant.

(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.

(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.

(k) Avoid crowding or overloading individual sections of the trampoline court.

(l) Use the trampoline court within his or her own limitations, training, and acquired skills.

(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.

The simple analysis of the plaintiff’s argument is the ANSI code which applies to the manufacturing of Trampolines was not met by the defendant, and the defendant did not pass on required notices established by the code to the plaintiff.

The first issue was defendants failed to pass on the size restrictions that ANSI requirements might require. The court denied this argument by stating the ANSI code applied to manufacturers not trampoline owners or operators.

However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.

The next issue was ANSI required an operation’s plate to be firmly affixed to the trampoline. The defendant argued there was no operation’s plate because the trampoline did not come with one. The operation’s information was to include the maximum size of someone allowed on the trampoline. At the time of his injury, the plaintiff testified in his deposition; he weighed 275 pounds.

The court struck this argument down because the failure to post the plate was not the cause of the plaintiff’s injury. There must be a causal connection, proximate cause, to prove negligence. Generally, the court found trampolines are designed to hold 300 lbs., so that would not have changed the issues with the plaintiff since he weighed less than the design of the trampoline. Finally, there was no argument by the plaintiff that if the information were posted, he would not have used the trampoline.

However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.

The plaintiff argued the defendant violated an ANSI standard for:

…failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury.

Again, the court struck this down because the ANSI standard was for designers and manufacturers not operators. The standard argued by the plaintiff that was not met also had a duty to inform the manufacture of any incident within seven days of the incident which was not done in this case. Again, the failure to notify the manufacture of the incident within seven days was not the cause of the plaintiff’s injury.

The plaintiff next argued the defendant had a duty to warn of the risks of jumping on a trampoline when you were fat or the risks of jumping from one trampoline to another.

The court found the defendant did not have a duty to warn of jumping on a trampoline near the edge or jumping from one trampoline to another. The statute states “An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary.” An assumption of the risk statement set out in the statute. Based on the video, the plaintiff clearly accepted the risks of his actions and as such assumed the risk requiring no duty to warn on the part of the defendant.

The plaintiff argued:

Plaintiff contends that product sellers have a duty to transmit safety-related information when they know or should know that the buyer or user is unaware of the information, and this duty may be attributed to a successor in possession of the product. Plaintiff posits that Spring Loaded II had a duty to transmit safety-related information to its patrons regarding the increased risks associated with patron weight and jumping from one trampoline to another because Spring Loaded II was a successor in possession of trampolines.

However, this argument fails because it speaks to defects in the product. In this case, there were no defects in the trampoline that caused the plaintiff’s injuries.

There was a dissent in the decision. The dissenting judge agreed with the majority that there was no violation of the Michigan Trampoline Safety Act. However, the dissent did believe that there was a valid failure to warn claim. This argument stems from the dissenting judges view of the video where he believes the plaintiff’s toe touched the foam padding at the edge of the trampoline, leading to a requirement on the part of the defendant to warn patrons of jumping from mat to mat. Because the dissenting judge viewed the video differently than from the majority, he felt that factual issues should be allowed to go to the jury.

However, the dissent is just that, a minority opinion and the majority opinion is the way the decision is handled.

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.

So Now What?

  1. The defendant should immediately post notices of the dangers of jumping from trampoline to trampoline and other risks. Just because the defendant won the appeal does not mean that the dissent is not an important legal analysis that can be ignored.
    1. Included in those warnings should be one about fitness and weight of anyone jumping.
  2. The defendant should use a release. A release in Michigan would have stopped this lawsuit sooner or might have prevented it from starting.
  3. I would even post the Michigan Trampoline Safety Act duties required of a patron, and the risks accepted by a patron.

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                              Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

         $99.00 plus shipping

 

 

 

 

Artwork by Don Long donaldoelong@earthlink.net

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


Kentucky determines that a parent cannot sign away a child’s right to sue.

Courts are allowed to pick and choose the case law they relied upon and to distinguish or ignore the case law the court does not like. In this case, the Kentucky Supreme Court ignored law it did not like or simply found a way around the case law it did not want to agree with.

Citation: E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

State: Kentucky, Supreme Court of Kentucky

Plaintiff: Kathy Miller, as Next Friend of Her Minor Child, E.M.

Defendant: House of Boom Kentucky, LLC

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff

Year: 2019

Summary

Kentucky Supreme Court rules that a parent cannot sign away a minor’s right to sue.

Facts

House of Boom, LLC (“House of Boom”) is a for-profit trampoline park located in Louisville, Kentucky. The park is a collection of trampoline and acrobatic stunt attractions. On August 6, 2015, Kathy Miller purchased tickets for her 11-year-old daughter, E.M., and her daughter’s friends to go play at House of Boom. Before purchasing the tickets, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability.

Once Miller checked the box, E.M. participated in activities at House of Boom. She was injured when another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break. Miller, as next friend of her daughter, sued House of Boom for the injury. House of Boom, relying on Miller’s legal power to waive the rights of her daughter via the release, moved for summary judgment. The Western District of Kentucky concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and requested Certification from this Court which we granted. Both parties have briefed the issue and the matter is now ripe for Certification.

So, the plaintiff sued in Federal District Court. Because the issue of whether or not a parent could sign away a minor’s right to sue had not been reviewed by the Kentucky Supreme Court, the federal district court asked the Kentucky Supreme Court to review the case. The Kentucky Supreme court did with this decision.

Analysis: making sense of the law based on these facts.

The sole question before the court was whether a parent could sign away a minor’s right to sue.

The question before this Court is whether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company.

The court in reviewing the case law from other states on this issue decided the cases had been determined in one of four categories.

House of Boom categorizes these decisions in as those that enforced the waiver and those that did not, but the decisions of those jurisdictions more accurately fall into four distinct categories: (1) jurisdictions that have enforced a waiver between a parent and a for-profit entity; (2) jurisdictions that have enforced waivers between a parent and a non-profit entity; (3) jurisdictions that have declared a waiver between a parent and a for-profit entity unenforceable; and (4) jurisdictions that have declared a waiver between a parent and a non-profit entity unenforceable.

By making this distinction in the cases to start, the court immediately eliminated much of the case law supporting the defendants. In most states, a non-profit has no different legal duty to patrons then a for profit, and none that I can find in Kentucky. However, by using these categories the court was able to place this case in the category with only one other decision that could support the defendant.

House of Boom is a for-profit trampoline park, and eleven out of twelve jurisdictions that have analyzed similar waivers between parents and for-profit entities have adhered to the common law and held such waivers to be unenforceable.

The court then justified it classifications and reasoning by stating a commercial entity had more ways to deal with the cost of the liability than a non-profit.

A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions.

However, none of the factors listed above are any different from the situations or requirements to do business for a non-profit operation.

The court then fell back on a legal fallacy that plaintiffs have been arguing for years.

A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment. “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.

However, no cases I’ve read have ever stated that the injury was caused because the defendant did not have to deal with liability issues. Any breach of a duty of care that has occurred were not across the board, just spotty.

The court concluded:

Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf.

So Now What?

The plaintiff’s mother purchased tickets for several kids. So, for the majority of the children, the release was void to begin with. One release was signed for multiple possible plaintiffs by someone who did not have the legal authority to sign on their behalf anyway.

The category’s trick was interesting. By restricting the cases it reviewed to artificial categories the Kentucky Supreme Court eliminated several cases that supported the defendant’s position. On top of that, it also then ignored cases after the initial cases it reviewed that supported the use of a release signed by a parent for a child in for-profit or commercial situations.

The Ohio Supreme Court found that a parent could sign away a minor’s right to sue in a non-profit case: Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998). Subsequent decisions in Ohio by the appellate courts have also upheld a release signed by the parent of the injured child: Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

By placing blinders on the case law it was looking at, it is a lot easier to ignore decisions you do not want to deal with.

It is disturbing when a court, weaves its way through case law to reach a conclusion it could have easily reached without circular path. Either the court works its way around lots of decisions or the court realized this decision was going against the general flow of law in the US on this issue and wanted to justify its decision.

Statutes and prior law in Kentucky say a parent’s rights are not absolute in controlling their child and thus a parent cannot sign away their minor child’s right to sue.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

 

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

In Re: Kathy Miller, as Next Friend of Her Minor Child, E.M.

v.

House of Boom Kentucky, LLC

No. 2018-SC-000625-CL

Supreme Court of Kentucky

June 13, 2019

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CASE NO. 3:16-CV-332-CRS

COUNSEL FOR APPELLANT: Grover Simpson Cox Grover S. Cox Law Office Vanessa Lynn Armstrong U.S. District Court

COUNSEL FOR APPELLEE: Anthony M. Pernice Reminger Co., LPA

COUNSEL FOR AMICUS CURIAE KENTUCKY JUSTICE ASSOCIATION: Kevin Crosby Burke Jamie Kristin Neal Burke Neal PLLC

OPINION

VANMETER, JUSTICE

By order entered February 14, 2019, this Court granted the United States District Court, Western District of Kentucky’s request for certification of law on the following issue:

Is a pre-injury liability waiver signed by a parent on behalf of a minor child enforceable under Kentucky law?

After careful consideration, we hold that such a waiver is unenforceable under the specific facts of this case.

