Minnesota Appellate court upholds a release signed by a mother for a child’s injuries

Court also upheld the settlement agreement signed by the parents was valid to prohibit a claim by the minor after turning age 18

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

State:
Minnesota, Court of Appeals of Minnesota

Plaintiff: Carter Justice

Defendant: Marvel, LLC d/b/a Pump It Up Parties

Plaintiff Claims: negligently failed to cover the landing surface of the fall zone surrounding the inflatable

Defendant Defenses: Settlement and Release

Holding: For the Defendant

Year: 2021

Summary

The plaintiff was injured as a minor at an indoor recreation facility. The parents settled with the facility at the time of the injury. When the minor reached the age of majority in Minnesota he sued the facility. The Appellate court upheld the release signed by the parent to stop the minors claims and the settlement agreement.

Facts

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement….

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel.

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

This is the first case I’ve found in the recreation community where a minor sued upon reaching the age of majority for an injury the minor received years before. Injured minors are the lawsuits that seem to hang on forever. In some cases, you want the parents to present a claim so you can deal with it and not possible wait tent to fifteen years for the minor to turn 18 (or 19 or 21 dependent on the state See The age that minors become adults.) to sue on their own.

The defendant had two defenses. 1. The release that the mother had signed for her son at the time of the injury (pre-injury release). 2. The release the mother and father had signed at the time of the injury to settle the claim (post injury release).

The court looked at the basic issues surrounding a parents’ right to raise a child and whether this right includes the right to sign away a minor’s right to sue.

His first argument for voiding the release is also unique. After his mother signed the release, Minnesota passed a statute to regulate amusement parks like this and in the process lost the right to have a parent sign away a minor’s right to sue.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children. The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child.

(This has been adopted by all states, yet most State Supreme Courts do not believe that a parent has the right to sign away a child’s right to sue. They can provide medical care to the child that might kill them, but they can’t allow them to be injured.)

The court then reviewed all the ways that the state of Minnesota has by statute given parents the right to control the child upbringing. The court then made this statement supporting the right of a parent to sign away the right to sue.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

The next issue was a statute posted after the release was signed would void the release.

Three years after the plaintiff’s mother signed the release, Minnesota enacted Minn. Stat. 184B.20 Inflatable Amusement Equipment. The statute had a specific provision which voided releases signed by a parent for a minor.

Subd. 5. Insurance required; waiver of liability limited.

(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.

The plaintiff argued that this statute should be used to void a release. However, a basic tenet of the law is “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Even if the legislature intends for a law to retroactive it is very rarely upheld as valid. No business could continue if at any time in the future the law could change making the action or business illegal.

The plaintiff then argued the release was void because it was “overly broad and contrary to public policy.” Minnesota law follows the law in most other states on interpreting an overly broad release and public policy issues.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.”

Minnesota has a two prongs test to determine if a contract violates public policy.

The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).”

The plaintiff argued the release was a violation of public policy because his mother could not negotiate the release and as such he would not have been permitted to attend the birthday party if she had not signed the release. This argument might work for a real necessity, however in recreation cases it fails because the services can always be obtained elsewhere.

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.”

But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.”

The release was found to not violate public policy because:

…exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

The next argument was the scope of the release was too broad because the language tries to stop claims for “intentional, willful or wanton acts.” However, the release itself only referred to claims for negligence. However, this was not enough of a restriction under Minnesota law the court concluded.

Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

The court concluded the language of the release was overly broad when it did language in the release purported to release the defendant from more than simple negligence claims. The court then examined whether this issue was enough to void the release.

The court in a prior decision, repeated here found that although the language of the release may purport to cover greater than ordinary negligence, a release under Minnesota law could only release from ordinary negligence. So, no matter what the release said or was interpreted to say, it could not protect from simple negligence claims.

We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract. ” (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence.

Overly broad language, concerning the extent of the protection provided by the release, did not void the release.

Finally, the court reviewed the plaintiff’s argument that the post injury release signed by the plaintiff’s parents to settle their claims at the time of the injury was not valid. The plaintiff argued legal technical claims about the signing and validity of the release, which the court rejected.

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

So Now What?

One of the confusing points of this case is why did the amusement industry allow Minn. Stat. 184B.20 Inflatable Amusement Equipment to be passed. It provided no protection for the industry or operators, placed a mandatory insurance requirement and worst voided the use of a release for a minor in one of the few states where a minor can have a parent sign away their rights.

The two other issues, the signing of a release by a parent to stop the claims of a child, which is not moot for inflatable amusement devices, and the concept of a minor suing after his parents have settled a claim, after reaching the age of majority are rare and decided by the court in a manner that upholds the validity of a contract.

If settlement and post injury release signed by the parents had been thrown out, this would create a nightmare of litigation. No one would settle any claim of a minor until the minor reached the age of majority since any settlement might be void. No matter how badly a parent might want to pay medical bills or move on, no insurance company would offer a payment knowing they could be sued later.

What do you think? Leave a comment.

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Jim Moss

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Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

965 N.W.2d 335

Carter JUSTICE, Appellant,
v.
MARVEL, LLC d/b/a Pump It Up Parties, Respondent.

A20-1318

Court of Appeals of Minnesota.

Filed July 19, 2021
Granted in part October 19, 2021

Mahesha P. Subbaraman, Subbaraman, P.L.L.C., Minneapolis, Minnesota; and Patrick W. Michenfelder, Throndset Michenfelder, L.L.C., St. Michael, Minnesota (for appellant)

Joseph A. Nilan, Daniel A. Ellerbrock, Jacob T. Merkel, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, Minnesota (for respondent)

Matthew J. Barber, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota (for amicus curiae Minnesota Association for Justice)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Gaïtas, Judge.

OPINION

JOHNSON, Judge

When he was seven years old, Carter Justice attended a birthday party at a business that provided inflatable amusement equipment on which children were allowed to jump, climb, and play. Before entering the party, Justice’s mother signed a form agreement that included an exculpatory clause that released the business from any and all claims she and Justice might have based on his use of the inflatable amusement equipment. During the party, Justice fell off an inflatable obstacle course and hit his head on the floor, which caused him a head injury.

When Justice was 18 years old, he sued the business that hosted the birthday party. The district court denied Justice’s motion to amend the complaint to seek punitive damages. The district court later granted the defendant’s motion for summary judgment on the ground that the exculpatory clause signed by Justice’s mother is valid and enforceable. We conclude that the district court did not err by granting the motion for summary judgment. Therefore, we affirm.

FACTS

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement that stated as follows:

In consideration of being allowed to enter into the play area and/or participate in any party and/or program at Pump It Up of Plymouth, MN, the undersigned, on his or her own behalf, and/or on behalf of the participant(s) identified below, acknowledges, appreciates and agrees to the following conditions:

I represent that I am the parent or legal guardian of the Participant(s) named below …

….

I, for myself and the participant(s) nanied below, hereby releaseMARVEL, LLC, dba Pump It Up of Plymouthfrom and against any and all claims, injuries, liabilities or damages arising out of or related to our participation inthe use of the play area and/or inflatable equipment. (Emphasis added.)

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel. He alleged that Marvel had “negligently failed to cover the landing surface of the fall zone surrounding the inflatable.” In March 2020, Justice moved to amend the complaint to add a request for punitive damages. In April 2020, the district court denied the motion to amend.

In May 2020, Marvel moved for summary judgment on the ground that Justice’s claim is barred by the exculpatory clause that his mother signed and, in addition, by the post-injury agreement that both of the Suttons signed. In August 2020, the district court granted the motion for summary judgment, reasoning that Justice’s claim is barred by the pre-injury exculpatory clause. Justice appeals.

ISSUE

Did the district court err by granting Marvel’s motion for summary judgment based on the exculpatory clause that Justice’s mother signed on his behalf when he was a minor child?

ANALYSIS

On appeal, Justice makes two arguments. First, he argues that the district court erred by granting Marvel’s motion for summary judgment. Second, he argues that the district court erred by denying his motion to amend the complaint to add a request for punitive damages. We begin by addressing his first argument, which is dispositive of the appeal.

A district court “shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the nomnoving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies a de novo standard of review to the district court’s legal conclusions on summary judgment and views the evidence in the light most favorable to the party against whom summary judgment was granted. Commerce Bank v.
West Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015).

Justice argues that the district court erred on the ground that the exculpatory clause is invalid and unenforceable for five reasons. First, he argues that a pre-injury exculpatory clause releasing claims arising from the use of inflatable amusement equipment is void as a matter of law pursuant to a statute that was enacted after Justice’s mother signed Marvel’s exculpatory clause. Second, he argues that a parent does not have authority to agree to a pre-injury exculpatory clause on behalf of a minor child and that any such agreement is not binding on the child after he becomes an adult. Third, he argues that Marvel’s exculpatory clause is invalid and unenforceable because it is overly broad or arguably overbroad and in violation of public policy. Fourth, he argues that the post-injury agreement abrogated or modified the pre-injury exculpatory clause. And fifth, he argues that there is a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. We will consider each of Justice’s arguments but in a different order.

A. Parental Authority

Justice argues that a parent does not have authority to agree to a pre-injury exculpatory clause on behalf of a minor child and that any such agreement is not binding on the child after he becomes an adult.1 Neither party has cited any Minnesota caselaw that is directly on point, and we are unaware of any such caselaw.2

The district court ruled in favor of Marvel on this issue by stating that “a parent may sign a waiver on behalf of a child under the laws of Minnesota.” In support of this statement, the district court quoted the following sentence in SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) : “A parent’s right to make decisions concerning the care, custody, and control of his or her children is a protected fundamental right.” Id. at 820 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ). The supreme court’s statement in SooHoo was made in the context of analyzing an argument that a custodial parent of a minor child has a constitutional right to substantive due process with respect to governmental interference with the parent-child relationship. Id. There was no issue in that case concerning a parent’s authority to enter into a contract on behalf of a minor child. See
id. at 819-26.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” id. at 820, implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.” Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2505, 61 L.Ed.2d 101 (1979). This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Id. at 602, 99 S. Ct. at 2504. Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children.” Id. (citing 1 William Blackstone, Commentaries of the Law of England 447 (Legal Classics Library 1983) (1769); 2 James Kent, Commentaries on American Law 190 (1827)). The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child. Id. at 604, 99 S. Ct. at 2505.

Several Minnesota statutes recognize by implication that a parent generally is authorized to enter into agreements with third parties on behalf of a minor child. For example, in matters related to education, the legislature has recognized that parents have authority to make binding decisions on behalf of their minor children. See, e.g., Minn.Stat. §§ 120A.22, subds. 4-5, 8, 120A.3 8, 120B.07 (2020). Similarly, in the context of medical care, the legislature has provided for only a limited number of situations in which a parent’s consent to the medical treatment of a minor child is unnecessary, thereby implying that, in all other situations, a parent’s agreement or consent is necessary. For example, a minor child “may give effective consent to personal medical, dental, mental and other health services” only if the minor child is “living separate and apart from parents or legal guardian … and is managing personal financial affairs.” Minn. Stat. § 144.341 (2020). In addition, a health-care provider may give emergency treatment to a minor child without parental consent only if “the risk to the minor’s life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.” Minn. Stat. § 144.344 (2020). Each of these statutes presupposes that a parent generally has authority to make decisions on behalf of a minor child.

The legislature’s recognition of a parent’s authority to enter into an agreement on behalf of a minor child also is reflected in two recent statutes that are especially pertinent to this case. In 2010, the legislature passed, and the governor signed, a bill to regulate inflatable amusement equipment in various ways. 2010 Minn. Laws ch. 347, art. 3, § 2, at 46 (codified at Minn. Stat. § 184B.20 (2020) ). One provision of the statute (which is discussed further below in part B) broadly prohibits exculpatory clauses with the following language: “A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.” Minn. Stat. § 184B.20, subd. 5(b) (emphasis added). The italicized language in section 184B.20 would be unnecessary unless another person—such as a parent—has authority to sign a waiver of liability on behalf of a minor child. Also, in 2013, the legislature and the governor enacted a law to, among other things, prohibit exculpatory clauses that purport to release claims of greater-than-ordinary negligence in the context of consumer services, including recreational activities. 2013 Minn. Laws ch. 118 (codified at Minn. Stat. § 604.055 (2020) ). The statute applies to agreements entered into by “a minor or another who is authorized to sign or accept the agreement on behalf of the minor. ” Minn. Stat. § 184B.20, subd. 2 (emphasis added). Again, the italicized language impliedly recognizes that, in the absence of the statute, another person—such as a parent—may be authorized to sign agreements of that type, which is the same general type of agreement as the exculpatory clause in this case.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

Justice contends that a parent should not be permitted to bind his or her minor child to an exculpatory clause after the child becomes an adult because a minor child who independently enters into a contract may avoid the contract after reaching adulthood. See
Kelly v. Furlong, 194 Minn. 465, 261 N.W. 460, 466 (1935) ; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N.W. 283, 284-85 (1884) ; Dixon v. Merritt, 21 Minn. 196, 200 (1875). This rule of law exists “for the protection of minors, and so that they shall not be prejudiced by acts done or obligations incurred at a time when they are not capable of determining what is for their interest to do.” Goodnow, 18 N.W. at 284. For that reason, “the law gives them an opportunity, after they have become capable of judging for themselves, to determine whether such acts or obligations are beneficial or prejudicial to them, and whether they will abide by or avoid them.” Id. at 284-85. But that rationale simply does not apply if an adult parent signed an exculpatory clause on behalf of a minor child. An adult parent is presumed to be competent to make decisions on behalf of a minor child and to act in the child’s best interest. See
Parham, 442 U.S. at 602, 99 S. Ct. at 2504. Such a parent may balance the relevant considerations and either elect to sign an exculpatory clause on behalf of a minor child and thereby obtain the benefits of doing so or elect to not sign it and thereby forego any such benefits.

Justice also contends that a parent should not be permitted to sign an exculpatory clause on behalf of a minor child before any injury occurs because a parent is not permitted to settle a pending lawsuit on behalf of a minor child after a child has been injured, unless a district court approves. Justice refers to a statute that authorizes a parent to “maintain an action for the injury of a minor son or daughter” and also provides, “No settlement or compromise of the action is valid unless it is approved by a judge of the court in which the action is pending.” Minn. Stat. § 540.08 (2020). Justice’s contention fails to recognize the differences between the two situations. Section 540.08 guards against the risk that a parent might enter into an improvident settlement that is not in the minor child’s best interests or the risk that a parent might be motivated by an intent to use settlement proceeds for improper purposes. Such risks are especially ripe after a child has been injured and a civil action has been commenced and settled. But such risks are not present and are unlikely to arise in the more common situation in which a parent is presented with an exculpatory clause and no injury has yet occurred. In that situation, there is no immediate prospect of a settlement that is contrary to a minor child’s best interests.

Justice contends further that this court held in O’Brien Entertainment Agency, Inc. v. Wolfgramm, 407 N.W.2d 463 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987), that a parent’s agreement on behalf of his minor children was unenforceable. We disagree with Justice’s interpretation of our opinion in O’Brien
. The opinion states that a father of six children signed a contract, but the opinion does not clearly state that the father signed the contract on behalf of his children. Id. at 465-66. Absent from the court’s reasoning is any statement that the father purported to enter into the contract on behalf of his children. See
id. at 466-67. We concluded that the statute of frauds barred the breach-of-contract claim against the children because none of the children signed the contract. Id. at 466. Thus, our opinion did not address the question whether a parent may enter into a contract on behalf of a minor child.

In sum, various provisions of Minnesota law recognize that a parent may enter into an agreement on behalf of a minor child. Recent statutory enactments clearly indicate that the legislature has assumed that a parent is authorized to sign an exculpatory clause—including an exculpatory clause concerning the use of inflatable amusement equipment—on behalf of a minor child. Justice has not cited any Minnesota authority for the proposition that a parent may not enter into an agreement on behalf of a minor child.

Thus, the district court did not err by reasoning that Justice’s mother was authorized to sign Marvel’s exculpatory clause on Justice’s behalf.

B. Section 184B.20

Justice also argues that section 184B.20 of the Minnesota Statutes, which was enacted in 2010, voids the exculpatory clause that his mother signed in 2007 because the statute voids all waivers of claims based on injuries caused by the use of inflatable amusement equipment.

As noted above, section 184B.20 provides, “A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.” Minn. Stat. § 184B.20, subd. 5(b). The session law that led to the codification of this statute states that the law “is effective August 1, 2010.” 2010 Minn. Laws ch. 347, art. 3, § 2, at 46. The district court rejected Justice’s argument that section 184B.20 voids Marvel’s exculpatory clause on the grounds that Justice’s mother signed the exculpatory clause before the statute’s effective date and that the legislature did not intend for the statute to apply retroactively.

” ‘No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.’ ” In re Individual 35W Bridge Litigation, 806 N.W.2d 811, 819 (Minn. 2011) (A09-1776) (hereinafter 35W Bridge (A09-1776)
) (quoting Minn. Stat. § 645.21 (2010) ). One way in which the legislature may indicate its intent for a law to operate retroactively is to use the term “retroactive.” Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn. 1985).

Justice does not argue that the legislature intended the statute to apply retroactively. Instead, he contends that the statute’s application in this case would be a prospective application, not a retroactive application. But the supreme court has stated, “A statute operates retroactively if it affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.” 35W Bridge (A09-1776), 806 N.W.2d at 819-20 (quotation omitted). If section 184B.20 were applied to this case, it would affect the parties’ respective rights and obligations concerning events—the signing of Marvel’s exculpatory clause and Justice’s head injury—that occurred more than three years before the effective date of the statute. Such an application would result in a retroactive application of the statute because it would affect rights and obligations that were pre-existing when the statute became effective. See id.

Justice attempts to avoid a retroactive characterization by relying on Tapia v. Leslie, 950 N.W.2d 59 (Minn. 2020), in which the supreme court concluded that a 2014 statutory amendment governed a 2017 application for a permit to carry a pistol. Id. at 63. In Tapia, the relevant statute was amended three years before the application for a permit, which was the operative event. Id. In this case, the statute was enacted three years after Justice’s mother agreed to the exculpatory agreement. Thus, Tapia is distinguishable from this case.

Justice also contends that the application of section 184B.20 in this case would not impair any vested rights belonging to Marvel. The existence of vested rights may, in certain circumstances, defeat the intended retroactive application of a statute if retroactive application would be unconstitutional. See
In re Individual 35W Bridge Litigation, 806 N.W.2d 820, 829-33 (Minn. 2011) (A10-0087); Peterson v. City of Minneapolis, 285 Minn. 282, 173 N.W.2d 353, 357-58 (1969) ; Yaeger v. Delano Granite Works, 250 Minn. 303, 84 N.W.2d 363, 366-67 (1957) ; Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 250 Minn. 130, 84 N.W.2d 282, 287 (1957) ; K.E. v. Hoffman, 452 N.W.2d 509, 512-13 (Minn. App. 1990), review denied (Minn. May 7, 1990). This understanding of vested rights is apparent in Larson v. Independent School District No. 314, 305 Minn. 358, 233 N.W.2d 744 (1975), the case on which Justice primarily relies in his principal brief. In Larson, the supreme court concluded that the retroactive application of a rule of civil procedure, as intended, did not “deprive[ ] defendants of vested rights of property and privacy in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution.Id. at 748 (emphasis added). Outside the context of land use and zoning, the vested-rights doctrine simply does not affect the determination of whether a statute is intended to have retroactive application. Cf . Interstate Power Co. v. Nobles County Bd. of Commissioners, 617 N.W.2d 566, 575-78 (Minn. 2000) (citing cases). Because we have determined that the legislature did not intend for section 184B.20 to apply retroactively, the vested-rights doctrine is not relevant.

Thus, the district court did not err by reasoning that section 184B.20 does not apply retroactively to Justice’s mother’s agreement to Marvel’s exculpatory clause.

C. Marvel’s Exculpatory Clause

Justice also argues that Marvel’s exculpatory clause is unenforceable on the grounds that it is overly broad and contrary to public policy.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.” Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 789 (Minn. 2005) (citing Schlobohm, 326 N.W.2d at 923 ).

1. Public Policy

Justice contends that Marvel’s exculpatory clause is unenforceable on the ground that it is contrary to public policy.

The supreme court has prescribed a “two-prong test” to determine whether an exculpatory clause is contrary to public policy. Schlobohm, 326 N.W.2d at 923. The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).” Id. In this case, the district court determined that Marvel’ s exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” Id. at 924. More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.” Id. at 924-25. Consequently, there is no disparity in bargaining power, for purposes of the Schlobohm public-policy analysis, if a consumer has the choice to simply forego the activity. See
Beehner v. Cragun Corp., 636 N.W.2d 821, 827-28 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 730 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). There is no evidence in the summary-judgment record that the services Marvel provided were unavailable else where, and we may presume that Justice was not compelled to participate in the birthday party because the provision of inflatable amusement equipment is not a necessary service. Thus, as in Schlobohm and Malecha, there was no disparity in bargaining power, as required for a conclusion that an exculpatory clause is contrary to public policy.

