New Jersey holds that if you signed the release, you are held to its terms even if you cannot read English.

There was a ton of issues that in many states might have voided the release, 8 pt font, missing initial and the plaintiff not understanding English were just a few of them.

Citation: Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

State: New Jersey, United States District Court, D. New Jersey

Plaintiff: Soon Ja Kang

Defendant: LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2016

Summary

If you sign the membership agreement containing a release in New Jersey, you are held to the terms of the release, even if you can’t speak or read English. Plaintiff could not read or speak English, signed LA Fitness membership agreement and could not sue after she was injured on a piece of equipment.

Facts

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction. The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action.

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

The court started its analysis by looking at the release and the injury the plaintiff suffered. The court found the injury fell within the confines of the release.

As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

The issue then became whether or not the release applied to someone who did not speak or read English. Releases in New Jersey are enforceable if:

…(1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

The court throughout the third factor because the defendant was not a public utility or common carrier. The court then reviewed whether the exculpatory clause affected the public interest. The court found it did not.

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

There seemed to be somewhat of a limit to the release based on the courts next comment about the reach of the release.

The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

The plaintiff then argued the release violates the New Jersey Plain Language Act. N.J. Stat. Ann. § 56:12-2. The act requires a consumer contract to be “written in a simple, clear, understandable and easily readable way.”

The plaintiff then argued the act was violated because the print size (font) was 8 points, and the margins of the paper were .5″ “reflecting the intentions of the drafter to squeeze in additional words.”

Reviewing examples of bad language found in the act, the court determined the release did not violate the Plain Language Act.

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

The next issue was there any legal duty to perform on the part of the defendant part 2 of the four requirements.

There were no state statutes or regulation’s setting standards for fitness facilities. The plaintiff argued that National Associations had created standards that applied to fitness facilities. However, the court could not find that to be valid. “However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state.”

The final argument was the release was unconscionable because of unequal bargaining power between the plaintiff and defendant.

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter.

The court did not agree with any of the plaintiffs’ arguments. And stated in clear language that the plaintiff’s inability to speak English did not stop her from becoming bound to the terms of the release.

As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

The court went on to explain that if you sign the agreement, you are bound to the terms of the agreement, whether or not you understood the agreement.

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

The final issue was the missing initial in the document. Because she had signed the agreement, the signature at the bottom of the agreement was all that was needed for the release to be valid.

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms.

The plaintiff then argued the release and fitness contract containing the release were unconscionable. The court summed up the plaintiffs’ unconscionable argument as an amalgamation of all of her other arguments. The court found the exculpatory clause did not offend public policy, and the other arguments for unconscionability did not change the release validity.

Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

The motion for summary judgment of the defendant was granted the plaintiff’s claims dismissed.

So Now What?

New Jersey is another state that upholds the idea that if you sign a release, you are bound to the terms of the release no matter if you could understand the release, the type was too small; you did not read or speak English, or you just want out of the release.

At the same time, this list from my studies has only two states on it, California being the other state. See Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English.

What do you think? Leave a comment.

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Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Soon Ja Kang Plaintiff,

LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al., Defendants.

Civil No. 2:14-cv-07147 (KSH) (CLW)

United States District Court, D. New Jersey

December 29, 2016

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court is defendants’ motion for summary judgment as to the validity and enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff. For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable and defendants’ motion is granted.

I. Background

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The membership agreement she signed states in relevant part:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and Member’s minor children being permitted to enter any facility of LA Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds LA Fitness, its directors, officers, employees, and agents harmless from all liability to Member, Member’s children and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA Fitness whether caused by the negligence of Member(s) or otherwise. You represent (a) that Member and Member’s minor children are in good physical condition and have no disability, illness, or other condition that could prevent Member(s) from exercising without injury or impairment of health, and (b) that Member has consulted a physician concerning an exercise program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of New Jersey and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement has been made.

LA Fitness Moving Br., Exh. E (D.E. 22-7).

Kang and her husband do not read or understand English, but their daughter was present to translate for them when they signed up. See SOF, at ¶¶ 4-5. Kang signed a membership agreement. She did not initial next to the waiver and liability provision in her membership agreement; however, her husband was asked to initial next to the same provision in his membership agreement, and he did so. Id. at ¶ 6.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).

The Court makes its decision on the paper.

II. Discussion

A. Standard

Summary judgment is warranted where the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). The parties have conducted discovery on the circumstances surrounding the formation of Kang’s membership agreement and, as set forth in the analysis below, all facts relevant to the enforceability of the waiver provision are essentially undisputed as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro v. Bloomberg L.P., 331 F.Appx. 932, 937 (3d Cir. 2009).

B. Analysis

Pursuant to the release and waiver of liability provision in her membership agreement, Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by the active or passive negligence of LA Fitness or otherwise, ” while she was “in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

In Stelluti v. Casapenn Enterprises, LLC, 408 N.J.Super. 435, 454 (App. Div. 2009), aff’d, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of exculpatory releases in fitness center membership agreements:

Such a release is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.

1. Does the Exculpatory Clause Adversely Affect the Public Interest?

LA Fitness argues that the exculpatory clause in this case does not adversely affect the public interest because it is “a facility that encourages New Jersey’s public policy promoting physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of promoting public health, the Stelutti court held:

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

Stelluti, 408 N.J.Super. at 459. The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

Kang argues that public policy promoting physical fitness “cannot counteract the other public policy reasons that are in place to protect against improper liability waivers.” Kang Opp. Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain Language Act, which states that “[a] consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font size and margins in the contract are such that “[s]omeone who can read and understand English would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.

To determine whether the waiver provision violates the Plain Language Act, the Court turns to the plain language of the act itself. Section 56:12-10 provides:

To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:

The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act:

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3, 000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Id. A Court has discretion as to how much consideration should be given to the above-listed statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

Instead, Kang argues that the waiver provision violates the Plain Language Act because “[t]he size of the font (print) is about size 8, whereas the standard size used in everyday documents is size 12[, ]” and because “[t]he margins on the sides of the pages are about 0.5 inch . . . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8. However, applying the above guidelines, the Court does not find that the waiver provision in this case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:12-10b(3). To the contrary, the waiver and liability provision is the only clause in the membership agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border, creating a visual separation between the waiver and the rest of the agreement.

The Court finds that the waiver provision in this case does not offend public policy under Stelluti and does not otherwise violate the New Jersey Plain Language Act.

2. Is LA Fitness Under a Legal Duty To Perform?

LA Fitness argues that its relationship with Kang does not create any duties prescribed by statute or regulation. See LA Fitness Moving Br., at pp. 6-8. New Jersey courts have found liability waivers to be invalid as against public policy where they conflict with legislatively imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from liability or responsibility for negligence in the performance of its function as a night depository service, in part due to the “extensive statutory regulations covering every phase of the banking business[.]” Id. at 118. Similarly, in McCarthy v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against public policy because it purported to contract away safety requirements prescribed by statute dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not be contracted away, for if they could be the salient protective purposes of the legislation would largely be nullified”).

Kang argues that “although there are no statutes specific to fitness centers, there are several national associations that have established standards that apply to the fitness industry[.]” Kang Opp. Br., at pp. 8-9. However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state. Kang further argues that the Stelluti court acknowledged the well-established duties of care that New Jersey business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However, as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such as the one at issue here do not violate public policy at least to the extent that they exculpate for ordinary negligence. Stelluti, 408 N.J.Super. at 459. The Court finds that LA Fitness is not under any legal duty that precludes its reliance on the liability waiver in this case.

3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise Unconscionable?

With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See Kang Opp. Br., at pp. 10-14. The Court addresses both arguments in turn.

a. Mutual Assent

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10-11. Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ] her rights” as is required for a valid waiver. Id. at p. 11.

The Court finds these arguments unavailing. As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J.Super. 59, 73 (Law. Div. 1992) (internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud, notwithstanding testimony by plaintiff that she did not understand the release because she could not read English).

Under the New Jersey case law cited above, absent allegations of fraud, deceit, or misrepresentation which Kang does not make here, she is conclusively presumed to have understood and assented to the membership agreement’s terms-including the waiver-and legal effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement . . . and the finding to that effect is unassailable.”)

Nor does the fact that LA Fitness may not have explained the waiver to her or her daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301- 02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that “Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability”).

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J.Super. at 73.

b. Unconscionability

Kang also argues that even if the waiver is found to be enforceable, the Court should invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s unconscionability argument is essentially an amalgamation of all of her arguments summarized above: that as someone who does not speak English she lacked the sophistication to understand the terms to which she was agreeing, LA Fitness knew that she was in no position to understand those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed on a standard form agreement, and she was not in a position to negotiate the terms of the agreement. Kang Opp. Br., at pp. 12-14.

Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey Supreme Court held:

Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical ‘take-it-or-leave-it basis.’ No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, . . . we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic ‘position of unequal bargaining power’ such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010).

Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

Because the exculpatory clause does not offend public policy, the Court finds it to be valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.

III. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and the clerk of the court is direct to close this case. An accompanying Order will be filed.


Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Soon Ja Kang Plaintiff,

LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al., Defendants.

Civil No. 2:14-cv-07147 (KSH) (CLW)

United States District Court, D. New Jersey

December 29, 2016

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court is defendants’ motion for summary judgment as to the validity and enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff. For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable and defendants’ motion is granted.

I. Background

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The membership agreement she signed states in relevant part:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and Member’s minor children being permitted to enter any facility of LA Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds LA Fitness, its directors, officers, employees, and agents harmless from all liability to Member, Member’s children and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA Fitness whether caused by the negligence of Member(s) or otherwise. You represent (a) that Member and Member’s minor children are in good physical condition and have no disability, illness, or other condition that could prevent Member(s) from exercising without injury or impairment of health, and (b) that Member has consulted a physician concerning an exercise program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of New Jersey and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement has been made.

LA Fitness Moving Br., Exh. E (D.E. 22-7).

Kang and her husband do not read or understand English, but their daughter was present to translate for them when they signed up. See SOF, at ¶¶ 4-5. Kang signed a membership agreement. She did not initial next to the waiver and liability provision in her membership agreement; however, her husband was asked to initial next to the same provision in his membership agreement, and he did so. Id. at ¶ 6.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).

The Court makes its decision on the paper.

II. Discussion

A. Standard

Summary judgment is warranted where the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). The parties have conducted discovery on the circumstances surrounding the formation of Kang’s membership agreement and, as set forth in the analysis below, all facts relevant to the enforceability of the waiver provision are essentially undisputed as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro v. Bloomberg L.P., 331 F.Appx. 932, 937 (3d Cir. 2009).

B. Analysis

Pursuant to the release and waiver of liability provision in her membership agreement, Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by the active or passive negligence of LA Fitness or otherwise, ” while she was “in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

In Stelluti v. Casapenn Enterprises, LLC, 408 N.J.Super. 435, 454 (App. Div. 2009), aff’d, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of exculpatory releases in fitness center membership agreements:

Such a release is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.

1. Does the Exculpatory Clause Adversely Affect the Public Interest?

LA Fitness argues that the exculpatory clause in this case does not adversely affect the public interest because it is “a facility that encourages New Jersey’s public policy promoting physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of promoting public health, the Stelutti court held:

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

Stelluti, 408 N.J.Super. at 459. The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

Kang argues that public policy promoting physical fitness “cannot counteract the other public policy reasons that are in place to protect against improper liability waivers.” Kang Opp. Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain Language Act, which states that “[a] consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font size and margins in the contract are such that “[s]omeone who can read and understand English would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.

To determine whether the waiver provision violates the Plain Language Act, the Court turns to the plain language of the act itself. Section 56:12-10 provides:

To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:

The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act:

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3, 000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Id. A Court has discretion as to how much consideration should be given to the above-listed statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

Instead, Kang argues that the waiver provision violates the Plain Language Act because “[t]he size of the font (print) is about size 8, whereas the standard size used in everyday documents is size 12[, ]” and because “[t]he margins on the sides of the pages are about 0.5 inch . . . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8. However, applying the above guidelines, the Court does not find that the waiver provision in this case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:12-10b(3). To the contrary, the waiver and liability provision is the only clause in the membership agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border, creating a visual separation between the waiver and the rest of the agreement.

The Court finds that the waiver provision in this case does not offend public policy under Stelluti and does not otherwise violate the New Jersey Plain Language Act.

2. Is LA Fitness Under a Legal Duty To Perform?

LA Fitness argues that its relationship with Kang does not create any duties prescribed by statute or regulation. See LA Fitness Moving Br., at pp. 6-8. New Jersey courts have found liability waivers to be invalid as against public policy where they conflict with legislatively imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from liability or responsibility for negligence in the performance of its function as a night depository service, in part due to the “extensive statutory regulations covering every phase of the banking business[.]” Id. at 118. Similarly, in McCarthy v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against public policy because it purported to contract away safety requirements prescribed by statute dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not be contracted away, for if they could be the salient protective purposes of the legislation would largely be nullified”).