I. Factual and Procedural Background.

House of Boom, LLC (“House of Boom”) is a for-profit trampoline park located in Louisville, Kentucky. The park is a collection of trampoline and acrobatic stunt attractions. On August 6, 2015, Kathy Miller purchased tickets for her 11-year-old daughter, E.M., and her daughter’s friends to go play at House of Boom. Before purchasing the tickets, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability. The waiver reads:

(1) RELEASE OF LIABILITY: Despite all known and unknown risks including b[u]t not limite[d] to serious bodily injury, permanent disability, paralysis and loss of life, I, on behalf of myself, and/or on behalf of my spouse, minor child(ren)/ward(s) hereby expressly and volun[]tarily remise, release, acquit, satisfy and forever discharge and agree not to sue HOUSE OF BOOM, including its suppliers, designers, installers, manufacturers of any trampoline equipment, foam pit material, or such other material and equipment in HOUSE OF BOOM’S facility (all hereinafter referred to as “EQUIPMENT SUPPLIERS”) and agree to hold said parties harmless of and from any and all manner of actions or omission(s), causes of action, suits, sums of money, controversies, damages, judgments, executions, claims and demands whatsoever, in law or in equity, including, but no[t] limited to, any and all claim[s] which allege negligent acts and/or omissions committed by HOUSE OF BOOM or any EQUIPMENT SUPPLIERS, whether the action arises out of any damage, loss, personal injury, or death to me or my spouse, minor child(ren)/ward(s), while participating in or as a result of participating in any of the ACTIVITIES in or about the premises. This Release of Liability, is effective and valid regardless of whether the damage, loss or death is a result of any act or omission on the part of HOUSE OF BOOM and/or any EQUIPMENT SUPPLIERS.

The agreement goes on to state:

1. By signing this document, I understand that I may be found by a court of law to have forever waived my and my spouse and/or child(ren)/ward(s) right to maintain any action against HOUSE OF BOOM on the basis of any claim from which I have released HOUSE OF BOOM and any released party herein and that I have assumed all risk of damage, loss, personal injury, or death to myself, my spouse and/or my minor child(ren)/wards(s) and agreed to indemnify and hold harmless HOUSE OF BOOM and all EQUIPMENT SUPPLIERS from and against any all losses, liabilities, claims, obligations, costs, damages and/or expenses whatsoever paid, incurred and/or suffered by HOUSE OF BOOM and all EQUIPMENT SUPPLIERS as a result of the participation in ACTIVITIES in or about the facility by myself, my spouse and/or child(ren)/ward(s) and/or claims asserted by myself, my spouse and/or child(ren)/ward(s) against HOUSE OF BOOM and all EQUIPMENT SUPPLIERS related to such participation in ACTIVITIES. I have had a reasonable and sufficient opportunity to read and understand this entire document and consult with legal counsel, or have voluntarily waived my right to do so. I knowingly and voluntarily agree to be bound by all terms and conditions set forth herein.

The above waiver includes language that, if enforceable, would release all claims by (1) the individual who checked the box, (2) her spouse, (3) her minor child, or (4) her ward against House of Boom. Once Miller checked the box, E.M. participated in activities at House of Boom. She was injured when another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break. Miller, as next friend of her daughter, sued House of Boom for the injury. House of Boom, relying on Miller’s legal power to waive the rights of her daughter via the release, moved for summary judgment. The Western District of Kentucky concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and requested Certification from this Court which we granted. Both parties have briefed the issue and the matter is now ripe for Certification.

II. Analysis.

The question before this Court is whether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company. Although an issue of first impression in the Commonwealth, the enforceability of a pre-injury waiver signed by a parent on behalf of a child has been heavily litigated in a multitude of jurisdictions. House of Boom categorizes these decisions in as those that enforced the waiver and those that did not, but the decisions of those jurisdictions more accurately fall into four distinct categories: (1) jurisdictions that have enforced a waiver between a parent and a for-profit entity;[1] (2) jurisdictions that have enforced waivers between a parent and a non-profit entity;[2] (3) jurisdictions that have declared a waiver between a parent and a for-profit entity unenforceable;[3] and (4) jurisdictions that have declared a waiver between a parent and a non-profit entity unenforceable.[4]House of Boom is a for-profit trampoline park, and eleven out of twelve jurisdictions that have analyzed similar waivers between parents and for-profit entities have adhered to the common law and held such waivers to be unenforceable.[5]

Pre-injury release waivers are not per se invalid in the Commonwealth but are generally “disfavored and are strictly construed against the parties relying on them.” Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005) (citation omitted). We analyze these agreements for violations of public policy. See Cobb v. Gulf Refining Co., 284 Ky. 523, 528, 145 S.W.2d 96, 99 (1940) (citing Restatement of Contracts § 575). The relevant public policy here is whether a parent has the authority to enter into an exculpatory agreement on their child’s behalf, negating any opportunity for a tort claim-a child’s property right-if House of Boom’s negligence causes injury to the child.

The general common law rule in Kentucky is that “parents ha[ve] no right to compromise or settle” their child’s cause of action as that “right exist[s] in the child alone,” and parents have no right to enter into contracts on behalf of their children absent special circumstances. Meyer’s Adm’r v. Zoll, 119 Ky. 480, 486, 84 S.W. 543, 544 (1905); see also Wilson v. Wilson, 251 Ky. 522, 525, 65 S.W.2d 694, 695 (1933) (“[W]hile the mother might enter into a contract regarding her rights, she could not contract away the rights of her unborn child[]”);GGNSC Stanford, LLC v. Rome, 388 S.W.3d 117, 123 (Ky. App. 2012) (“In light of the limited authority granted to custodians by KRS[6] 405.020 and KRS 387.280, we cannot conclude they are permitted to contractually bind their wards without formal appointment as guardians[]”). Thus, we must determine whether Kentucky public policy supports a change in the common law that would protect for-profit entities from liability by enforcing pre-injury liability waivers signed by parents on behalf of their children. First, KRS 405.020 provides that “[t]he father and mother shall have the joint custody, nurture, and education of their children who are under the age of eighteen (18).” However, this grant of custody and a parent’s right to raise their child, choose the child’s educational path, and make healthcare decisions on a child’s behalf has never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court. Scott v. Montgomery Traders Bank & Trust Co., 956 S.W.2d 902, 904 (Ky. 1997).

In Scott, the parent at issue attempted to settle her child’s tort claim and fund a trust with the settlement funds without being appointed guardian by a district court. Id. This Court held that

[i]t is fundamental legal knowledge in this state that District Court has exclusive jurisdiction “. . . for the appointment and removal of guardians . . . and for the management and settlement of their accounts” and that a person must be appointed as guardian by the Court in order to legally receive settlements in excess of $10, 000.00.

Id. (quoting KRS 387.020(1), KRS 387.125(b)) (emphasis added). Additionally, our precedent dictates that even when acting as next friend, a minor’s parent has no right to compromise or settle a minor’s claim without court approval or collect the proceeds of a minor’s claim.[7] Metzger Bros. v. Watson’s Guardian, 251 Ky. 446, 450, 65 S.W.2d 460, 462 (1933). Thus, finding no inherent right on the part of a parent to contract on behalf of their child, the remaining question is whether public policy demands enforcement of these contracts within the Commonwealth.

House of Boom’s initial public policy argument is that a parent’s fundamental liberty interest “in the care and custody of their children” supports enforcing a for-profit entity’s pre-injury liability waiver signed by a parent on behalf of a minor child. Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (“The liberty interest … of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court[]”). Although this Court recognizes a parent’s fundamental liberty interest in the rearing of one’s child, this right is not absolute, and the Commonwealth may step in as parens patraie[8] to protect the best interests of the child. See Hojnowski, 901 A.2d at 390 (“the question whether a parent may release a minor’s future tort claims implicates wider public policy concerns and the parens patriae duty to protect the best interests of children[]”); see also Cooper, 48 P.3d at 1235 n. 11 (parental release of child’s right to sue for negligence is “not of the same character and quality as those rights recognized as implicating parents’ fundamental liberty interest in the ‘care, custody and control’ of their children[]”). House of Boom argues that the parens patriae doctrine “is difficult to defend in a post-Troxel world.” However, if Troxel is read to grant parents the decision to enter into pre-injury liability waivers, then, logically, our court-appointed guardian statutes and statutes restricting a parent’s ability to settle claims post-injury would also infringe upon a parent’s fundamental liberty interest. As litigation restrictions upon parents have remained a vital piece of our Commonwealth’s civil practice and procedure, we do not recognize a parent’s fundamental liberty interest to quash their child’s potential tort claim.

House of Boom next argues that public policy concerns surrounding post-injury settlements between parents and defendants are not present when a parent is signing a pre-injury release waiver (signing in the present case being checking a box on an I phone), and therefore, the state only needs to step in to protect the child post-injury, not pre-injury. First, we note that since Meyer’s Adm’r and Metzger Bros., this Court and the legislature have protected minor’s rights to civil claims. See KRS 387.280. Indeed, “children deserve as much protection from the improvident compromise of their rights before an injury occurs [as our common law and statutory schemes] afford[] them after the injury.” Hojnowski, 901 A.2d at 387. As summarized in Hawkins, 37 P.3d at 1066,

[w]e see little reason to base the validity of a parent’s contractual release of a minor’s claim on the timing of an injury. Indeed, the law generally treats preinjury releases or indemnity provisions with greater suspicion than postinjury releases. See Shell Oil Co. v. Brinkerhoff-Signal Drilling Co., 658 P.2d 1187, 1189 (Utah 1983). An exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, however, relates to negligence that has already taken place and is subject to measurable damages. Such releases involve actual negotiations concerning ascertained rights and liabilities. Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario.