Justice also contends that the type of services offered by Marvel causes its exculpatory clause to be incompatible with public policy. He likens Marvel’s services to the “[t]ypes of services thought to be subject to public regulation,” such as “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Schlobohm, 326 N.W.2d at 925. But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.” Id. at 926. Subsequent opinions have relied on this principle in concluding that the use of an exculpatory clause in connection with a recreational activity is not contrary to public policy. See
Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 802 (Minn. App. 2006) (health club); Beehner, 636 N.W.2d at 829 (horseback riding); Malecha, 392 N.W.2d at 730 (skydiving). A business that provides inflatable amusement equipment is well within the category of recreational activities for which exculpatory clauses are not prohibited.

Justice counters that providing inflatable amusement equipment is the type of service that is “generally thought suitable for public regulation,” Schlobohm, 326 N.W.2d at 925, because it now is, in fact, regulated by statute, as of 2010. See Minn. Stat. § 184B.20; 2010 Minn. Laws ch. 347, art. 3, § 2, at 46. Furthermore, he contends that Marvel’s exculpatory clause is contrary to public policy because the legislature has declared that all exculpatory clauses concerning inflatable amusement equipment are void. To rely on section 184B.20 for purposes of the Schlobohm public-policy analysis would be, in effect, to apply the statute retroactively. We have already concluded that section 184B.20 does not apply retroactively to an exculpatory clause that was signed before the statute’s effective date. See supra part B. Accordingly, Justice cannot rely on section 184B.20 to establish that Marvel’s exculpatory clause is contrary to public policy in the sense described in Schlobohm.

Thus, the district court did not err by reasoning that Marvel’s exculpatory clause does not violate public policy.

2. Scope of Release

Justice contends that Marvel’s exculpatory clause is unenforceable on the ground that it purports to release Marvel from claims arising from Marvel’s intentional, willful or wanton acts. Justice alternatively contends that Marvel’s exculpatory clause is unenforceable on the ground that it is ambiguous with respect to whether it releases Marvel from claims arising from Marvel’s intentional, willful or wanton acts.

Exculpatory clauses are permissible but not favored and, thus, are “strictly construed against the benefited party.” Schlobohm, 326 N.W.2d at 923. An exculpatory clause is unenforceable if it is “either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts.” Id.

By signing Marvel’s exculpatory clause, Justice’s mother agreed, on her own behalf and on behalf of Justice, to “release … MARVEL, LLC, … from and against any and all claims, injuries, liabilities or damages.” (Emphasis added.) The plain language of this clause purports to release claims of both ordinary negligence and greater-than-ordinary negligence, including claims based on intentional, willful or wanton acts. Marvel contends that its exculpatory clause is similar to exculpatory clauses in other cases in which the appellate courts concluded that the clauses were limited to ordinary negligence. In each of those cases, however, the exculpatory clause expressly referred to claims of “negligence,” which provided the appellate courts with a basis for concluding that the clauses were limited to claims of ordinary negligence. See
Schlobohm, 326 N.W.2d at 922-23 ; Anderson, 712 N.W.2d at 799, 801 ; Malecha, 392 N.W.2d at 728-30 ; see also Beehner, 636 N.W.2d at 825-27. But Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

3. Effect of Overbreadth

Having determined that Marvel’s exculpatory clause is overly broad, we must consider the consequences of that determination. The question arises whether Marvel’s exculpatory clause is completely unenforceable, even with respect to claims of ordinary negligence, or unenforceable only to the extent that Justice asserts a claim of greater-than-ordinary negligence. Justice contends that an overly broad exculpatory clause is “invalid,” without discussing more specifically the nature or extent of its invalidity. Marvel argues only that the exculpatory clause is valid, without making any alternative argument about whether or how this court should apply the exculpatory clause if it is invalid.

This court considered this precise issue in Anderson, in which we characterized a health club’s exculpatory clause as “arguably ambiguous.” 712 N.W.2d at 801. The plaintiff had asserted only a claim of ordinary negligence. Id. We stated that it “would subvert the parties’ manifested intent” to conclude that the plaintiffs ordinary-negligence claim was not barred by a release that clearly released such a claim. Id. We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract.Id. (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence. See id. ; see also
ADT Security Services, Inc. v. Swenson, 276 F.R.D. 278, 300-01 (D. Minn. 2011) (concluding that overly broad nature of exculpatory clause “limit[s] its applicability to claims which do not implicate willful and wanton negligence or intentional behavior”).

Thus, the district court did not err by enforcing Marvel’s exculpatory clause and concluding that it released Justice’s claim of ordinary negligence, even though the clause is overly broad.

D. Greater-than-Ordinary Negligence

Justice argues that he has introduced evidence that is sufficient to create a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. In response, Marvel argues that Justice did not preserve this argument because he did not present it to the district court.

Marvel is correct. Justice did not argue to the district court that Marvel’s summary-judgment motion should be denied on the ground that there is a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. The district court expressly stated in its order that “Plaintiffs claims are based solely on negligence, and there is no claim by Plaintiff nor evidence in the record to suggest that Defendant or its employees acted willfully, intentionally or wantonly.” Justice is making a claim of greater-than-ordinary negligence for the first time on appeal. In that situation, an appellate court generally will not consider an argument that was forfeited because it was not presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ; Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d 38, 42-43 (Minn. App. 2014).

Justice contends that he adequately preserved a claim of greater-than-ordinary negligence by pleading his claim broadly. He also contends that he raised an issue of greater-than-ordinary negligence in his motion to amend the complaint to add a request for punitive damages. Regardless of how Justice pleaded his claim or claims in his complaint, and regardless of the arguments he made with respect to a different motion, he had an obligation to oppose Marvel’s summary-judgment motion by submitting and citing admissible evidence in support of all of his claims and by presenting all of his legal arguments for denying the motion. See
DLH, Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn. 1997) ; Hunt v. IBM Mid Am. Emps. Fed. Credit Union, 384 N.W.2d 853, 855-56 (Minn. 1986) ; Molde v. CitiMortgage, Inc., 781 N.W.2d 36, 44 (Minn. App. 2010) ; Fontaine v. Steen, 759 N.W.2d 672, 676 (Minn. App. 2009). But Justice did not mention a claim of. greater-than-ordinary negligence in his memorandum of law in opposition to Marvel’s motion.

Thus, we will not consider Justice’s argument that the district court should have denied Marvel’s summary-judgment motion with respect to a claim of greater-than-ordinary negligence. See
Thiele, 425 N.W.2d at 582 ; Doe 175 , 842 N.W.2d at 42-43.

E. Post-Injury Agreement

Justice argues that the district court erred by reasoning that the agreement signed by his mother and step-father in September 2007, after Justice was injured, does not abrogate or modify the exculpatory clause.

The September 2007 agreement provides, in relevant part,

As of the date of this Agreement, Carter Justice seems to have recovered completely from the Accident and has been removed from any restrictions by his attending physician(s). Parents agree that if there are no new medical complications arising as a result of the Accident within six months following the date of this Agreement they will execute a full and complete release and discharge of any and all claims against [Marvel] stemming from the Accident.

Justice argued to the district court that this post-injury agreement abrogated the exculpatory clause on the ground that the parties “agreed to substitute a new contract” for the exculpatory clause. The district court rejected the argument, reasoning that the post-injury agreement does not abrogate or modify the exculpatory clause because it does not refer to the exculpatory clause and because it states that it is not “an admission of any fault or legal liability.”

On appeal, Justice contends that the post-injury agreement abrogates the exculpatory clause because the post-injury agreement is specifically related to Justice’s head injury, Justice’s mother and step-father agreed to release claims arising from Justice’s head injury only if certain conditions were present, and the conditions stated in the post-injury agreement were not present. In response, Marvel contends that the post-injury agreement did not modify the exculpatory clause because the agreement does not refer to the waiver and because it was entered into by Justice’s mother and step-father on their own behalf but not on behalf of Justice.

Justice’s argument requires us to interpret the post-injury agreement, which is a contract. “The primary goal of contract interpretation is to determine and enforce the intent of the parties.” Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004). “Where there is a written instrument, the intent of the parties is determined from the plain language of the instrument itself.” Id. If a contract is clear and unambiguous, courts should apply the plain language of the contract and “not rewrite, modify, or limit its effect by a strained construction.” Id. This court applies a de novo standard of review to a district court’s interpretation of a contract. Id.

The district court correctly interpreted the post-injury agreement. It is an agreement between Marvel and Justice’s mother and step-father but not between Marvel and Justice, the two parties to this case. It does not refer to the pre-injury exculpatory clause in any way. It provided for the possibility of “a full and complete release and discharge of any and all claims against [Marvel] stemming from” Justice’s injury. If such a release had been signed, it would have provided Marvel with an additional defense to Justice’s claim. But Justice’s mother and step-father never signed the release that was contemplated by the post-injury agreement. The absence of a second release does not in any way alter the release contained in the exculpatory clause that was signed by Justice’s mother on the day of Justice’s injury.

Thus, the district court did not err by reasoning that the post-injury agreement does not abrogate or modify the exculpatory clause.

DECISION

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

Affirmed.

——–

Notes:

1 Marvel contends that Justice did not preserve this argument by presenting it to the district court. Marvel’s contention is colorable because Justice presented the issue to the district court in a somewhat indirect manner. But the district court determined that the issue was presented, stating that it “was addressed in the [parties’] memoranda and is therefore worth clarifying.” Accordingly, the argument is sufficiently preserved for appellate review.

2 The Minnesota Association for Justice has filed an amicus brief supporting Justice’s position. The association notes that a person may void a contract that he or she entered into as a minor, contends that compensation of children who are tort victims is an important objective, and asserts that courts in 17 other states do not enforce parental waivers of minors’ claims. Our research indicates that courts in other states have resolved the issue in various ways. Courts in some states have enforced exculpatory clauses signed by a parent on behalf of a minor child. See, e.g.,
Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 745-47 (2002) ; BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345, 353-55 (2013) ; Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 206-07 (1998). Courts in other states have not enforced such exculpatory clauses. See, e.g., Woodman ex rel. Woodman v. Kera, LLC, 486 Mich. 228, 785 N.W.2d 1, 8 (2010) ; Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) ; Scott v. Pacific W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 10-12 (1992).

——–


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.

———


Hojnowski v. Vans Skate Park, 187 N.J. 323; 901 A.2d 381; 2006 N.J. LEXIS 1080

Hojnowski v. Vans Skate Park, 187 N.J. 323; 901 A.2d 381; 2006 N.J. LEXIS 1080

Andrew Hojnowski, a Minor, through his Parents and Guardians Ad Litem, Jerry Hojnowski and Anastasia Hojnowski and Jerry Hojnowski and Anastasia Hojnowski, in their own right, Plaintiffs-Respondents and Cross-Appellants, v. Vans Skate Park, Defendant-Appellant and Cross-Respondent, and Mccown Deleeuw Company, John Doe(s) Skate Park Owner (a fictitious name) and Jane Doe(s) Insurance Company (for med pay only), Defendants.

A-17/A-45 September Term 2005

SUPREME COURT OF NEW JERSEY

187 N.J. 323; 901 A.2d 381; 2006 N.J. LEXIS 1080

January 30, 2006, Argued

July 17, 2006, Decided

PRIOR HISTORY: [***1] On appeal from the Superior Court, Appellate Division, whose opinion is reported at 375 N.J. Super. 568, 868 A.2d 1087 (2005).

Hojnowski ex rel. Hojnowski v. Vans Skate Park, 375 N.J. Super. 568, 868 A.2d 1087, 2005 N.J. Super. LEXIS 79 (App.Div., 2005)

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiffs, a minor and his parents, sued defendant skate park for negligence. The park moved to compel arbitration; the trial court granted the park summary judgment and dismissed the suit. Plaintiffs appealed; the New Jersey Superior Court, Appellate Division, affirmed the grant of summary judgment but held that the waiver of liability contained in a pre-injury release signed by a parent was void. Plaintiffs sought further review.

OVERVIEW: Plaintiffs alleged the minor fractured his femur when an aggressive skateboarder, about whom his parents had complained to the park, forced him off a skateboard ramp. One parent had executed a release on the minor’s behalf that provided for mandatory arbitration of claims against the park and limited its liability. Plaintiffs moved to invalidate the release; the trial court did not rule on the validity of the limitation of liability, leaving this issue for the arbitrators to decide. The intermediate appellate court held that the arbitration provision was valid, that the trial court should have ruled on the validity of the liability waiver, and that it was invalid. The high court agreed. Under the parens patriae doctrine, the public policy of New Jersey prohibited a parent of a minor child from releasing the child’s potential tort claims arising out of the use of a commercial recreational facility. But under the public policy expressed in the New Jersey Arbitration Act, former N.J. Stat. Ann. §§ 2A:24-1 to -11, a parent’s agreement to arbitrate was enforceable against any tort claims asserted on the minor’s behalf, in the absence of fraud, duress, unconscionability, or ambiguity.

OUTCOME: The high court affirmed the judgment of the intermediate appellate court and referred the matter to the arbitrator for further proceedings.

CORE TERMS: arbitration, pre-injury, minor child, public policy, exculpatory, parental, settlement, bind, post-injury, tort claims, arbitration agreements, agreement to arbitrate, recreational, enforceable, arbitrator, arbitrate, arbitration provision, unenforceable, public interest, inherent risks, reasonableness, guardian, waive, commercial enterprise, recreational facility, best interests, cause of action, invalidate, implicate, patriae

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Andrew Hojnowski, a minor v. Vans Skate Park, et als. (A-17/45-05)

Argued January 30, 2006 — Decided July 17, 2006

ZAZZALI, J., writing for the Court.

The issue before the Court is whether a parent can bind a minor child to either a pre-injury waiver of liability or an agreement to arbitrate.

In January 2003, twelve-year-old Andrew Hojnowski was injured while skateboarding at a facility operated by Vans, Inc. (Vans). On a previous visit to the facility, Andrew’s mother had executed a release on Andrew’s behalf, which was required in order for Andrew to enter the skate park. The exculpatory release contained a clause agreeing to submit any claims against Vans to arbitration, as well as provisions limiting Vans’ liability for injury.

[***2] In August 2003, Andrew, acting through his parents as guardians ad litem, and his parents, in their own right, filed suit against Vans. Their complaint alleges, among other things, negligent supervision and failure to warn, and negligent failure to provide a safe place. Vans responded by filing a demand for commercial arbitration with the American Arbitration Association. The Hojnowskis then moved to enjoin the arbitration and invalidate the pre-injury release signed by Andrew’s mother and Vans cross-moved for summary judgment. The trial court granted Vans’ motion, dismissing the Hojnowskis’ complaint without prejudice and ordering arbitration. The trial court did not rule on the validity of the liability release, finding the issue for the arbitrators to determine.

On appeal, the Appellate Division unanimously affirmed the trial court’s grant of summary judgment in respect of the validity of the arbitration provision. In addition, the panel found that because the issue presented a question of public policy, the trial court should have ruled on the validity of the waiver. The panel was divided in its resolution of that question. The majority determined that a pre-injury release [***3] of liability executed by a parent on behalf of a minor child violates public policy and is, therefore, unenforceable. The dissent argued that the court should have deferred to the parent’s decision to enter into the agreement and, hence, should have enforced the waiver.

Vans appealed to the Supreme Court as of right on the issue of the validity of the pre-injury release of liability. The Court granted certification on the question of whether a parent can bind a minor child to arbitration.

HELD: Although a parent may agree to bind a minor child to an arbitration provision, which in essence constitutes a choice of forum, a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility.

1. Because exculpatory agreements can encourage a lack of care, courts closely scrutinize liability releases and invalidate them if they violate public policy. The relevant public policy implicated in this case is the protection of the best interests of the child under the parens patriae doctrine, which refers to the State’s capacity as provider of protection to those unable to care [***4] for themselves. In keeping with that doctrine, the Legislature and the courts have historically afforded considerable protections to claims of minor children. The most significant of those protections concerns the compromise or release of a minor’s post-injury claims, requiring the parent to obtain statutory or judicial approval to dispose of the minor’s existing cause of action. The purpose underlying the post-injury settlement rule also applies in the pre-injury context. (Pp. 9-15)

2. Business owners owe invitees a duty of reasonable or due care to provide a safe environment because it is the business owners who are in the best position to control the risk of harm. In this case, the risk of loss should fall on the party best suited to avert injury. The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train staff in respect of the facility’s proper operation, and regulate the types of activities permitted to occur. The business operator can also obtain insurance and spread the costs of insurance among its customers. Children are not in a position to discover hazardous conditions or insure against risks. In addition, the expectation [***5] that a commercial facility will be reasonably safe is especially important where the patron’s are minors. To permit waivers of liability would remove a significant incentive for operators of these types of facilities that attract children to take reasonable steps to protect their safety. The overwhelming majority of jurisdictions are in accord with the decision to invalidate such waivers. (Pp. 15-19)

3. In view of the protections that New Jersey historically has afforded to a minor’s claims and the need to discourage negligent activity on the part of commercial enterprises attracting children, a parent’s execution of a pre-injury release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable. (P.19)

4. Vans’ remaining contentions are unconvincing. Van’s argument that allowing a pre-injury release of a minor’s potential tort claim is no different than a parent’s decision never to bring suit on the child’s behalf ignores the tolling provisions enabling a minor to retain the right to sue for most personal injuries for two years after reaching the age of majority. Nor does the Court accept the argument that the parental release [***6] implicates the parent’s fundamental right to direct the upbringing of the child. Nor is the Court persuaded by the argument that such releases are necessary to ensure the continued validity of businesses offering sports activities to minors. Tort liability is not an unreasonable economic restraint on the ability of business owners to operate commercial recreational facilities. (Pp. 19-23)

5. Federal policy has favored the enforcement of arbitration agreements for many years. In New Jersey, arbitration is also a favored means of dispute resolution. An agreement to arbitrate generally will be valid under State law unless it violates public policy. Allowing a parent to bind a minor child to arbitrate future tort claims is not contrary to the Court’s duty as parens patriae to protect the best interests of the child. A pre-injury agreement to arbitrate does not require the minor to give up any substantive rights; rather, it specifies only the forum in which those rights are redressed. Furthermore, 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. Case law [***7] from other jurisdictions reinforces this conclusion. (Pp. 23-31)

Judgment of the Appellate Division is AFFIRMED and the matter is referred to an arbitrator for further proceedings consistent with this opinion.

JUSTICE LaVECCHIA, concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins, is in full agreement with that portion of the majority’s decision that affirms the enforcement of the parties’ agreement to subject their dispute to arbitration. Justice LaVecchia dissents from the majority’s invalidation of the waiver of liability that the parties executed as a condition of the minor’s use of Van’s property to skateboard. Because the type of waiver entered into in this case generally would be enforceable as against an adult, there is no reason why this Court should prevent a parent from ratifying such a waiver on behalf of the minor, provided that a court or arbitrator determines that the release is reasonable.

COUNSEL: Richard C. Wischusen argued the cause for appellant and cross-respondent (Reilly, Supple & Wischusen, attorneys; Alex W. Raybould, on the briefs).

Robert A. Porter argued the cause for respondents and cross-appellants (Bafundo, [***8] Porter, Borbi & Clancy, attorneys).

David G. Evans submitted a brief on behalf of amicus curiae, Pacific Legal Foundation.

JUDGES: Justice ZAZZALI delivered the opinion of the Court. Justice LaVECCHIA, concurring in part and dissenting in part. Justice RIVERA-SOTO joins in this opinion. Chief Justice PORITZ and Justices LONG, ZAZZALI, ALBIN and WALLACE. Justices LaVECCHIA and RIVERA-SOTO. CHIEF JUSTICE PORITZ and JUSTICES LONG, ALBIN, and WALLACE join in JUSTICE ZAZZALI’s opinion. JUSTICE LaVECCHIA filed a separate opinion concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins.

OPINION BY: ZAZZALI

OPINION

[*327] [**383] Justice ZAZZALI delivered the opinion of the Court.

In this appeal, we must determine whether a parent can bind a minor child to either a pre-injury waiver of liability or an agreement to arbitrate. In January 2003, twelve-year old Andrew Hojnowski was injured while skateboarding at a skate park facility operated by defendant Vans, Inc. (Vans). On a previous visit to the facility, Andrew’s mother had executed a release on Andrew’s behalf. That release contained a clause agreeing to submit any claims against Vans to arbitration, as well as a provision limiting Vans’ liability. After Andrew and his parents (plaintiffs) brought suit seeking recovery for Andrew’s injuries, Vans filed for commercial arbitration. Plaintiffs then moved to enjoin arbitration and to invalidate the [***9] liability release signed by Andrew’s mother.