Kang argues that “although there are no statutes specific to fitness centers, there are several national associations that have established standards that apply to the fitness industry[.]” Kang Opp. Br., at pp. 8-9. However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state. Kang further argues that the Stelluti court acknowledged the well-established duties of care that New Jersey business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However, as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such as the one at issue here do not violate public policy at least to the extent that they exculpate for ordinary negligence. Stelluti, 408 N.J.Super. at 459. The Court finds that LA Fitness is not under any legal duty that precludes its reliance on the liability waiver in this case.

3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise Unconscionable?

With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See Kang Opp. Br., at pp. 10-14. The Court addresses both arguments in turn.

a. Mutual Assent

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10-11. Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ] her rights” as is required for a valid waiver. Id. at p. 11.

The Court finds these arguments unavailing. As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J.Super. 59, 73 (Law. Div. 1992) (internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud, notwithstanding testimony by plaintiff that she did not understand the release because she could not read English).

Under the New Jersey case law cited above, absent allegations of fraud, deceit, or misrepresentation which Kang does not make here, she is conclusively presumed to have understood and assented to the membership agreement’s terms-including the waiver-and legal effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement . . . and the finding to that effect is unassailable.”)

Nor does the fact that LA Fitness may not have explained the waiver to her or her daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301- 02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that “Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability”).

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J.Super. at 73.

b. Unconscionability

Kang also argues that even if the waiver is found to be enforceable, the Court should invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s unconscionability argument is essentially an amalgamation of all of her arguments summarized above: that as someone who does not speak English she lacked the sophistication to understand the terms to which she was agreeing, LA Fitness knew that she was in no position to understand those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed on a standard form agreement, and she was not in a position to negotiate the terms of the agreement. Kang Opp. Br., at pp. 12-14.

Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey Supreme Court held:

Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical ‘take-it-or-leave-it basis.’ No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, . . . we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic ‘position of unequal bargaining power’ such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010).

Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

Because the exculpatory clause does not offend public policy, the Court finds it to be valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.

III. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and the clerk of the court is direct to close this case. An accompanying Order will be filed.


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

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

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

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

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

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

Plaintiff Claims: Contract failed to compel arbitration

Defendant Defenses: Arbitration

Holding: For the Plaintiff

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court laughed that one out the door.

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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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.

 


Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey

The lawsuit failed, this time. However, the failure was due to  Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Gyl Cole, Ronald Cole, her husband

Defendant: Camelback Mountain Ski Resort

Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act

Defendant Defenses: The statute did not apply

Holding: For the defendant 

Year: 2017 

Summary

In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act

However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area. 

Facts 

The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.

While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.

The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear. 

The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.

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

The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.

All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…

Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the  consumer put fraudulent practices or business on notice or out of business.

Under the act, an unlawful practice was defined as: 

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.” 

A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” 

The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act. 

The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act
. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act
.

The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.

Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.

Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)

Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”

There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here. 

Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”

The case was dismissed. 

So Now What?

I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.

 Remember, Marketing makes Promises Risk Management has to pay for©

What do you think? Leave a comment. 

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Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Gyl Cole, et al., Plaintiffs, v. Camelback Mountain Ski Resort, et al., Defendants.

3:16-CV-1959

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2017 U.S. Dist. LEXIS 100183

June 28, 2017, Decided

June 28, 2017, Filed

CORE TERMS: skiing, advertisement, omission, ski resort, consumer, immunity, consumer fraud, presumed to know, residents, quotation marks omitted, downhill, common law, cause of action, factual allegations, assumption of risk, unlawful practice, sport, business practice, ascertainable loss, material fact, merchandise, concealment, advertised, cognizable, actionable, misleading, snow, Skier’s Responsibility Act, tort liability, reasonable inference

COUNSEL: [*1] For GYL COLE, RONALD COLE, her husband, Plaintiffs: EDWARD F. BEZDECKI, LEAD ATTORNEY, TOMS RIVER, NJ.

For CAMELBACK MOUNTAIN SKI RESORT, Defendant: Samuel J. McNulty, LEAD ATTORNEY, Hueston, McNulty, PC, Florham Park, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

This matter presents the following question to the Court: Does a plaintiff state a cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges that a Pennsylvania ski resort advertised its business in New Jersey but failed to include any information in its advertisements regarding the protections from tort liability the business enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a claim is not cognizable under the New Jersey Consumer Fraud Act.

I. Introduction and Procedural History

The above captioned matter was first removed from the Superior Court of New Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two count Complaint against Camelback Mountain Ski Resort (“Camelback”), and two John [*2] Doe maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing at Defendant Camelback’s skiing facility. Plaintiffs, both residents of New Jersey, allege that Defendants are liable both for negligence (Count I), and for violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, (Count II). Defendant Camelback now moves to dismiss Count II of Plaintiffs’ Complaint. (Doc. 20).

II. Factual Allegations

Plaintiffs’ Complaint alleges the following facts:

Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id. at 14). According to Plaintiffs’ Complaint, Camelback advertises its business heavily in New Jersey through a variety of forms of media. (Id.). Camelback’s advertisements, however, contain no information that, under Pennsylvania law, skiing facilities enjoy “immunity” from liability for the injuries patrons sustain while skiing. (Id.). On March 15, 2014, presumably after viewing one of Camelback’s advertisements, Gyl and Ronald Cole went skiing at Camelback’s skiing facility. (Id. at ¶¶ 1 , 3-4). While skiing on one of the black diamond slopes, Gyl Cole [*3] slammed into a six inch metal pipe and sustained severe injuries. (Id. at ¶ 3).

III. Standard of Review

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal [*4] require [a court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

IV. Analysis

Count II of Plaintiffs’ Complaint alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”). (Doc. 1-1 at ¶¶ 13-22). The NJCFA was enacted to address “sharp practices and dealings in the marketing of merchandise1 and real estate whereby the consumer could be victimized by being lured [*5] into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices.” Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (N.J. 1978). “The Act creates a private cause of action, but only for victims of consumer fraud who have suffered an ascertainable loss.” Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281, 291 (N.J. 2002).

1 Under the NJCFA, the term “merchandise” is broadly defined to “include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J. Stat. Ann. § 56:8-1

“A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).

Unlawful practices include

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

N.J. Stat. Ann. § 56:8-2. The New Jersey Supreme Court has specified that “[u]nlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (N.J. 1994).

In the case at hand, Plaintiffs assert that the unlawful practice that Defendant Camelback allegedly engaged [*6] in was a failure to inform, i.e., an omission. (Doc. 1-1 at ¶ 14; Doc. 29 at 4). Under the NJCFA, an omission is actionable “where the defendant (1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Id.

Plaintiffs’ Complaint alleges that Defendant Camelback failed to include any information in its advertisements with respect to the protections from tort liability it enjoyed under Pennsylvania law. Specifically, Plaintiffs’ Complaint alleges the following:

Camelback knew that their [sic] advertising heavily in New Jersey induced New Jersey residents to attend Camelbacks [sic] site in Pennsylvania. Camelback knew that it had immunity granted to it through the legislation passed by the Pennsylvania Legislature but at no time did Camelback ever tell New Jersey residences [sic] that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback. Knowing full well that they [sic] had this immunity, Camelback elected not to notify any of [*7] the invitees to their [sic] site about the immunity.

(Doc. 1-1 at ¶ 14).2 Defendant Camelback argues that this is insufficient to state a claim under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that “Camelback knew and should have advised the skiing public [through its advertisements] . . . that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback by the Pennsylvania Legislature.” (Doc. 29 at 4).

2 Additionally, and somewhat confusingly, the Complaint also alleges that “Camelback misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences [sic] can use Camelback facilities for snow skiing.” (Doc. 1-1 at ¶ 17). This singular statement is in stark contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact engage in snow skiing at Camelback.

The inaptly described “immunity clause” Plaintiffs refer to is no doubt the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S. § 7102(c). The Act states:

(c) Downhill skiing.–

(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth, It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by [42 Pa. C.S. § 7102(a)-(a.1)]

42 Pa. C.S. § 7102, The Pennsylvania Supreme Court has made clear that “the Act did [*8] not create a new or special defense for the exclusive use of ski resorts, but instead kept in place longstanding principles of common law.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Id. In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Id.

Thus, the Court arrives at the question of whether Plaintiffs’ state a claim under the NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing facility to New Jersey residents but failed to include a disclaimer with respect to the Pennsylvania Skier’s Responsibility Act or the common law doctrine of voluntary assumption of risk. As this is a question of New Jersey state law, this Court must turn to the decisions of that state’s courts for an answer. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any [*9] New Jersey case–and the Court’s own research did not uncover any–that squarely addresses this issue. Nor have New Jersey courts apparently addressed the analogous issue of whether, under the NJCFA, advertisers are ever obliged to educate the public on the law applicable to their product absent other specific authority requiring such disclosures. Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule on the matter. Id. For the following reasons, this Court predicts that the New Jersey Supreme Court would find that such a claim is not cognizable under the NJCFA.

First, this is simply not the type of omission contemplated by the NJCFA. The Court is cognizant of the fact the NJCFA “is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez, 25 A.3d at 1115 (internal citations and quotation marks omitted). Additionally, the Court is aware that “[t]he statutory and regulatory scheme is . . . designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.” Div. of Consumer Affairs v. Gen. Elec. Co., 244 N.J. Super. 349, 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990). [*10] Nevertheless, the NJCFA has limits. To qualify as an unlawful practice under the NJCFA, “[t]he practice must be misleading and outside the norm of a reasonable business practice.” Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see also Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 110 A.3d 137, 144 (N.J. Super. Ct. App. Div. 2015). Indeed, the “advertisement must have ‘the capacity to mislead the average consumer in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 A.2d 361, 379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact. Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of fact, is not misleading, and does not fall outside the norm of reasonable business practices.

Plaintiffs’ allege that Defendant Camelback failed to provide information in its advertisements concerning the Pennsylvania Skier’s Responsibility Act and the common law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal defenses to liability which a business may assert in the event of a lawsuit is not information normally included in an advertisement, as both parties have equal access to that information. Consequently, Defendant Camelback’s alleged failure to include such information does not imply its nonexistence and is therefore not [*11] misleading nor outside of the norm of a reasonable business practice. As such, omissions of this type are not actionable under the NJCFA.

Second, a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (“[A] citizen . . . is presumed to know the law . . . .”); Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) (“Private citizens are presumed to know the law . . . .”); State v. Moran, 202 N.J. 311, 997 A.2d 210, 216 (N.J. 2010) (“Every person is presumed to know the law.”); Maeker v. Ross, 219 N.J. 565, 99 A.3d 795, 802 (N.J. 2014) (“[E]veryone is presumed to know the law . . . .”); Widmer v. Mahwah Twp., 151 N.J. Super. 79, 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977) (“[T]he principle is well established that every person is conclusively presumed to know the law, statutory and otherwise.”); cf. Commonwealth v. McBryde, 2006 PA Super 289, 909 A.2d 835, 838 (Pa. Super. Ct. 2006) (“[E]veryone is presumed to know the law; an out-of-state driver is not absolved from following the laws of this Commonwealth or any other state in which he or she chooses to drive.”). Thus, as a matter of law, Defendant Camelback’s advertisement did not have the capacity to mislead because the law presumes that Plaintiffs–and everyone else for that matter–already knew the information Defendant Camelback allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to inform its prospective customers of what they [*12] already know.3

3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that Defendant Camelback made an affirmative misrepresentation of the law in its advertisements. Nevertheless, such a situation is not presently before this Court.

Finally, if this Court were to come to the opposite conclusion, businesses would have almost unending liability. For example, a Pennsylvania retailor may be liable under the NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a disclaimer stating that a customer injured at the store by an employee’s negligence may have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. § 7102(a) (“[A]ny damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”). Or a marketer of a curling iron may be liable under the NJCFA for failing to disclose to consumers that, even if they are injured due to a design flaw in the product, the users may not be able to recover for their injuries if “there was no reasonable alternative design” for the curling iron at the time of manufacturing. See Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518, 520 (N.J. 2000) (quotation marks omitted); see also N.J. Stat. Ann. § 2A:58C-3(a)(1). Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.

V. Conclusion

For the reasons outlined above, this Court will grant Defendant Camelback Mountain [*13] Ski Resort’s Motion to Dismiss Plaintiffs’ claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW. THIS 29th DAY OF JUNE, 2017, upon consideration of Defendant Camelback Mountain Ski Resort’s partial Motion to Dismiss, (Doc.20), IT IS HEREBY ORDERED THAT the Motion is GRANTED. Count II of Plaintiffs’ Complaint, (Doc. 1-1), is DISMISSED WITH PREJUDICE.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Court Judge


Is it a negligent act to open a car door into a bike lane when a cyclist is in the lane in New Jersey?

At the same time, if the defendant photographed the scene, measured the distance his car was from the curb or how wide his door was, the plaintiff might not have succeeded in her claims.

Gwinner, v. Michael Matt, et al., 2012 U.S. Dist. LEXIS 108827

State: New Jersey, United States District Court for the District of New Jersey

Plaintiff: Sheila Gwinner and Horst Gwinner

Defendant: Michael Matt, et al.