The public policy reasons for protecting a child’s civil claim pre-injury are no less present than they are post-injury, and we are unpersuaded by House of Boom’s arguments to the contrary.

Lastly, House of Boom argues that enforcing a waiver signed by a parent on behalf of a child to enter a for-profit trampoline park furthers the public policy of encouraging affordable recreational activities. In making this argument, House of Boom relies on the decisions of states that have enforced these waivers between a parent and a non-commercial entity. Granted, this Commonwealth has similar public policy to these jurisdictions to “encourage wholesome recreation for boys and girls” and to limit liability for those volunteering, in a variety of ways, to increase recreational and community activities across the Commonwealth. Wilson v. Graves Cty. Bd. Of Educ, 307 Ky. 203, 206, 210 S.W.2d 350, 351 (1948); see also KRS 162.055 (granting limited immunity to school districts for allowing the public to use school grounds for “recreation, sport, academic, literary, artistic, or community uses”); KRS 411.190(2) (“[t]he purpose of this section is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes[]”). However, the same public policy implications that apply when dealing with the voluntary opening of private property or a school district’s limited immunity allowing community use of school property do not apply when dealing with a commercial entity.

A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment. “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.” Kirton, 997 So.2d at 358. Accordingly, no public policy exists to support House of Boom’s affordable recreational activities argument in the context of a commercial activity.[9]

HI. Conclusion.

Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf. Based upon our extensive research and review of the relevant policy in this Commonwealth and the nation as a whole, we find no relevant public policy to justify abrogating the common law to enforce an exculpatory agreement between a for-profit entity and a parent on behalf of her minor child.[10] Simply put, the statutes of the General Assembly and decisions of this Court reflect no public policy shielding the operators of for-profit trampoline parks from liability.

All sitting. All concur.

———

Notes:

[1] Maryland’s highest court is the only judicial body to enforce these waivers when one of the parties is a for-profit entity. However, Maryland’s court rules allow parents to “make decisions to terminate tort claims” without “judicial interference.” BJ’s Wholesale Club Inc. v. Rosen, 80 A.3d 345, 356-57 (Md. 2013) (citing Md. Code Ann. § 6-205). Kentucky does not have a similar provision in our court rules, statutes, or judicial decisions.

[2] See Kelly v. United States, 809 F.Supp.2d 429, 437 (E.D. N.C. 2011) (waiver enforceable as it allowed plaintiff to “participate in a school-sponsored enrichment program that was extracurricular and voluntary[]”); Hohe v. San Diego Unified Sch. Dist, 274 Cal.Rptr. 647, 649-50 (Cal.Ct.App. 1990) (upholding a pre-injury release executed by a father on behalf of his minor child which waived claims resulting from an injury during a school sponsored activity); Sharon v. City of Newton, 769 N.E.2d 738, 747 (Mass. 2002) (upholding a public school extracurricular sports activities waiver signed by a parent on behalf of a minor); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 205 (Ohio 1998) (holding that public policy supporting limiting liability of volunteer coaches and landowners who open their land to the public “justified] giving parents authority to enter into [pre-injury liability waivers] on behalf of their minor children!]”).

[3] See In re Complaint of Royal Caribbean Cruises Ltd., 403 F.Supp.2d 1168, 1172-73 (S.D. Fla. 2005) (where “a release of liability is signed on behalf of a minor child for an activity run by a for-profit business, outside of a school or community setting, the release is typically unenforceable against the minor[]”); Simmons v. Parkette Nat’l Gymnastic Training Ctr., 670 F.Supp. 140, 144 (E.D. Pa. 1987) (invalidating a pre-injury release waiver signed by a parent in adherence with the “common law rule that minors, with certain exceptions, may disaffirm their contracts [based on] the public policy concern that minors should not be bound by mistakes resulting from their immaturity or the overbearance of unscrupulous adults[]”); Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002) (“[T]o allow a parent to release a child’s possible future claims for injury caused by negligence may as a practical matter leave the minor in an unacceptably precarious position with no recourse, no parental support, and no method to support himself or care for his injury[]”), superseded by statute, Colo. Rev. Stat. § 13-22-107(3)); Kirton v. Fields, 997 So.2d 349, 358 (Fla. 2008) (invalidating agreement between parent and for-profit ATV park, but limiting the holding to “injuries resulting from participation in a commercial activity[]”); Meyer v. Naperville Manner, Inc., 634 N.E.2d 411, 414 (111. 1994) (invalidating waiver between parent and for-profit horse riding stable); Woodman ex. rel Woodman v. Kera LLC, 785 N.W.2d 1, 16 (Mich. 2010) (holding, in a case against a for-profit inflatable play area, that state common law indicated that enforcement of a waiver signed by parent was “contrary to the established public policy of this state” and that the legislature is better equipped for such a change in the common law); Hojnowski v. Vans Skate Park, 901 A.2d 381, 386 (N.J. 2006) (“the public policy of New Jersey prohibits a parent of a minor child from releasing a minor child’s potential tort claims arising out of the use of a commercial recreational facility[]”); Ohio Cas. Ins. Co. v. Mallison, 354 P.2d 800, 802 (Or. 1960) (invalidating an indemnity provision in a settlement agreement-after settlement the child sustained further injury-in part because a parent’s duty to act “for the benefit of his child [is] not fully discharged where the parent enters into a bargain which gives rise to conflicting interests[]”); Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 651 (Tenn. Ct. App. 2017) (in holding a parent-signed waiver unenforceable, the court held that Tennessee had no public policy supporting the “desire to shield the operators of for-profit trampoline parks from liability[]”); Munoz u. IUaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993) (“in light of this state’s long-standing policy to protect minor children, the language, ‘decisions of substantial legal significance’in section 12.04(7) of the Family Code cannot be interpreted as empowering the parents to waive the rights of a minor child to sue for personal injuries[]”); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding that “a parent does not have the authority to release a child’s claims before an injury”); Scott v. Pac. W. Mountain Resort, 834 P.2d 6, 11-12 (Wash. 1992) (“Since a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury[]”).

[4] See Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 143 A.2d 466, 468-69 (Conn. 1958) (invalidating a waiver signed by a child’s parents allowing the child to attend Boy Scout camp); Galloway v. State, 790 N.W.2d 252, 259 (Iowa 2010) (invalidating a pre-injury release waiver signed by a parent on behalf of a child attending a school sponsored field trip because of Iowa’s “strong public policy favoring the protection of children’s legal rights”).

[5] While a slight majority of jurisdictions support enforceability in the context of a non-profit recreational activity, non-profits and volunteer youth sports raise different public policy concerns which we need not address in this opinion today.

[6] Kentucky Revised Statutes.

[7] The legislature has sought fit to slightly change this portion of the common law and has authorized parents to receive funds less than $10, 000, but those settlements must be approved by a court before the funds may be paid to a parent in custody of a child. KRS 387.280. Thus, a parent, based merely on custody, still maintains no right to negotiate a settlement on behalf of their child.

[8] See Parens Patriae, Black’s Law Dictionary (10th. ed 2014) (“The state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves”); see also KRS 600.010(2)(a) (the Commonwealth should “direct its efforts to promoting protection of children”); Giuliani v. Gutter, 951 S.W.2d 318, 319 (Ky. 1997) (relevant public policy existed to support the enlargement of children’s legal rights under the common law derived from KRS 600.010(2)(a)’s directive to protect children).

[9] As previously noted, the question of whether public policy exists to require enforcement of parent-signed, pre-injury waivers in a non-commercial context is not before this Court today, and thus we make no determination on the issue.

[10] House of Boom retains the ability to urge change in the common law by petitioning the General Assembly to enact a statute that supports a parent’s ability to waive their child’s legal rights. See Alaska Stat. § 09.65.292 (2004) (“a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent[]); Colo. Rev. Stat. § 13-22-107(3) (2003) (“A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence[]”).

———


Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

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Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Indoor trampoline park company held liable for its actions in creating safety rules for its sub-groups creating liability for itself from the sub-group’s customers.

The parent company knew the employee handbook, which contained safety rules, which was given to the companies operating trampoline parks would be used to keep the customers of the parks safe. When the employee handbook was badly written, the parent company was liable to the injured plaintiff.

We have seen this before in Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. A second case will create greater concern and liability for actions of “safety” experts in the outdoor recreation industry.

Citation: Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

State: Arizona, United States District Court, D. Arizona

Plaintiff: Blake Haines

Defendant: Get Air Tucson Incorporated, et al

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses:

Holding: for the Plaintiff on the negligence claim and for the defendants on the Gross Negligence claim

Year: 2018

Summary

A prior company of some sort created safety rules in an employee handbook which were poorly written. The prior or parent company gave these rules to the trampoline parks to use. A plaintiff argued, successfully, the parent company was liable to him because the rules were poorly written, and the court agreed.

Third party contractors are increasingly brought into lawsuits because of their actions. The contractors are hired to decrease the risk to the customers, and the courts are holding when they fail, they are liable for their actions.

Facts

These facts on how the injury occurred, and the relationship between the parties came from a different decision in this case.