The trial court found that plaintiffs were bound by the arbitration provision and dismissed their complaint without prejudice. The court declined to rule on whether the liability release was valid, concluding that that issue should be determined by the arbitrator. On appeal, the Appellate Division unanimously voted to uphold the arbitration provision but divided on the validity of the liability release. The majority determined that a pre-injury release of liability executed by a parent on behalf of a minor child violates public policy and is therefore unenforceable. The dissent argued that the court should have deferred to the parent’s decision to enter into the agreement and enforced the waiver. We affirm the majority and hold that although a parent may agree to bind a minor child to an arbitration provision, which in essence constitutes a choice of forum, a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility. Pursuant to our parens patriae duty to protect the best interests [*328] of the child, we will not enforce such a release [***10] in the context of this case.

I.

In January 2003, twelve-year old Andrew Hojnowski and his mother, Anastasia Hojnowski, visited a Vans Store in Moorestown, New Jersey. Defendant Vans operated the retail store that sold skateboards and related merchandise and maintained a recreational skateboard facility. To enter the skate park, Vans required Andrew’s mother to sign an exculpatory release. It appears that Andrew’s mother did not execute a release on the date in question but had executed a release in December 2002, which Vans had kept on file.

The release, entitled “RELEASE AND WAIVER OF LIABILTY AND JURY TRIAL WITH INDEMNITY (FOR ALL VANS SKATEPARKS, STORES AND FACILITIES (COLLECTIVELY, ‘PARKS’) IN NEW JERSEY),” begins by stating:

Please read this document. It affects Your legal rights against Vans, Inc. if you are injured. Do not sign this document unless you understand it. If You are a minor, Your parent or guardian is required to sign this legal document.

The document then provides, in relevant part:

2. Can You Make A Claim For Money If You Are Injured?

If you are injured and want to make a claim, you must file a demand before the American Arbitration [***11] Association (the “AAA”). . . . You agree that any dispute between You and Vans will be decided by the AAA. Vans, Inc. will pay all costs of the arbitration for You. . . .

[**384] 3. Vans Is Asking You To Give Up Legal Rights in Order to Enter This Park

Because using Vans’ Park, or even entering the Park as a spectator may increase your risk of harm, Vans is asking you to give up certain valuable legal rights. Here are the rights you are giving up when you sign this document:

(a) You give up your right to sue Vans in a court of law.

(b) You give up your right to a trial by jury.

(c) You give up the right to claim money from Vans if you are injured unless Vans intentionally failed to prevent or correct a hazard caused by unsafe equipment or devices.

(d) You give up the right to claim money from Vans if you wait more than one year from the injury in order to make a claim.

[*329] (e) You give up the right to claim money from Vans, Inc. if you are injured by another person.

(f) You give up the right to recover damages to punish or make an example of Vans, Inc.

4. Rights You Do Not Give Up

You do not give up the right:

(a) To have safe equipment, [***12] structures and devices at the Park for Your intended use.

(b) To claim compensation for Your injury from Vans, Inc. if you are hurt because the equipment, structures and devices at the Park are not safe for Your intended use.

. . . .

(e) To make a claim if Vans, Inc. or anyone working for Vans, Inc. intentionally hurts you.

5. Who Is Bound By This Document?

You are bound by this document. Anyone who has or can obtain Your rights is also bound by this document, such as Your family, relatives, guardians, executors or anyone responsible for You. . . .

6. Other Information Important For You To Know

You have the right to demand money if You believe Vans, Inc. intentionally caused You harm. If parts of this document are determined to be invalid, then that portion will be unenforceable and the remainder of the document will continue in full legal force and effect. . . .

Following those provisions, Andrew’s mother answered “Yes” to the question: “Do You understand that You are giving up rights by signing this document if You are hurt?” The document also informed customers that “[b]y signing this document You agree that Vans, Inc. may rely [***13] on Your answers.” Andrew’s mother signed the release on Andrew’s behalf in the space provided beneath that provision.

Plaintiffs claim that, during his use of Vans’ facility in January 2003, Andrew suffered a fractured femur when an aggressive skateboarder, about whom his parents had complained to Vans, forced him off a skateboard ramp. Consequently, in August 2003, Andrew, acting through his parents as guardians ad litem, and his parents, in their own right, filed suit against Vans. Their complaint alleges that Vans “negligently fail[ed] to supervise the activities at the skate park, negligently failed to control activities of aggressive skateboarders, negligently failed to warn Plaintiffs’ parents that [*330] the activities of aggressive skateboarders would not be monitored, and negligently failed to provide a safe place to skateboard.” Plaintiffs also filed suit against an unnamed corporate owner and insurance company. Vans responded by filing a demand for commercial arbitration with the American Arbitration Association. [**385] Plaintiffs then moved to enjoin the arbitration and to invalidate the pre-injury release signed by Andrew’s mother, and Vans cross-moved for summary judgment. The [***14] trial court granted Vans’ motion, dismissing plaintiffs’ complaint without prejudice and ordering arbitration. The trial court, however, did not rule on the validity of the liability release, finding that the issue is “for the arbitrators to determine.”

On appeal, the Appellate Division unanimously affirmed the trial court’s grant of summary judgment concerning the validity of the arbitration provision. Hojnowski v. Vans Skate Park, 375 N.J. Super. 568, 574-75, 868 A.2d 1087 (App.Div.2005). The panel held that “a parent can enter into an enforceable contract, binding on the parent’s minor child, that waives the right to trial by jury of the minor’s bodily injury claims and requires submission of ‘any dispute’ to arbitration.” Ibid. The panel also found that because the validity of a pre-injury liability waiver presents a question of public policy, the trial court should have ruled on the waiver’s validity and not referred that question to the arbitrator. Id. at 581-82, 868 A.2d 1087. The panel then divided on the resolution of that issue.

The majority concluded that, under the circumstances of this matter, a parent lacks the authority “to sign a pre-tort [***15] agreement limiting the liability of a tortfeasor to exclude negligent conduct” and therefore voided the release. Id. at 583, 868 A.2d 1087. The majority reasoned that “the judiciary must stand as guardians of the State’s children” and that

[w]ere [the court] to decide otherwise, [it] would be relieving an alleged wrongdoer from its traditional legal responsibility to provide compensation for injuries caused by its negligence and shifting the economic burden to families, public welfare agencies and private charities without any concomitant benefit to either an injured child or his parents.

[*331] [Id. at 590, 868 A.2d 1087.]

Judge Fisher dissented, arguing that the court should have enforced the liability waiver and deferred to a parent’s decision regarding such matters. Id. at 591-92, 868 A.2d 1087 (Fisher, J., concurring in part and dissenting in part). In his view, “in the absence of parental unfitness, courts should not overrule parental decisions but should instead defer to a parent’s own weighing of the benefits and risks when entering into agreements that relate to the activities of their children.” Id. at 592, 868 A.2d 1087 (Fisher, J., concurring [***16] in part and dissenting in part).

Vans appealed to this Court as of right on the issue of the validity of the pre-injury release of liability. R. 2:2-1(a)(2). We also permitted the Pacific Legal Foundation to submit a brief as amicus curiae on that issue and granted plaintiffs’ petition for certification on the question whether a parent can bind a minor child to arbitration. 1 185 N.J. 36, 878 A.2d 853 (2005).

1 On appeal, plaintiffs did not raise the issue of the enforceability of the arbitration provision or the pre-injury liability release against the parents in their own right. Accordingly, our analysis is limited to a determination of the enforceability of those provisions against the minor child. Because the issue is not before us, we neither express nor imply an opinion concerning whether a waiver-of-rights provision of the nature entered into by the parties would be enforceable as against an adult.

II.

We first address whether New Jersey’s public policy permits [***17] a parent to release a minor child’s potential tort claims arising out of the minor’s use of a commercial recreational facility. Plaintiffs argue that [**386] a parent may not waive a minor child’s right to sue for negligence. Relying on Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 267 A.2d 557 (Law Div.1970), and numerous out-of-state decisions, plaintiffs claim that the vast majority of states have held that a parent’s attempt to waive a child’s prospective cause of action is void as a matter of public policy. Plaintiffs assert that public policy disfavors pre-injury waivers of liability [*332] because they encourage tortious conduct by absolving a commercial enterprise of its ordinary duty to exercise due care. Plaintiffs also maintain that because a parent is not permitted to settle a child’s post-injury tort claim without judicial approval, a parent should not be allowed to waive a child’s potential claim before an injury occurs.

Defendant recognizes that the enforcement of parental liability waivers has been “treated in varied fashions by different states.” However, defendant asserts that “[t]he more substantial and well-considered decisions favor enforcement [***18] of exculpatory agreements based on the fundamental right of parents to raise their children as they decide.” Defendant further contends that it is “erroneous” to equate pre-tort releases of liability with post-tort releases because “[t]he conflict of interest and potential for harm to befall a minor are far different in the context of a release of an accrued tort claim where settlement funds are present and may be misappropriated.” Finally, defendant claims that “[w]ithout enforceable [r]eleases many activities available to children may be forced to close due to liability concerns.”

A.

We begin our analysis of that issue by noting that there is ambiguity in the pre-injury release concerning whether the agreement extinguishes or merely limits plaintiffs’ ability to recover against defendant for negligence. For example, although paragraph 3(c) provides that plaintiffs have “give[n] up the right to claim money from [defendant] unless [defendant] intentionally failed to prevent or correct a hazard caused by unsafe equipment or devices,” paragraph 4(b) states that plaintiffs have not “give[n] up the right to claim compensation [if] the equipment, structures and devices [***19] at the Park are not safe for [their] intended use.” We need not determine the precise scope and meaning of those terms, however, because we hold that the public policy of New Jersey prohibits a parent of a minor child from releasing a minor child’s [*333] potential tort claims arising out of the use of a commercial recreational facility.

B.

[HN1] Exculpatory agreements have long been disfavored in the law because they encourage a lack of care. See, e.g., Gershon v. Regency Diving Ctr., 368 N.J. Super. 237, 247, 845 A.2d 720 (App.Div.2004); Ultimate Computer Servs., Inc. v. Biltmore Realty Co., 183 N.J. Super. 144, 151, 443 A.2d 723 (App.Div.), certif. denied, 91 N.J. 184, 450 A.2d 522 (1982). For that reason, courts closely scrutinize liability releases and invalidate them if they violate public policy. See, e.g., Lucier v. Williams, 366 N.J. Super. 485, 491, 841 A.2d 907 (App.Div.2004) (“[C]ourts have not hesitated to strike limited liability clauses that are unconscionable or in violation of public policy.”). It is well settled that to contract in advance to release tort liability resulting from intentional or reckless conduct [***20] violates public policy, Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 580, 111 A.2d 425 (App.Div.1955); Restatement (Second) of Contracts § 195 (1981), as does a contract that releases liability from a statutorily-imposed duty, [**387] McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). Further, courts have found that exculpatory agreements for negligence claims violate public policy in a variety of settings, such as in residential leases, Cardona v. Eden Realty Co., 118 N.J. Super. 381, 384, 288 A.2d 34 (App.Div.), certif. denied, 60 N.J. 354, 289 A.2d 799 (1972), or in connection with rendering professional services, Lucier, supra, 366 N.J. Super. at 495, 841 A.2d 907; Erlich v. First National Bank, 208 N.J. Super. 264, 287, 505 A.2d 220 (Law Div.1984).

The relevant public policy implicated in this matter is the protection of the best interests of the child under the parens patriae doctrine. [HN2] Parens patriae refers to “the state in its capacity as provider of protection to those unable to care for themselves.” Black’s Law Dictionary 1144 (8th ed.2004). [***21] In keeping with that policy, the Legislature and the courts historically [*334] have afforded considerable protections to claims of minor children. The most significant of those protections concerns the compromise or release of a minor’s post-injury claims. Under Rule 4:44, after a minor has suffered a tortious injury, a minor’s parent or guardian may not dispose of a minor’s existing cause of action without statutory or judicial approval. See
Moscatello ex rel. Moscatello v. Univ. of Med. & Dentistry of N.J., 342 N.J. Super. 351, 361, 776 A.2d 874 (App.Div.), certif. denied, 170 N.J. 207, 785 A.2d 435 (2001); Riemer v. St. Clare’s Riverside Med. Ctr., 300 N.J. Super. 101, 110-11, 691 A.2d 1384 (App.Div.), certif. denied, 152 N.J. 188, 704 A.2d 18 (1997); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377, 519 A.2d 893 (App.Div.1986). That Rule applies regardless of whether suit has been filed on the minor’s behalf, see, e.g., Moscatello, supra, 342 N.J. Super. at 361, 776 A.2d 874, and its purpose is “to guard a minor against an improvident compromise [and] to secure the minor against dissipation of [***22] the proceeds,” Colfer, supra, 214 N.J. Super. at 377, 519 A.2d 893.

Although the Rule governing post-injury settlements is not dispositive of our treatment of pre-injury releases, we find that the purposes underlying the post-injury settlement rule also apply in the present context. First, children deserve as much protection from the improvident compromise of their rights before an injury occurs as Rule 4:44 affords them after the injury. Moreover, at the time a parent decides to release the potential tort claims of his or her child, the parent may not fully understand the consequences of that action and may not have even read the waiver before signing. As the Utah Supreme Court has noted:

These clauses are . . . 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 [***23] 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. [Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (2001) (emphasis added).]

[*335] Further, in both the pre- and post-injury context, it is necessary to ensure that children retain the ability to seek compensation for an injury. When a parent signs a pre-injury release of liability and the child is later injured, the parent is [**388] left to provide for the child’s injuries while the negligent party suffers no liability. If a parent is unable to finance the child’s injuries, the child may be left with no resources to obtain much needed care or support. See
Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1235 (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.” (footnote omitted)); Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 12 (1992) [***24] (“[W]here parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care.”).

Those concerns are even more acute in the context of commercial premises liability. [HN3] In New Jersey, “[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314 (2003). That is because business owners “are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm.” Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517, 688 A.2d 1018 (1997) (citations omitted). It follows that in this case the risk of loss should fall on the party best suited to avert injury. See
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 447, 625 A.2d 1110 (1993) (recognizing “salutary effect of shifting the risk of loss . . . to those who should be able and are best able to bear them”). The operator of a commercial recreational enterprise [***25] can inspect the premises for unsafe conditions, train his or her employees with regard to the facility’s proper operation, and regulate the types of activities permitted to occur. Such an operator also can obtain [*336] insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation, see
Nisivoccia, supra, 175 N.J. at 563, 818 A.2d 314, is especially important where the facility’s patrons are minor children. If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety.

In finding that the exculpatory provision in this matter is invalid, we are in agreement not only with our own State’s case law, but also with the overwhelming majority of other jurisdictions. See, e.g., Fitzgerald, supra, 111 N.J. Super. at 108, 267 A.2d 557 (invalidating exculpatory agreement executed by parent on behalf of minor [***26] child that released defendant from liability to child for future injuries and required parent to indemnify defendant for any claims brought by minor); In re Royal Caribbean Cruises Ltd., 403 F. Supp. 2d 1168, 1172-73 (S.D.Fla.2005) (stating that 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) (concluding that parent’s execution of pre-injury release did not exculpate third party from potential claims of minor child); Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F. Supp. 20, 24 (E.D.Pa.1985) (“Under Pennsylvania law, parents do not possess the authority to release . . . potential claims of a minor [**389] child merely because of the parental relationship.”); Cooper, supra, 48 P.3d at 1233-35 (holding that Colorado’s public policy prohibits parents from contractually releasing child’s future claims for injury caused by negligence); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 415, 199 Ill. Dec. 572 (1994) [***27] (concluding that because “parent’s waiver of liability was not authorized by any statute or judicial approval, it had no effect to bar the minor child’s (future) [*337] cause of action”); Santangelo v. City of New York, 66 A.D.2d 880, 411 N.Y.S.2d 666, 667 (1978) (holding that minor was not bound by exculpatory release executed by parent on minor’s behalf); Munoz v. II Jaz, Inc., 863 S.W.2d 207, 209-10 (Tex.Ct.App.1990) (concluding that allowing parent to waive child’s right to sue for personal injury “would be against the public policy to protect minor children”); Scott, supra, 834 P.2d at 12 (“To the extent a parent’s release of a third party’s liability for negligence purports to bar a child’s own cause of action, it violates public policy and is unenforceable.”); Hawkins, supra, 37 P.3d at 1065-66 (concluding that “a parent does not have the authority to release a child’s claims before an injury”); see also
Auto. Workers v. Johnson Controls, Inc., 499 U.S. 187, 213, 111 S. Ct. 1196, 1211, 113 L. Ed. 2d 158, 183 (1991) (White, J., concurring in part and concurring in the judgment) [***28] (stating that “the general rule is that parents cannot waive causes of action on behalf of their children”); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me.1979) (stating in dicta that parent cannot release child’s cause of action); Williams v. Patton, 821 S.W.2d 141, 147 n.8, 35 Tex. Sup. Ct. J. 65 (Tex.1991) (Doggett, J., concurring) (stating that parental releases of minor’s potential tort claims are “outrightly disfavored”).

Although we recognize that jurisdictions are not uniform on the question of waiver, our research discloses that the only published decisions in which such agreements have been upheld are in connection with non-commercial ventures, such as volunteer-run or non-profit organizations. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647, 648-50 (1990) (upholding parental agreement releasing any claims of minor child resulting from child’s participation in school-sponsored event); Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067 (Fla.Dist.Ct.App.2004) (upholding parental liability release in context of “community or school supported activities”); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 207 (1998) [***29] (holding that parent may bind minor child to provision releasing volunteers and sponsors of non-profit sports activity from liability for negligence); Sharon v. City of Newton, 437 Mass. 99, 769 [*338] N.E.2d 738, 741, 745 (2002) (concluding that parent had authority to bind minor child to exculpatory release as condition of child’s participation in public-school extracurricular sports activities). Without expressing an opinion on the validity of parental liability releases in such settings, it suffices to note that volunteer, community, and non-profit organizations involve different policy considerations than those associated with commercial enterprises. Such a distinction is buttressed by the fact that the Legislature has afforded civil immunity from negligence to certain volunteer athletic coaches, managers, officials, and sponsors of non-profit sports teams, see, e.g., N.J.S.A. 2A:62A-6 to -6.2, while not providing similar immunities from negligence in the commercial realm.

Accordingly, [HN4] in view of the protections that our State historically has afforded to a minor’s claims and the need to discourage negligent activity on the part [***30] of commercial enterprises attracting children, we hold that a parent’s execution of a pre-injury [**390] release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable.

C.

In so holding, we find that defendant’s remaining contentions and those of the dissent below are unconvincing. First, we are not persuaded by the argument that we should allow for parental liability releases because a pre-injury release of a minor’s potential tort claims is no different than a parent’s decision not to bring suit on a minor’s behalf. That argument ignores the fact that, under the tolling provisions of N.J.S.A. 2A:14-21, a minor retains the right to sue for most personal injuries for two years after reaching the age of majority, N.J.S.A. 2A:14-2. One of the rationales behind the tolling provision is that a child should not “be penalized for the ignorance or neglect of his parents or guardian in failing to assert [his or her legal] rights.” O’Connor v. Altus, 67 N.J. 106, 131-32, 335 A.2d 545 (1975) (Pashman, J., concurring in part and dissenting in part). Consequently, although [***31] a parent may control a minor’s right to seek tort compensation [*339] until the age of majority–either by choosing not to sue or by neglecting to do so–a minor’s claim is not eliminated by the parent’s decision; it merely is delayed. Were we to uphold the challenged pre-injury release, however, we would permanently bar the minor’s tort claim, a far more draconian effect.

Nor do we accept the argument that a parental release of liability on behalf of a minor child implicates a parent’s fundamental right to direct the upbringing of his or her child. [HN5] Although parents undoubtedly have a fundamental liberty interest “in the care, custody, and control of their children,” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56 (2000), 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
Cooper, supra, 48 P.3d at 1235 n.11 (concluding that 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 [***32] liberty interest in the ‘care, custody and control’ of their children”). As the majority opinion below noted, “[w]ere it otherwise, existing restrictions on parental conduct in the context of litigation involving minors would long ago have been abrogated in New Jersey.” Hojnowski, supra, 375 N.J. Super. at 585, 868 A.2d 1087. Indeed, the post-injury settlement rule is but one example of such restrictions. Moreover, nothing in our analysis interferes with the constitutionally protected right of a parent “to permit or deny a child’s participation in any or all of the recreational activities that may be available.” Id. at 597, 868 A.2d 1087 (Fisher, J., concurring in part and dissenting in part).