Plaintiff Claims: failing to observe [her] bicycle on the bicycle path” and “failing to keep a reasonable lookout for other vehicles lawfully on the road

Defendant Defenses: Plaintiff cannot prover her claims that the defendant opened his car door into the bikeway

Holding: For the Plaintiff, sent back for trial

Year: 2012

This is sort of an odd case for me, but after spending a week with the bicycle community at Interbike it seemed appropriate. This case looks at the legal issues when a driver of a car after parking opens his door into a bicycle lane injuring a cyclist.

In this case, the defendant was from Pennsylvania visiting his parents at a tourist town in New Jersey. The Plaintiff was also from Pennsylvania riding her bike in the bike lane in the same town in New Jersey.

Allegedly, the defendant parked his car and opened his car door into the bike lane where the plaintiff was riding and caused her injury.

The real issue was the plaintiff could not recall the accident and could not say with certainty that the defendant’s door was in the bike lane. However, she was in the bike lane, and she hit the defendant’s car door.

The case was filed in Federal Court because the accident occurred in New Jersey, where the lawsuit was occurred but the plaintiff was a resident of Pennsylvania.

The basis for this decision was a motion filed by the defendant to dismiss the case because the plaintiff’s lack of proof of whether the door opened in the bike lane. There was also substantial discussion about the application of New Jersey automobile law to the accident (a bicycle is a vehicle) and what damages would be applicable to this case. That part of the decision is not covered in this article.

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

The court started its analysis looking to the requirements to prove a negligence case under New Jersey law.

Under New Jersey law, for a plaintiff to establish a negligence claim she must show that the defendant “breached a duty of reasonable care, which constituted a proximate cause of the plaintiff’s injuries.” Furthermore, “negligence must be proved and will never be presumed, indeed there is a presumption against it, and the burden of proving negligence is on the plaintiff.”

As in all states, the plaintiff must prove, and has the burden of proving that the defendant owed the plaintiff a duty of care, which he breached causing her injuries. In this case, the allegation of the Plaintiff was the duty was not to open a car door into the bike lane.

To establish a duty of care in New Jersey requires the passing of a two-part test. “The question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors.”

The first part is whether the accident was foreseeable.  The second test in New Jersey is whether the application of the duty would be fair and be supported by public policy.

The defendant knew about the bike lanes and was a resident of the city; he also knew about the bike lanes on that particular road. And whenever a bike is in close proximity to a car, there is an obvious risk of harm to the cyclist.

As a result, where bicycles and motor vehicles are in close proximity, the risk of harm presented by obstructing or entering into the bike lane, or, more generally a bicyclist’s lane of travel, was clearly foreseeable to Mr. Matt at the time of the accident.

The fairness and policy considerations were easy and obvious.

…both were using vehicles on the limited roadway space of a public thoroughfare. Imposing a duty of care on Mr. Matt in terms of obstructing or otherwise interfering with a bicyclist’s lane of travel is fair as a matter of public policy. The City of Avalon has created bike lanes presumably to promote bicycling generally and as an attempt to attract visitors. The explicit purpose of a bike lane is to minimize the risks inherent in roadways that accommodate automobiles, bicycles, and pedestrians by providing bicyclists an exclusive lane of travel. Finally, imposing a duty of care in terms of keeping a proper lookout before crossing, entering into, or otherwise obstructing a bicyclists’ lane of travel does not unduly burden motorists. At most, this duty requires a driver to ensure his automobile is parked fully in the parking lane and to check his review mirrors, or otherwise look out for bicyclists, prior to opening his car door and exiting his vehicle.

The bike lanes were built to make cycling safer, and the bike lanes were put in by the city. It is fair to assume that there was an expectation of safety while riding the bike lanes and since the bike lanes were created by the city, there was obviously no violation of public policy.

In conclusion, the possibility of a collision between a cyclist and a car or car door on roadways shared by cyclists and motorists, is foreseeable. Moreover, the public interest in promoting bicycle safety and the minimal burden placed on motorists to exercise reasonable care can lead only to the conclusion that Mr. Matt owed Ms. Gwinner a duty of care when parking and exiting his vehicle along Dune Drive.

The next issue the court looked at was whether the plaintiff could prove the defendant breached a duty to her. Because she could not remember whether or not the car door was in the bike lane, the defendant argued the door was not in the lane, and it did not breach a duty to the plaintiff.

The evidence in the record pertaining to Plaintiff’s negligence claim is scant. There were no witnesses to the accident, aside from Mr. Matt and Ms. Gwinner. Neither Mr. Matt nor Ms. Gwinner took photographs or made measurements of the accident scene; more specifically, there are no photographs 4 or measurements relating to the distance of Mr. Matt’s passenger-side tires from the curb or how far Mr. Matt’s car door extended when opened on the day of the incident. Finally, though both parties independently visited the Avalon Police Station after the accident, no police report was produced.

However, the pleadings and deposition testimony of the plaintiff were enough to make a case that should be heard by a jury.

However, Ms. Gwinner’s deposition testimony describing the accident is sufficient to demonstrate the existence of a question of material fact, which should be decided by a jury. She states, “Is all I know I was [sic] riding my bike. And the poor man was as startled as I was. The door started opening and I just went into it.” When Ms. Gwinner’s description of the accident is considered along with her testimony that she was riding her bike within the bike lane when she collided with Mr. Matt’s car door a fact finder could reasonably infer Mr. Matt’s car door must have entered the bike lane and caused the collision, and choose to believe Ms. Gwinner’s account of the accident rather than Mr. Matt’s.

Although there was not specific proof the car door was in the bike lane, the jury could reach a conclusion by a preponderance of the evidence that car door was in the bike lane.

As such, the case was sent back for trial.

The decision continues on the application of New Jersey automobile and insurance law to the case and whether there were any limits on the damages available for the plaintiff.

So Now What?

Here the plaintiff or the defendant could have photographed the scene, measured the door, the car to the curb, and the width of the bike lane and ended this case. If you have the opportunity, after the victim(s) have been taken care of document the accident.

At the same time, when both victims filed complaints at the police department, the police did nothing. Don’t wait and go to the police department, call 911 and have them show up.

These facts will also lead to a big argument on the actual damages the plaintiff suffered. If she was able to go to the police department rather than going to the hospital, she must not have been injured as much as she might claim. 

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Gwinner, v. Michael Matt, et al., 2012 U.S. Dist. LEXIS 108827

Gwinner, v. Michael Matt, et al., 2012 U.S. Dist. LEXIS 108827

Sheila Gwinner and Horst Gwinner, Plaintiffs, v. Michael Matt, et al., Defendants.

Civil No. 10-3001 (JBS/AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

2012 U.S. Dist. LEXIS 108827

August 2, 2012, Decided

August 3, 2012, Filed

COUNSEL: [*1] Appearances: Thomas Sacchetta, Esq., SACCHETTA & BALDINO, Marlton, NJ, Attorney for Plaintiffs.

Barbara J. Davis, Esq., Jessica D. Wachstein, Esq., MARSHALL, DENNEHY, MARSHALL, COLEMMAN & GOGGIN, Cherry Hill, NJ, Attorneys for the Defendants.

JUDGES: HONORABLE JEROME B. SIMANDLE, Chief United States District Judge.

OPINION BY: JEROME B. SIMANDLE

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter involving the alleged negligence of a motorist opening his car door on a roadway with a designated bike lane is before the Court on Defendant’s motion for summary judgment pursuant to Fed. R. Civ. P. 56(a). [Docket Item 17.] The principal issue to be determined is whether a dispute of fact exists that Defendant breached a duty of care owed to Plaintiff when she collided with his car door as he was exiting his vehicle. As will be explained at length below, the Court finds Plaintiff’s negligence claim raises a question of material fact to be decided by a jury. Plaintiff has also raised a dispute of fact that her alleged injuries are permanent and causally related to the accident for purposes of the limitation-on-lawsuit threshold of the New Jersey Automobile Insurance Cost Reduction Act, so Defendant’s motion will be [*2] denied.

II. BACKGROUND

Plaintiff, Sheila Gwinner, filed this lawsuit against Defendant, Michael Matt, based on an accident that occurred in June 2008, when Ms. Gwinner collided with Mr. Matt’s car door while she was bicycling on Dune Drive in Avalon, New Jersey. Ms. Gwinner alleges Mr. Matt negligently opened his car door into the bike lane where she was traveling, striking her and causing her to suffer serious personal injuries.

On June 14, 2010, Plaintiff commenced a civil action against Defendant in the United States District Court for the District of New Jersey based on diversity jurisdiction under 28 U.S.C. § 1332(d). 1 [Docket Item 1.] According to Ms. Gwinner’s Complaint, Mr. Matt’s negligence consisted of, in part, “failing to observe [her] bicycle on the bicycle path” and “failing to keep a reasonable lookout for other vehicles lawfully on the road.” Compl. at ¶ 12. Ms. Gwinner then claims that, as a result of Mr. Matt’s negligence, she suffered “severe and painful injuries,” which required medical treatment, restricted her personal and work activities, and resulted in permanent injuries. Id. at ¶ 13.

1 Both Plaintiffs are citizens of Pennsylvania, and Defendant is a citizen of [*3] New Jersey. Compl. at ¶ 1.

On the morning of June 15, 2008 Mr. Matt parked his vehicle in front of his father’s house, in the parking lane along Dune Drive. Matt Dep., Ex. F at 17:23-24. At this location, Dune Drive is a four-lane roadway, two lanes north and two lanes south, with a bike lane and a parking lane. Id. at 19:4-7. When Mr. Matt opened his door, he “heard a loud bang,” and then observed a “young lady [] on the ground with her bicycle in front of the car to the left a little bit.” Id. at 28:5-8. Ms. Gwinner was traveling at fifteen miles per hour along Dune Drive on the morning of the accident, and she did not observe Mr. Matt’s vehicle prior to the collision. Gwinner Dep., Ex. H at 34:5-10. Additionally, Ms. Gwinner testified that, when the accident occurred, she was riding within the bike lane (id. at 34:20-21); however, she did not observe and does not know whether Mr. Matt’s car door actually extended into the bike lane. Id. at 40:7-13.

Ms. Gwinner carries automobile insurance provided by Progressive Insurance, an insurance company authorized to conduct business in the State of New Jersey. She alleges that as a result of the accident, she suffered “traumatic multi level [*4] disc herniation/protrusion/radiculopathy, traumatic right knee fracture/contusion/anterior horn tear, and traumatic right hand/thumb tendonitis with radial/median nerve neuritis and joint inflammation.” Compl. at ¶ 13. 2 Plaintiff claims that these injuries demonstrate a “permanent injury” as set forth in the New Jersey Automobile Insurance Cost Reduction Act (“AICRA”) at N.J. Stat. Ann. § 39:6A-8(a) and that she has produced sufficient objective medical evidence to support her claim. Pl.’s Opp’n Br. at 4.

2 Plaintiff includes a medical report in support of this allegation. Pl. Ex. D.

In the present motion, Defendant argues that he is entitled to summary judgment because Plaintiff has failed to “establish proof a negligence claim as a matter of law.” Def.’s Br. in Supp. Summ. J. at 2. Specifically, Defendant argues Plaintiff has failed to establish the alleged breach of duty, as she “produced no evidence that Mr. Matt’s car door extended into the bike lane.” Id. at 3. Defendant also argues that Plaintiff is barred from pursuing noneconomic damages 3 because she has failed to produce objective medical evidence demonstrating she suffered permanent injuries, as a result the accident in question, [*5] to her neck, right knee, and right wrist. Id. at 15-16.

3 “Noneconomic damages” are defined by statute as “pain, suffering and inconvenience.” N.J. Stat. Ann. § 39:6A-2(i). By contrast, “economic loss” is defined as “uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses.” Id. at § 39:6A-2(k). The Court notes that Plaintiff appears to claim only noneconomic losses. Additionally, Defendant requests dismissal of Plaintiff’s claim in its entirety, not just dismissal of Plaintiff’s claim for noneconomic losses. Plaintiff does not refute this by presenting economic losses and arguing that, should the Court find in Defendant’s favor, her claims for economic losses must survive. Therefore, dismissal is the result of finding for Defendant.

For the following reasons, the Court finds Plaintiff has sufficiently raised a question of material fact regarding her breach of duty claim; Defendant’s motion is denied on this issue. Additionally, the Court finds Plaintiff has provided sufficient objective medical evidence from which a reasonable jury could conclude that she suffered permanent injuries as a result of the accident; therefore, [*6] Plaintiff has met AICRA’s limitation-on-lawsuit threshold, and Defendant’s motion is denied.