On September 8, 2013 Haines was at the Get Air Tucson indoor trampoline park and performed a move where he flipped multiple times off of a platform and into a foam pit. Haines “suffered catastrophic injuries from the maneuver, including fractured cervical vertebrae resulting in paralysis.” Following this incident, Haines filed suit in Pima County Superior Court on September 5, 2014 against the following defendants: Get Air Tucson, Inc.; Get Air Tucson Trampolines, LLC; Get Air Management, Inc.; Get Air, LLC; Trampoline Parks, LLC; Patti Goodell; Jacob Goodell; Kiersten Goodell; Scott Goodell; Alan McEwan Jr.; Val Iverson, individually and as owner or operator of Trampoline Parks, LLC; Jane and/or John Does #s 1-20; ABC Corporations 1-10; XYZ Partnerships 1-10; and ABC Limited Liability Corporations (LLCs) 1-10. Haines alleged claims for negligence, negligent design, negligence in safety standards, negligent supervision, negligent hiring and training of personnel, piercing the corporate veil, and punitive damages. Id.

There are three parties to this lawsuit. The plaintiff who was injured at the Defendant Get Air Tucson’s facility, Get Air Tucson and GALLC. GALLC was a former trampoline park that is no longer in business but seemingly a parent company?

GALLC created an employee handbook to be used by its clients (trampoline parks or franchisors). The plaintiff claims he was injured because of the “allegedly deficient safety rules contained in the Employee Handbook.” The handbook does not clearly define what a somersault is. The plaintiff was injured when he did a flip.

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson.

The case had been referred to a magistrate who created an order dismissing the gross negligence claims but keeping the negligence claims. That magistrate’s order was then reviewed, which is the decision this article is based on.

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH [employee handbook] as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. Judge Markovich found that summary judgment on the issue of a breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff.

Analysis: making sense of the law based on these facts.

The defendant GALLC argued it had no duty to the plaintiff.

In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported.

The court then reviewed how a duty was created and what the courts looked for in making that decision.

To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.

Whether or not a duty exists is a legal question to be determined by a court of law. A duty can arise if a special relationship exists between the parties or because of an “undertaking” of the defendant.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship.

So, the relationship alone between the plaintiff and GALLC was not enough to create a duty. However, the court did find a relationship because of GALLC’s attempt to create safety rules in the employee handbook for its customers.

However, even though there was no direct business-customer relationship, Plaintiff and GALLC, nevertheless, had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona’s case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

The Restatement (Second) of Torts states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

The court found that GALLC undertook to render services, the creation of the employee handbook, which contained safety rules, which were necessary to protect the customers of Get Air Tucson. Plaintiff alleged in its complaint that GALLC failed to exercise reasonable care for the creation of the safety rules, thus creating liability.

GALLC, failing to exercise reasonable care in developing the safety rules increased the harm to Get Air Tucson’s’ customers, like the plaintiff.

Additionally, the failure to perform a duty, development of reasonable safety rules, which Get Air Tucson owed to its customers, created liability.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

The court also found that there was a genuine issue of material fact because GALLC allegedly breached its duty to exercise reasonable care in the creation of the safety rules when the definition of a somersault which was used in the rules, and the definition was not clear. The issue was, did the actions of the plaintiff flipping constitute a somersault?

On top of that, when the manual or rules are not clear or are ignored, this creates greater liability on the companies involved.

Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, “as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults.

The court found GALLC was liable not because of its relationships between the parties, but because its actions constituted an independent undertaking that created a duty.

However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence.

So Now What?

Safety is always scary. How much do you write? If you don’t write enough, you don’t cover everything, and you could be found liable. If you write too much you don’t cover everything, and you are still found liable because either you did not cover the issue at hand, or you did not follow the rules you created.

You can’t follow the rules if the rules are too much to remember. You can’t handle an incident with a notebook in one hand trying to figure out what to do next.

Worse, you are a third party, and you inspect or write safety issues, and you are now liable to the customers of your customer who you were trying to protect. In Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry the defendant did an inspection of the property. The injured plaintiff argued the inspection was insufficient, and the defendant owed her a duty.

In this case the rules where insufficient, badly written, and seemingly not enforced, creating a duty to the injured plaintiff.

If you are an inspector or a rule writer, a third-party contractor hired to teach, inspect or write you had better to it correctly and completely. On top of that you better have a great liability insurance policy and contract with your client to protect you.

If you are a third-party contractor, expect to see more claims like this in the future.

What do you think? Leave a comment.

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Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Blake Haines, Plaintiff,

v.

Get Air Tucson Incorporated, et al., Defendants.

No. CV-15-00002-TUC-RM (EJM)

United States District Court, D. Arizona

October 19, 2018

ORDER

Honorable Rosemary Marquez United States District Judge.

Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).

I. Standard of Review

A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

II. GALLC’s Objection to Judge Markovich’s Report and Recommendation

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)[1] Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)

Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.

III. Discussion

As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.

A. Existence of Duty

“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.

The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

Restatement (Second) of Torts § 324A supports the existence of a duty in this case.[2] GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).

Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care, increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

B. Breach

The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.

C. Liability of GALLC

Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).

IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.

—–

Notes:

[1] Record citations refer to the page numbers generated by the Court’s electronic filing system.

[2] Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).

—–


Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly.

The arbitration agreement in this case did not state how long the agreement was valid for, so the court held it was only valid for the day it was signed.

Citation: Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

State: New Jersey: Superior Court of New Jersey, Appellate Division

Plaintiff: Lorianne Weed and Scott Trefero as parents and natural guardians of A.M., a minor,

Defendant: Sky NJ, LLC a/k/a and/or d/b/a Skyzone Moorestown and/or a/k/a and/or d/b/a Skyzone and David R. Agger

Plaintiff Claims: Contract failed to compel arbitration

Defendant Defenses: Arbitration

Holding: For the Plaintiff

Year: 2018

Summary

When a parent cannot sign a release for a minor, because the states don’t enforce them, one option may be a binding arbitration agreement. Arbitration usually does not allow massive damages, is cheaper and quicker than going to trial.

However, your arbitration agreement, like a release, must be written in a way to make sure it is effective. This one was not, and the plaintiff can proceed to trial.

Facts

Plaintiff visited the trampoline facility in July 2016. Entrance to the park is conditioned on all participants signing a “Conditional Access Agreement, Pre-Injury Waiver of Liability, and Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate” (the Agreement). Weed executed the agreement on behalf of her son in July 2016.

Plaintiff returned to the facility with a friend in November 2016, and was injured while using the trampolines during a “Glow” event, which plaintiff submits used different and less lighting than was present at his earlier visit. Plaintiff entered the facility in November with an agreement signed by his friend’s mother on behalf of both her daughter and A.M.[2] In an affidavit submitted by Weed in opposition to the motion, she stated that she was unaware that her son was going to the facility at the time of the November visit.

After Weed filed suit on behalf of her son, defendants moved to compel arbitration pursuant to the agreement. Defendants argued that the agreements contained “straightforward, clear, and unequivocal” language that a participant was waiving their right to present claims before a jury in exchange for conditional access to the facility. They asserted that the first agreement signed by Weed remained in effect at the time of plaintiff’s subsequent visit in November as there was no indication that it was only valid for the one day of entry in July. Finally, defendants contended that any dispute as to a term of the agreement should be resolved in arbitration.

Plaintiff opposed the motion, asserting that nothing in the first agreement alerted Weed that it would remain in effect for either a certain or an indefinite period of time. To the contrary, defendants’ policy of requiring a new agreement to be signed each time a participant entered the park belied its argument that a prior agreement remained valid for a period of time.

On May 19, 2017, Judge Joseph L. Marczyk conducted oral argument and denied the motion in an oral decision issued the same day. The judge determined that the first agreement did not apply to the November visit because it did not contain any language that it would remain valid and applicable to all future visits. Therefore, there was no notice to the signor of the agreement that it would be in effect beyond that specific day of entry, and no “meeting of the minds” that the waiver and agreement to arbitrate pertained to all claims for any future injury.

As for the second agreement, the judge found that there was no precedent to support defendants’ contention that an unrelated person could bind plaintiff to an arbitration clause. This appeal followed.

Analysis: making sense of the law based on these facts.

In a state where there are no defenses except assumption of the risk for claims by minor’s arbitration can be a good way to speed up the process and limit damages. Each state has laws that encourage arbitration and, in most cases, create limits on what an arbitration panel (the people hearing the case) can award in damages. In man states, arbitration judges cannot award punitive damages.

You need to check your state laws on what if any benefits arbitration provides.

However, if you can use a release, the release is the best way to go because it cuts off all damages. Many times, in arbitration damages are awarded, they are just less.

To determine which states do not allow a parent to sign away a minor’s right to sue see States that allow a parent to sign away a minor’s right to sue.

The best way of dealing with minor claims is the defense of assumption of the risk. However, this takes more time on the front end in making sure the minor participants understand the risk before embarking on the activity.

There were two issues before the appellate court: Whether the first agreement signed by the mother of the injured plaintiff extended beyond the day it was signed. The second issue was whether a second agreement signed by a friend, not a parent, legal guardian or someone acting under a power of attorney had any legal validity.

The first agreement was silent as to how long it was valid. There was no termination date, (which is a good thing) and nothing to indicate the agreement was good for a day or a lifetime. Because the contract was blank as to when the agreement was valid, the court ruled against the creator of the contract.