We also reject defendant’s argument that enforcing parental releases of liability is necessary to ensure the continued viability of businesses offering sports activities to minors. We do not view tort liability as an unreasonable economic restraint on the ability of business owners to operate commercial recreational facilities. See
Scott, supra, 834 P.2d at 12 (finding “[n]o legally sound reason . . . for removing children’s athletics from the normal tort system”). [***33] [*340] Indeed, by invalidating pre-injury releases of liability executed by a parent on a minor’s behalf, we are not altering the landscape of common-law tort liability principles by which commercial enterprises typically must abide. Rather, we are preserving the traditional duties owed by business owners to their invitees. Further, as noted, because such facilities [**391] derive economic benefit from their operation, they are better able to assume the costs associated with proper maintenance and the prevention of injury than are the children to whom they cater.

Finally, the dissent below argued that invalidating parental releases of liability “is at odds with our Legislature’s willingness to render participants solely responsible for injuries resulting from the inherent risks of similar activities.” Hojnowski, supra, 375 N.J. Super. at 593, 868 A.2d 1087 (Fisher, J., concurring in part and dissenting in part). That argument refers to legislative acts in the areas of skiing, N.J.S.A. 5:13-1 to -11; roller skating, N.J.S.A. 5:14-1 to -7; and equestrian activities, N.J.S.A. 5:15-1 to -12, which place the [***34] responsibility for injuries resulting from “inherent risks” of the sport on the participant. However, those statutes do not absolve an operator of a facility from liability for its own negligence. Instead, the statutes apply only to inherent risks, which, by their very nature, are those “that cannot be removed through the exercise of due care if the sport is to be enjoyed.” Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 499, 677 A.2d 705 (1996); see also
Pietruska v. Craigmeur Ski Area, 259 N.J. Super. 532, 537, 614 A.2d 639 (Law Div.1992) (finding that “[i]mproper operation of a ski lift is not an inherent risk of skiing since, with due care, it can be eliminated”). As such, inherent risks need not be the subject of waiver because “the general law of negligence has long recognized that a defendant has no duty with regard to such risks.” Brett, supra, 144 N.J. at 499, 677 A.2d 705; see also
Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 49, 155 A.2d 90 (1959) (stating that assumption of inherent risk “is an alternate expression for the proposition that defendant was not negligent”). Thus, a commercial enterprise [***35] is [*341] not liable for injuries sustained as a result of an activity’s inherent risks so long as that enterprise has acted in accordance with “the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.” Rosania v. Carmona, 308 N.J. Super. 365, 374, 706 A.2d 191 (App.Div.), certif. denied, 154 N.J. 609, 713 A.2d 500 (1998).

III.

The second issue that we must decide is whether a parent can bind a minor child to an agreement to arbitrate future disputes arising out of a commercial recreation contract. Plaintiffs contend that “[although] arbitration is an approved alternative to a jury trial, an unsophisticated parent, about to have [his or her] child enter a recreational facility, should not be permitted to bind [his or her] child to a waiver of a trial by jury.” Defendant counters that this Court should enforce the parent’s agreement to submit the minor’s claims to arbitration because the Appellate Division previously upheld such an agreement in Allgor v. Travelers Insurance Co., 280 N.J. Super. 254, 654 A.2d 1375 (App.Div.1995). [***36] Defendant also argues that plaintiffs should be bound to arbitrate the present matter because public policy favors the arbitration of disputes. We agree and find that a parent’s agreement to arbitrate a minor’s potential tort claims is not contrary to public policy.

A.

[HN6] Federal policy has favored the enforcement of arbitration agreements for many years. In 1925, Congress enacted the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, to reverse then existing judicial hostility to arbitration agreements and “to place arbitration agreements upon [**392] the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S. Ct. 1647, 1651, 114 L. Ed. 2d 26, 36 (1991). To that end, § 2 of the FAA provides:

[HN7] [*342] A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such a contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. [Emphasis added.]

[HN8] Although the FAA applies to both state [***37] and federal judicial proceedings, state contract-law principles generally govern a determination whether a valid agreement to arbitrate exists. See, e.g., First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 985, 993 (1995) (“When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally . . . should apply ordinary state-law principles that govern the formation of contracts.”). However, “a state cannot subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts.” Leodori v. CIGNA Corp., 175 N.J. 293, 302, 814 A.2d 1098, cert. denied, 540 U.S. 938, 124 S. Ct. 74, 157 L. Ed. 2d 250 (2003).

[HN9] In New Jersey, arbitration also is a favored means of dispute resolution. See, e.g., Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85, 800 A.2d 872 (2002); Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 131, 773 A.2d 665 (2001); Marchak v. Claridge Commons Inc., 134 N.J. 275, 281, 633 A.2d 531 (1993). Our Legislature [***38] codified its endorsement of arbitration agreements in the Arbitration Act, N.J.S.A. 2A:24-1 to -11, which, like its federal counterpart, provides that agreements to arbitrate shall be valid save for “such grounds as exist at law or in equity for the revocation of a contract,” N.J.S.A. 2A:24-1. 2 In accordance with those principles, an agreement to arbitrate generally will be valid under state law unless it violates public policy. See, e.g., Marchak, supra, 134 N.J. at 281-82, 633 A.2d [*343] 531 (“Honoring an agreement to submit a matter to arbitration is consistent with the premise that, as long as the agreement does not violate public policy, parties may bargain freely.”); Faherty v. Faherty, 97 N.J. 99, 105, 477 A.2d 1257 (1984) (“A court generally will enforce an arbitration agreement unless it violates public policy.”).

2 N.J.S.A. 2A:24-1 to -11 was superseded by a modified version of the Arbitration Act, N.J.S.A. 2A:23B-1 to -32, effective January 1, 2003, and applicable to agreements entered into on or after that date, N.J.S.A. 2A:23B-3a. Because the arbitration agreement at issue in this appeal was executed prior to that date, this matter is governed by the former statute.

[***39] B.

In light of the strong public policy favoring the settlement of disputes through arbitration, we conclude that allowing a parent to bind a minor child to arbitrate future tort claims is not contrary to our duty as parens patriae to protect the best interests of the child. As opposed to a pre-injury release of liability, a pre-injury agreement to arbitrate does not require a minor to forego any substantive rights. Rather, such an agreement specifies only the forum in which those rights are vindicated. See, e.g., Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 403 (Fla.2005) (stating that distinction between waiver of forum in which claim is presented and outright waiver of legal claim “is a crucial consideration in determining whether state’s interest in protecting children renders [**393] the waiver unenforceable”); Cross v. Carnes, 132 Ohio App. 3d 157, 724 N.E.2d 828, 836 (1998) (stating that “parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim”). In that respect, our Appellate Division has observed that

[t]he ancient practice of [***40] arbitration “[i]n its broad sense, . . . is a substitution, by consent of the parties, of another tribunal for the tribunal provided by the ordinary processes of law. The object of arbitration is the final disposition, in a speedy, inexpensive, expeditious, and perhaps less formal manner, of the controversial differences between the parties.”

[Carpenter v. Bloomer, 54 N.J. Super. 157, 162, 148 A.2d 497 (App.Div.1959) (quoting E. Eng’g Co. v. City of Ocean City, 11 N.J. Misc. 508, 510-11, 167 A. 522 (Sup.Ct.1933)).]

Further, although this Court previously has not ruled on the issue, 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. For example, in [*344] Allgor, supra, the Appellate Division concluded that a father’s contractual agreement to submit to arbitration disputes arising under his underinsured motorist policy also bound his minor son who filed a claim under that policy. 280 N.J. Super. at 262-65, 654 A.2d 1375. The court rejected the contention that “arbitration is not appropriate when the best interests [***41] of a child are at stake.” Id. at 261, 654 A.2d 1375. Our decision in Faherty also supports enforcement of the arbitration provision at issue. In that case, we held that public policy permits spouses to include provisions in their separation agreements for arbitration of child support disputes, subject only to heightened judicial review of the arbitrator’s award. Faherty, supra, 97 N.J. at 108-09, 477 A.2d 1257. We reasoned that

[w]e do not agree with those who fear that by allowing parents to agree to arbitrate child support, we are interfering with the judicial protection of the best interests of the child. We see no valid reason why the arbitration process should not be available in the area of child support; the advantages of arbitration in domestic disputes outweigh any disadvantages.

[Id. at 109, 477 A.2d 1257 (emphasis added).]

Finally, a review of case law from other jurisdictions reinforces our conclusion that a parent should be permitted to bind a minor child to arbitration. In Global Travel Marketing, supra, the Florida Supreme Court recently reversed a Florida Court of Appeals ruling, upon which plaintiffs relied, [***42] which held that parents lack authority to bind a minor child to arbitrate prospective claims arising out of a commercial travel contract for an African safari. 908 So. 2d at 394-95. In finding that such agreements are “not contrary to the public policy of protecting children,” id. at 405, the court recognized a “crucial” distinction between an outright waiver of a minor’s legal claims and a waiver of the forum in which the claims are presented, id. at 403.

The Ohio Court of Appeals reached a similar conclusion in Cross, supra, 724 N.E.2d 828. There, the producers of a television show sought to enforce an arbitration agreement signed by a parent on behalf of a child who sued the show for fraud and defamation after the show allegedly portrayed [*345] the child as a bully. Id. at 830-31. The court upheld that agreement and found that “a parent has the authority to bind his or her child to a resolution of the child’s claims [**394] through arbitration.” Id. at 836. The court reasoned that the Ohio Supreme Court previously had upheld a liability waiver executed by a parent on behalf of a minor participating in a recreational [***43] activity sponsored by a non-profit organization. Ibid. (citing Zivich, supra, 82 Ohio St.3d 367, 696 N.E.2d 201). In relying on Zivich, however, the court noted that

[a] parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum.

[Ibid.]

See also
Doyle v. Giuliucci, 62 Cal. 2d 606, 401 P.2d 1, 3, 43 Cal. Rptr. 697 (1965) (stating that arbitration provision in contract for medical services signed by parent on minor’s behalf “is a reasonable restriction, for it does no more than specify a forum for the settlement of disputes”); accord
Leong v. Kaiser Found. Hosps., 71 Haw. 240, 788 P.2d 164, 169 (1990) (concurring with reasoning of Doyle and holding that minor was bound by arbitration provision in contract for medical services signed by father).

Although we recognize that certain cases from other jurisdictions have found a minor’s claims to be non-arbitrable, [***44] those cases are distinguishable because they were decided solely on the basis of the individual contracts at issue in those appeals. They did not directly rule on the larger issue presented by this appeal–whether a parent can bind a minor child to arbitrate future disputes. Fleetwood Enters. Inc. v. Gaskamp, 280 F.3d 1069, 1077, reh’g denied, 303 F.3d 570 (5th Cir.2002) (holding that minor children were not bound to arbitrate injuries suffered as result of formaldehyde inhalation because children were neither signatories to mobile-home sales contract signed by their parents nor third-party beneficiaries of that contract); Billieson v. City of New Orleans, 863 So. 2d 557, 562-63 (La.Ct.App.2003) (concluding that children’s claims for lead poisoning were not precluded by [*346] arbitration agreement between city housing authority and property management company because children were not third-party beneficiaries of agreement); see also
Lewis v. Cedu Educ. Servs., 135 Idaho 139, 15 P.3d 1147, 1152 (2000) (concluding that child was not bound to arbitrate based on language of contract and expressly declining to determine [***45] whether “minors should or should not be bound to arbitrate disputes arising out of contracts entered into on their behalf by their parents”); Accomazzo v. Cedu Educ. Servs., Inc., 135 Idaho 145, 15 P.3d 1153, 1156 (2000) (same). Therefore, [HN10] in the absence of any allegations relating to fraud, duress, or unconscionability in the signing of the contract or that the agreement to arbitrate was not written in clear and unambiguous terms, we conclude that a parent’s agreement to arbitrate is valid and enforceable against any tort claims asserted on a minor’s behalf.

IV.

We affirm the judgment of the Appellate Division and refer this matter to the arbitrator for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LONG, ALBIN, and WALLACE join in JUSTICE ZAZZALI’s opinion. JUSTICE LaVECCHIA filed a separate opinion concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins.

CONCUR BY: LaVECCHIA (In Part)

DISSENT BY: LaVECCHIA (In Part)

DISSENT

Justice LaVECCHIA, concurring in part and dissenting in part.

I am in full agreement with that portion of the majority’s decision that affirms enforcement of the parties’ agreement to subject [***46] their dispute to arbitration. I part company from my colleagues, however, in so far as they have chosen to invalidate the [**395] waiver of liability that the parties to this appeal executed as a condition of the minor Andrew’s use of defendant’s property to skateboard. In that respect, I am in substantial agreement with the Appellate Division dissent that was penned by Judge Fisher. Essentially, because a waiver of rights of the type entered into by these parties generally would be enforceable as against an adult, I see no reason why this Court should prevent a parent from ratifying such a waiver on behalf of a child, provided that a court or arbitrator determines that the release is reasonable.

[*347] Although the majority declines to express any view on whether the waiver would be invalid if enforced against an adult, it is noteworthy that the waiver does not appear to involve any of the grounds that New Jersey courts have heretofore invoked to invalidate an exculpatory waiver. For example, the waiver does not exempt defendant from liability for a “future intentional tort or willful act or gross negligence.” Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 580, 111 A.2d 425 (App.Div.1955). [***47] Nor does the waiver seek a release from any statutorily imposed duty. McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). Furthermore, although the majority notes that “[e]xculpatory agreements have long been disfavored in the law,” that proposition has been invoked not to invalidate a waiver, as the Court does here, but rather to explain that such waivers should be narrowly construed:

Contracts of this nature are not favored by the law. They are strictly construed against the party relying on them and clear and explicit language in the contract is required to absolve a person from such a liability.

[McCarthy v. NASCAR, Inc., 87 N.J. Super. 442, 450, 209 A.2d 668 (Law Div.1965), aff’d, 90 N.J. Super. 574, 218 A.2d 871 (App.Div.1966), aff’d, 48 N.J. 539, 226 A.2d 713 (1967).]

See also
Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247, 845 A.2d 720 (App.Div.2004) (stating more recently that because “the law does not favor exculpatory agreements,” “[a]ny doubts or ambiguities as to the scope of the exculpatory language must be resolved against the drafter”).

The fact that exculpatory waivers receive [***48] narrow construction from courts does not render such waivers unenforceable. Previously, we have stated that “[w]here [exculpatory agreements] do not adversely affect the public interest, exculpatory clauses in private agreements are generally sustained.” Mayfair Fabrics v. Henley, 48 N.J. 483, 487, 226 A.2d 602 (1967). Such clauses most commonly are used and enforced in a “commercial context,” Chem. Bank, N.A. v. Bailey, 296 N.J. Super. 515, 527, 687 A.2d 316 (App.Div.), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997), and generally are valid and enforceable against individuals so long as the particular exculpatory clause does not involve a matter of [*348] public interest. McCarthy v. NASCAR, Inc., 48 N.J. 539, 543, 226 A.2d 713 (1967) (citing Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953)). Many states also look to the notion of “public interest,” or other related concepts, when determining whether to uphold the validity of an exculpatory waiver. The California Supreme Court’s decision in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (1963), [***49] provides arguably the most widely accepted test applied to exculpatory agreements. Tunkl set forth six factors, one of which is whether “[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some [**396] members of the public.” Id. at 33, 383 P.2d at 445.

In my view, recreational activities such as skateboarding do not implicate the “public interest.” 1 The majority apparently does not assert otherwise, lodging no objection to the content of the waiver. Rather, the majority focuses on the fact that defendant is attempting to enforce this particular waiver of rights against a minor.

1 That conclusion is in accord with the majority of jurisdictions that have addressed the subject; they have concluded that recreational activities do not implicate the public interest. See, e.g.
Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383, 388 (2001) (stating that “skiing is not a ‘service of great importance to the public,’ much less a service of ‘practical necessity.'”). Courts have upheld liability waivers in the context of the following recreational activities: automobile racing, being a spectator at an automobile race, scuba diving, horseback riding, roller skating, skydiving, mountain biking, recreational sumo wrestling, weightlifting at a fitness center, motorcycle racing, go-cart racing, bicycling, and ski racing. Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 752-53 (2005) (Norcott, J., dissenting) (collecting cases). On the other hand, a minority of states have found that snow-tubing and skiing activities do implicate the public interest. See
Hanks, supra, 276 Conn. 314, 885 A.2d 734 (majority opinion); Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35 (Vt. 1997); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795 (1995). I find those cases unpersuasive. To find that recreational activities implicate the “public interest,” would strip that term of meaningful content.

[***50] Invoking the “best interests” of children under the parens patriae doctrine, the majority holds that the waiver is invalid as [*349] against public policy, and analogizes the instant situation to the requirement under Rule 4:44 that parental settlement of a minor’s post-injury claims receive judicial approval. There is an important difference between the present pre-injury waiver and the circumstances Rule 4:44 seeks to address. “Our rules for friendly settlements, R. 4:44-1 et seq., are intended to minimize or prevent conflicts of interest from occurring and to assure the reasonableness of settlements.” Zukerman v. Piper Pools, 232 N.J. Super. 74, 90, 556 A.2d 775 (App.Div.1989). See also
Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377, 519 A.2d 893 (App.Div.1986) (noting that “[t]he purpose of the rule is not only to guard a minor against an improvident compromise but also to secure the minor against dissipation of the proceeds.”). Because the pre-injury setting does not involve the specter of a potential monetary settlement that looms over post-injury settlements, conflicts are of little [***51] concern in the pre-injury setting. See
Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 747 n.10 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 206 (1998); Angeline Purdy, Note, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor’s Future Claim, 68 Wash. L. Rev. 457 (1993).

Assuming, nonetheless, that a pre-injury contractual setting is similar to a post-injury setting, that does not support the conclusion that all waivers entered into on behalf of minors are unenforceable, a conclusion that simply goes too far. Rule 4:44 does not bar parental settlements. Rather, the rule requires judicial scrutiny “to ensure the reasonableness of settlements.” Zukerman, supra, 232 N.J. Super. at 90, 556 A.2d 775. If Rule 4:44 provides an appropriate analogy, then the standard of reasonableness that applies to post-injury settlements should apply to the review of pre-injury waivers.

I acknowledge that as a general rule, minors can, before they reach the age of majority, disaffirm contracts into which they enter. [**397] Mechanics Fin. Co. v. Paolino, 29 N.J. Super. 449, 453, 102 A.2d 784 (App.Div.1954) [***52] (stating that “[i]t is generally true that an [*350] infant may avoid his contract.”); Boyce v. Doyle, 113 N.J Super. 240, 241, 273 A.2d 408 (Law Div.1971) (stating that “[t]here can be no doubt but that contracts not of necessity may be voided by an infant either before or a reasonable time after he obtains his majority.”); Restatement (Second) of Contracts §§ 12, 14 (1981); 7 Corbin on Contracts § 27.2 (Perillo rev.2002); 5 Williston on Contracts § 9.5 (Lord ed., 4th ed.1993). That general rule is not altered by a parent’s signing of the contract on behalf of a minor. See 42 Am. Jur. 2d Infants § 46 (2000) (stating that “[a]s a general rule, an infant’s right to avoid his contract is not defeated by the fact that the contract was made by the infant and his or her parent, was made with the approval of his or her parent [or] was approved and ratified by his or her guardian”); Del Bosco v. U.S. Ski Ass’n, 839 F. Supp. 1470, 1474 n.2 (D.Colo.1993) (noting that “[c]ourts that have decided the issue have determined that the signature of a parent does not validate [***53] an infant’s contract.”).

However, contracts entered into by minors can be enforceable if the contract is approved by a court. Indeed, as noted, Rule 4:44 allows settlement agreements involving minors to be enforced so long as a reviewing court determines that the agreement is “reasonable.” Zukerman, supra, 232 N.J. Super. at 90, 556 A.2d 775. Beyond the settlement context, other states have enacted statutory schemes that bar minors from disaffirming certain contracts that have received judicial approval. See, e.g., Cal. Fam. Code § 6750-53 (2006) (covering entertainers and athletes); Cal. Lab. Code § 1700.37 (2006) (covering contracts between a minor and a talent agency); N.Y. Arts & Cult. Affr. Law § 35.03 (2006) (covering entertainers and athletes).

Although our Legislature has not yet enacted similar legislation, freedom of contract principles lead me to the conclusion that a pre-tort waiver entered into by a minor, or ratified by a parent on behalf of a minor, should be enforceable when a reviewing court or arbitrator determines that the waiver was reasonable and not [***54] based on unequal bargaining positions. See
Simmons v. Parkette Nat’l Gymnastic Training Ctr., 670 F. Supp. 140, 144 (E.D.Pa. [*351] 1987) (invalidating minor’s pre-injury waiver and relying, in part, on the fact that “there was no court involvement in the transaction”). If the reasonableness of the waiver is approved, then a minor should be barred from disaffirming the contract, an approach that is consistent with Rule 4:44. It differs somewhat from Rule 4:44 in that I would allow a trial court to review the “reasonableness” of a pre-tort waiver when a defendant, post-injury, raises the waiver as a defense to a suit brought by an injured party.
2

2 Under Rule 4:44 litigants must obtain court approval at the time of entry into the settlement agreement. Requiring judicial approval at the time that a minor enters into a pre-injury waiver would be impractical and inefficient. Review would have to be limited to situations when an injury actually occurs. The reviewing court, of course, would have to view the “reasonableness” of the waiver as of the time that the waiver was executed.