III. DISCUSSION

A. Standard of Review

[HN1] Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome of the suit under the applicable rule of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence must be produced to support a material fact. Fed. R. Civ. P. 56(c)(1)(A); United States v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993). However, the Court will view any evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1999). Where the nonmoving party bears the burden of persuasion at trial, the moving party may be entitled to summary judgment merely by showing that there is an absence of evidence to support an essential element of [*7] the nonmoving party’s case. Fed. R. Civ. P. 56(c)(1)(B); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

B. Summary Judgment as to Plaintiff’s Negligence Claim

[HN2] Under New Jersey law, for a plaintiff to establish a negligence claim she must show that the defendant “breached a duty of reasonable care, which constituted a proximate cause of the plaintiff’s injuries.” Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288, 471 A.2d 25, 29 (1984). Furthermore, ” [HN3] negligence must be proved and will never be presumed, [] indeed there is a presumption against it, and [] the burden of proving negligence is on the plaintiff.” Buckelew v. Grossbard, 87 N.J. 512, 525, 435 A.2d 1150 (1981) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139, 84 A.2d 281 (1951)).

Plaintiff claims Defendant acted negligently when he opened his car door “into the bike lane where [she] was operating her bicycle.” Pl.’s Opp’n Br. 2. She also alleges she suffered injuries as a result of Defendant’s negligence. Id.

Defendant argues Plaintiff has failed to present a valid negligence claim because she has not alleged a breach of duty that was the proximate cause of her injuries. Def.’s Br. in Supp. Summ. J. 2. Defendant [*8] argues Plaintiff has not produced evidence showing his car door entered into or obstructed the bike lane. Id. at 3. Defendant also claims the evidence shows Ms. Gwinner was solely responsible for her injuries because she was riding her bicycle outside of the bike lane when she collided with his car door. Id. To support this claim, Defendant argues that after the accident, he fully opened his door to see if it extended into the bike lane, which, he claims, it did not. Id. at 1.

1. Duty of Care

Neither party has addressed the existence of a duty of care in the instant case. Because the existence of a duty is essential to all negligence claims, however, the Court must tackle the issue.

[HN4] “The question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors.” Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 573, 675 A.2d 209, 212. (citing Dunphy v. Gregor, 136 N.J. 99, 110, 642 A.2d 372 (1994)). Foreseeability is the first factor considered, as it is “the predicate for the duty to exercise reasonable care.” Id. at 573. While foreseeability is needed to determine whether a duty of care exists, it [*9] is not the only factor. Id. at 572. Courts also consider fairness and policy factors such as “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” Id. at 573 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110. (1993)).

The Court will first address foreseeability. Mr. Matt was a resident of Avalon, who was aware of the existence of the bike lane along Dune Drive, and who had used the Dune Drive bike lane prior to the accident in question. Matt Dep., Ex. F at 9:20; 20:16-19, 22-23; 21:1-2. Mr. Matt was also aware that the Dune Drive bike lane was regularly used during the summer months, Avalon’s tourist season. Id. at 46:3-7. The risk of harm posed by a collision between a cyclist and an automobile, or automobile door, is obvious. As a result, where bicycles and motor vehicles are in close proximity, the risk of harm presented by obstructing or entering into the bike lane, or, more generally a bicyclist’s lane of travel, was clearly foreseeable to Mr. Matt at the time of the accident.

” [HN5] Once the foreseeability of an injured party is established, . . . considerations [*10] of fairness and policy govern whether the imposition of a duty is warranted.” Carvalho at 573, 675 A.2d at 212 (quoting Carter Lincoln Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194-95, 638 A.2d 1288 (1994)). In Carvalho, a construction worker was killed when trench walls collapsed on him. Id. at 571-572, 675 A.2d at 212. In a suit against the site engineer, the New Jersey Supreme Court, after determining the risk of harm was foreseeable, held that imposing a duty of care on the engineer was warranted because there was a contractual relationship between the parties; the engineer was responsible for monitoring work progress, which implicated worksite safety; the engineer had control to change work conditions; and the engineer had actual knowledge of the dangerous condition because other trench walls had collapsed at the site. Id. at 575-578, 675 A.2d at 214-15.

Here, Mr. Matt and Ms. Gwinner had no prior existing relationship. In fact, their first actual encounter occurred after Ms. Gwinner had already collided with Mr. Matt’s car door. Matt Dep., Ex. F at 28:4-15; Gwinner Dep., Ex. H at 37:4-10. Additionally, Mr. Matt had never previously been involved in an automobile accident [*11] involving a bicyclist. Ex. F at 46:12-16. But their relationship was a functional one: both were using vehicles on the limited roadway space of a public thoroughfare. Imposing a duty of care on Mr. Matt in terms of obstructing or otherwise interfering with a bicyclist’s lane of travel is fair as a matter of public policy. The City of Avalon has created bike lanes presumably to promote bicycling generally and as an attempt to attract visitors. The explicit purpose of a bike lane is to minimize the risks inherent in roadways that accommodate automobiles, bicycles, and pedestrians by providing bicyclists an exclusive lane of travel. Finally, imposing a duty of care in terms of keeping a proper lookout before crossing, entering into, or otherwise obstructing a bicyclists’ lane of travel does not unduly burden motorists. At most, this duty requires a driver to ensure his automobile is parked fully in the parking lane and to check his review mirrors, or otherwise look out for bicyclists, prior to opening his car door and exiting his vehicle.

In conclusion, the possibility of a collision between a cyclist and a car or car door on roadways shared by cyclists and motorists, is foreseeable. Moreover, [*12] the public interest in promoting bicycle safety and the minimal burden placed on motorists to exercise reasonable care can lead only to the conclusion that Mr. Matt owed Ms. Gwinner a duty of care when parking and exiting his vehicle along Dune Drive.

2. Breach of Duty

[HN6] Because breach of duty is an essential element of a negligence claim, facts relating to a defendant’s breach are material to the success of the claim. In the instant case, the material fact regarding breach of duty is whether Defendant Matt’s car door entered into the bike lane, causing the collision. Because Ms. Gwinner has the burden of proving negligence at trial, Mr. Matt would be “entitled to summary judgment merely by showing that there is an absence of evidence” supporting Ms. Gwinner’s negligence claim. Celotex Corp. at 325. The Court finds Plaintiff has minimally succeeded in providing evidence to support her claim that Defendant breached a duty of care.

Ms. Gwinner alleges Mr. Matt breached the duty by negligently opening his car door into the bike lane, causing her to collide with the door and suffer injuries. Mr. Matt claims Ms. Gwinner has failed to produce evidence his car door entered the bike lane. Mr. [*13] Matt also claims the evidence in the record shows that Ms. Gwinner was actually the sole cause of the collision and her injuries because his car door did not extend into the bike lane, so, he infers, Ms. Gwinner must have been riding her bicycle in the parallel parking lane at the time of the accident.

The evidence in the record pertaining to Plaintiff’s negligence claim is scant. There were no witnesses to the accident, aside from Mr. Matt and Ms. Gwinner. Matt Dep., Ex. F at 35:5-7; Gwinner Dep., Ex. H at 44:14-15. Neither Mr. Matt nor Ms. Gwinner took photographs or made measurements of the accident scene; more specifically, there are no photographs 4 or measurements relating to the distance of Mr. Matt’s passenger side tires from the curb or how far Mr. Matt’s car door extended when opened on the day of the incident. Matt Dep., Ex. F at 37:22-24, 38:1-2; Gwinner Dep., Ex. H at 47:1-5. Finally, though both parties independently visited the Avalon Police Station after the accident, no police report was produced. Matt Dep., Ex. F at 43:19-22, 44:1-3; Gwinner Dep., Ex. H at 70:13-15, 71:18-21.

4 There is photographic evidence of Dune Drive at the accident site as of February 2011. While [*14] the photographs tell us little about the actual scene of the accident in June 2008, they do confirm that a Honda Accord parked close enough to the curb in the parking lane can fully open its driver side door without the door entering into the bike lane. However, the photographer used a Honda Accord to make this demonstration. Ex. G. On the day of the accident, Mr. Matt was driving a Cadillac CTS. Ex. F at 23:5-6. Car width and door length vary from make to make and model to model; as a result, the Court notes that Defendant’s photographs are of limited value on the relevant question of whether Mr. Matt’s Cadillac could similarly park in the parking lane and fully open his car door without obstructing the bike lane. The demonstrative Honda exhibit’s materiality also depends upon how close to the curb Defendant’s vehicle was parked at the time of the accident.

Ms. Gwinner’s recitation of what she remembers from the date of the accident is also meager. Though she claims to have been riding in the bike lane along the right side of the lane, at no time before, during or after the accident did she observe Mr. Matt’s car door extending into the bike lane. 5 Gwinner Dep., Ex. H at 34:8-10, [*15] 40:7-10, 19-23. Additionally, she did not observe and does not know how close to the curb Mr. Matt parked his car. Id. at 48:2-5.

5 During her deposition, Ms. Gwinner participated in the following exchange with Defense attorney Barbara J. Davis:

Q: But did you see at all how far the car door extended out?

A: No, I didn’t.

Q: As you sit here today, do you know if the car door extended out into the bike lane, Mr. Matt’s car door?

A: I don’t.

However, Ms. Gwinner’s deposition testimony describing the accident is sufficient to demonstrate the existence of a question of material fact, which should be decided by a jury. She states, “Is all I know I was [sic] riding my bike. And the poor man was as startled as I was. The door started opening and I just went into it.” Id. at 34:6-10. When Ms. Gwinner’s description of the accident is considered along with her testimony that she was riding her bike within the bike lane when she collided with Mr. Matt’s car door (id. at 36:15-17), a fact finder could reasonably infer Mr. Matt’s car door must have entered the bike lane and caused the collision, and choose to believe Ms. Gwinner’s account of the accident rather than Mr. Matt’s.

Because all reasonable inferences [*16] must be given to the nonmovant, the Court finds Ms. Gwinner has raised a genuine issue of material fact as to whether Mr. Matt breached a duty of care by negligently opening his car door into a bicyclist’s lane of travel, or otherwise failing to reasonably look out for bicyclists before exiting his vehicle. Therefore, Mr. Matt has failed to meet the summary judgment standard set forth under Fed. R. Civ. P. 56(c)(1)(B) and Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) and his motion will be denied as to Plaintiff’s negligence claim.

C. Summary Judgment as to Plaintiff’s Inability to Satisfy AICRA’s Limitation-on-Lawsuit Threshold

1. The Applicability of the New Jersey’s “Deemer Statute” and AICRA

Because Ms. Gwinner is insured by Progressive Insurance, an insurance company authorized to conduct business in the State of New Jersey, Defendant argues, and Plaintiff does not dispute, Plaintiff is subject to New Jersey’s “Deemer Statute” and the “limitation-on-lawsuit threshold” set forth in AICRA.

[HN7] The Deemer Statute, N.J. Stat. Ann. § 17:28-1.4, “requires insurers authorized to transact automobile insurance business in New Jersey to provide coverage to out-of-state residents consistent [*17] with New Jersey law ‘whenever the automobile or motor vehicle insured under the policy is used or operated in this State.'” Zabilowicz v. Kelsey, 200 N.J. 507, 513-514, 984 A.2d 872, 875-876 (2009). The Deemer Statute also requires affected insurance companies “to provide personal injury protection [(“PIP”)] benefits pursuant to N.J. Stat. Ann. [§] 39:6A-4.” Id. at 514, 984 A.2d at 876. “In short, the Deemer Statute furnishes the covered out-of-state driver with New Jersey’s statutory no-fault PIP and other benefits and, in exchange, deems that driver to have selected the limitation-on-lawsuit option of [N.J. Stat. Ann. §] 39:6A-8(a).” Id. Because Plaintiff conceded to Defendant’s assertion that Plaintiff is subject to the limitation-on-lawsuit threshold via the Deemer Statute, even though Plaintiff was riding her bicycle rather than driving an automobile at the time the accident, the Court assumes that the Deemer Statute applies to the facts of this case.

AICRA represents an effort by the New Jersey’s Legislature to curb rising auto insurance costs by limiting the opportunities for accident victims to sue for noneconomic damages. This effort began with New Jersey’s implementation of [*18] a no-fault insurance scheme in 1972 when New Jersey passed the New Jersey Automobile Reparation Act and has since undergone numerous revisions, in a process described as “tortured,” which need not be recounted here. See, e.g., Branca v. Matthews, 317 F. Supp. 2d 533, 537-539 (D.N.J. 2004). The New Jersey Legislature passed AICRA in 1998 with three distinct goals “containing [insurance premium] costs, rooting out fraud within the system, and ensuring a fair rate of return for insurers.” DiProspero v. Penn, 183 N.J. 477, 488, 874 A.2d 1039, 1046 (2005).

2. The Limitation-on-Lawsuit Threshold

[HN8] To contain automobile insurance costs, AICRA established the limitation-on-lawsuit threshold, which “bars recovery for pain and suffering unless the plaintiff suffers an injury that results in (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of fetus; or (6) permanent injury within a reasonable degree of medical probability ….” Id. (quoting N.J. Stat. Ann. § 39:6A-8(a))(internal quotation marks omitted).