There is no evidence in the record before us to support defendants’ argument as the agreements are silent as to any period of validity. Defendants drafted these agreements and required a signature from all participants waiving certain claims and requiring submission to arbitration prior to permitting access to the facility. Any ambiguity in the contract must be construed against defendants.

When a contract is written any issues are held against the writer of the agreement. Here because the contract had no end date or did not say it was good forever, there was a gap in the agreement that was held against the defendant as the writer of the agreement.

So, the court ruled the agreement signed by the mother was only valid on the day it was signed and was not valid the second time when the minor came in and was injured.

The second argument made by the defendant was the friend who signed for the minor on the second visit signed an agreement that should be enforced and compel arbitration.

The court laughed that one out the door.

We further find that defendants’ argument regarding the November agreement lacks merit. The signor of that agreement was neither a parent, a legal guardian, nor the holder of a power of attorney needed to bind the minor plaintiff to the arbitration agreement. Defendants’ reliance on Hojnowski v. Vans Skate Park, is misplaced. While the Court found that a parent had the authority to waive their own child’s rights under an arbitration agreement in Hojnowski, there is no suggestion that such authority would extend to a non-legal guardian. Not only would such a holding bind the minor to an arbitration agreement, it would also serve to bind the minor’s parents, waiving their rights to bring a claim on behalf of their child. We decline to so hold.

So Now What?

New Jersey law is quite clear. A parent cannot sign away a minor’s right to sue, Hojnowski v. Vans Skate Park. Consequently, arbitration was probably the way to go. In this case, one little slip up made the arbitration agreement worthless.

The one flaw in using an arbitration agreement is you could use a release to stop the claims for a parent. So, you should write a release that stops the claims of the parents/legal guardians and compels arbitration of the minor’s claims. Those get tricky.

And as far as another adult signing for a minor who is not their child, that is always a problem. A parent can sign for a minor, to some extent, and a spouse can sign for another spouse in certain situations. An officer of a corporation or a manager of a limited liability company can sign for the corporation or company. The trustee can sign for a trust, and any partner can sign for a partnership. But only you can sign for you.

The issue that outdoor businesses see all day long is a volunteer youth leader take groups of kids to parks, amusement rides and climbing walls, etc. Neighbors take the neighborhood kids to the zoo, and friends grab their kids’ friends to take on vacation. Unless the adult has a power of attorney saying they have the right to enter agreements on behalf of the minor child, their signature only has value if they are a celebrity or sports personality.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Texas appellate court allows a release to stop a gross negligence claim.

If you have a clause in your release that says, “except gross negligence” or something like that get rid of it. Why teach the plaintiff’s how to beat you, besides, you may win, which is what happened in this case.

Citation: Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas: Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, individually, A/N/F of XXXX (“JOHN DOE 1”) and XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

Plaintiff injured her back attempting to do a back flip on a trampoline at the defendant’s facility rendering her a paraplegic. She sued for her injuries claiming negligence and gross negligence. The court found the release stopped the plaintiff’s claims for negligence and gross negligence.

Facts

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

The trial court granted the defendant’s motion for summary judgment based on the release and denied the plaintiff’s cross motion for summary judgment. The plaintiff appealed.

Analysis: making sense of the law based on these facts.

The issue for the appellate court was whether or not the motion for summary judgment granted for the defendant, and the cross motion for the plaintiff that was denied were done so correctly. Should a release bar a claim for negligence and gross negligence under Texas law.

Release law in Texas appears to be quite specific.

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action.

To win Jumpstreet only had to show the fair notice requirement of the law was met.

Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice.

The fair notice requirement under Texas law requires the release language to be clear, unambiguous and within the four corners of the contract.

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract.

The issue the court focused on was the claim the plaintiff originally made that the defendant identified in the release was not the defendant who owned and operated the facility where she was injured. The original defendant was an LLC and had been dissolved, and a new LLC had taken its’ place. The release was not updated to show these changes.

In many states, this would have been a fatal flaw for the defendant.

The court found the defendants were owned and run by the same brothers and were the same for the purposes of this lawsuit. The new LLC replaced the old LLC and was covered by the release.

The court then looked at the release and pointed out the reasons why the release was going to be supported.

As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries, including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Furthermore, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

The plaintiff then argued the release was void because a release under Texas law cannot waive the claims of a minor when signed by a parent. The court agreed. However, since the child was not the injured plaintiff, it did not matter.

The court did look at the issue of whether or not a parent could sign away a minor’s right to sue. The court held the minor could still sue; however, a release signed by the parent would bar all the derivative claims based on the claims of the minor child. That means all claims by the parents, loss of consortium, etc., would be barred by the release. Only the claims of the minor child would survive.

The court then looked at whether a release could stop a claim for gross negligence. The court found that the decision had not been reviewed by the Texas Supreme Court and there was a mix of decisions in Texas regarding that issue.

The Texas courts that have allowed a release to top a gross negligence claim have held there is no difference between negligence and gross negligence under Texas law. The court went on to read the release and found the release in question had language that prevented claims for negligence and gross negligence. Therefore, the gross negligence claim was waived.

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law.

The release said it stopped claims for Gross Negligence and the Court agreed.

The defendant one because they had a well-written release that was easy to see and understand and said you can’t sue the defendant for negligence or gross negligence.

So Now What?

This is a first. A release was used to stop a gross negligence claim that was not based on a failure of the plaintiff to allege facts that were gross negligence. The release said it was effective against claims for negligence and gross negligence, and the court agreed.

Unless your state has specific statements were putting gross negligence in a release may void your release, or your supreme Court has specifically said a release cannot protect against gross negligence claims, you may want to add that phrase to your release.

No matter what, GET RID of clauses in your release that state the release is valid against all claims EXCEPT gross negligence. It is just stupid to put that in a release unless you have a legal system that requires it.

Putting that information into your release just tells the plaintiff and/or their attorney how to beat you. Don’t help the person trying to sue you!

Second, you never know; it may work. It did in this case in Texas.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

   

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

Word Count: 166

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues


Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

Lorianne Weed and Scott Trefero as parents and natural guardians of A.M., a minor, Plaintiffs-Respondents, v. Sky NJ, LLC a/k/a and/or d/b/a Skyzone Moorestown and/or a/k/a and/or d/b/a Skyzone and David R. Agger, Defendants-Appellants.

No. A-4589-16T1

Superior Court of New Jersey, Appellate Division

February 22, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 18, 2018

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2790-16.

Marco P. DiFlorio argued the cause for appellants (Salmon, Ricchezza, Singer & Turchi LLP, attorneys; Joseph A. Ricchezza and Marco P. DiFlorio, on the briefs).

Iddo Harel argued the cause for respondents (Ross Feller Casey, LLP, attorneys; Joel J. Feller and Iddo Harel, on the brief).

Before Judges Currier and Geiger.

PER CURIAM

Defendants Sky NJ, LLC a/k/a/ Sky Zone Moorestown and David Agger (defendants) appeal from the May 19, 2017 order denying their motion to compel arbitration in this personal injury suit brought by plaintiffs after A.M.[1] suffered severe injuries while jumping on a trampoline at defendants’ facility. After a review of the presented arguments in light of the record before us and applicable principles of law, we affirm.

Plaintiff visited the trampoline facility in July 2016. Entrance to the park is conditioned on all participants signing a “Conditional Access Agreement, Pre-Injury Waiver of Liability, and Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate” (the Agreement). Weed executed the agreement on behalf of her son in July 2016.

Plaintiff returned to the facility with a friend in November 2016, and was injured while using the trampolines during a “Glow” event, which plaintiff submits used different and less lighting than was present at his earlier visit. Plaintiff entered the facility in November with an agreement signed by his friend’s mother on behalf of both her daughter and A.M.[2] In an affidavit submitted by Weed in opposition to the motion, she stated that she was unaware that her son was going to the facility at the time of the November visit.

Both agreements required the submission of all claims to binding arbitration and contained the following pertinent language:

I understand that this Agreement waives certain rights that I have in exchange for permission to gain access to the [l]ocation. I agree and acknowledge that the rights I am waiving in exchange for permission to gain access to the [l]ocation include but may not be limited to the following:

a. the right to sue [defendants] in a court of law;

b. the right to a trial by judge or jury;

c. the right to claim money from [defendants] for accidents causing injury within the scope of the risk assumed by myself;

d. the right to claim money from [defendants] for accidents causing injury unless [defendants] committed acts of gross negligence or willful and wanton misconduct; and

e. the right to file a claim against [defendants] if I wait more than one year from . . . the date of this Agreement.

Waiver of Trial, and Agreement to Arbitrate

IF I AM INJURED AND WANT TO MAKE A CLAIM AND/OR IF THERE ARE ANY DISPUTES REGARDING THIS AGREEMENT, I HEREBY WAIVE ANY RIGHT I HAVE TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE AND JURY. I AGREE THAT SUCH DISPUTE SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF THIS AGREEMENT AND WILL BE DETERMINED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR TO BE ADMINISTERED BY JAMS[3] PURSUANT TO ITS COMPREHENSIVE ARBITRATIONRULES AND PROCEDURES.I further agree that the arbitration will take place solely in the state of New Jersey and that the substantive law of New Jersey shall apply. I acknowledge that if I want to make a claim against [defendants], I must file a demand before JAMS. … To the extent that any claim I have against [defendants] has not been released or waived by this Agreement, I acknowledge that I have agreed that my sole remedy is to arbitrat[e] such claim, and that such claim may only be brought against [defendants] in accordance with the above Waiver of Trial and Agreement to Arbitrate.