[***55] Post-injury review of pre-injury waivers eliminates the certainty that is provided by Rule 4:44 or, for example, the process established by statute in California and New York, all of which mandate that courts review contracts at the time they are executed. Potential defendants may, however, wish to bear the risk of such uncertainty given the benefits of any waiver ultimately upheld as reasonable. Absent action by the Legislature, I would permit court or arbitrator review and approval, as described, to validate a minor’s [**398] contract in respect of the type of pre-injury liability waivers presented herein. In so stating, I offer no judgment about what forms of liability defendant purported to waive by this exculpatory release. I would have allowed the arbitrator to sort out the reasonableness and the reach of the waiver executed by the parties.

Accordingly, I would affirm in part, reverse in part, and remand the matter for further proceedings.

Justice RIVERA-SOTO joins in this opinion. [*352]


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.

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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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Indemnification fails again in a release. Parent of child having a birthday at climbing gym signed release for the injured child, not her own child.

Indemnification is rarely if upheld in a release. The language does not meet the requirements needed under the law in most states to be an indemnification agreement.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut, Superior Court of, Judicial District of Fairfield At Bridgeport

Plaintiff: Cindy Cannon PPA Emma Cannon

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Plaintiff Claims: Negligence

Defendant Defenses: Indemnification by third party

Holding: for the Plaintiff

Year: 2020

Summary

Connecticut climbing gym had mother of a group of girls at a gym for a birthday party sign release for all the girls. After one of the girls was injured and sued, the climbing gym attempted to recover money from the mother who signed the release based on the language of the release in its indemnification clause. That failed.

If failed so badly the court voided the entire release finding it to be an adhesion contract.

Indemnification agreements in releases never work to recover damages from an injured plaintiff.

Facts

We are never made aware of the facts that gave rise to the injury that created this decision. However, since the issue is solely who is liable under contract (release) for the injury it is not really relevant.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

So, the parent of the birthday child signed releases for the children attending the birthday party. When one child was injured and sued the climbing gym, the climbing gym brought the parent who signed the release into the lawsuit based on the indemnification language in the releases she signed.

The release was signed electronically; however, this was not an issue the court seemed interested in looking at.

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

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not.

The defendant climbing gym filed a motion for summary judgement arguing the mother should be liable for any damages they pay out on behalf of the injured minor child. This was based on two legal theories the first was the indemnification language found in the release itself.

The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The second defense or reason why the mother should be liable was based on common-law indemnification.

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

To succeed on an indemnification agreement the court found under Connecticut law the defendant climbing gym must show the following.

A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.

An indemnification agreement in Connecticut has four elements.

“The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.”

The plaintiff argued that the entire release was void because of two prior Connecticut court decisions.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

(See Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
and
States that do not Support the Use of a Release.)

The release stated the mother who signed the release knew that “the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. The court found this to be utterly bogus (as do I). The mother had no knowledge or experience rock climbing and no clue, whether the facility was in good condition.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

This was the same position a Connecticut court in Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500, that the requirements in the release were absurd because the knowledge necessary to know and understand if the activity was safe or the equipment was in good working order was solely within the knowledge and experience of the defendant.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The court then, using the issue of the ability of the mother who signed the release to contract about the equipment found the release to be a contract of adhesion.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.

The issue of whether or not the release was an adhesion contract had been touched on lightly; however, the court eventually unloaded on the defendant finding the release to be a contract of adhesion, which voids releases in most states.

…that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Most states look at recreation, and since it is not a necessity, something needed for the modern survival of a person or family as not being contacts of adhesion. However, in Connecticut, there is no review of why the release is signed, just a review of the specific language in the release to determine if it is an adhesion contract.

The court then looked at the release under the requirements of the Connecticut Supreme Court and found the release lacking as well as the indemnification language in the release.

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

And then tore the release apart based on the lack of bargaining power between the parties.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.”

The court then looked at the common-law indemnification argument of the climbing gym. For one party to hold the other party liable under common law, the following facts must be in place.

(1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

Just looking at these requirements at a climbing wall, you know the mother of a child hosting a birthday party, there is not going to meet any of these requirements.

The defendant climbing wall could not produce any evidence that the mother was in exclusive control of the situation to the exclusion of all others.

The mother’s motion for summary judgment was granted, and the plaintiff’s indemnification claims failed.

So Now What?

Overall, the language in this release did not meet Connecticut law on many counts. However, the court found the language to be so one-sided and so bad that if found multiple ways to void it. Releases must be written for the activity, the guests and the law of the state where the release will be used. When you have a state like Connecticut, where releases are always on a thing line between valid and void, the language is critical to succeed.

Indemnification claims in a release have never worked. The only way that the claims may work, would be against third parties when the liability is created by the guest. An example of something like that might be a guest on a trip starts a forest fire. The special-use permit or concession agreement generally holds the outfitter/permittee/concessionaire liable for the damages caused by the fire. The indemnification clause might work in that situation to recover some of the money to reimburse the outfitter.

(Always make sure your outfitter liability policy provides coverage for actions to third parties by your guests.)

However, I have never found a case where indemnification has worked to recover damages for an injury from parents, friends or the leader of the group of kids. Maine looked at the language of indemnification in a release and seemed to indicate it would be supported if written correctly. See Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.

The situation that created this mess is classic. A group of kids is coming to your business or program, and no one has notified the parents of a requirement to sign a release in advance. Upon arrival, someone who does not know or understand or a facility that does not care just has the adult with the kids sign the paperwork. That does not work.

Either get the parent’s signatures on documents or spend most of the time creating an assumption of the risk defense by educating the kids.

Don’t waste the paper or electrons having a youth leader or mother responsible of the group sign the release for the rest of the children in attendance. It just does not work.

This will be the fourth article I’ve written about Connecticut courts voiding releases. If you work or operate in Connecticut you are probably working in a state that does not support the use of a release.

For more information about indemnification see:

Indemnification agreements? What are you signing?

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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Weird attempt to recover damages against a youth sports organization for actions of youth on his own

Just a look at how far some plaintiffs, (or an insurance company) will go to recover money. At the same time, it is nice to know that they lost this attempt.

Loosier v. Youth Baseball & Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654

State: Illinois, Appellate Court of Illinois, Fifth District

Plaintiff: Jimmy Loosier, a Minor, by Joyce Loosier, his Mother

Defendant: Youth Baseball and Softball, Inc

Plaintiff Claims: negligence and punitive damages

Defendant Defenses: no duty

Holding: for the defendant

Year: 1986

Summary

Non-profit youth organization is not responsible for youth in its program when they are on their own selling tickets for the organization to raise money. Parents are responsible for their kids, unless the youth organization takes steps to be responsible.

Facts

This cause of action arose out of personal injuries suffered by the minor plaintiff when he was struck by a truck while trying to cross Interstate Route 57 west of Benton. Plaintiff filed suit alleging that defendant was negligent in that it was guilty of a breach of a duty owed the plaintiff to supervise, watch over, and care for the plaintiff while the plaintiff was selling baseball raffle tickets.

The defendant, Youth Baseball and Softball, Inc., is a not-for-profit organization which raises funds through raffle ticket sales. Each year prizes are given to the baseball participants who sell the most raffle tickets. The minor plaintiff, Jimmy Loosier, was a member of a baseball team which was under the supervision of the defendant’s summer baseball program. Members of the baseball team participated voluntarily with their parents’ permission in the sale of raffle tickets to give away a new automobile as a means of financing the costs of the baseball program.

The raffle tickets were issued to the coaches who then issued tickets to the players to be sold by them. The tickets were initial
distributed in lots of 10 to each child by the team coach. After the children sold their initial 10 tickets, they could get more tickets on
with their parents’ permission. After the initial 10 tickets were issued to a child, Youth Baseball did not issue any more tickets to the children but, rather, gave them to the children’s parents when their parents asked for additional tickets. Selling the raffle tickets was pure
the voluntary decision of each child and his parents. If a child did not participate in the fund-raising activities, the child lost no privileges.

Youth Baseball warned the children, upon distributing the initial 10 raffle tickets to each child who participated, not to sell them by themselves and not to go out without their parents’ permission. Although some individual coaches took their baseball players out to sell tickets periodically, it was understood that the overall duty of supervision lay with the child’s parents and not with Youth Baseball.

The plaintiff, Jimmy Loosier, was 11 years old at the time of his injury on July 22, 1982. He had been selling raffle tickets for the youth Baseball program for four years when the accident occurred. When Loosier first began selling raffle tickets his mother warned him about places he should not go, people he should not sell to, and streets and highways he should avoid. She had instructed him to stop, look and listen when crossing streets. The minor plaintiff had also been instructed in safety on highway crossing at school.

On July 22, 1982, plaintiff went to the Wal-Mart store, which was approximate two miles from his home and across Interstate Route 57, west of Benton. Prior to the accident, Jimmy Loosier had gone to the shopping mall where the Wal-Mart store is located on his own or with his friends 10 to 20 times in order to sell raffle tickets or just to “goof off.” The majority of the times the plaintiff had gone to Wal-Mart to sell tickets, he had gone without adult supervision. Jimmy’s mother knew when he went out to the mall by himself or with his friends and that there was no adult with them.

On the particular day the plaintiff was injured while crossing Interstate Route 57, he informed his mother he was going to Wal-Mart to sell raffle tickets. However, another reason plaintiff wanted to go to Wal-Mart that day was to simply “get out of the house” because he was bored. Mrs. Loosier saw that Jimmy had his little black bag with the tickets when he left the house. She knew that Youth Baseball was not providing people to accompany her son whenever he went to sell tickets; yet, she permitted him to sell the tickets anyway.

After arriving at the mall the plaintiff sold seven or eight tickets. Then Johnny Hines and some other kids asked Loosier to steal a “hot wheels car” from Wal-Mart. When Loosier refused, they said they were going to “beat the heck out” of plaintiff if he didn’t. Loosier then left Wal-Mart. While he was standing out in the parking lot, Loosier saw the other kids coming outside so he began running. As he was running, he could see Hines and the other children following him on bikes. Loosier ran toward Interstate 57 and made it safe across the southbound lanes of the interstate. When he was in the middle of the northbound portion of the interstate, he saw a semi-truck approaching. He slid and then started to scoot back up and the truck ran over his leg.

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

The plaintiff argued the organization owed the youth a duty of supervision while he was selling tickets. The trial court disagreed and dismissed the case resulting in this appeal. The court then reviewed a negligence claim in detail as required in Illinois.

The first requirement, even before duty is that the parties have a relationship.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has committed a breach of duty owed to the plaintiff. Whether under the facts of a given case, such a relationship exists between the parties so as to require a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. In the absence of any showing upon which the court could infer the existence of a duty, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper.

If the law imposes a duty on the defendant, it must be based on the likelihood of the injury versus the burden of guarding against it. A quasi balancing test to some extent. Foreseeability is determined after the court as determined there is a duty.

“Whether a defendant should have ‘foreseen’ harm to a party injured is the test to be used by a jury in determining negligence. ‘Foreseeability’ enters into the negligence format only after the court has concluded that, at the time of the occurrence in question, the defendant was under a duty to guard against injury to the plaintiff

There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for the jury to consider in determining the negligence issue are expressed in the foreseeability formula.

The court then examined the facts in this case and applied the law it had stated.

Youth Baseball provides a service to the community by sponsoring sports activities for young people without charge and it raises money for these activities by the sale of raffle tickets by its members on a voluntary basis. The sale of tickets is done only with parental permission. Ticket sales are made by the players at times other than when they are under the supervision of the coaches on the playing field. In fact, the ticket sales are made by the youths who participate in the program at any time when they are not either playing or practicing.

The court, to some extent, applied a balance test here looking at the likelihood of the injury to the burden of guarding against the injury.

We find that public policy does not require that citizens, who do volunteer work in coaching baseball and softball teams, provide supervision of all team members at the time when a team member is engaged in the activity of selling a raffle ticket. We find that the contrary is dictated by public policy, because such a requirement would impose an unreasonable burden upon those who operate and sponsor the Youth Baseball program.

The court determined it was impossible and burdensome to require the youth program to supervise the minors at all hours of the day and night. The burden of care lies with the parents. The court then reviewed the facts where the burden or duty of care in this case had always remained with the parents.

In the case at bar, we find that the care and control of the minor was with his parents. At the time of the accident the care of the minor had not been entrusted to youth Baseball. Loosier was selling tickets with the consent of his parents. He had gone to the shopping center with his friends with his mother’s permission to sell tickets which were obtained from the defendant by his father.

The only involvement of the defendant had been providing the tickets, which required the permission of the parents. There was no duty of supervision that could be placed on the defendant.

So Now What?

Those reading this article is a constant reminded that parents (and/or guardians) have the total control over their children. You as a coach, youth leader or volunteer must always make sure that you never do anything to imply that you are removing that duty from the parents, if you do, you are, then liable for the actions of the youth.

The more parental involvement in a program, the less likely the program will be sued because there is never any doubt that the parents have not relinquished their duty to supervise and control their children.

As a volunteer or even paid adult working with youth, you must constantly reinforce that you are acting with the parent’s permission, but they have the total control of the acts and situation and can revoke that permission at any time.

What do you think? Leave a comment.

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

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Loosier v. Youth Baseball and Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654

Loosier v. Youth Baseball & Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654

Appellate Court of Illinois, Fifth District

April 11, 1986, Filed

No. 5-84-0640

Counsel: Carroll L. Owens, of Benton, for appellant.

Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellee.

Judges: PRESIDING JUSTICE KASSERMAN delivered the opinion of the court. KARNS, J., concurs. JUSTICE HARRISON, specially concurring.

Opinion by: KASSERMAN

Opinion

 [*313] 
 [**934] 
 [****655]  This cause of action arose out of personal injuries suffered by the minor plaintiff when he was struck by a truck while trying to cross Interstate Route 57 west of Benton. Plaintiff filed suit alleging that  [*314]  defendant was negligent in that it was guilty of a breach of a duty owed the plaintiff to supervise, watch over, and care for the plaintiff while the plaintiff was selling baseball raffle tickets.

The defendant, Youth Baseball and Softball, Inc., is a not-for-profit organization which raises funds through raffle ticket sales. Each year prizes are given to the baseball participants who sell the most raffle tickets. The minor plaintiff, Jimmy Loosier, was a member of a baseball team which was under the supervision of the [***2]  defendant’s summer baseball program. Members of the baseball team participated voluntarily with their parents’ permission in the sale of raffle tickets to give away a new automobile as a means of financing the costs of the baseball program.

The raffle tickets were issued to the coaches who then issued tickets to the players to be sold by them. The tickets were initially distributed in lots of 10 to each child by the team coach. After the children sold their initial 10 tickets, they could get more tickets only with their parents’ permission. After the initial 10 tickets were issued to a child, Youth Baseball did not issue any more tickets to the children but, rather, gave them to the children’s parents when their parents asked for additional tickets. Selling the raffle tickets was purely the voluntary decision of each child and his parents. If a child did not participate in the fund-raising activities, the child lost no privileges.

Youth Baseball warned the children, upon distributing the initial 10 raffle tickets to each child who participated, not to sell them by themselves and not to go out without their parents’ permission. Although some individual coaches took their baseball [***3]  players out to sell tickets periodically, it was understood that the overall duty of supervision lay with the child’s parents and not with Youth Baseball.

The plaintiff, Jimmy Loosier, was 11 years old at the time of his injury on July 22, 1982. He had been selling raffle tickets for the youth Baseball program for four years when the accident occurred. When Loosier first began selling raffle tickets his mother warned him about places he should not go, people he should not sell to, and streets and highways he should avoid. She had instructed him to stop, look and listen when crossing streets. The minor plaintiff had also been instructed in safety on highway crossing at school.

On July 22, 1982, plaintiff went to the Wal-Mart store, which was approximately  [**935] 
 [****656]  two miles from his home and across Interstate Route 57, west of Benton. Prior to the accident, Jimmy Loosier had gone to the shopping mall where the Wal-Mart store is located on his own or with his friends 10 to 20 times in order to sell raffle tickets or just to “goof off.” The majority of the times the plaintiff had gone to Wal-Mart  [*315]  to sell tickets, he had gone without adult supervision.  [***4]  Jimmy’s mother knew when he went out to the mall by himself or with his friends and that there was no adult with them.

On the particular day the plaintiff was injured while crossing Interstate Route 57, he informed his mother he was going to Wal-Mart to sell raffle tickets. However another reason plaintiff wanted to go to Wal-Mart that day was to simply “get out of the house” because he was bored. Mrs. Loosier saw that Jimmy had his little black bag with the tickets when he left the house. She knew that Youth Baseball was not providing people to accompany her son whenever he went to sell tickets; yet, she permitted him to sell the tickets anyway.

After arriving at the mall the plaintiff sold seven or eight tickets. Then Johnny Hines and some other kids asked Loosier to steal a “hot wheels car” from Wal-Mart. When Loosier refused, they said they were going to “beat the heck out” of plaintiff if he didn’t. Loosier then left Wal-Mart. While he was standing out in the parking lot, Loosier saw the other kids coming outside so he began running. As he was running, he could see Hines and the other children following him on bikes. Loosier ran toward Interstate 57 and made it safely [***5]  across the southbound lanes of the interstate. When he was in the middle of the northbound portion of the interstate, he saw a semi-truck approaching. He slid and then started to scoot back up and the truck ran over his leg.

The plaintiff alleges that Youth Baseball owed a duty of supervision to him at the time and occasion of his injury. The trial court granted defendant’s motion for summary judgment, finding that Youth Baseball owed no duty to Loosier under the circumstances because the injuries to Loosier did not arise out of a time in which raffle tickets were being sold due to the fact that the sale of tickets had effectively been terminated prior to the activity which led to the plaintiff’s injuries. Plaintiff appealed from that portion of the trial court’s order. The trial court further held that the complaint stated a cause of action in that Youth Baseball had a duty to provide supervision for raffle ticket sales. Youth Baseball cross-appealed from this portion of the trial court’s order.

The first issue we must determine is whether the trial court appropriately granted defendant’s motion for summary judgment on the grounds that Youth Baseball had no duty to exercise [***6]  ordinary care for Loosier under the circumstances of the instant case.

It is fundamental that HN1[] there can be no recovery in tort for negligence unless the defendant has committed a breach of duty owed to the plaintiff. Whether under the facts of a given case, such a relationship  [*316]  exists between the parties so as to require a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1045, 462 N.E.2d 502, 505.) In the absence of any showing upon which the court could infer the existence of a duty, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper. Keller v. Mols (1984), 129 Ill. App. 3d 208, 210, 472 N.E.2d 161, 163.

Whether the law imposes a duty upon a defendant for injuries to a plaintiff does not depend upon the factor of foreseeability alone but rather the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant must also be taken into account. (Cf. Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.)  [***7]  In the case at bar the same standard applies for imposition of a legal duty which we set forth in Zimmermann.  [**936] 
 [****657]  As we noted in Zimmermann, the existence of a legal duty is not dependent on the factor of foreseeability but requires consideration of public policy and social requirements. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047, 462 N.E.2d 502, 506.) In Zimmermann we stated as follows:

HN2[] “Whether a defendant should have ‘foreseen’ harm to a party injured is the test to be used by a jury in determining negligence. ‘Foreseeability’ enters into the negligence format only after the court has concluded that, at the time of the occurrence in question, the defendant was under a duty to guard against injury to the plaintiff.” 122 Ill. App. 3d 1042, 1048, 462 N.E.2d 502, 507.

Continuing, we stated further:

“‘The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for [***8]  the jury to consider in determining the negligence issue are expressed in the foreseeability formula.’ Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18.” ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1048, 462 N.E.2d 502, 507, citing Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E. 2d 307.)

In Zimmermann we clarified the role of “foreseeability of harm” and the fact that it enters the negligence format only after the court determines that at the time of the occurrence in question there existed  [*317]  a duty on the part of the defendant to guard against injury to plaintiff. We additionally analyzed the policy basis of duty in Zimmermann. Quoting from Professor Prosser regarding the policy foundation of duty, we stated:

HN3[] “‘”[D]uty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say the particular plaintiff is entitled to protection.

* * *

[T]he courts have merely ‘reacted to the situation in the way in which the great mass of mankind customarily react,’ and that as our ideas of human relations change the law as to duties has changed with [***9]  them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.’ (Prosser, Torts sec. 54, at 326-27 (4th ed. 1971).)” 122 Ill. App. 3d 1042, 1053, 462 N.E.2d 502, 510.