[HN9] An insured bound by the limitation-on-lawsuit threshold is barred from suing for noneconomic damages unless her injuries fall [*19] within AICRA’s six categories. Johnson v. Scaccetti, 192 N.J. 256, 261, 927 A.2d 1269, 1273 (2007). In the summary judgment context, a plaintiff can proceed to trial if she demonstrates that her alleged injuries, if proven, fall into one of the six threshold categories. Davidson v. Slater, 189 N.J. 166, 187, 914 A.2d 282, 295 (2007) (citing Oswin v. Shaw, 129 N.J. 290, 294, 609 A.2d 415, 417 (1992)). A plaintiff must also prove that the alleged statutory injury was caused by the accident in question or “risk dismissal on summary judgment if the defendant can show that no reasonable fact-finder could conclude that the defendant’s negligence caused plaintiff’s alleged … injury.” Id. at 188, 914 A.2d at 295. However, where, as here, a plaintiff alleges she suffered more than one injury as a result of the accident in question, the plaintiff need only establish one of her injuries meets the limitation-on-lawsuit threshold for the jury to consider all of the injuries when calculating noneconomic damages. Johnson at 279, 927 A.2d at 1282.

3. Permanent Injury

[HN10] AICRA defines “permanent injury” as “[w]hen the body part or organ, or both, has not healed to function normally and will not heal to [*20] function normally with further medical treatment.” N.J. Stat. Ann. 39:6A-8(a). Additionally, in adopting AICRA, the New Jersey Legislature explicitly adopted a threshold requirement, the objective medical evidence standard, established by the New Jersey Supreme Court in Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992). DiProspero v. Penn, 183 N.J. 477, 495, 874 A.2d 1039, 1050 (2005). A plaintiff’s alleged limitation-on-lawsuit injury “must be based on and refer to objective medical evidence.” Id. (emphasis removed).

Plaintiff claims her neck, right wrist, and right knee injuries are permanent injuries within the meaning of AICRA. See supra pp. 4-5. Additionally, Ms. Gwinner claims the medical report created by Dr. James F. Bonner, her physical therapy physician (Pl.’s Opp’n Br., Ex. D), “sets forth his opinion within a reasonable degree of certainty as to the permanency of [her] injuries and their relatedness to the accident”; as such, she has satisfied the limitation-on-lawsuit threshold. Pl.’s Opp’n Br. 4.

Mr. Matt argues that Ms. Gwinner has failed to produce objective medical evidence demonstrating she suffered permanent injuries, as a result the accident in question, to her neck, [*21] right knee, and right wrist. Def.’s Br. in Supp. Summ. J. at 11. First, Defendant claims Dr. Bonner’s report shows that Ms. Gwinner had a pre-existing cervical injury and that the report fails to present evidence showing Ms. Gwinner’s cervical condition is causally connected to the accident. Id. at 11-12. Second, Defendant argues Plaintiff’s alleged knee injuries fail to meet the threshold because there is evidence of pre-existing injuries and surgeries, a failure to connect the injuries to the accident, and Plaintiff “has testified she has full use of her right knee and is not restricted in any of her physical activities.” Id. 12-14. Finally, Defendant claims Plaintiff has not presented objective medical evidence of a permanent injury to her right wrist because the medical reports show that she had been treated for right wrist problems prior to the accident and that the reports alleging a right wrist injury after the accident are based on Ms. Gwinner’s subjective complaints and not objective medical testing. Id. at 14-15.

Because Ms. Gwinner need only demonstrate that one of her injuries, if proven, is permanent under AICRA’s definition, the Court will evaluate each alleged injury [*22] individually. First, however, the Court will address Defendant’s broader assertion that Plaintiff’s claim should be dismissed because she did not provide a comparative analysis distinguishing the injuries allegedly caused by the accident from other, preexisting injuries, as required by Davidson v. Slater, 189 N.J. 166, 914 A.2d 282 (2007). In Davidson, The New Jersey Supreme Court did not create a blanket rule. Instead, it held,

When a plaintiff alleges aggravation of preexisting injuries as the animating theory of the claim, then plaintiff must produce comparative evidence to move forward with the causation element of that tort action. When a plaintiff does not plead aggravation of preexisting injuries, a comparative analysis is not required to make that demonstration.

189 N.J. at 179, 914 A.2d at 284. The New Jersey Supreme Court then cautioned plaintiffs with preexisting injuries not required to provide such a report, stating, ” [HN11] [T]he plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries.” Davidson, at 188, 914 A.2d at 295.

As was the case in Davidson, Plaintiff [*23] Gwinner has not explicitly alleged that her injuries were aggravations of preexisting injuries. 6 The only medical report provided by Ms. Gwinner to support her claim that she suffered permanent injuries as a result of the accident, however, makes no mention of new injuries. Pl. Ex. D. Instead, the one-page report prepared in 2009 by Dr. Bonner states Ms. Gwinner had previous injuries or previously received medical treatment to the alleged injured areas and that she suffered “advanced impairment … as a direct result of her 6/15/08 trauma.” Id. Moreover, the report specifically mentions Plaintiff’s “old knee problem” and concludes the accident caused “a higher pain/dysfunction level.” Id. While this report might appear to indicate all of Plaintiff’s alleged injuries are exacerbations, Dr. Bonner produced a more detailed report on July 1, 2008, on which the 2009 report partially relies. 7 Reviewing the medical reports referenced in Dr. Bonner’s report reveals some of the injuries described are in fact new injuries.

6 Plaintiff did not allege her injuries were either new or exacerbations of previous injuries and conditions; she was silent on this issue. Compl. at ¶ 13. However, Plaintiff’s [*24] allegations regarding her injuries appear to be direct quotes from Dr. Bonner’s 2009 report. See supra. p. 4. and note 2.

7 In addition to his July 1, 2008 report, Dr. Bonner also referenced a July 9, 2008 report created by Dr. Philip S. Yussen of Mainline Open MRI (Def. Ex. I). Both reports discuss new injuries Ms. Gwinner suffered as a result of the accident. See infra pp. 23-26.

When considering Ms. Gwinner’s complaint and supporting evidentiary documents, it is clear some of her alleged injuries are aggravations of previously existing injuries and medical conditions. But because she has not alleged aggravation injuries in her Complaint, she is not required to provide a comparative report to support the causation element of her tort claim. The New Jersey Supreme Court’s warning in Davidson, however, is pertinent to the instant case because the lack of a comparative analysis has clouded the Court’s effort to properly evaluate whether Plaintiff provided sufficient evidence of causation. Nevertheless, the surplus of medical reports provided has allowed the Court to satisfactorily investigate which alleged injuries are sufficiently supported by evidence of causation and which are not.

a. [*25] Cervical Injury

Though Ms. Gwinner claims to have suffered permanent injury in the form of traumatic multi level disc herniation, protrusion, and radiculopathy, there is no evidence suggesting the alleged injuries are permanent. First, Ms. Gwinner had an MRI done in 2007, prior to the accident, because she was experiencing pain in her neck dating back to 2000. Gwinner Dep., Ex. H 13:15-21, 14:15-23. At the request of Dr. Bonner, Ms. Gwinner received another MRI in July 2008. The report written by Dr. Philip S. Yussen states, “Current examination demonstrates the cervical vertebral bodies to maintain normal stature. There is partial straightening of the cervical lordosis, which may be related to patient positioning, muscle spasm, or even a chronic finding given that this was evident on the previous MRI study as well.” Def. Ex. O (emphasis added). The report goes on to conclude,

There has not been a significant change in the MRI appearance of the cervical spine as compared to the previous MRI study of 8/9/07. The previously noted fatty marrow island at C7 and small low signal presumed development focus at C5 right of midline are again noted, and are stable. No new osseous abnormalities [*26] are seen referable to the cervical vertebrae as compared to the previous study.

Id. Dr. Yussen’s report can only be read to state that the condition of Ms. Gwinner’s neck has not changed, let alone deteriorated, as a result of the accident.

Additionally, Defendant’s medical expert, Dr. Brian K. Zell examined Ms. Gwinner in May of 2011, two years after the medical report provided by Plaintiff, and produced a report (Def. Ex. N). According to Dr. Zell, Ms. Gwinner suffered from a preexisting degenerative disease of the cervical spine, and “[t]he automobile accident in question is not considered a responsible event for the progression of preexisting degenerative changes in the cervical spine.” Def. Ex. N. at 17. Ms. Gwinner has not offered any evidence to rebut these findings. As a result, Plaintiff’s cervical injury cannot serve as a basis for her noneconomic claims. See Kauffman v. McCann, Civ. No. 05-3687, 2007 U.S. Dist. LEXIS 23514, 2007 WL 1038696 at *4 (D.N.J. March 29, 2007) (” [HN12] Because it is plaintiff’s burden at trial to show Defendant caused her permanent injuries within the meaning of AICRA, Plaintiff may not merely rest on her pleadings once Defendant has come forward with evidence tending to show that Plaintiff [*27] is not suffering permanent injury.”). Plaintiff has offered no evidence raising a dispute of fact that, since at least 2008, she has suffered from any spinal injury caused by the 2008 accident.

b. Right Knee Injury

Plaintiff also claims her “traumatic right knee fracture/contusion/anterior horn tear” constitutes a permanent injury under AICRA. The evidence in the record is very close as to whether Ms. Gwinner’s right knee injuries are permanent; however, there is insufficient evidence demonstrating the injuries are causally related to the accident.

Ms. Gwinner underwent medial meniscus surgery to her right knee in 1999. Gwinner Dep., Ex. H 8:23-24, 9:1-4. After the accident, Ms. Gwinner was first evaluated Dr. Bonner on July 1, 2008. Regarding Ms. Gwinner’s right knee, Dr. Bonner wrote, “Her past medical history is remarkable for a medical meniscetomy seven years ago for which she recovered had not had problems involving the right knee.” Def. Ex. K. Dr. Bonner then concluded that, “as a direct result of the accident,” Ms. Gwinner suffered a “contusion to the distal one third of the medial subcutaneous surface of the tibia.” Id. Thus, Dr. Bonner’s initial evaluation attributed only a contusion [*28] to the accident in question.

Eight days later, Ms. Gwinner received an MRI and evaluation at Main Line MRI. In a report dated July 9, 2008, Dr. Philip S. Yussen also noted symptoms consistent with “mild strain or subtle contusion.” Def. Ex. I. Dr. Yussen further noted that the MRI revealed there were no tears to the posterior cruciate ligament, anterior cruciate ligament, or medial collateral ligament. Id. Additionally, “no lateral meniscal tear or significant degenerative signal change” was apparent. Id. Finally, while Dr. Yussen’s examination did reveal “free edge blunting of the posterior horn region” as well as some “small” tears in the medial meniscus region, he was unable to determine the cause of these injuries. Id. He stated, “Given the provided history, the appearance may in part be related to previous partial meniscus tear.” Id.

An orthopaedic surgeon, Dr. Marc S. Zimmerman, then evaluated Ms. Gwinner’s right knee. In a report dated July 28, 2008, Dr. Zimmerman stated, “[Ms. Gwinner’s] right knee gives out on her. She denies popping and clicking. She does not think it is swollen at this time.” Def. Ex. J at 1. Dr. Zimmerman described his evaluation of Ms. Gwinner’s right knee [*29] as follows:

Evaluation of the right knee reveals no swelling or effusion. She has full range of motion without pain. There is minimal tenderness over the lateral joint line with no tenderness over the medial joint line. On the McMurray’s test on internal rotation, there is a click appreciated over the lateral joint line. There is a negative Lachman’s test. There is no varus/vulgus laxity.

Id. at 2. Dr. Zimmerman found there “appear[ed] to be a tear in the posterior horn of the medial meniscus,” but concluded the possible tear was “most likely related to the previous surgery and injury.” Id. As with the two previous evaluations, Dr. Zimmerman noted a bone contusion “at the lateral plateau in the anterolateral aspect.” Id.

In conclusion, because Plaintiff has failed to provide a comparative analysis detailing her previous right knee injuries and then distinguishing any preexisting conditions from the injuries she allegedly suffered as a result of the accident in question, the Court is only able to find causation with regards to the bone contusion. This injury was consistently reported in all three medical evaluations conducted in 2008 and was the only injury explicitly connected to the [*30] accident. However, this injury cannot be considered permanent. Plaintiff’s medical report was prepared on December 16, 2009. Regarding Ms. Gwinner’s right knee, the report merely states, “She also injured her right knee.” It then concludes Ms. Gwinner suffered “traumatic right knee fracture/contusion/anterior horn tear.” Defendant’s medical expert, Dr. Zell, examined Ms. Gwinner’s right knee approximately one-and-a-half years later in May 2011. This represents the most recent evaluation of Ms. Gwinner’s right knee. Dr. Zell noted that the MRI taken by Main Line MRI in 2008 revealed a contusion, but concluded that as of May 2011, the right knee “is entirely within normal limits … [and] further intervention with respect to the patient’s right knee as a consequence of the bicycle versus automobile collision is not warranted.” Def. Ex. N. at 17.

Again, Plaintiff has not offered any evidence to rebut the evidence offered by Defendant showing Plaintiff’s right knee is within normal limits and does not require further treatment. Moreover, Plaintiff offers no additional evidence permitting the reasonable inference that the right knee contusion is permanent. Therefore, it is insufficient to [*31] support a claim for noneconomic damages under AICRA.

c. Right Wrist Injury

Ms. Gwinner alleges that, as a result of the accident, she suffered traumatic right hand/thumb tendonitis with radial/median nerve neuritis and joint inflammation. After reviewing the many doctors’ reports discussing Ms. Gwinner’s right wrist, the Court finds Ms. Gwinner has successfully demonstrated that, if proven, these injuries constitute a causally related permanent injury with the meaning of AICRA.