After Weed filed suit on behalf of her son, defendants moved to compel arbitration pursuant to the agreement. Defendants argued that the agreements contained “straightforward, clear, and unequivocal” language that a participant was waiving their right to present claims before a jury in exchange for conditional access to the facility. They asserted that the first agreement signed by Weed remained in effect at the time of plaintiff’s subsequent visit in November as there was no indication that it was only valid for the one day of entry in July. Finally, defendants contended that any dispute as to a term of the agreement should be resolved in arbitration.

Plaintiff opposed the motion, asserting that nothing in the first agreement alerted Weed that it would remain in effect for either a certain or an indefinite period of time. To the contrary, defendants’ policy of requiring a new agreement to be signed each time a participant entered the park belied its argument that a prior agreement remained valid for a period of time.

On May 19, 2017, Judge Joseph L. Marczyk conducted oral argument and denied the motion in an oral decision issued the same day. The judge determined that the first agreement did not apply to the November visit because it did not contain any language that it would remain valid and applicable to all future visits. Therefore, there was no notice to the signor of the agreement that it would be in effect beyond that specific day of entry, and no “meeting of the minds” that the waiver and agreement to arbitrate pertained to all claims for any future injury.

As for the second agreement, the judge found that there was no precedent to support defendants’ contention that an unrelated person could bind plaintiff to an arbitration clause. This appeal followed.

“[O]rders compelling or denying arbitration are deemed final and appealable as of right as of the date entered.” GMAC v. Pittella, 205 N.J. 572, 587 (2011). We review the judge’s decision to compel arbitration de novo. Frumer v. Nat’1 Home Ins. Co., 420 N.J.Super. 7, 13 (App. Div. 2011). The question of whether an arbitration clause is enforceable is an issue of law, which we also review de novo. Atalese v. U.S. Legal Servs. Group, L.P., 219 N.J. 430, 445-46 (2014). We owe no deference to the trial court’s “interpretation of the law and the legal consequences that flow from established facts.” Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).

Defendants argue that the trial court erred when it determined that the first arbitration agreement signed by Weed four months before plaintiff’s injury was no longer binding on the parties at the time of plaintiff’s injury. We disagree.

While we are mindful that arbitration is a favored means of dispute resolution in New Jersey, the threshold issue before us is whether Weed’s signature on the July agreement would be binding on plaintiff for all subsequent visits. We apply well-established contract principles, and ascertain the parties’ intent from a consideration of all of the surrounding circumstances. James Talcott, Inc. v. H. Corenzwit & Co., 76 N.J. 305, 312 (1978). “An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose.” Tessmar v. Grosner, 23 N.J. 193, 201 (1957).

It is undisputed that neither agreement contains any reference to a term of validity. The parties submitted conflicting affidavits in support of their respective positions. Weed stated there was nothing in the agreement she signed to apprise a participant that the agreement was in effect for longer than the day of entry. Defendants contend that plaintiff did not need a second agreement signed for the November visit as the initial agreement remained in effect.

There is no evidence in the record before us to support defendants’ argument as the agreements are silent as to any period of validity. Defendants drafted these agreements and required a signature from all participants waiving certain claims and requiring submission to arbitration prior to permitting access to the facility. Any ambiguity in the contract must be construed against defendants. See Moscowitz v. Middlesex Borough Bldq. & Luan Ass’n, 14 N.J.Super. 515, 522 (App. Div. 1951) (holding that where a contract is ambiguous, it will be construed against the drafting party). We are satisfied that Judge Marczyk’s ruling declining enforcement of the July agreement was supported by the credible evidence in the record.

We further find that defendants’ argument regarding the November agreement lacks merit. The signor of that agreement was neither a parent, a legal guardian, nor the holder of a power of attorney needed to bind the minor plaintiff to the arbitration agreement. Defendants’ reliance on Hojnowski v. Vans Skate Park, 187 N.J. 323, 346 (2006) is misplaced. While the Court found that a parent had the authority to waive their own child’s rights under an arbitration agreement in Hojnowski, there is no suggestion that such authority would extend to a non-legal guardian. Not only would such a holding bind the minor to an arbitration agreement, it would also serve to bind the minor’s parents, waiving their rights to bring a claim on behalf of their child. We decline to so hold. See Moore v. Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J.Super. 30, 45 (App. Div. 2010) (holding there is no legal theory that would permit one spouse to bind another to an agreement waiving the right to trial without securing consent to the agreement).

As we have concluded the threshold issue that neither the July nor the November agreement is enforceable as to the minor plaintiff, we do not reach the issue of whether the arbitration provision contained within the agreement accords with our legal standards and case law. Judge Marczyk’s denial of defendants’ motion to compel arbitration was supported by the evidence in the record.

Affirmed.

Notes:

[1] Lorianne Weed is A.M.’s mother. Because A.M. is a minor, we use initials in respect of his privacy and we refer to him hereafter as plaintiff.

[2] The agreement required the adult to “certify that [she was] the parent or legal guardian of the child(ren) listed [on the agreement] or that [she had] been granted power of attorney to sign [the] Agreement on behalf of the parent or legal guardian of the child(ren) listed.” There were no proofs presented that the adult met any of these requirements.

[3] JAMS is an organization that provides alternative dispute resolution services, including mediation and arbitration.

 


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

Graciela Quiroz, individually, A/N/F OF XXXX (“JOHN DOE 1”) AND XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually, A/N/F OF XXXX (“JOHN DOE 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees

No. 05-17-00948-CV

Court of Appeals of Texas, Fifth District, Dallas

July 9, 2018

On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. 15-02671

Before Myers, Boatright, and O’Neill Justices. [1]

MEMORANDUM OPINION

MICHAEL J. O’NEILL JUSTICE, ASSIGNED

Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.

Background

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

Issue Presented

In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.

Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.

Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.

Applicable Law

We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.- Dallas 2009, no pet.); see also Tex. R. Civ. P. 166A(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.- Dallas 2011, no pet, ).

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.

Discussion

Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Mo., Kan. & Tex. Ry. Co. of Tex. v. Carter, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.

Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).

The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.

Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.-Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. Moreover, the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799- 800 (Tex. App.-Houston [14th Dist.] 1998, no pet.).

Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.-Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.[2] Some appellate courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.-San Antonio 1994, writ denied).

In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.-Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.-Beaumont 1986, no writ).

Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.

We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.

On Appeal from the 298th Judicial District Court, Dallas County, Texas Trial Court Cause No. 15-02671. Opinion delivered by Justice O’Neill. Justices Myers and Boatright participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.

—–

Notes:

[1] The Hon. Michael J. O’Neill, Justice, Assigned

[2] We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.

gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues


Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.

Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas, Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”)

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.

However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.

Facts

The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.

The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.

The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.

The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”

…it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.

Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.

Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.

The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.

The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.

The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.

The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.

(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)

The court looked at the release which identified negligence and gross negligence as claims that the release would stop.

Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.

…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

The court affirmed the trial court’s dismissal of the plaintiff’s claims.

So Now What?

First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.

In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.

Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.

Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.

What do you think? Leave a comment.

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Quiroz v. Jumpstreet8, Inc., 2018 Tex. App. LEXIS 5107

Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees

No. 05-17-00948-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2018 Tex. App. LEXIS 5107

July 9, 2018, Opinion Filed

PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.

In re Quiroz, 2017 Tex. App. LEXIS 7423 (Tex. App. Dallas, Aug. 7, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.

OUTCOME: Order affirmed.

CORE TERMS: summary judgment, entity, gross negligence, public policy, negligence claims, partial, matter of law, cause of action, pre-injury, consortium, waive, cross-motion, notice requirements, trampoline, bystander, specifically named, unenforceable, signing, mental anguish, signature line, conspicuousness, distinguishable, enforceable, derivative, lettering, parental, waiving, notice, void, issue of material fact

COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.

For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.

JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.

1 The Hon. Michael J. O’Neill, Justice, Assigned

OPINION BY: MICHAEL J. O’NEILL

OPINION

MEMORANDUM OPINION

Opinion by Justice O’Neill

Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.

Background

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release [*2] and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted [*3] the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

Issue Presented

In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion [*4] for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.

Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.

Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release [*5] before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.

Applicable Law

[HN1] We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.–Dallas 2009, no pet.); see also Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. [*6] S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. [HN2] A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.–Dallas 2011, no pet,).

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.

Discussion

[HN3] Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written [*7] expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

[HN4] A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of [*8] Jumpstreet.”

The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.

Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document [*9] carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).

The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of [*10] risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.

Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.–Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. [*11] Moreover, [HN5] the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799-800 (Tex. App.–Houston [14th Dist.] 1998, no pet.).

Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.–Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.2 Some appellate courts have held that negligence [*12] and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied).

2 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.

In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).

Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the [*13] claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.

We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.

/s/ Michael J. O’Neill

MICHAEL J. O’NEILL

JUSTICE, ASSIGNED

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.

Judgment entered this 9th day of July, 2018.


Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

Motions by the defendant eliminated a lot of the claims of the plaintiff; however, the reckless claims are always a pain used to negotiate a settlement. If the judge bought the idea, maybe the plaintiff can get the jury to buy the idea.