Using the foregoing analysis which we set forth in Zimmermann as our guide, we turn to the consideration of the issue of whether Youth Baseball owed a duty to Loosier to protect him from injury at all times when he might sell a raffle ticket or be enroute to sell a raffle ticket. Consideration of this issue depends on public policy considerations and not merely foreseeability as we noted in Zimmermann.

To the extent that public policy enters into the analysis, no reasons sounding in public policy would require that a duty of continuous protection be imposed. Youth Baseball [***10]  provides a service to the community by sponsoring sports activities for young people without charge and it raises money for these activities by the sale of raffle tickets by its members on a voluntary basis. The sale of tickets is done only with parental permission. Ticket sales are made by the players at times other than when they are under the supervision of the coaches on the playing field. In fact, the ticket sales are made by the youths who participate in the program at any time when they are not either playing or practicing.  [**937] 
 [****658]  We find that public policy does not require that citizens, who do volunteer work in coaching baseball and softball teams, provide supervision of all team members at the time when a team member is engaged in the activity of selling a raffle ticket. We find that the contrary is dictated by public policy, because  [*318]  such a requirement would impose an unreasonable burden upon those who operate and sponsor the Youth Baseball program.

While defendant has a duty to supervise the activity of baseball and softball games while the players are on the field actively participating in the sport and entrusted by their parents to their [***11]  coaches, we are unwilling to conclude that they are required to supervise those same players at any hour of the day or night when they might decide to sell a raffle ticket while they are under the care of their parents. Under the circumstances of the case at bar, public policy is best served by placing the burden of the care of the children upon their parents who permit them to participate in the raffle ticket sales. In the case at bar, we find that the care and control of the minor was with his parents. At the time of the accident the care of the minor had not been entrusted to youth Baseball. Loosier was selling tickets with the consent of his parents. He had gone to the shopping center with his friends with his mother’s permission to sell tickets which were obtained from the defendant by his father. The only involvement of Youth Baseball was that it had provided the tickets that Loosier was selling with the permission of and while in the care of his parents. Under these circumstances, we find that Youth Baseball had no duty of supervision and affirm the trial court’s entry of summary judgment in defendant’s favor.

As an aside, we note that if foreseeability were to play [***12]  a rule in the determination of duty, it is not reasonable or likely that a boy going to a shopping center with his teammates to sell raffle tickets will be requested by one of those teammates to steal from the store in which they are selling tickets; that when he refuses his teammates will threaten to beat him for not stealing; that his teammates will then chase him; and that in the chase he will run across an interstate highway and be struck by a truck. We find that the likelihood of such an occurrence was not even remotely foreseeable.

In addition to finding that Youth Baseball owed no duty to Loosier under the circumstances of this case, resulting in the entry of a summary judgment in defendant’s favor, the trial court further found that Youth Baseball owed a duty to Loosier to provide supervision of raffle ticket sales, even though it did not define under what circumstances such a duty would exist. Defendant Youth Baseball cross-appealed from this portion of the trial court’s order.

The defendant points out that the single issue before the trial court in the Motion for Summary Judgment was: “Did Youth Baseball owe a duty to Loosier to take measures to protect him from the injury [***13]  he received as a result of the described occurrence?” The trial  [*319]  court determined the answer to that question was no. The defendant notes however that in its order the court seemed to indicate that there would be some other circumstances when the plaintiff would be actively engaged in the sale of tickets under which a duty would be owed. We agree with the defendant that this finding of the trial court was erroneous inasmuch as it did not define under what circumstances such a duty would exist. HN4[] Liability for negligence is predicated upon the requirement that a defendant use reasonable and ordinary care to protect a plaintiff under the circumstances in question. ( Sims v. Chicago Transit Authority (1954), 4 Ill. 2d 60, 122 N.E.2d 221.) As we noted in Zimmermann, the courts in Illinois frequently have been called upon in negligence cases to determine whether a duty exists under the specific facts presented. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1046, 462 N.E.2d 502, 505-06.) HN5[] Although the issue regarding duty is broad in its implication, a duty, when created as a matter of law, is required to have a particular set of  [**938] 
 [****659] 
 [***14]  circumstances as a basis for its creation. In the case at bar, the trial court held that there may be some other circumstances under which the plaintiff would be actively engaged in the sale of tickets under which a duty would be owed by the defendant. We conclude that such portion of the trial court’s order is erroneous inasmuch as the court appears to hold that a duty to use due care may arise under circumstances not presented to it for determination.

Concluding, we find that the trial court appropriately found that Youth Baseball owed no duty to exercise ordinary care for the plaintiff under the circumstances of the case at bar; consequently, that portion of the trial court’s order is affirmed. Furthermore, we reverse that portion of the trial court’s order which denied defendant’s motion to dismiss plaintiff’s complaint inasmuch as it was not based upon circumstances present in the case at bar.

Affirmed in part, reversed in part.

Concur by: HARRISON

Concur

JUSTICE HARRISON, specially concurring.

Although I agree with the result reached in the majority opinion, I cannot accept the majority’s unwillingness to recognize the relevance of foreseeability regarding the duty question for [***15]  the reasons discussed in the dissenting opinion in Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1054-56, 462 N.E.2d 502, 511-12 (Harrison, J., dissenting).


If you have too many cases of Covid-19 at your camp or recreation program will the state force you to quarantine in place?

Meaning will the state not let anyone leave until the quarantine is over?

This game was developed an epidemiologist at U Wisc. https://apl.wisc.edu/beta-testing/zombie-unicorn-outbreak

I started playing it to understand how a quarantine might work, etc. What caught me off guard is playing with the variables dramatically changes the outcome.

Example:

Figure a camp has a low percentage of at-risk people. Based on the ACA model you would want the kids to stick together. Cabins stick together and do not interact with other cabins. However, that model had a 10 times greater infection rate over the never get together model. Obviously, camp would never be neither, so choose mostly and if one carrier arrives in camp at the end of the first week, you have eight infected kids.

What happens if the State Quarantines a Camp?

The next issue that no one has thought about is that I can find in my searching is what is the state going to do if a camp has X cases. Meaning if a camp sends X kids home in one week, what is the state response? At what number of kids going home with Covid-19, will the state quarantine the camp. Not let anyone leave? What happens when a camp is quarantined?

How far reaching will the quarantine go. Will kids be confined to cabins for two weeks like people were confined to rooms on the cruise ships?

What will the results of a quarantine like that be?

Will food be delivered to cabins by kitchen staff? What about laundry? What about exercise? Maybe you can designate times and locations for a cabin to do things?

Think about dealing with parents who are going to insist that they take their kids home? However, I think the state, which will be at the front gate will get to deal with them.

Or will the state just empty the camp and send everyone’s home? I can’t see most states doing this because they will just be spreading the virus out in the community.

Worker’s Compensation

That then leads into the next issue and tomorrow’s discussion, insurance. In this case, Worker’s Compensation. Camp staff will be able to prove they got the quarantine at camp while working. You need to make sure you have coverage for that. See tomorrows article If you are thinking about opening for the summer, before you stock up on PPE, you might check to see if you have insurance coverage. If you get sued by a guest for catching Covid-19 at your business or operation the legal fees to win your case can exceed $100,000.

(We won’t even discuss paying camp staff that can’t leave camp?)

What do you think? Leave a comment.

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Pennsylvania No Duty Rule stops lawsuit by underage rider.

A minor with 12 years of riding and competing on dirt bikes could not sue the commercial operation after crashing on the course.

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

State: Pennsylvania; United States District Court for the Western District of Pennsylvania

Plaintiff: Kameron Hawkins and Amber Lynn Durbin

Defendant: Switchback MX, LLC d/b/a Switchback Raceway

Plaintiff Claims: negligence and negligence per se

Defendant Defenses: Pennsylvania No Duty Rule (Assumption of the Risk)

Holding: For the Defendant

Year: 2019

Summary

The Pennsylvania Comparative Negligence Act specifically identifies downhill skiing and off-road riding as exempt from the comparative negligence act. In both those sports, the participant assumes the risk of their injuries due from the inherent risks of the sports.

Facts

Hawkins [plaintiff] began riding a dirt bike at the age of five or six.. He learned the ins and outs of dirt bike [motorized] riding from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races Hawkins began participating in races himself at “a young age” and even secured sponsorships. He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko, and once as a rider.

The events preceding Hawkins’ accident on January 9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. He denied ever being asked to present identification and did not recall being asked his age.

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. Brader did not recognize Hawkins and thought he appeared to be under the age of 18. Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he told Hawkins he “could not ride” without waiver and consent forms on file. Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback.

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. Hawkins left Switchback’s facility with his friends without receiving medical attention. Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. The accident occurred four months before Hawkins’ 18th birthday.

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

The court first reviewed the requirements to prove a negligence claim in Pennsylvania.

Under Pennsylvania law, a plaintiff must prove the “four basic elements of duty, breach, causation, and damages. That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages.

The court then reviewed the claims of the plaintiff as whether the defendant owed a duty to the minor plaintiff because the plaintiff assumed the risk of his injuries.

The defendant’s position was it had no duty to protect the plaintiff because of the inherent risk set out in the “no duty” rule in the Pennsylvania Comparative Negligence Act.

The plaintiff’s response to that argument was the negligence of the defendant was in allowing the plaintiff to access the track.

The court looked at the conflicting arguments by next reviewing assumption of the risk as applied in Pennsylvania. The Pennsylvania Comparative Negligence Act eliminated the defense of assumption of the risk in all areas except two when it enacted the statute. The two exemptions were downhill skiing and off-road vehicle riding. Meaning in those two situations, the no-duty rule retained the defense of assumption of the risk. The defendant has no duty to protect the plaintiff from the inherent risks of the sport of downhill skiing or off-road riding.

The court then reviewed whether assumption of the risk applied to minors. That is “the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” with respect to the risk involved.”

Under Pennsylvania law, to prove assumption:

…the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.”

A factor in determining whether or not a minor assumed the risk is the minor’s age and experience. In this case that worked for the defendant because the minor was only four months from turning eighteen at the time of the accident and had been riding for twelve years.

The court then defined inherent risk as a risk “which “cannot be removed without altering the fundamental nature” of the activity.”

The court broke down the inherent risks of off-road riding as identified in the statute, to see if the plaintiff’s injury landing on a table-top jump was inherent to the sport.

Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. We find that the risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity.

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

For these reasons, the court found the minor, because of his age and experience assumed the risk of his injuries, and the defendant was not liable for those injuries because of the Pennsylvania Comparative Negligence Act.

So Now What?

Assumption of the risk in most states is the only defense you have to injuries a minor receives. Unless your state has a specific statute that identifies your activity as one with inherent risk a person assumes, you need to prove the minor in your case assumed those risks.

To do that you must maximize all the avenues to educate and document that education of a minor, in fact, all participants in your activity or business.

Post videos of your activity showing crashes, flips and falls on your website and social media. Point out possible risks on your site and social media. Then confirm in some way that the minor observed that information.

You can go so far as to ask the minor and/or the minor’s parents of their experience in the sport. Have they participated in the sport before, seen it on TV, participated for how many years, etc.

A release is your best defense to a lawsuit, but for minors, in those states where releases are not valid and or minors, assumption of the risk is your best and sometimes only defense.

For more information see:

States that allow a parent to sign away a minor’s right to sue

States that do not Support the Use of a Release

What do you think? Leave a comment.

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Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson

Appellate Court of Illinois, Second District

September 12, 2018, Order Filed

No. 2-17-0707

Reporter

2018 IL App (2d) 170707-U *; 2018 Ill. App. Unpub. LEXIS 1529 **

TRACEY GROSCH, Individually and as Mother and Next Friend of Riley Grosch, a Minor, Plaintiff and Counterdefendant-Appellant, v. BRIAN ANDERSON, JO ANDERSON, CARY-GROVE EVANGELICAL FREE CHURCH, d/b/a Living Grace Community Church of Cary, Defendants and Counterplaintiffs-Appellees.

Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

Prior History:  [**1] Appeal from the Circuit Court of Kane County. No. 14-L-619. Honorable James R. Murphy, Judge, Presiding.

Disposition: Affirmed.

Judges: JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Burke concurred in the judgment.

Opinion by: BIRKETT

Opinion

JUSTICE BIRKETT delivered the judgment of the court.

Justices McLaren and Burke concurred in the judgment.

ORDER

 [*P1] 
Held: The trial court properly granted summary judgment in favor of defendants because the fire pole was an open and obvious condition and no exception existed, and there were no genuine issues of material fact sufficient to preclude summary judgment.

 [*P2]  Plaintiff, Tracey Grosch, individually and as mother and next friend of Riley Grosch, a minor, appeals the judgment of the circuit court of Kane County, granting summary judgment in favor of defendants, Brian Anderson, Jo Anderson, and the Cary-Grove Evangelical Free Church d/b/a Living Grace Community Church on plaintiff’s claims of negligence related to Riley’s fall as he was attempting to slide down a fire pole in the Andersons’s back yard during an event sponsored by the Church’s youth ministry. On appeal, plaintiff argues that the trial court erred in relying on the open-and-obvious doctrine and in concluding [**2]  that there were no genuine issues of material fact sufficient to preclude summary judgment. We affirm.

 [*P3]  I. BACKGROUND

 [*P4]  We summarize the pertinent facts. On November 14, 2016, the Andersons were members of the Church; plaintiff’s family attended the Church, but were not members. According to Pastor Cory Shreve, quite a few more people attended the Church than were members. Shreve was the youth pastor and was responsible for running and administering the Church’s youth ministry. He was in charge of the Radiate program which provided for fellowship and religious mentoring of youths beginning in seventh grade and ending upon high school graduation. Radiate was open to members and attendees, and it incorporated youths from other churches and even the “unchurched” as well. Radiate had contacted the Andersons seeking to hold a bonfire at their home; the group had held a bonfire there previously.

 [*P5]  In the Andersons’ back yard, Brian had constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground. The platform was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection. The [**3]  platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3 1/2 inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.

 [*P6]  Brian explained that he built the platform and fire pole for his children. Both Brian and Jo testified in deposition that between 150 to 200 people had used the pole, all without injury. Brian testified that he was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work; no fall protection was installed or available on the platform. Brian testified that he did not research or follow any building codes for the platform and fire pole.

 [*P7]  On the day of the Radiate event, Shreve arrived 15-30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. Plaintiff dropped off Riley and then went shopping nearby, intending to finish shopping and then return for the balance of the [**4]  event. Jo was inside the house for the event, and she monitored the food and drinks, making sure that there was plenty for all of the guests. She also socialized with the other parents. Brian was also inside socializing. Shreve was monitoring the bonfire. At one point, he intercepted one of the youths who tried to jump over the bonfire and explained to the youth why that was not a wise decision. At the time of Riley’s accident, Shreve had gone inside.

 [*P8]  Riley, the Andersons, and Shreve all testified that it was a cool or cold evening, estimating the temperature was anywhere from the 20s to the 40s. According to Shreve and Brian, the point of the event was the bonfire and indoor fellowship; the youths attending were not expected to play in the back yard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool, basketball, and board games were available. After about an hour outside, Shreve went inside, planning to steer the event towards worship. One of the youths came inside and alerted Shreve and the adults that Riley was hurt.

 [*P9]  Riley testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the [**5]  platform while waiting for his turn, he put on gloves. Riley testified that the gloves were like ski gloves, and believed they were slick, possibly made of nylon. Riley testified that he awaited his turn along with several other youths. On that day, Riley was 13 years of age. He grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As Riley began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. Riley suffered a comminuted fracture of his left femur and broke several long bones in his right foot. Riley’s femur was repaired surgically, and he had a rod emplaced in the bone. There is a possibility that the rod may have to be removed at a future date. Riley also developed a foot drop following his fall from the platform.

 [*P10]  The adults came out to investigate after they were notified. One of the youths, an Eagle Scout, obtained a rigid table top, and after they had ascertained that Riley had no apparent head or spinal injuries, placed him on the table top and moved him inside. Their purpose was to get him off of the cold ground; Riley apparently was complaining of resting [**6]  on the cold ground. Plaintiff was informed and told to return to the Andersons’ house. According to Brian, she arrived in minutes; plaintiff and other deponents testified that it was closer to 20 minutes. Eventually, an ambulance was called. It appears that plaintiff made the call for an ambulance as the other adults wanted to defer to her wishes. The ambulance took Riley to the hospital where he was treated for his injuries.

 [*P11]  Shreve and the Andersons testified that, when the plans were made to use the Anderson property for the Radiate bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, Brian testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.

 [*P12]  Plaintiff’s expert, Alan Caskey, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. Caskey opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to Riley’s injury, because the excessive width of the pole decreased the strength of the user’s grip of the [**7]  pole. Caskey did not, however, offer any opinion about the effect of Riley’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. Caskey also specifically noted that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. Caskey also opined that the darkness could have contributed to Riley losing his grip on the pole because it obscured the size of the pole and its texture. However, Caskey admitted that these were assumptions on his part, and he conceded that there was no testimony specifically addressing these issues.

 [*P13]  As to the procedural posture of this case, on December 15, 2014, plaintiff timely filed her initial complaint; on February 19, 2015, plaintiff filed the first amended complaint at issue in this case. On April 28, 2016, the Andersons filed their motion for summary judgment followed on June 29, 2016, with the Church’s motion for summary judgment. The motions were stayed while plaintiff procured her expert testimony. [**8]  In November 2016, defendants filed their counterclaims against plaintiff.

 [*P14]  On March 16, 2017, plaintiff filed a motion for leave to file a second amended complaint, which the trial court granted. On March 31, 2017, the Church, joined by the Andersons, filed a motion to vacate the trial court’s grant of leave to file the second amended complaint. On April 6, 2017, the trial court vacated its order granting leave to file the second amended complaint and reinstated the briefing schedule on defendants’ motions for summary judgment.

 [*P15]  On May 15, 2017, the trial court apparently heard the parties’ arguments regarding defendants’ motions for summary judgment. On that date, the trial court continued the cause until June 2, 2017, for ruling. On June 2, 2017, the trial court entered summary judgment in favor of defendants and against plaintiff. The court specifically held that:

“defendants owed no duty to plaintiff based on the open and obvious nature of the subject condition [(the platform and fire pole)] on the property; there being no proximate cause between the condition on the property and the injury to [Riley]; and there being no question of material fact raised by plaintiff.”

The trial court [**9]  entered judgment for defendants and dismissed plaintiff’s case. No transcripts of either the argument or the pronouncement of judgment were included in the record.

 [*P16]  On June 30, 2017, plaintiff filed her motion to reconsider. On August 11, 2017, the trial court denied plaintiff’s motion to reconsider, and plaintiff timely appeals.

 [*P17]  II. ANALYSIS

 [*P18]  On appeal, plaintiff argues that the trial court erred in holding that the platform and fire pole presented open and obvious conditions precluding the imposition of a duty. Plaintiff specifically contends that the design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious; alternatively, plaintiff argues that the distraction doctrine should apply. Plaintiff also contends that there is a genuine issue of material fact regarding “the true cause” of Riley’s fall. We consider the arguments in turn.

 [*P19]  A. General Principles

 [*P20]  This case comes before us following the trial court’s grant of summary judgment in favor of defendants. In deciding a motion for summary judgment, the court must determine whether the pleadings, depositions, admissions, and affidavits in the record [**10]  show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). The purpose of summary judgment is not to try a factual issue but to determine if a factual issue exists. Monson v. City of Danville, 2018 IL 122486, ¶ 12. While summary judgment provides an expeditious means to resolve a lawsuit, it is also a drastic means of disposing of litigation. Id. Because of this, the court must construe the record strictly against the moving party and favorably towards the nonmoving party, and the court should grant summary judgment only if the moving party’s right to judgment is clear and free from doubt. Id. We review de novo the trial court’s judgment on a motion for summary judgment. Id.

 [*P21]  Here, plaintiff alleged that defendants were negligent regarding the platform and fire pole. In a negligence action, the plaintiff must plead and prove that the defendant owed the plaintiff a duty, that the defendant breached the duty owed, and that an injury proximately resulted from the breach. Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578, ¶ 12, 394 Ill. Dec. 906, 37 N.E.3d 385. The existence of a duty is a question of law and may properly be decided by summary judgment. Id. If the plaintiff cannot demonstrate the existence of a duty, no recovery by the plaintiff [**11]  is possible, and summary judgment in favor of the defendant must be granted. Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067, ¶ 12, 396 Ill. Dec. 315, 39 N.E.3d 1141. With these general principles in mind, we turn to plaintiff’s contentions.

 [*P22]  B. Open and Obvious

 [*P23]  Plaintiff argues the trial court erred in determining that the platform and the fire pole were open and obvious conditions precluding the finding of a duty on the part of defendants. As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 384, 502 N.E.2d 826, 104 Ill. Dec. 329 (1986). The analysis of duty with respect to children follows the customary rules of negligence. Id. This means that a dangerous condition on the premises is deemed one that is likely to cause injury to a general class of children, who, by reason of their immaturity, might be unable to appreciate the risk posed by the condition. Id. However, the open-and-obvious doctrine may preclude the imposition of a duty. Id.