Dr. Bonner was the first medical professional to evaluate Ms. Gwinner’s wrist after the June 2008 accident. On July 1, 2008, Dr. Bonner wrote that Ms. Gwinner reports “numbness in the right thumb, index finger, and long finger primarily on the tip.” Def. Ex. K. Dr. Bonner then noted Ms. Gwinner had been previously treated for numbness in her right hand and that she stopped treatment in November 2007, prior to the accident. Id. Relevant to causation, this report stated, the “condition had resolved until following this accident.” Id. Dr. Bonner also found “positive phalen’s 8 and tinel’s sign 9 [sic] at the right wrist with tenderness over the … carpal metacarpal joint of the thumb.” Id. The report concludes that [*32] “as a direct result” of the accident in question Ms. Gwinner’s right wrist is indicative of “[p]ost traumatic sprain of the carpal/metacarpal joint of the right thumb with carpal tunnel syndrome being evident.” Id.

8 Dorland’s Illustrated Medical Dictionary 1714 (Elsevier Saunders 32nd ed. 2012) defines “Phalen sign” as the “appearance of numbness or paresthesias within 30 to 60 seconds during the Phalen test, a positive sign for carpal tunnel syndrome.” A Phalen sign is detected by performing a Phalen test, which is a “[a] test for carpal tunnel syndrome. The patient flexes the wrist for 1 minute. Carpal tunnel syndrome is confirmed if the patient experiences a tingling that radiates into the thumb, index finger and the middle and lateral half of the ring finger.” Volume 4 M-PQ, J.E. Schmidt, M.D., Attorney’s Dictionary of Medicine P-208 (Matthew Bender). In light of these definitions, the Court interprets positive Phalen sign to represent that carpal tunnel syndrome was detected.

9 Dorland’s Illustrated Medical Dictionary 1716 (Elsevier Saunders 32nd ed. 2012) defines “Tinel sign” as “a tingling sensation in the distal end of a limb when percussion is made over the site of a divided [*33] nerve. It indicates a partial lesion or the beginning regeneration of the nerve.” The Court thus interprets Positive Tinel sign to indicate possible presence of a lesion(s) in the tested area.

Dr. Zimmerman also evaluated Ms. Gwinner’s right wrist during her July 28, 2008 visit because she reported “some numbness and tingling in the thumb and second finger of her right hand.” Def. Ex. J. Dr. Zimmerman’s report sheds light on the issues of previous existing injuries and causation. He states that while Ms. Gwinner’s past medical history includes numbness and tingling in her right hand, that condition “had resolved but is now present again . . . since the most recent accident.” Id. Moreover, an EMG was performed on Ms. Gwinner in 2007, and “she was told there was no permanent damage.” 10

10 It should be noted, however, that Dr. Zimmerman determined there were “negative Tinel’s and negative Phalen’s signs.” Def. Ex. J.

In December of 2008, Ms. Gwinner visited Dr. William H. Kirkpatrick of Hand Surgical Associates. Def. Ex. L. In his report, Dr. Kirkpatrick similarly noted, “[Ms. Gwinner] had approximately six months of tingling in the thumb, index and long fingers before her bike accident [*34] for which she was treated by a chiropractor” but that the symptoms resolved prior to the June 2008 collision. Id. Dr. Kirkpatrick saw no swelling in the right wrist, full active range of motion, and no tenderness. However, the report found positive Tinel signs “over the superficial radial nerve several centimeters proximal to the wrist” and ultimately diagnosed Ms. Gwinner with right “superficial radial nerve neuritis, probably right median neuritis, and right thumb joint CMC joint inflammation.” Id. This report also noted that Ms. Gwinner’s right wrist injuries were her “primary concern.” Id.

The Court finds the reports of Dr. Bonner, Dr. Zimmerman and Dr. Kirkpatrick sufficient to demonstrate that while Ms. Gwinner had experienced some numbness and tingling prior to the June 2008, that condition had ceased and was deemed nonpermanent prior to the accident. Because both Dr. Bonner and Dr. Zimmerman’s reports noted positive Phalen and Tinel signs, among other injuries, a reasonable fact finder could determine that any injuries found in Ms. Gwinner’s right wrist in these post-accident reports are causally connected to the June 2008 collision. Therefore, Ms. Gwinner has sufficiently demonstrated [*35] causation.

Dr. Bonner’s December 16, 2009 report and Dr. Zell’s May 31, 2011 report are relevant to the Court’s inquiry into the permanency of Ms. Gwinner’s alleged right wrist injuries. Dr. Bonner’s 2009 report described Ms. Gwinner’s injuries as “traumatic right hand/thumb tendonitis with radial/median nerve neuritis and joint inflammation.” Pl. Ex. D. The report stated these injuries have resulted in “permanent restriction to no impact forces to those affected areas.” Id.

Again, the Defendant’s medical expert, Dr. Zell, was the last doctor to evaluate Ms. Gwinner’s right wrist. As of May 2011, Ms. Gwinner’s still complained of tightness and numbness in her right wrist. Def. Ex. N. at 5. Dr. Zell found, “The bicycle versus automobile collision in question has a chronological association with ongoing complaints referable to the median nerve at the right wrist.” Id. And while he found “the absence of a Tinel at the carpal tunnel on the right side,” Dr. Zell did not entirely rule out carpal tunnel syndrome, concluding, “If this patient does in fact have a carpal tunnel syndrome, it is subclinical.” Id.

There is substantially more evidence regarding Ms. Gwinner’s alleged right wrist injury. [*36] While some of the medical reports seem to contradict each other, particularly in regard to Phalen and Tinel signs, all reasonable inferences must be given to the nonmovant. Thus, the Court finds Plaintiff has provided evidence sufficient for a reasonable fact finder to determine her right wrist injuries are permanent and causally connected to the June 2008 accident.

Defendant’s final argument in support of his motion for summary judgment is that Ms. Gwinner’s deposition testimony indicates “she does not have any physical restrictions or limitations.” Def.’s Br. in Supp. Summ. J. at 15. Defendant claims Ms. Gwinner experiences no restrictions in her ability to “perform all of her household chores, go[] skiing, and … ride her bike approximately 50 miles.” Id. While Ms. Gwinner did state she did not miss any time from work as a result of the accident (Gwinner Dep., Ex. H 7:12-14) and she is able to conduct her life somewhat normally, Defendant has not provided a full picture of Ms. Gwinner’s statements. Regarding her ability to perform household chores, Ms. Gwinner participated in the following exchange:

Q: Are you able to do all your household chores?

A: I can do almost everything I that [*37] want. It’s–I’m losing dexterity in this hand because of numbness.

Q: Indicating your right hand?

A: Yes. Like I have good strength it in to go like this.

Q: To make a fist?

A: To make a fist. And if you put your hand, I can break your fingers with my strength, but it dwindles, it doesn’t stay.

Gwinner Dep., Ex. H 66:18-24, 67:1-6. And while Ms. Gwinner stated that she is able to ride her bike, she also stated that when she is finished her hands are numb. Id. at 67:23-24. When viewing Ms. Gwinner’s statements in their entirety, it appears they are supportive of the proposition that the injuries suffered to her wrist are permanent within the meaning of AICRA, especially because, as of the deposition date, May 16, 2011, Ms. Gwinner’s right wrist had not healed to function normally.

In conclusion, the Court finds Ms. Gwinner has provided evidence sufficient to demonstrate injuries suffered to her right wrist were permanent and caused by the accident in question. Because Plaintiff need only demonstrate one of her injuries, if proven, satisfies AICRA’s limitation-on-lawsuit threshold, and she has done so, the Court will allow all of her noneconomic claims to go to a jury.

CONCLUSION

For the reasons [*38] set forth above, Defendant’s motion for summary judgment shall be denied. The accompanying Order will be entered, and the case will be scheduled for trial.

August 2, 2012

DATE

/s/ Jerome B. Simandle

JEROME B. SIMANDLE

Chief U.S. District Judge


New Jersey decision explains the reasoning why ski areas owe the highest degree of care to people riding chairlifts.

Chair lifts are to be operated under the common carrier standard of care by ski areas in New Jersey.

D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

State: New Jersey

Plaintiff: Kathleen A. D’Amico and Allen N. D’Amico

Defendant: Great American Recreation, Inc.

Plaintiff Claims: negligent in its operation and supervision of the ski lift

Defendant Defenses:

Holding: for the plaintiff

Year: 1992

The facts don’t lend themselves to what you would normally think as a chairlift accident. However, the decision explains in easy detail why the court requires the operator of a chairlift to operate it at the highest degree of care for the riders.

The plaintiff was in line to ride the chairlift. When she was next to board, another skier, skied into the path of the chair. The intervening skier hit the chair the plaintiff was to ride making the chair swing and hitting the plaintiff. The plaintiff suffered injuries from being hit by the chair.

The plaintiff and her husband sued. Prior to trial, the plaintiff moved for a motion in limine determining the standard of care of a ski area to riders of a chairlift. This decision is the result of that motion.

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

The court looked at decisions from all the other states where the question had been answered. What is the duty of care owed by an operator of a chair lift to a passenger.

At the time of this decision, most other states that had looked into the issue had determined that the standard of care was that of a common carrier. A common carrier is required to exercise the highest degree of care to is passengers.

A passenger of a common carrier places himself in the care of that common carrier. A passenger is unable to use his own faculties in order to prevent or avoid accidents and is forced to rely on the common carrier to ensure that accidents are avoided.  The carrier has this responsibility because they exercise control of the equipment used in the transportation of the passenger. Only the carrier can ensure that the equipment is in proper working order and is being operated correctly.

Just like a passenger on a train who has no opportunity to ensure that the locomotive is operating properly, a skier cannot determine whether a ski lift is operating properly.  When skiers board a ski lift, they are entrusting their care in the hands of another.  Once they have committed themselves to riding that chair up the mountain, they are powerless to control their own safety.  The chair lifts the skier off the ground as she sits down.  The chair is suspended off the ground at considerable distance.  The skier has no ability to stop the cable from moving.  Furthermore, a skier can’t exit the chair once it has begun  its ascent.  Because of the skier’s helplessness, ski lift operators should be held to the highest standard of care.

The defendant argued it was not a common carrier because it did not hold itself out to the public as a transportation carrier. Also, the transportation provided by the chairlift was incidental to the sport of skiing. However, the court did not buy that argument.

However, skiers come to ski areas to ski. If ski areas did not provide transportation up a mountain, it would be impossible for skiers to ski down the mountain. Transportation of skiers up the mountain is one of the primary functions of a ski area operator.  It is the reason skiers purchase “lift tickets”.

The ski area also argued that the plaintiff was not on the lift when she was injured. However, the court did not agree with this argument either.

The fact that this plaintiff was not physically on the lift when she was injured does not help defendant. The duty of care of a common carrier includes providing a safe means of ingress and egress for its passengers.

The court summed up its analysis.

Based upon the applicable well-reasoned decisions from other jurisdictions and the analysis set forth above, this court holds that ski area operators are common carriers in the operation of ski lifts. It is, of course, within the power of the Legislature to follow the examples of New York and New Hampshire and amend existing law to exclude ski lift operators from common carrier liability.  Great American Recreation will be held to the standard of care applicable to other types of common carriers in the operation of its Vernon Valley chairlift. This standard has been de-scribed as the highest possible care consistent with the nature of the undertaking involved.

So Now What?

There were still defenses available to the defendant ski area. The first is the intervening skier. The actions that lead to the injury of the plaintiff were not caused by the ski area but by a third party who intervened, was between the actions of the ski area and the injury to the plaintiff.

However, in New Jersey, from the moment a skier gets on the loading ramp until the skier leaves, the ski area is held to the highest degree of care to riders of its lifts, that of a common carrier.

Don’t know how this applies to lift lines?

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D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

Kathleen A. D’Amico and Allen N. D’Amico, her husband, Plaintiffs, v. Great American Recreation, Inc., a Corporation of the State of New Jersey, Defendant

DOCKET No. W-029746-88

Superior Court of New Jersey, Law Division, Sussex County

265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

December 24, 1992, Decided

SUBSEQUENT HISTORY: [***1] Approved for Publication June 9, 1993.

CASE SUMMARY:

COUNSEL: Craig L. Klafter for plaintiffs (Hanlon, Lavigne, Herzfeld & Rubin, attorneys).

Samuel A. DeGonge for defendant (Samuel A. DeGonge, attorneys).

JUDGES: RUSSELL, J.S.C.