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

State: Ohio, Court of Common Pleas, Summit County, Civil Division

Plaintiff: Michael A. Cantu, et al,

Defendant: Flytz Gymnastics, Inc., et al,

Plaintiff Claims: Negligence, willful, wanton and reckless action and Product Liability

Defendant Defenses: Release, Assumption of the Risk and the Statute of Repose

Holding: For the Defendant and the Plaintiff

Year: 2016

Summary

Recreation activities have moved indoors for more than 75 years. Now, all sorts of outdoor recreation activities have moved indoors and created additional activities and variations of those activities.

This decision concerns injuries received when the plaintiff jumped into a foam pit. The plaintiff and friends were there to practice skiing jumps. When the plaintiff landed he became a quadriplegic and sued for negligence, gross negligence and product liability claims.

Facts

The plaintiff and his friends decided to go to the defendant’s facility to practice skiing flips. The facility had a foam pit where the participants could land. While using a springboard to go over a vault the plaintiff landed head first in the pit sustaining a spinal cord injury rendering him a quadriplegic.

The plaintiff was a minor and had been driven to the facility by his mother. Both, he and his mother signed the release to participate in the activity. His mother claimed the form was long, and she did not read it. (The release was one page.)

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long,….

The plaintiff and his parents admitted they had signed releases before, knew that the activities were risky and had participated in other risky activities and had been injured doing so.

The defendants filed a motion for summary judgment, and this is the decision of the court.

Analysis: making sense of the law based on these facts.

Ohio allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue and Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998).

The release in question described the risks of the activity and included the risks and resulted in the plaintiff suffered, “including permanent disability, paralysis and death, which may be caused.”

A release is a contract and under Ohio law to be valid a contract must be “clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware.” The court found this release met those requirements.

The plaintiffs argued the they were fraudulently induced to sign the release. A release signed by fraudulent inducement is voidable upon proof of the fraud. However, that fraud must be than saying you were misled if a reading of the contract would have shown that was not the case.

A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.”

The court found there was no fraud because the release itself was clear and there was no evidence from the plaintiff of any act or action that was fraudulent by the defendants.

The court granted the defendants motion for summary judgment to the negligence claims of the plaintiff.

The court also would have granted summary judgment to the defendants because the plaintiff assumed the risk of his injuries.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.”. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.”

The defense is not affected on whether or not the participant was able to appreciate the inherent dangers in the activity.

To defeat a primary assumption of risk defense the plaintiff must be able to prove the defendant’s conduct was reckless or intentional, and it does not matter if it is adults or minors organized or unorganized, supervised or unsupervised.

The plaintiff could not prove the actions of the defendant were reckless or intentional.

Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.

However, this part of the decision treads a narrow classification of the facts because the court found the plaintiff had pled enough facts for the reckless or intentional conduct claims to survive. The plaintiff pleaded and argued facts along with his expert witness “Defendant level of supervision and safety procedures, and whether, Defendant’s actions or inactions rose to the level of recklessness.”

The plaintiff’s expert argued the defendant failed to:

…ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution.

The final claim was a product liability claim arguing the foam pit was defective. The defendant argued the statute of repose applied.

The statute of repose is a statute that says if a claim against a product has not occurred in the first ten years after its creation, then no claims can be made after that period of time.

…no cause of action based on a product liability claim shall accrue against the manufacturer or sup-plier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another product.

The foam pit had been constructed in 2000, and the plaintiff’s injury occurred in 2011. Consequently, the ten-year statute of repose had run preventing the plaintiff’s product liability claim.

The court granted the defendants motion for summary judgment for all claims of the plaintiff except for the claim of recklessness, which could lead to punitive damages.

So Now What?

Foam pits, trampolines, free fall towers join climbing walls indoors as types of activities or training for outdoor recreation activities are popping up everywhere. What used to be confined to Olympic training venues can now be accessed on the corner with a credit card.

We are going to see more of these types of actions. Like any recreational activity, they advertise, make promises, and are still in a growing mode both in the number of locations and the learning process in how their liability will evolve.

What do you think? Leave a comment.

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Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Michael A. Cantu, et al, Plaintiffs vs. Flytz Gymnastics, Inc., et al, Defendants.

CASE NO. CV-2014-01-0317

State of Ohio, Court OF Common Pleas, Summit County, Civil Division

2016 Ohio Misc. LEXIS 12186

June 2, 2016, Filed

CORE TERMS: summary judgment, reckless, wanton, willful, gymnastics, waiver form, moving party, nonmoving party, pit, releasee, liability claim, recreational activities, issue of material fact, genuine, foam, claims of negligence, repose, sports, genuine issue, initial burden, punitive damages, recklessness, inducement, indemnity, matter of law, fact remains, loss of consortium, inherent risks, assumption of risk, proprietor’

JUDGES: [*1] TAMMY O’BRIEN, JUDGE

OPINION BY: TAMMY O’BRIEN

OPINION

ORDER

The matters before the Court are, Defendant, Flytz Gymnastics, Inc.’s Motion for Summary Judgment filed on January 29, 2016, and, Defendant, John King’s Motion for Summary Judgment filed on January 29, 2016., Plaintiffs filed Separate Briefs in Opposition to these motions on March 4, 2016. Both, Defendants, Flytz Gymnastics, Inc. (“Flytz”) and John King (“King”), filed Reply briefs on March 21, 2016. For the reasons which follow, the Court GRANTS IN PART AND DENIES IN PART, Defendants’ Motions for Summary Judgment.

ANALYSIS

A. Facts:

The instant action arises out of an incident which occurred on August 22, 2011. On that day, Plaintiff Michael Cantu, sustained catastrophic personal injury when he attempted to use a spring board to go over a vault at Flytz Gymnastics and landed head first into a foam block pit. See, Plaintiffs’ Amended Complaint., Plaintiff sustained a spinal cord injury which left him a quadriplegic. See, Plaintiffs’ Amended Complaint.

Plaintiffs, Michael Cantu and his parents, have sued Flytz and its owner, King, alleging that they are liable for his injury., Plaintiffs have alleged that Flytz was negligent with respect to the “open [*2] gym night” attended by Michael Cantu and his friends and that this negligence resulted in Michael’s injury., Plaintiffs have further alleged that the conduct of Flytz and its employees, including King, was willful, wanton and reckless. In addition, Plaintiffs have brought a product liability claim against Flytz under R.C. 2307.71 et seq., Plaintiff’s parents, Aaron and Kristine Cantu, have also asserted a loss of consortium claim.

On the day in question, Michael was with a group of friends when one of them suggested that the group go to Flytz. Michael Cantu depo. at 57. This friend had been to Flytz before to practice his skiing flips. Id. at p. 43. Michael Cantu testified that the group intended to use the trampoline to practice ski tricks. Id. at 43, 63 and 93. Michael’s mother, Kristine Cantu, drove the group to Flytz.

Cantu and his friends were given Nonmember Release and Waiver Forms to read and sign. Because Michael was a minor, his mother signed the form on his behalf. Flytz Motion for Summary Judgment Exhibit B at pp. 32 and 33. Both Michael and his mother have acknowledged that neither of them read the entire form before Kristine signed it. Exhibit A at 69 and 103; Exhibit B at 34 and 35.

Subsequent [*3] to his injury, Kristine Cantu claimed that, had she read the release, she would never have allowed her son to participate in the activities. However, there is undisputed testimony from both Kristine and Michael Cantu that, throughout his life, Michael Cantu participated in many sports activities and many recreational activities, and that his mother signed release forms on his behalf in the past. Flytz Motion, Exhibit A at 18, 103; Flytz Motion, Exhibit Bat 15-16.

Plaintiff Michael Cantu, was involved in many sports and recreational activities and both he and his mother testified that they were aware that, inherent in those activities, there was always the risk of injury. Michael had previously participated in football, karate, volleyball and golf, and was interested in skiing, snowboarding and skateboarding. In fact, Plaintiff acknowledged he had sustained prior sports injuries. Flytz Motion, Exhibit B at 13-18.

Defendant Flytz moves for summary judgment on several bases which include the, Plaintiffs’ execution of a Release and Waiver form, the doctrine of primary assumption of the risk, lack of evidence of willful and wanton conduct by the, Defendants, and the statute of repose., Defendant [*4] King also moves for summary judgment.

B. Law and Analysis:

1. Standard.

In reviewing, Defendants’ Motions for Summary Judgment, the Court must consider the following: (1) whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the evidence in a light most favorable to the non-moving party it appears that reasonable minds could come to but one conclusion; and (3) whether the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996); Wing v. Anchor Media, L.T.D., 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). If the Court finds that the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.E.2d 265 (1986).

Civ.R. 56(C) states the following, in part, in regards to summary judgment motions:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of the evidence in the pending case, and written stipulations of fact, if any timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Where a party seeks summary judgment on the ground that the nonmoving party cannot [*5] prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. Dresner, 75 Ohio St.3d at 293. The Dresner court continued, the moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Banks v. Ross Incineration, 9th App. No. 98CA007132 (Dec. 15, 1999).

In this case, [*6] as demonstrated below, this Court finds that summary judgment is appropriate as to the, Plaintiffs’ claims of negligence, but finds that a genuine issue of material fact exists as to, Plaintiffs’ claims of reckless and wanton conduct and punitive damages.

2. Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement (“Release and Waiver”).