 [*P24]  Recently, this court gave a thoroughgoing analysis of the open-and-obvious doctrine, how exceptions to that doctrine are accounted for, and, ultimately, how duty is imposed [**12]  in these types of cases. Bujnowski, 2015 IL App (2d) 140478, ¶¶ 13-46.1 We concluded that, in cases in which the open-and-obvious doctrine applies, the court will consider whether any exception to the doctrine applies, such as the distraction exception (id. ¶ 18 (discussing Ward v. K Mart Corp., 136 Ill. 2d 132, 149-50, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990) (it is reasonably foreseeable to the defendant that the plaintiff’s attention might be distracted so that the plaintiff will not discover or will forget what is obvious)) or the deliberate-encounter exception (id. ¶ 32 (discussing LaFever v. Kemlite Co., 185 Ill. 2d 380, 391, 706 N.E.2d 441, 235 Ill. Dec. 886 (1998) (it is reasonably foreseeable to the defendant that the plaintiff, generally out of some compulsion, will recognize the risk but nevertheless proceed to encounter it because, to a reasonable person in the same position, the advantages of doing so outweigh the apparent risk)). When no exception applies, the court proceeds to the general four-factor test for imposing liability: (1) whether an injury was reasonably foreseeable; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. Id. ¶ 19 (quoting Ward, 136 Ill. 2d at 151).

 [*P25]  We held that the case law had developed into two approaches in applying the four-factor [**13]  duty test. In one approach, the first two factors will favor the defendant (because the danger is open and obvious), and the court must consider the third and fourth factors which could, at least theoretically, counterbalance the first two factors. Id. ¶ 46. Under the second approach, which we deemed to be more consistent with section 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts § 343A (1965)) on which our supreme court had relied, the last two factors could never outweigh the first two factors, so even if the burden and consequences were minimal, the defendant necessarily would not have any duty to the plaintiff. Bujnowski, 2015 IL App (2d) 140478, ¶ 46.

 [*P26]  Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 885, 916 N.E.2d 1153, 334 Ill. Dec. 265 (2009). The risk that confronted Riley as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk. We next turn to whether there is an available exception to the open-and-obvious doctrine.

 [*P27]  Plaintiff first argues that the distraction exception applies here. The distraction exception had its genesis in Ward, 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288. In that case, a shopper exited the store carrying large mirror he had just purchased and was injured when he walked into a [**14]  concrete post. Id. at 135. The court explained that, even though the post was an open and obvious condition, harm was nevertheless reasonably foreseeable because the store had reason to expect that its customer’s attention may have been distracted so that the customer would not have discovered what is obvious, or would have forgotten what was discovered, or would have failed to protect himself. Id. at 149-50.

 [*P28]  In support of her argument that the distraction exception should apply, plaintiff cites only Ward and Sollami v. Eaton, 201 Ill. 2d 1, 15-16, 772 N.E.2d 215, 265 Ill. Dec. 177 (2002). Ward gave several examples of circumstances in which the distraction exception could apply. As an example, stairs are generally not unreasonably dangerous, but they may be so if, under the circumstances, the plaintiff may fail to see the stairs. Ward, 136 Ill. 2d at 152. Additionally, an open and obvious condition may nevertheless be unreasonably dangerous if it exists in an environment in which the plaintiff is attending to his or her assigned workplace duties and encounters the condition. Id. at 153. For example, a builder carrying roof trusses steps into an open hole in the floor, or a dock worker unloading a truck steps off of a lowered dockplate while unloading a truck, or a customer falls when he or she misses the step off of the stoop [**15]  at the entrance to the store, are all instances in which the defendant should have foreseen the risk of harm caused by the otherwise open and obvious condition.

 [*P29] 
Sollami, by contrast, involved a child “rocket jumping” on a trampoline with several other children when she injured her knee after being “rocketed” to a greater-than-usual height and landing on the surface of the trampoline. Sollami, 201 Ill. 2d at 4. After briefly discussing the parameters of the distraction exception (id. at 15-16), the court held that there was no evidence to show that the child was distracted while jumping on the trampoline (id. at 16). In other words, the child was using the trampoline as she intended to, and she was fully aware of the danger jumping on it may have presented.

 [*P30]  Considering the evidence in the record, we conclude that there was no evidence of distraction presented in the record. Riley climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with [**16]  only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that Riley was distracted. He was not going about his profession or avocation as in the examples in Ward when he encountered the condition. Rather, he was participating in using the fire pole as he intended, as in Sollami. Indeed, Riley attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.

 [*P31]  Plaintiff argues that the darkness of the evening distracted Riley from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. Riley had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, Riley would have perceived it as he grasped it. Brian Anderson testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around [**17]  it. Riley testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.

 [*P32]  We also note that there is no evidence that Riley stepped through the opening while trying to use the fire pole, which would, perhaps, have brought the circumstances within the examples in Ward in which workers encountered a condition that was otherwise open and obvious while performing work-related tasks. Instead, Riley testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that Riley was distracted by the darkness and the other children, or that the presence of darkness and other children were sufficient to demonstrate a factual issue in the absence of any evidence [**18]  that these purported distracting circumstances contributed in Riley’s fall.

 [*P33]  The deliberate-encounter exception is usually raised in cases in which an economic compulsion (such as employment) causes the plaintiff to encounter the dangerous condition because, to a reasonable person in that position, the advantages of doing so outweigh the apparent risk. Sollami, 201 Ill. 2d at 15-16. Plaintiff does not contend that the deliberate-encounter exception is applicable to the circumstances. While the deliberate-encounter exception may not be limited to circumstances of economic compulsion, there is no evidence that Riley was under any compulsion, such as peer pressure, to attempt to slide down the fire pole. Because there is no evidence, we hold the deliberate-encounter exception does not apply.

 [*P34]  In the Bujnowski analytical framework, we now turn to the four-factor duty test. Because the condition was open and obvious, namely falling from a height, Riley’s injury was not reasonably foreseeable, because falling from a height is among the risks that even very young children (and Riley was not a very young child but 13 years of age) are capable of appreciating and avoiding that risk. Qureshi, 394 Ill. App. 3d at 885. Likewise, the likelihood of injury is [**19]  small because the risk was apparent. Thus, the first two factors strongly favor defendants.

 [*P35]  The remaining factors appear to be split between plaintiff and defendant. The burden of guarding against the injury appears relatively slight. Defendants could have forbidden the children to use the platform and fire pole. The consequences of placing the burden on defendants are perhaps greater. The Andersons testified that they erected the structure for the amusement of their children. They also testified that of hundreds of users and uses, no one had ever been injured, from young children to older adults. (Plaintiff testified that one of the Andersons told her that one of their children had been injured using the fire pole; the Andersons denied making this statement and denied that any of their children had been injured using the fire pole.) The consequences of forbidding the structure’s use that evening would have been miniscule; the consequences of forbidding access altogether would have been much greater. Even if this calculus on the final two factors favors plaintiff, we cannot say that, in light of the open and obvious nature of the hazard, that they outweigh the first two factors. See [**20] 
Bujnowski, 2015 IL App (2d) 140578, ¶ 55 (no published case has held both that the open-and-obvious doctrine applied without any exception being present and the defendant still owed a duty to the plaintiff). Accordingly, we hold that defendants did not owe Riley any duty in this case.

 [*P36]  Plaintiff argues that the hazard in this case was not open and obvious. Plaintiff argues first that the fire pole, being almost twice the diameter recommended in the industry, was a hidden and dangerous condition. We disagree. The risk posed by the structure was a fall from a height, and the evidence shows that Riley made the climb up to the platform and fell when he had donned slick nylon-shelled ski gloves and did not wrap his arms and legs around the pole.

 [*P37]  Plaintiff argues that the darkness of the evening concealed the width of the pole from Riley. Riley did not testify that he fell through the opening because it was too dark to see. Rather, he testified that he fell when he tried to slide down without wrapping his arms and legs around the pole and when his slick gloves caused his grip to fail. We reject plaintiff’s contentions.

 [*P38]  Plaintiff contends that, due to the construction of the structure and the darkness of the evening, the dangers [**21]  associated with it were not obvious to Riley. We disagree. Riley climbed up to the platform, so he knew that he was very high above the ground. The risk of a fall from a height was therefore clearly apparent, as even very young children are deemed to appreciate the risk of a fall from a height. Qureshi, 394 Ill. App. 3d at 885. We therefore reject plaintiff’s contention and persist in holding that the risk was open and obvious.

 [*P39]  As plaintiff has neither convinced us that the risk was not open and obvious nor that any exception to the open-and-obvious doctrine was applicable, we affirm the judgment of the trial court on this point.

 [*P40]  C. Factual Issues

 [*P41]  Plaintiff argues there is a factual issue whether Riley’s slick gloves or the 3 1/2-inch diameter of the pole caused Riley’s fall. Plaintiff contends that Caskey testified that the pole was so wide that Riley had inadequate grip strength to descend safely (perhaps implying the converse that, if the pole were narrower, Riley’s grip strength would have been adequate). Plaintiff concludes that there is a factual issue regarding the mechanism of Riley’s fall, and this issue should have precluded summary judgment.

 [*P42]  We disagree. Even conceding a factual issue in the mechanism [**22]  of Riley’s fall, defendants did not owe Riley any duty because the risk of a fall from a height was open and obvious, no exception to the open-and-obvious doctrine applied, and the final two factors of the four-factor duty test did not outweigh the first two factors. Thus, the factual issue regarding the mechanism of Riley’s fall was not material in the absence of a duty.

 [*P43]  Plaintiff also contends that defendants owed a duty to instruct Riley on the use of the pole. While this contention is perhaps structurally misplaced in plaintiff’s argument, it is unavailing. The danger of the structure to Riley was open and obvious: a fall from a height. If, as plaintiff appears to contend, Riley did not know how to descend a fire pole, the risk of a fall from a height was still something he could appreciate. Under the law, then, Riley is deemed to be able to appreciate and avoid that risk, including his own limitations on using the fire pole to descend from the height. Accordingly, we reject plaintiff’s contentions.

 [*P44]  We close with the following observation from Bujnowski: “[t]ragic as the facts of this case are, they are not extraordinary in a legal sense and do not call for a result that would [**23]  appear to be without precedent.” Bujnowski, 2015 IL App (2d) 140578, ¶ 55.

 [*P45]  III. CONCLUSION

 [*P46]  For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

 [*P47]  Affirmed.

End of Document


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

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Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

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Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

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Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495

Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495

Thomas A Lynam, III and Antoinette M. Lynam, as Parents and Natural Guardians of Thomas A. Lynam, IV, a minor,

v.

Blue Diamond LLC and Parkway Gravel Inc. and Houghton’s Amusement Park, LLC

C.A. No. N14C-11-121 RRC

Superior Court of Delaware, New Castle

October 4, 2016

Submitted: July 6, 2016

On Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s Motion for Judgment on the Pleadings.

Tabatha L. Castro, Esquire The Castro Firm, Inc. Attorney for Plaintiffs

Leonard G. Villari, Esquire Villari, Lentz & Lynam, LLC Attorney Pro Hac Vice for Plaintiffs

Marc S. Casarino, Esquire Dana Spring Monzo, Esquire Nicholas Wynn, Esquire White and Williams, LLP Attorneys for Defendants Blue Diamond LLC and Parkway Gravel, Inc.

Dear Counsel:

I. INTRODUCTION

Pending before this Court is Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s (“Defendants”)[1] Motion for Judgment on the Pleadings. In their complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding his motocross bicycle on Defendants’ motocross track. After riding off a jump, Tommy landed, lost control of his motocross bicycle, and collided with a metal shipping container near the track. Tommy apparently sustained serious injuries. Plaintiffs’ complaint raises one count of “negligence” as a theory for liability.[2]Although not listed as a separate count in their complaint, Plaintiffs allude in their general “negligence” claim to a theory of reckless conduct by Defendants in connection with the operation of the motocross track.

In their motion, Defendants assert that their alleged behavior was, as a matter of fact and law, neither negligent nor reckless. Alternatively, Defendants raise an affirmative defense that they are released from any liability for negligent or reckless conduct due to a release agreement (the “Release”) signed by the Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as a separate affirmative defense as a bar to recovery.

Plaintiffs agree that they released Defendants from liability for Defendants’ own “negligence.” However, Plaintiffs contend that Defendants’ conduct amounted to recklessness, and that Plaintiffs never released Defendants from liability for their allegedly reckless conduct. In response to Defendants’ claim that Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision with a metal shipping container was not contemplated at either the signing of the Release or when Tommy began using the facilities.

This Court concludes that the Release was not specifically tailored so as to release Defendants from liability for their allegedly reckless conduct. The Court also finds that the factual record is insufficiently developed to make a legal determination of whether Defendants’ conduct as a matter of law amounted to recklessness. Finally, the Court concludes that it is premature at this juncture to consider Defendant’s affirmative defense. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings.

II.FACTUAL AND PROCEDURAL HISTORY

On January 6, 2013, Tommy, then thirteen years old, was riding a motocross bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the track was advertised as being composed of “safe jumps.”[3] While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container.

Prior to granting Tommy admission to the Blue Diamond facilities to ride his motocross bicycle, Blue Diamond required Tommy’s father to sign a release agreement. The Release, entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, ” stated that Plaintiffs understood the “risks and dangers of serious bodily injury” posed by motocross and relieved Defendants from liability for their own negligence.[4] The Release also released Defendants from liability for injuries suffered by Plaintiffs through their own negligence.[5]

In their complaint, Plaintiffs allege that Defendants negligently allowed the container to remain on the premises at an unsafe distance from the motocross track.[6] While Plaintiffs do not specifically allege recklessness as a separate claim for recovery, but rather include it in a single count of “Negligence, ” Plaintiffs’ complaint references reckless conduct as another potential theory of recovery.[7]Plaintiffs, however, now agree that their claims of negligence are barred by the Release.[8] But Plaintiffs assert that the Release did not specifically address or contemplate potential claims against Defendants for “reckless” behavior.[9]

III. ANALYSIS

A. Standard of Review

Under Superior Court Civil Rule 12(c), a party may move for judgment on the pleadings after the pleadings are closed.[10] The standard of review in the context of a motion for judgment on the pleadings requires a court to “accept all the complaint’s well-pleaded facts as true and construe all reasonable inferences in favor of the non-moving party.”[11] “The motion will be granted when no material issues of fact exist, and the moving party is entitled to judgment as a matter of law.”[12] “The standard for a motion for judgment on the pleadings is almost identical to the standard for a motion to dismiss.”[13]

B. The Parties Agree that the Release Bars Plaintiffs’ Recovery Against Defendants for Any Negligence

Defendants contend that the executed Release bars recovery for negligence. At oral argument on this motion, Plaintiffs agreed (Plaintiffs’ filings were not explicit on this point) that the Release bars recovery for injuries resulting from Defendants’ allegedly negligent conduct.[14] Although Plaintiffs are residents of Pennsylvania, the parties agree that Delaware law applies to the present motion, as Defendants are Delaware businesses and the incident giving rise to the case at bar occurred in Delaware.

Under Delaware law, parties may enter into an agreement that relieves a business owner of liability for injuries to business invitees that result from the owner’s negligent conduct.[15] However, the release must be unambiguous, not unconscionable, and not against public policy. [16] Further, the release must be “‘crystal clear and unequivocal’ to insulate a party from liability for possible future negligence.”[17]

In Ketler v. PFPA, LLC, the Delaware Supreme Court recently determined the validity of a release waiving liability for negligence.[18] The release in Ketler provided:

‘I understand and voluntarily accept this risk and agree that [the defendant] . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendant] or anyone on [the defendant’s] behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge [the defendant] from any and all claims, demands, injuries, damages, actions, or causes of action.'[19]

The Delaware Supreme Court held that the release was sufficiently clear and unequivocal, and that it expressly released the defendant from any and all causes of actions relating to the defendant’s own negligence.[20] Defendants rely heavily on this case, asserting that it applies to claims of reckless conduct.[21]

The Release that Plaintiffs executed in this case is also sufficiently “clear and unequivocal.” The Release provides:

3. I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.

4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.[22]

Similar to the language at issue in Ketler, the Release expressly states that the signor assumes responsibility for injuries caused by Defendants’ own negligent conduct. The release also expressly states that the Defendants are released from any and all causes of action that may arise from Defendants’ negligent conduct. Accordingly, this Court agrees with the parties that the Release validly exculpates Defendants from liability for their own negligence.

Defendants also rely on Lafate v. New Castle County[23] and Devecchio v. Delaware Enduro Riders, Inc.[24] to support their position that the Release waives claims of reckless conduct. Both Lafate and Devecchio concern agreements that released the tortfeasors from liability for their own negligent conduct. Both cases also discussed whether the language of the releases was sufficiently tailored to release the tortfeasor’s negligent conduct. In Lafate, this Court refused to grant the defendant’s motion for summary judgment on grounds that the release did not clearly and unambiguously release the tortfeasor from claims that it was negligent.[25] In Devecchio, this Court granted the defendant’s motion for summary judgment because the plaintiff signed a valid covenant not to sue for injury resulting from the plaintiffs own negligence.[26]

Defendants’ reliance on these cases in light of Plaintiffs’ potential claim of reckless conduct is inapposite. Because the parties have agreed that Defendants are insulated from claims of negligence, the question of whether the release clearly and unambiguously insulates the defendants from liability for their own negligent conduct is moot. Neither the holding in Lafate nor in Devecchio relate to allegations of reckless conduct. Accordingly, because Plaintiffs now assert that Defendant’s conduct was reckless, Lafate and Devecchio are distinguishable from the case at bar.

Finally, the Court considers whether, for purposes of this motion, recklessness is subsumed in negligence, and is therefore barred as a form of negligence. Prosser and Keeton on Torts is particularly informative, providing that “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[27] Adopting Prosser and Keeton’s interpretation, this Court finds that although the Release does insulate Defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence, ” such as “reckless” conduct.[28]

C. A Motion for Judgment on the Pleadings is Inappropriate at this Juncture in Light of any Undeveloped Claims of Reckless Conduct

Although Tommy’s father’s execution of the Release precludes recovery from Defendants on a theory of “negligence, ” Plaintiffs assert that the Defendants’ conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of the complaint that Defendant’s conduct was reckless, but Plaintiffs did make it apparent in the complaint that it was an intended theory of liability.[29] In their briefing and at oral argument, Plaintiffs suggested that Defendants, among other things, had been aware of previous collisions with the shipping container, and that their ignorance of these prior incidents amounts to reckless behavior.[30]Accordingly, the Court must determine whether the Release bars Plaintiffs from asserting claims resulting from injuries caused by Defendants’ reckless conduct.

Courts in Delaware have a strong preference for resolving cases on their merits, or at least allowing discovery to proceed such that additional evidence in support of the parties’ contentions can be developed.[31] While this preference is not outcome-determinative, the preference for resolving cases on the merits is a strong factor in determining whether to grant or deny a dispositive motion.

Plaintiffs, at oral argument and in their response to the motion, argue that they are entitled to recovery based on Defendants’ allegedly reckless conduct. The parties agree that this theory is separate from the one count of “negligence” listed in the complaint.[32] The operative language of the Release does not explicitly enumerate or contemplate recklessness as a theory of recovery barred by the Release. Under Delaware law, as provided in Ketler, a release must be “clear and unambiguous” in order to effectively release the business owner from liability.[33]

This Court finds that the language of the release is not “clear and unambiguous” with respect to Defendants’ liability for their own allegedly reckless conduct. In Ketler, the release at issue specifically used the word “negligence, ” and stated that Defendants “will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendants].” The Delaware Supreme Court held that this language satisfied the “clear and unequivocal” standard and upheld the language of the agreement.

Turning to the Release that Plaintiffs executed, this Court finds that the Release is silent as to claims of recklessness. The Release does not mention “reckless” conduct, and instead only expressly refers to injury caused by Defendants’ “negligence.” In the absence of such language, the Release does not clearly and unambiguously exculpate Defendants from liability for their own reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs’ claim of recklessness.[34]

This Court holds that the Release does not bar claims of reckless conduct. This Court expresses no opinion at this juncture as to whether Plaintiffs ultimately can establish claims against for recklessness. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings, and will grant Plaintiffs leave to conduct further discovery with the option of potentially amending the complaint in support of their contention that Defendants’ conduct was “reckless.”[35]

D. The Court does Not Reach Defendant’s Argument under the Doctrine of Assumption of the Risk

Finally, Defendants’ contend that Plaintiffs assumed the risk of injury from Defendants’ alleged reckless conduct. However, the record has not been sufficiently developed to determine whether Defendants’ conduct was reckless or whether Plaintiffs assumed the risk of injury from Defendants’ allegedly reckless conduct.[36] Accordingly, the Court does not reach this contention at this stage of the litigation.