OPINION BY: RUSSELL

OPINION

[***2] [*497] [**1165] On February 27, 1987, plaintiff was injured while attempting to board a ski lift at defendant’s ski resort, Vernon Valley. Functionally, [*498] chairlifts consist of a series of metal and wooden chairs which are suspended from a wire cable. They are spaced evenly apart along the cable which rests on wheels attached to tall steel towers. At the bottom and top of the mountain, there is a large wheel which reverses the direction of the cable to enable the chairs to go up and down the mountain. The skier skis to a waiting area to board the lift. As the chair comes closer, the skier sits down onto the chair and is picked up off the snow and transported up the mountain. A safety bar across the front of the chair is lowered into place to prevent the skier from falling out of the chair.

Plaintiff was in the boarding area of the ski lift when the accident occurred. As she was waiting for the chair, an unidentified skier skied into the path of the chair. He struck the chair intended to transport plaintiff up the mountain. As a result, the chair began to swing and struck plaintiff causing serious injury. Plaintiff alleged, inter alia, that defendant ski area was negligent in its operation and supervision of the ski lift. Plaintiff moved in limine for an order declaring defendant to be a common carrier in the operation of the ski lift.

This issue has not been addressed by any reported decisions in New Jersey. Plaintiff seeks to have this court adopt the reasoning of the Third District Court of Appeals of California in Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897, (1992) that a ski area is a common carrier in the operation of its ski lifts and the highest standard of care applies

There are two New Jersey statutes which regulate ski areas, N.J.S.A. 5:13-1 et seq. (hereinafter “Ski Act”) and N.J.S.A. 34:4A-1 et seq. (hereinafter “Ski Lift Safety Act”). Neither act resolves the issue presently before this court. The Ski Act imposes duties on ski area operators and skiers involving the act of [***3] skiing. The Ski Lift Safety Act authorizes the adoption of standards for the construction, operation and inspection of ski lifts.

Plaintiff asserts that the New Jersey Ski Lift Safety Act of 1975 was modeled after a similar statute in New Hampshire originally [*499] enacted in 1957. Plaintiff derives this assertion from the similarity between the statements of purpose of the two acts. N.J.S.A. 34:4A-2 and N.H.R.S.A. 225-1:1. However, the definition of a ski area operator is significantly different in that a provision of the New Hampshire statute was added in 1965 to specifically provide that ski area operators shall not be deemed to be common carriers. Plaintiff argues that since the New Jersey Legislature was relying largely on the New Hampshire statute when it adopted the Ski Lift Safety Act, the absence of a comparable provision excluding common carrier liability evidences an intent to impose such liability.

There is nothing in the legislative history of the Ski Act or the Ski Lift Safety Act which indicates such an intent. However, the similarity between the New Hampshire and New Jersey statutes indicates that the Legislature was aware of the New Hampshire law [***4] and presumably they were also aware of the 1967 New York law which also specifically excludes ski lift operators from common carrier liability. N.Y.Trans.Law Sec. 2(6).

[HN1] It is a long-standing tenet of statutory construction that the legislature will not be said to change the common law without clear statutory language. See State v. Dalglish, 86 N.J. 503, 432 A.2d 74 (1981). Furthermore, [HN2] N.J.S.A. 34:4A-4 specifically provides that the Ski Lift Safety Act shall not “reduce or diminish the standard of care imposed upon passenger tramway operators under existing law.”

New Jersey case law provides little assistance in this matter; however, a number of other courts have grappled with this issue. In 1959, the Appellate Division of the New York Supreme Court decided Grauer v. New York, 9 A.D.2d 829, 192 N.Y.S.2d 647 (1959). The court held that the state of New York would be deemed to be a common carrier in the operation of a chair lift at a state park. The court noted that in [**1166] the operation of the chair lift, “(a) fee was charged for transportation and the public was invited [***5] to use the service.” Id. 192 N.Y.S.2d at 649. This holding by the New York Court was later overturned by the Legislature in 1967 [*500] when it amended New York’s transportation law. See N.Y.Trans. Law Sec. 2(6).

In Fisher v. Mt. Mansfield Co., 283 F.2d 533 (2nd Cir.1960), the court upheld the trial judge’s ruling that the standard of care of a common carrier applied to a Vermont ski lift operator. In Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658 (1968), the trial judge instructed the jury that the ski area operator owed plaintiff the highest degree of care because it was a common carrier in the operation of its ski lifts. The Colorado Supreme Court upheld this decision.

In Allen v. New Hampshire, 110 N.H. 42, 260 A.2d 454 (1969), the court applied the standard of care of a common carrier to a ski lift operator. New Hampshire later changed its law through legislative action. N.H.R.S.A. Sec. 225-A:1. See Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 374 A.2d 1187 (1977).

[***6] In one case, Pessl v. Bridger Bowl, 164 Mont. 389, 524 P.2d 1101 (1974), the court did not apply the common carrier standard to a ski lift operator because of specific state legislation preventing such application. See Mont.Code Ann. Sec. 69-6615 (1947).

Grauer, Fisher, Bagnoli, Allen and Pessl were all decided before the New Jersey Legislature adopted the Ski Lift Safety Act in 1975. As such, the Legislature must be said to have been aware of the trend of courts addressing this issue to hold ski lift operators to the standard of care of common carriers. See Guzman v. City of Perth Amboy, 214 N.J.Super. 167, 518 A.2d 758 (App.Div.1980).

This trend was continued in the recent, well reasoned decision of Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897 (1992). The court defined [HN3] a common carrier as “any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit” and held that a ski lift operator fit within [***7] this definition. Id. at 1508, 3 Cal.Rptr.2d 897.

[*501] The defendant in the Squaw Valley case and the defendant in the case sub judice both argued that a ski lift operator is not a common carrier because ski lift riders are required to possess special equipment and skills in order to use the lift, hence, a ski lift is not offered for use indiscriminately to the general public. This court agrees with the conclusion of the Squaw Valley Court that defendant’s argument must fail. [HN4] A common carrier does not lose its status as such merely because the nature of its services is specialized. All members of the general public who possess the necessary equipment and expertise may avail themselves of the Vernon Valley chair lift.

The rationale behind requiring common carriers to exercise the highest degree of care furthers its application here. A passenger of a common carrier places himself in the care of that common carrier. A passenger is unable to use his own faculties in order to prevent or avoid accidents and is forced to rely on the common carrier to ensure that accidents are avoided. The carrier has this responsibility [***8] because they exercise control of the equipment used in the transportation of the passenger. Only the carrier can ensure that the equipment is in proper working order and is being operated correctly.

Just like a passenger on a train who has no opportunity to ensure that the locomotive is operating properly, a skier cannot determine whether a ski lift is operating properly. When skiers board a ski lift, they are entrusting their care in the hands of another. Once they have committed themselves to riding that chair up the mountain, they are powerless to control their own safety. The chair lifts the skier off the ground as she sits down. The chair is suspended off the ground at considerable distance. The skier has no ability to stop the cable from moving. Furthermore, a skier can’t exit the chair once it has begun [**1167] its ascent. Because of the skier’s helplessness, ski lift operators should be held to the highest standard of care.

Defendant argues that it should not be deemed to be a common carrier because “(i)t does not hold itself out to the public for [*502] compensation for the transportation of persons.” Great American Recreation asserts that the transportation of skiers [***9] up the mountain is only “incidental” to its business. Ski areas provide customers with many services including snow making, trail grooming and maintenance, lessons, parking, equipment rentals and restaurant facilities. However, skiers come to ski areas to ski. If ski areas did not provide transportation up a mountain, it would be impossible for skiers to ski down the mountain. Transportation of skiers up the mountain is one of the primary functions of a ski area operator. It is the reason skiers purchase “lift tickets”.

Defendant also argues that holding ski lift area operators to the standard of care of a common carrier would necessitate holding operators of elevators, escalators and other people movers to the standard of care of common carriers. However, many states have imposed this standard of care on operators of these devices. See, e.g., Kaminsky v. Arthur Rubloff & Co., 72 Ill.App.2d 68, 218 N.E.2d 860 (1906) (elevator); Norman v. Thomas Emery’s Sons, Inc., 7 Ohio App.2d 41, 218 N.E.2d 480 (1942) (elevator); [***10] Vandagriff v. J.C. Penney Co., 228 Cal.App.2d 579, 39 Cal.Rptr. 671 (1964). But see Tolman v. Wieboldt Stores, Inc., 38 Ill.2d 519, 233 N.E.2d 33 (1968) (holding that escalators are not common carriers). The reported New Jersey decisions involving elevators or escalators do not address the issue of whether to hold the operators to the standard of care of a common carrier. See Pisano v. S. Klein on the Square, 78 N.J.Super. 375, 188 A.2d 622 (1963); Dombrowska v. Kresge-Newark, Inc., 75 N.J.Super. 271, 183 A.2d 111 (App.Div.1962).

The fact that this plaintiff was not physically on the lift when she was injured does not help defendant. [HN5] The duty of care of a common carrier includes providing a safe means of ingress and egress for its passengers. See Buchner v. Erie Railroad Co., 17 N.J. 283, 111 A.2d 257 (1955).

Based upon the applicable well-reasoned decisions from other jurisdictions and the analysis set forth above, [HN6] this court holds that ski area operators are common carriers in the operation of ski [*503] lifts. It is, of course, within the [***11] power of the Legislature to follow the examples of New York and New Hampshire and amend existing law to exclude ski lift operators from common carrier liability. Great American Recreation will be held to the standard of care applicable to other types of common carriers in the operation of its Vernon Valley chairlift. This standard has been described as the highest possible care consistent with the nature of the undertaking involved. Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 120 A.2d 43 (1956). See Model Jury Charges 5.31.


Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.

However, the courts in this case seemed to want the plaintiff’s to win no matter what.

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

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

Plaintiff: Patrick Brett and Elisa Ramundo

Defendant: Great American Recreation, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute.

Holding: For the plaintiff’s

Year: 1995

This is an old decision; however, it explains how a statute created to and passed to protect an activity, can be used to hold the operators of the activity liable.

There are numerous claims, cross claims, third party claims and claimants. Several parties were dismissed prior to trial. Basically, everyone who was brought into the lawsuit also made claims against the people bringing them in and anyone else that could have any liability.

Thirteen college friends intended to spend the weekend in a condo owned by the uncle of one of the thirteen. The condo was sitting next to the Great Gorge North ski area. Between the ski area and the condos was a vacant strip of land. The land is owned by two condo associations, including one of the plaintiffs were staying in.

During the day, the vacant strip of land is used by the ski area as a bunny hill. When the ski hill is closed the lights are turned off.  However, the lights are turned back on later in the night for the groomers to operate.

One of the party of 13 found in the condo a toboggan. After the lights were turned back on, several of the thirteen went tobogganing on the bunny hill. They were not alone tobogganing; other people were tobogganing, sledding and using the hill after it had closed but with the lights on.

Different people in the group used the toboggan at different times; taking turns because the toboggan could only hold six at a time. On the third run, the toboggan was launched higher up the hill.

The toboggan went down the bunny hill across a fifty to sixty foot flat section of land, over a flattened snow fence then over the edge of a 20’ embankment landing in the parking lot below. One of the six was able to fall off the toboggan before it went over the embankment. The five remaining riders were seriously injured landing in the parking lot and hitting a light pole.

Security guards were employed by the defendant condo association. Part of their duties included keeping people off the bunny hill. However, this night the security guards were shorthanded, and hill was not checked. The plaintiff’s even argued that the defendants were negligent because they failed to eject people on the bunny hill.

Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers.

The case proceeded to trial, and the plaintiffs were awarded $2,475,000 among the five of them. The damages were apportioned under comparative negligence as: plaintiffs 22%, defendant 54% and Stonehill 24% (one of the condo associations).

The defendants appealed.

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

The court first pointed out that even if the plaintiffs were found to be trespassers that did not mean, under New Jersey law that no duty was owed to the trespassers. If the land contained a dangerous instrumentality, then a duty is owed to a trespasser to warn them of the danger.

Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous.

In this case, the court concluded that next to a bunny hill, an embankment is a dangerous instrumentality. The court’s opinion of the situation is pretty clear in the next discussion when the embankment is called a fatal trap.

Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan.

New Jersey has a Skier Safety Act. The court found that the New Jersey Skier Safety Act applied to this case.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies.

Once it is determined the act applies, the court, or jury, determines if the injuries of the plaintiff were caused by the ski operators violation of the act. If so the plaintiff recovers.

If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence.

The court also found the plaintiff’s violated one statute of the New Jersey Skier Safety Act. The plaintiff’s failed to maintain control of their toboggan and did not know their abilities.

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies.  [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.

The court also found the plaintiff’s assumed the risk because they still went down the slope. However, this assumption of the risk, the court found was not a complete bar, but only proved the plaintiffs contributed to their injuries. Which is contrary to how the assumption of risk provision reads and is somewhat contrary to earlier statements in the case?

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

This interpretation of the statute effectively render’s the inherent risk section of the statute void. An inherent risk is a risk that is part of the activity. In inherent risk is something that cannot be removed from the activity without rendering the activity moot. You cannot sue for an injury you receive from an inherent risk of the activity, allegedly. Skier Safety Acts are written to broaden the risks that are inherent and to make them, if assumed an absolute bar to a claim, in most states.

However, in New Jersey, this is not the case.