The Release and Waiver Form signed by, Plaintiff Kristine Cantu, is entitled, “Nonmember/Special Event/Birthday Party Activity, Release and Waiver Form.” Flytz Motion, Exhibit C. After the name of the person and contact information, the verbiage of the release and waiver form warns that “this activity involves risks of serious bodily injury, including permanent disability, paralysis and death.” Id.

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Kristine Cantu depo. at 15-16. Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long, as is shown in part below:

Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement

In consideration [*7] of participating in the activities and programs at FLYTZ GYMNASTICS, INC., I represent that I understand the nature of this activity and that I am qualified, in good health, and in proper physical condition to participate in such activity. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participation in this activity. I fully understand that this activity involves risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by my own actions, or inactions, those of others participating in the event, the condition in which the event takes place, or the negligence of the “releasees” named below, and that there may be other risks either not known to me or not readily foreseeable at this time and I fully accept and assume all risks and all responsibility for losses, cost and damages I incur as a result of my participation in the activity.

I hereby release, discharge, and covenant not to sue FLYTZ GYNMASTICS, INC., its respective administrators, directors, agents, officers, volunteers, and employees, other participants, any sponsors, advertisers and if applicable, owners and lessors of premises on which [*8] the activity takes place (each considered one of the “RELEASEES” herein) from all liability, claims, damages, losses or damages, on my account caused, or alleged to be caused, in whole, or in part, by the negligence of the “releasees” or otherwise, including negligent rescue operations and further agree that if, despite this release, waiver of liability and assumption of risk, I, or anyone on my behalf makes a claim against any of the Releasees, I will indemnify, save and hold harmless each of the Releasees from any loss, liability, damage or cost which may incur as a result of such claim.

I have read the RELEASE AND WAIVER OF LIABIITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion of this agreement is held to be invalid the balance, notwithstanding, shall continue in full force and effect.

The form specifically acknowledges that the activities and programs at Flytz involved “risks of serious bodily injury, [*9] including permanent disability, paralysis and death which may be caused” by the releasee’s actions or by the actions of others. It further identifies that “there may be risks either not known” or “not readily foreseeable” and that the releasee “accepts and assumes all risks for losses and damages.” Id. The form further releases claims of negligence by Flytz and includes a covenant not to sue, as well as indemnity and hold harmless provisions. The release was signed by Kristine Cantu on behalf of her son and indicated that she understood all the risks involved.

It is well established in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384; Zivich v. Mentor Soccer Club, Inc. 82 Ohio St.3d 367, 696 N.E.2d 201, 1998-Ohio-389. As noted by the Ninth District Court of Appeals, in order to be upheld, the contract must be clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist. 1997). In the instant action, the Release and Waiver Form signed by Kristine Cantu clearly meets these requirements.

Plaintiffs argue [*10] that the intake clerk, Stacey King, did not specifically advise Kristine that, by signing the forms, she would be absolving Flytz of liability for injuries sustained by her son, by his negligence or the negligence of others., Plaintiffs attempt to circumvent the Release and Waiver by alleging it is unenforceable because of fraud in the inducement. They argue that Kristine Cantu was induced to sign the form upon misrepresentations made by Stacey King.

The Court notes that, Plaintiffs have not pled fraud in their Amended Complaint. Even if, Plaintiffs can be found to have properly pled a claim of fraud in the inducement, a release obtained by fraudulent inducement is merely voidable upon proof of fraud. Holler v. horror Corp., (1990), 50 Ohio St.3d 10, 14 at ¶ 1 of the syllabus. “A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.” Haller, supra at 14. In the instant action, there is no evidence of fraud. The Court finds that, Plaintiffs were advised of [*11] serious inherent risks by virtue of the Release and Waiver Form. Accordingly, the Court GRANTS summary judgment on any claims of negligence.

3. Primary Assumption of Risk.

Even without the Release and Waiver, this Court would also find that the, Defendants are entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” Aber v. Zurz, 9th Dist No. 23876, 2008-Ohio-778, ¶9. “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.” (Citations omitted.) Bastian v. McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio – l149, ¶11.

As noted by the Ohio Supreme Court, the determining fact in such cases is the conduct of the defendant, “not the [*12] participant’s or spectator’s ability or inability to appreciate the inherent dangers of the activity.” Gentry v. Craycraft, 101 Ohio St.3d 141, 802 N.E.2d 1116, 2004-Ohio-

379, ¶9. To survive a primary assumption of risk claim, the, Plaintiff must prove the defendant’s conduct was reckless or intentional. Furthermore, “the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised.” Gentry, supra at ¶8.

In the instant action, there can be no dispute that, Plaintiff Michael Cantu was engaged in a recreational activity at the time of his injury. Likewise, there can be no dispute that a fall, like that sustained by Michael, is an inherent risk in gymnastics, particularly when one is using a springboard to go over a piece of equipment. As such, there can be no recovery by, Plaintiffs unless it can be shown that Flytz’s actions were either “reckless” or “intentional.” Gentry, supra at ¶6 quoting Marchetti, supra at syllabus; see also, Mainv. Gym X-Treme, 10th Dist. No. 11A0-643, 2102-Ohio-1315 (Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity [*13] unless the defendant acted recklessly or intentionally in causing the injuries. Id. at9.)

Accordingly, Defendants entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk. However, because the, Plaintiffs also claim that, Defendants acted in a reckless, willful and wanton manner, this does not end the analysis.

3. Reckless or Intentional Conduct and Punitive Damages.

The Supreme Court of Ohio has held that there can be no liability for injuries arising out of sporting or recreational activities unless the defendant was reckless or intentionally injured the, Plaintiff. Marchetti v. Kalish, 53 Ohio St.3d 95, 96-98, 559 N.E.2d 699 (1990). In this case, the Court finds that there are genuine issues of material fact as to whether or not, Defendants engaged in recklessness or willful or wanton conduct which resulted in injury to Michael Cantu.

All parties cite to testimony which appears to create genuine issues of material fact related to the instructions given by the, Defendants, Michael Cantu’s responding behavior, Defendant level of supervision and safety procedures, and whether, Defendants actions or inactions rose to the level of recklessness.

Plaintiffs have also cited the testimony [*14] of their expert, Gerald S. George, PhD. Dr. George reviewed industry rules and regulations and examined the facts and evidence in this case. Dr. George admitted that under “appropriate conditions, gymnastics is a reasonably safe and healthy activity for young people.” He, however, cautioned that “in the absence of appropriate safeguards, however, gymnastics becomes an unreasonably dangerous activity. Report at p. 2. Dr. George opines that, Defendants violated a number of safety regulations including “failing to ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution. [*15]

Upon this examination, the Court determines that genuine issues of material fact related to, Defendants’ alleged recklessness and/or willful and wanton conduct exist. Therefore, summary judgment is inappropriate on this issue. Because a question of fact remains on the issue of reckless and/or willful and wanton conduct, summary judgment on the issue of punitive damages is also denied.

4. Ohio’s Product Liability Statute, R.C. 2307.71et seq.

Defendants have also moved for summary judgment on the, Plaintiffs’ product liability claim related to the foam pit into which Michael Cantu fell., Defendants argue that this claim is barred by the statute of repose. This Court agrees.

The statute of repose applicable to claims of product liability, R.C. 2305.10 (C) (1) provides:

Except as provided in division (C)(2), (3), (4), (5), (6), and (7) of this section or in Section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another [*16] product.

The evidence demonstrated that the foam pit was constructed in 2000, and that there were no modifications to the pit at any time thereafter. John King depo. at 61, 67 and 85., Plaintiff’s accident occurred on August 22, 2011, 11 years after the installation of the foam pit. Pursuant to the specific language of R.C. 2305.10 (C) (1), Plaintiffs’ product liability claim is barred by the statute of repose.

From review of, Plaintiff’s brief, Plaintiffs appear to have abandoned this argument. Also, as discussed above, claims for negligence have been released by the, Plaintiffs. However, even barring that analysis, the statute of repose also applies to the, Plaintiffs’ product liability claim, and this claim is, therefore, barred.

5. Consortium.

The claims for loss of consortium by Michael Cantu’s parents, and punitive damages claim are directed at both, Defendants. A cause of action that is based upon loss of consortium is a derivative claim. Messmore v. Monarch Mach Tool Co., 11 Ohio App.3d 67 (9th Dist., 1983). As this Court has determined that, Plaintiff Michael Cantu is not entitled to recovery on negligence claims, the same applies to his parents. However, as genuine issues of material fact remain on the issues of reckless and/or willful and wanton conduct, as well [*17] as on punitive

damages, this Court denies summary judgment to both defendants on the loss of consortium and punitive damages claims.

CONCLUSION

Upon due consideration, after review of the briefs of the parties, the applicable law, exhibits, testimony and other evidence, the Court GRANTS, Defendants’ Motions for Summary Judgment as a matter of law on, Plaintiffs’ negligence claims. However, the Court finds that genuine issues of material fact remain as to whether, Defendants were reckless or acted in a willful or wanton manner. Accordingly the Court DENIES summary judgment as it pertains to, Plaintiffs’ claims of recklessness, and their claims for punitive damages.

The Final Pretrial previously schedule on July 22, 2016 at 8:30 AM, as well as the trial date of August 1, 2016, are confirmed.

IT IS SO ORDERED.

/s/ [Signature]

JUDGE TAMMY/O’BRIEN

Attorneys Terrance P. Gravens/Kimberly A. Brennan

Attorney Michael W. Czack