IV. CONCLUSION

Defendant’s Motion for Judgment on the Pleadings is DENIED. The Court has enclosed an Order establishing a Scheduling Conference in this case.

Very truly yours,

Richard R. Cooch Resident Judge

Notes:

[1] Defendant Houghton’s Amusement Park, LLC did not make an appearance in this case and had a default judgment taken against it on June 21, 2016.

[2]Compl. ¶¶ 79-87.

[3]Compl. ¶ 48.

[4]Defs.’ Mot. for J. on the Pleadings, Ex. A.

[5]Defs.’ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment, ” that Defendants reference in their motion as another reason they are not liable for Plaintiffs’ injuries. However, it appears from the motion and subsequent filings that the release signed by Tommy is only mentioned in passing, and is not relied upon by Defendants. The release signed by Tommy’s father is the determinative release in the case at bar.

[6]Compl. ¶¶ 79-87.

[7]Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants’ failure to exercise reasonable care as alleged above comprised outrageous conduct under the circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.” Compl. ¶ 87. The Complaint also alleges that Tommy’s injuries were caused by the “reckless indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track was “reckless[ly] design[ed].” Compl. ¶ 49.

[8]At oral argument, Plaintiffs’ counsel answered in the affirmative when the Court asked “Am I understanding Plaintiffs’ position correctly when I read the papers to say that Plaintiffs are not alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC Motocross et al, C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].

[9] Defs.’ Mot. for J. on the Pleadings, Ex. A.

[10] A judgment on the pleadings is based only upon a review of Plaintiffs’ complaint and Defendants’ answer. However, under Rule 12(c), “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at bar, Defendants introduced the two executed releases as exhibits to their motion. However, the releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should be treated as a motion for judgment on the pleadings.

[11] Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).

[12] Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).

[13] Id. (internal quotation marks omitted).

[14] See Oral Arg. Tr. at 6.

[15] Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent activities).

[16] Id. at 747-48.

[17] Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).

[18] Ketler, 132 A.3d at 747.

[19] Id.

[20] Id.

[21] Oral Arg. Tr. at 14-16.

[22] Defs.’ Mot. for J. on the Pleadings, Ex. A (emphasis added).

[23] 1999 WL 1241074 (Del. Super. Oct. 22, 1999).

[24] 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).

[25] The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court found that while the agreement did “speak[] of ‘any and all injuries which may be suffered by [players] during [their] participation, ‘” the absence of the word “negligence” insufficiently insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL 1241074, at *4.

[26] In Devecchio, the defendant owned a motorcycle race track that required riders to sign agreements releasing the defendant from liability for injuries resulting from both the riders and the defendant’s negligence. The release pertaining to the defendant’s negligence expressly used the word “negligence.” This Court found that the release using the word “negligence” was sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).

[27] W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)). Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See, e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999 WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).

[28] Additionally, the Delaware Civil Pattern Jury Instructions for negligence and recklessness are substantially different. The Delaware Civil Pattern Jury Instruction for negligence provides:

This case involves claims of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. That standard is your guide. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent.

Del. Super. P.J.I. Civ. § 5.1 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. On the other hand, the Delaware Civil Pattern Jury Instruction for reckless conduct states:

Reckless conduct reflects a knowing disregard of a substantial and unjustifiable risk. It amounts to an “I don’t care” attitude. Recklessness occurs when a person, with no intent to cause harm, performs an act so unreasonable and so dangerous that he or she knows, or should know, that harm will probably result.

Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. It is apparent from a comparison of the two different jury instructions that negligence conduct requires a departure from the ordinary standard of care exhibited by the reasonably prudent person, an objective standard. However, in contrast, it appears from the pattern jury instructions that reckless conduct requires a subjective “I don’t care” attitude that evidences an even greater departure from the ordinary standard of care, amounting to an unreasonable conscious disregard of a known risk.

[29] Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track, which was intentionally constructed next to the pre-existing intermodal container, requires riders to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶ 49. Moreover, Plaintiffs allege that Tommy’s injuries were “a direct and proximate result of the negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.

[30] Pl.’s Suppl. Resp. in Opp’n to the Mot. for J. on the Pleadings, at 2.

[31] Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530 (Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov. 18, 2004), Sup. Ct. Civ. R. 56.

[32] Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d 902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the plaintiff must articulate ‘facts that suggest a wide disparity between the process [] used . . . and that which would have been rational.'” J.L. states that a complaint pleading ten pages of facts to support a claim of gross negligence or recklessness was sufficient to meet the pleading standard). Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the opportunity to amend their complaint.

[33] Ketler, 132 A.3d at 747.

[34] Because the Court finds that Defendants’ release does not explicitly bar claims of “reckless” conduct, this Court does not reach the question of whether such a release is potentially permissible under Delaware law. However, this Court notes that other jurisdictions have differing perspectives on whether exculpatory agreements barring claims for recklessness, gross negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that exculpatory agreements can release a party only for simple negligence, and not from willful and wanton negligence. 532 P.2d 372, 377 (Colo.App. 1974). Similarly, in Wheelock v. Sport Kites, Inc., the United States District Court for the District of Hawaii held that a release was invalid with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw. 1993). The above annotation suggests that a common reason to not enforce such an agreement is because they are void against the state’s public policy.

Alternatively, other jurisdictions have upheld agreements that exculpate business owners for reckless conduct or strict liability. For example, in Murphy v. N. Am. River Runners, Inc., the West Virginia Supreme Court discussed the matter, stating:

Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is contrary to public policy. When such an express agreement is freely and fairly made, between two parties who are in equal bargaining position, and there is no public interest with which the agreement interferes, it will generally be upheld.

412 S.E.2d 504, 508-09 (W.Va. 1991).

[35]Delaware Courts have previously allowed such an amendment to be made. As this Court held in Guy v. Phillips, a party may amend a complaint following additional discovery when the amended count arises out of the same factual basis for the original complaint. 1997 WL 524124 (Del. Super. July 2, 1997).

[36] In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the employment agreement, the decedents signed an agreement that provided employees expressly assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the risk of death, the Court found that “when [the decedents] signed the releases, even a poorly informed American had to have appreciated that working in Afghanistan involved the general risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The complaint offers no reason to find that any plaintiff here was probably unaware of the general risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the shipping container, since they allege that they were unable to inspect the track prior to Tommy using it. Accordingly, Defendants’ reliance on Deuley is inapposite since it could be determined that a collision with the metal shipping container was not contemplated by the Plaintiffs when they signed the Release.


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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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

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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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States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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Paperwork, the death of trees and in this case the only defense the defendant had at this stage of the trial because the paperwork was not taken care of properly.

The youth camp failed to keep a good copy of the registration paperwork. What was presented to the court as a forum selection clause was illegible so the court held it was not valid.

Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588

State: Pennsylvania, United States District Court, Eastern District of Pennsylvania

Plaintiff: Ben Epps, et al.

Defendant: 1.I.L., INC., d/b/a Independent Lake Camp

Plaintiff Claims: Negligence

Defendant Defenses: Motion to Dismiss because of improper venue

Holding: For the Plaintiff

Year: 2007

Summary

Lawsuits are not games; they are not invitations to parties, there is a lot of money riding on the outcome in most cases. Documents needed for the case must be given to the attorneys defending the case in the condition in which they are maintained. In this case, a document was faxed to the defense attorneys and in such a bad way the court could not read the document. Since the court could not read the document, the court assumed the original was the same, and therefore, the document was not valid.

At the same time, if you are collecting and keeping documents that may end up in court, you need to create a system that preserves these documents in perfect condition so if they do get to court the judge can read them.

Finally, you must get the documents from the people you need a signature from in a condition the court will accept.

Facts

Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independent Lake Camp located in Orson, Wayne County, Pennsylvania. Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions.

Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.

Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania.

In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause.

Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin.

In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause.

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

The defendants filed a motion to dismiss because the plaintiffs had filed the case in the wrong court according to the agreement, the registration form signed by the parents of the injured youth. The forum selection clause as defined by the courts or agreement to hold the trial at a specific court, allegedly stated the trial was to be held in Wayne County Court, Pennsylvania. The plaintiffs filed the case in the federal district our in Pennsylvania. The defendants filed a motion to dismiss from federal court and force the case to the state court.

The jurisdiction in the case was going to be Pennsylvania law no matter what; however, the trial would not be held in the back yard of the defendant, which is normally a good thing for the defendant.

When in the federal district court system, if a forum selection clause is upheld the case is simply transferred to the proper court. However, in this case because the selection clause stated a state court the case could not be transferred. The case would be dismissed at the federal court. The case could be refiled in the state court at that time if the statute of limitations had not run.

However, here, the document that was presented to the court that was the alleged agreement by the parents to only sue in state court was not legible.

The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.

Further, even if the forum selection clause were legible, it’s essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.

The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under § 1404(a).

The agreement was a copy that had been faxed, was illegible and could not be read by the court.

Since the court could not read the document, the legal wording was incomplete and the entire document had sections missing the court could not find there was an agreement. The motion to change venue was dismissed.

So Now What?

I would guess the camp had received the faxed copy from the parents. There would be no need to fax the documents around the camp. The camp probably had sent the documents to the parents for their signature, and they had faxed them back. This was mistake one, because the camp accepted a badly faxed copy of the document.

  1. When you receive an email, fax, or original where you cannot make out what is going on, signature seems off, the document is unreadable, you must get a good copy. Tell the signor to do it again and make the copy legible.
  2. Set up a system to check documents when they come in.
  3. Set the system up with enough time so that is time to correct problems. Don’t place yourself in a position where you are balancing the money coming in versus proper paperwork you need.

Second, the camp seemed to not locate the original fax, but only had a copy of the faxed document.

  1. Develop a system to store and maintain the documents. Now day’s scanners are so efficient all the documents can be scanned and maintained in seconds. The original paper documents can be preserved and kept for the statue of limitations for the state, and a good electronic copy is also available.

Don’t allow a kid or adult to come to camp, attend the program, participate in the activity unless you have all the paperwork you need, signed and in a good legible condition. Then and only then cash the check and open the gates.

What do you think? Leave a comment.

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Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588

Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588

Ben Epps, et al., Plaintiffs, v. 1.I.L., INC., d/b/a Independent Lake Camp, Defendant.

Civil Action No. 07-02314

United States District Court, Eastern District of Pennsylvania

December 19, 2007

ORDER

MEMORANDUM

James T. Giles J.

I. Introduction

Before the court is Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Plaintiffs, Bens Epps and Amy Monroe, as parents and natural guardians of Axel Epps and in their own right, bring suit based in diversity jurisdiction, 28 U.S.C. § 1332, against Defendant 1.I.L. Inc. for personal injuries allegedly sustained by their son, Axel, while attending Defendant’s camp.

The primary issue raised by Defendant’s motion and determined by the court is whether the forum selection clause in the Registration Agreement at issue is valid and enforceable. The court finds that the forum selection clause contained in the signed Registration Agreement is not enforceable because it does not provide reasonable notice of its terms. The court concludes that Plaintiffs have brought suit in a proper venue and denies Defendant’s motion to dismiss for the reasons that follow.

II. Factual Background

Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independant Lake Camp located in Orson, Wayne County, Pennsylvania. (Pls.’ Compl. ¶ 6.) Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. (Pls.’ Compl. ¶ 7.) Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions. (Pls.’ Compl. ¶ 8.)

Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. (Pls.’ Compl. ¶ 9.) Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.

Plaintiffs, citizens of New York, brought suit in the Eastern District of Pennsylvania because Defendant is a citizen of Pennsylvania with offices in both Montgomery County and Wayne County. (Pls.’ Compl. ¶ 1-4; Pls.’ Br. in Supp. of Ans. to Mot. of Def. to Dismiss for Improper Venue (“Pls.’ Supp. Ans.”) 1; Def.’s Br. in Supp. of Mot. to Dismiss for Improper Venue (“Def.’s Supp.”) 1, 5.) Plaintiffs demand damages in excess of $150,000 for each of the two counts in the complaint as well as interest and costs of the suit.

III. Procedural History

Plaintiffs filed their Complaint on June 7, 2007. Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. (Def.’s Mot. to Dismiss 2.) Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. (Def.’s Mot. to Dismiss, Ex. A.) Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania. (Def.’s Mot. to Dismiss, Ex. A.) The blank Registration Agreement, in which the print is small but clear and legible, provides in part:

It is agreed that any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.

(Def.’s Mot. to Dismiss, Ex. A.)

In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause. (Pls.’ Supp. Ans. 2, Ex. B ¶¶ 2-3 (Ben Epps Aff.), Ex. C ¶¶ 2-3 (Amy Monroe Aff.).)

Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. (Gould Aff. ¶¶ 5, 7-10.) He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. (Gould Aff. ¶ 10.) The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin. (Gould Aff. Ex. A (Signed Registration Agreement).)

In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause. (Gould Aff. ¶ 6, Ex. A.) Consequently, if the print were clearly legible, when compared with the clear, blank version of the agreement, the forum selection clause would read:

It is agree [sic] any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in V [or three-quarters of a W] County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.

(Gould Aff. Ex. A.) Thus, if legible, most or all of the letters in the word “Wayne,” as in “Wayne County Pennsylvania,” are missing. (Gould Aff. ¶ 6, Ex. A.)

In Plaintiffs’ reply to Defendant’s affidavit, Plaintiffs do not dispute that Plaintiff Ben Epps’ signature appears on the copy of the Registration Agreement. Nor do Plaintiffs argue that the entire agreement itself is invalid. (Compare Pls.’ Supp. Ans. 2-3 (arguing, before Defendant’s production of a signed agreement, that the Registration Agreement was not enforceable because there was no objective manifestation of the parties’ intention to be contractually bound), with Pls.’ Reply to Def.’s Aff. 1 (arguing, after Defendant’s production of a signed Registration Agreement, that there was no meeting of the minds as to the forum selection clause because the wording of the clause was truncated and indiscernible).) Thus, the issue determined by the court is the enforceability of the forum selection clause.

III. Discussion

Federal law applies in the determination of the effect given to a forum selection clause in diversity cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995) (quoting Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir. 1990)). To evaluate the enforceability of the forum selection clause here, the court determines if the standard for dismissal or transfer is proper.[1] See id. at 877-78. If the standard for transfer applies, the court then determines if the forum selection clause is reasonable. See id. at 880 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972)).

A. Dismissal or Transfer under 28 U.S.C. § 1404(a) or 1406.

Although dismissal is a “permissible means of enforcing a forum selection clause that allows suit to be filed in another federal forum,” the Third Circuit cautions that “as a general matter, it makes better sense, when venue is proper but the parties have agreed upon a not- unreasonable forum selection clause that points to another federal venue, to transfer rather than dismiss.” Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298-99 (3d Cir. 2001); see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28-29, 32 (1988) (holding that a federal court sitting in diversity jurisdiction should treat a request to enforce a forum selection clause in a contract as a motion to transfer venue under applicable federal law, 28 U.S.C. § 1404(a)); 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (2d ed. 1986 & Supp. 2006).

Transfer, however, is not available when a forum selection clause specifies a non-federal forum. Salovaara, 246 F.3d at 298. The forum selection clause in the Registration Agreement, if valid and untruncated, would provide that “any dispute . . . can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania” and does not limit jurisdiction to state court. The provision’s plain language is construed to permit the action in any court of the county, including the federal court in the federal judicial district encompassing Wayne County, Pennsylvania, regardless of whether the federal court is physically located in the county. See Jumara, 55 F.3d at 881 (construing an arbitration provision requiring the action to transpire within a particular county to mean that the action would be permitted in any court, state or federal, with jurisdiction encompassing that county). Transfer is an available remedy because the forum selection clause, if valid and untruncated, includes a federal forum. See id. at 881-83 (applying the § 1404(a) analysis for transfer where a forum selection clause permitted any state or federal forum within a particular county).

Because transfer is the appropriate remedy, the court must then consider whether 28 U.S.C. § 1404(a) or § 1406 applies. “Section 1404(a) provides for the transfer of a case where both the original venue and the requested venue are proper. Section 1406, on the other hand, applies where the original venue is improper and provides for either transfer or dismissal of the case.” Id. at 878. Whether venue is proper in this district is governed by the federal venue statute, 28 U.S.C. § 1391. Id.

Without considering the forum selection clause, venue is proper in the Eastern District of Pennsylvania. Neither party disputes that Defendant is subject to personal jurisdiction in this district because Defendant transacts business here. See 28 U.S.C. § 1391(c); Jumara, 55 F.3d at 878-79; Stewart, 487 U.S. at 29 n.8 (“The parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because respondent apparently does business [there].”); see also (Pls.’ Supp. Ans. 1; Def.’s Supp. 3). This court therefore concludes that the appropriate analysis is whether the case should be transferred under § 1404(a). See Salovaara, 246 F.3d at 298-99.

B. Transfer under 1404(a) Is Improper Because the Forum Selection Clause Is Unreasonable and Unenforceable.

Section 1404(a) controls the inquiry of whether to give effect to a forum selection clause and to transfer a case.[2] Stewart, 487 U.S. at 29, 32. Before considering the factors under Section 1404(a), the court first examines the validity or reasonableness of the forum selection clause through application of the test in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972). “Where the forum selection clause is valid, which requires that there have been no ‘fraud, influence, or overweening bargaining power,’ the plaintiffs bear the burden of demonstrating why they should not be bound by their contractual choice of forum.” Jumara, 55 F.3d at 879-80 (quoting Bremen, 407 U.S. at 12-13).

A forum selection clause is unreasonable and invalid if the objecting party demonstrates that (1) the forum selection clause is the result of fraud or overreaching, (2) its enforcement would violate a strong public policy of the forum, or (3) its enforcement would result in litigation so seriously inconvenient and unreasonable that it would deprive a litigant of his or her day in court. Bremen, 407 U.S. at 15-17; In re Diaz Contracting, Inc., 817 F.2d 1047, 1051-52 (3d Cir. 1987).

To dispose of this issue, the court need only address whether the enforcement of the forum selection clause violates a strong public policy of the forum. Under Pennsylvania law, a clause in a contract must be conspicuous, so as to provide notice of its terms to a reasonable person. See, e.g., 13 Pa.C.S. § 2316 (requiring that limitation of warranties terms be conspicuous); 13 Pa.C.S. § 1201 (defining “conspicuous”); Beck-Hummel v. Ski Shawnee, Inc., 2006 Pa. Super 159, P23-24 & n.12-13 (Pa. Super. Ct. 2006) (relying on the requirement for conspicuous terms in the sale of goods context in a case involving the sale of services, and finding that disclaimer language on a ski ticket was not sufficiently conspicuous to put a purchaser on notice of its contents). Plaintiffs argue that the forum selection clause contained in the signed Registration Agreement is invalid because the wording of the clause is “truncated and indiscernible.” (Pls.’ Reply 1.)

The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.

Further, even if the forum selection clause were legible, its essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.

The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under § 1404(a).

V. Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss for Improper Venue is denied. An appropriate order follows.

ORDER

AND NOW, this 19th day of December, 2007, upon consideration of Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue (Doc. No. 4), Plaintiffs’ Response in opposition thereto, Defendant’s Affidavit of Daniel Gould and Exhibits (Doc. Nos. 8 & 9), and Plaintiffs’ Reply, it is hereby ORDERED that said motion is DENIED for the reasons set forth in the attached memorandum.

Notes:

[1] Prior to Defendant’s production of a signed Registration Agreement, Plaintiffs argued that the forum selection clause should not be enforced because it did not meet the standard of reasonable communicativeness, as set forth in Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir. 1987), due to the agreement’s small print. Marek applies primarily in cases involving maritime law. See, e.g., Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 130 (3d Cir. 2002); Hodes v. S. N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 906, 909-12 (3d Cir. 1988). As discussed below, the court follows more recent Third Circuit precedent on the enforceability of forum selection clauses.

[2] Section 1404(a) provides that “a district court may transfer any civil action to any other district or division where it might have been brought” for “the convenience of parties and witnesses” and “in the interest of justice.” 28 U.S.C. § 1404(a); see Stewart, 487 U.S. at 29. Courts must adjudicate motions to transfer based on an “individualized, case-by-case consideration of convenience and fairness,” weighing a number of factors. Id. (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). A court’s review is not limited to the three enumerated factors in § 1404(a) – convenience of the parties, convenience of witnesses, or interests of justice – and courts may consider various private and public interests. Jumara, 55 F.3d at 879-80.

The parties’ agreement as to the proper forum, although not dispositive, receives “substantial consideration” in the weighing of relevant factors. Id. at 880; see Stewart, 487 U.S. at 29-30 (“The presence of a forum selection clause . . . will be a significant factor that figures centrally in the district court’s calculus. . . . The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”). The deference generally given to a plaintiff’s choice of forum is “inappropriate where the plaintiff has already freely chosen an appropriate venue.” Jumara, 55 F.3d at 880.


Need a Handy Reference Guide to Understand your Insurance Policy?

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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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