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

The case took a somewhat amusing turn. The court reviewed the plaintiff’s claim that a stronger fence should have been built and that the defendants were liable because they had not built a fence strong enough to keep the plaintiff’s from going over the embankment. Aren’t the injuries going to be different when a toboggan going fast enough to over an embankment hits a fence, but still severe?

The argument then went back to the New Jersey Skier Safety Act. The act differentiates between manmade hazards and natural ones. The statute defines a ski area as real property “…”utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.”

However, the court simply stated, “Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.”

Then the court looked at the hazard and determined the act required removal of a hazard. If the hazard could not be removed, then the plaintiff’s had to be warned of the hazard.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed all posted warnings.”

The decision then went back to the duty owed to trespassers. The defendants argued the New Jersey Skier Safety Act does not apply to trespassers. However, the court stated that even if the plaintiffs were trespassers a high duty was owed with or without the New Jersey Skier Safety Act.

We already suggested that even at common law, defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable.

The court then summed out the analysis it was making to allow a recovery by the plaintiffs.

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

The statutory responsibility was the failure to remove the embankment or post a warning about it.

A major issue at trial was whether defendant violated any of its statutory responsibilities. The focus was on the meaning of  [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

The appellate court upheld the jury’s decision and award at trial.

So Now What?

In New Jersey, you must make your property safe for all users of the property, even if they are doing so without our permission. If you cannot remove the hazard, you must post a warning of the hazard, if the hazard is considered ultra-hazardous.

Simply put, risk management is not controlling what people are expected to do at your program or business. Risk Management is looking at all aspects of the operation and finding ways that people can be hurt doing things other than what they came for.

The Zip Line may be perfect but is someone can mistake an anchor for a zip line you will be sued. See Federal court voids release in Vermont based on Vermont’s unique view of release law. Someone uses the equipment incorrectly, and the court is going to hold you to the fire. See Sometimes you get screwed; here Petzl was shafted by the court.

However, a person can use a piece of equipment, try a ride, climb up or down; they will do it wrong, be hurt and sue.

Risk Management is looking at things from every point of view, for every age group, for every activity, if you don’t think those people, those age groups or that activity can be done.

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Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Patrick Brett and Elisa Ramundo, Plaintiffs-Respondents, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association, Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Defendant/Third-Party-Plaintiff/Respondent, v. Denise Mcdade, Nancy Morgan, Third-Party-Defendants. Karen Furman, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, v. Rudolph Maurizzi, Third-Party-Defendant/Respondent. Donald Pisarcik, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants, and Rudolph Maurizzi, Defendant-Respondent. Megan Russell, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Lisa Carmelitano, Third-Party-Defendants/Respondents, and Karen Furman, Third-Party-Defendant.

A-4010-92T3

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

November 29, 1994, Argued

February 8, 1995, Decided

SUBSEQUENT HISTORY: [***1] Approved for Publication February 8, 1995. As Amended.

Certification granted Brett v. Great Am. Recreation, 141 N.J. 97, 660 A.2d 1196, 1995 N.J. LEXIS 379 (1995)

Affirmed by Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705, 1996 N.J. LEXIS 787 (1996)

PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Union County.

COUNSEL: Samuel A. DeGonge argued the cause for appellant Great American Recreation, Inc. (Samuel J. McNulty, on the brief).

Philip G. Auerbach argued the cause for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik (Auerbach & Cox, attorneys; Mr. Auerbach, on the brief).

John P. Doran argued the cause for respondent Megan Russell.

Anthony P. Pasquarelli argued the cause for respondent Rudolph Maurizzi (Methfessel & Werbel, attorneys; Jared E. Stolz, of counsel and on the brief).

Kevin J. Decoursey argued the cause for respondent Lisa Carmelitano (O’Toole & Couch, attorneys; Michael Della Rovere, on the brief).

JUDGES: Before Judges BRODY, LONG and ARNOLD M. STEIN. The opinion of the Court was delivered by BRODY, P.J.A.D.

OPINION BY: Warren Brody

OPINION

[*310] [**776] The opinion of the Court was delivered by

BRODY, P.J.A.D.

Plaintiffs in this consolidated personal injury action are five of thirteen college friends, then twenty and twenty-one years old, who had planned to be together for a winter weekend at a condominium in Vernon Township. The owner of the condominium, third-party defendant Rudolph Maurizzi, is the uncle of third-party defendant [***2] Lisa Carmelitano, one of the group. He allowed the group to use his condominium, which is one of many such buildings built along the slope of Great Gorge North on either side of a vacant strip of land. During the winter, the vacant strip, which is about a thousand feet long, is the Bunny Buster ski trail. Defendants Stonehill Property Owners Association, Inc. and Hotel [*311] Section Condominium Council, Inc. (Stonehill) own the land that contains the condominiums and the Bunny Buster trail. Defendant Great American Recreation, Inc. (defendant) operates the trail as a business under the terms of an easement from Stonehill.

Members of the group arrived on Friday at different times. Early arrivals spent part of the day skiing along various trails in the area. When they finished skiing, some of those returning to the condominium used or crossed the Bunny Buster trail even though defendant had turned off the lights on the trail because by then it had closed for the day. Between ten and eleven o’clock that night, after everyone in the group had arrived at the condominium, defendant turned on the Bunny Buster trail lights to enable its employees to groom the trail for the next day. Grooming [***3] is accomplished by using motor vehicles to pull heavy rollers over the trail to tamp down the snow.

Earlier that day, one member of the group discovered a toboggan that Maurizzi had stored in his condominium with other snow equipment. After the lights were turned on, the group decided to slide down part of the trail on the toboggan. There was evidence that other people at the time were using the trail for sledding and tobogganing. The toboggan could hold no more than six people so members of the group took turns riding it. The first two runs were uneventful.

[**777] The third run, with six on board, was a disaster. Starting from a point a bit higher than where the first two runs had begun, the toboggan slid down the trail, across a fifty- to sixty-foot flat expanse of snow at the base of the trail, over a flattened snow fence, and then over the edge of a twenty-foot dirt embankment to a parking lot below. One of the six fell off the toboggan before it dropped over the edge, thereby escaping injury. The other five, the plaintiffs, were seriously injured as their bodies hit the embankment, the parking lot and a parking-lot light pole. There was evidence that, at the time of the rescue operation, [***4] other people, not associated with plaintiffs’ group, who were tobogganing [*312] escaped injury by tumbling off their toboggan just before it dropped over the edge.

Claims against all third-party defendants were dismissed on their motions for partial summary judgment. Plaintiffs settled with Stonehill before trial. The jury found that under the New Jersey Ski Statute (Statute), N.J.S.A. 5:13-1 et seq., plaintiffs as a group, defendant and Stonehill were all negligent. The jury apportioned the negligence as follows: plaintiffs 22%, defendant 54% and Stonehill 24%. The jury found that fair and adequate total compensation to all plaintiffs would be $ 2,475,000.

Defendant’s main arguments are: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute. Defendant raised these issues when it moved, unsuccessfully, for involuntary dismissal upon the conclusion of plaintiffs’ presentation of evidence, R. 4:37-2(b), and for judgment at the close [***5] of all evidence, R. 4:40-1. For reasons that follow, we conclude that defendant is liable under the Statute and that the Statute does not bar the claims of trespassers.

Before discussing those issues, we note that, contrary to defendant’s contention, although plaintiffs were trespassers at the time of the accident their claims would not necessarily be barred at common law. ” [HN1] Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” Renz v. Penn Cent. Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981). The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Id. at 462, 435 A.2d 540. Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous. As this accident demonstrated, tobogganers who reached the bottom of the trail would be carried by momentum over the edge of a twenty-foot embankment resulting in serious injury.

[*313] The Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), [***6] signaled its movement away from the rigid common-law distinctions among the standards of care due trespassers, licensees and invitees. There the Court held that a real estate broker owed a duty of reasonable care to a prospective home buyer who was injured when she failed to notice a step and fell while viewing the premises. She was there to attend an “open house” conducted by the broker. In imposing a duty of care on the broker, thereby departing from the common-law requirement that only the property owner had such a duty, the Court said:

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law.

[Id. at 438, 625 A.2d 1110]

Here, on one side of that relationship are young people attracted to a condominium because of its proximity [***7] to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, [**778] was a near-fatal trap to those using the trail to toboggan. Without having to decide the question, we suggest that even if the Ski Statute did not apply, the operator would have a common-law duty to take reasonable measures to warn such trespassers of that latent danger.

Indeed, such an obligation was recognized by defendant in its cross-claim against Stonehill. Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers. We add that [HN2] the duty of an owner or occupier of land to warn of such a serious [*314] danger may not be delegable. Hopkins, supra, at 441, 625 A.2d 1110 (citing Sanna v. National Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 (App.Div.1986)). [***8]

The Legislature enacted the Ski Statute in 1979 in response to a decision by the Vermont Supreme Court that deprived operators of ski areas of the absolute defense of assumption of risk. Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), held that in adopting comparative negligence by statute the legislature of that state intended to replace the absolute defense of assumption of risk with the defense of plaintiff’s comparative negligence. Our Legislature was thus moved to consider whether its adoption of the doctrine of comparative negligence in 1973 left ski area operators unfairly vulnerable to personal injury actions caused by accidents that are an inherent risk of skiing and related sports such as toboganning. See generally Reisman v. Great Am. Recreation, 266 N.J.Super. 87, 92-95, 628 A.2d 801 (App.Div.), certif. denied, 134 N.J. 560, 636 A.2d 519 (1993).

[HN3] Actions against a ski operator for personal injuries sustained by a skier on its ski slope are governed by common-law negligence principles unless the Ski Statute applies. Reisman, supra,266 N.J. Super. at 97, 628 A.2d 801. [***9] The Statute, however, has wide application.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies. The common law, and not the Statute, was applied in Reisman because there the skier’s injury [*315] was the result of neither the violation of a statutory duty nor the assumption of a statutory risk. He was injured while properly proceeding slowly down a beginner’s slope when a drunken skier knocked him to the ground.

1 [HN4] N.J.S.A. 5:13-2c defines “skier” to include “a person utilizing the ski area for recreational purposes such as . . . operating toboggans.”

[HN5] Once it is determined that the [***10] Statute applies, one must look at N.J.S.A. 5:13-3, which lists the responsibilities of the ski operator. 2 If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence. N.J.S.A. 5:13-6.

2 [HN6] N.J.S.A. 5:13-2a defines “operator” to include “a person . . . who . . . manages . . . the operation of an area where individuals come to . . . operate . . . toboggans.”

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise [***11] traverse any trail, slope or other [**779] area which is beyond the skier’s ability to negotiate.

Plaintiffs were not able to negotiate the Bunny Buster trail. It is also obvious that plaintiffs are deemed to have assumed at least one statutory risk. [HN8] N.J.S.A. 5:13-5 provides in part:

Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.

Given that assumption, plaintiffs acted in a manner that contributed to their own injury.

It is important to note that these [HN9] statutory violations and risk assumptions do not affect the percentage of a skier’s comparative [*316] negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

A major issue at trial was whether [***12] defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

Much of the confusion in arguing the liability issue at trial was caused by the next subsection of the Statute, which expressly excuses an operator from certain specific responsibilities to skiers. In that regard, [HN11] N.J.S.A. 5:13-3 provides in relevant part:

b. No operator shall be responsible to any skier or other person because of its failure to comply with any provisions of subsection 3.a. if such failure was caused by:

* * * *

(3) Subject to the provisions of subsection 3.a.(3), the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type. . . .

Plaintiffs argued that the man-made hazard for which defendant was responsible was fencing. At first they seemed to suggest that the snow fence was a direct cause of the accident because it constituted a ramp that “launched” the toboggan down the embankment. Defendant [***13] responded by claiming the benefit of subsection -3b(3), which relieved it of any responsibility for the “location” of “fencing” “necessary for the ordinary operation of the ski area.”

As plaintiffs developed their case with expert testimony, however, it became apparent that they were not claiming that the flimsy snow fence was a cause of the accident, but rather that a cause of the accident was defendant’s failure to erect a more resistant fence that would restrain a toboggan and its passengers from [*317] going over the edge of the embankment. Aside from whether such a fence would effectively reduce injury or be “practicable” (a requirement of section -3a), defendant argued that the absence of a stronger fence was still related to the location of fencing and therefore not actionable because of subsection -3b(3).

The trial judge rejected defendant’s argument when he denied its motions. He interpreted “man-made hazards” comprehensively to include the design of the trail, which directed toboggans, known to be difficult if not impossible to control, over the edge of the twenty-foot embankment and down to the parking lot and light pole. As he understood the Legislature’s intent, the requirement [***14] that operators “remove . . . man-made hazards” was broad enough to include warning people not to use the trail for tobogganing. The judge instructed the jury that “remove” not only means “to . . . uproot” but also means “to eliminate or reduce or obviate.” This left the jury free to decide whether the hazard of falling over the edge of the embankment could be removed by warnings. We agree with the trial judge.

[**780] [HN12] An obvious man-made hazard, as contemplated in N.J.S.A. 5:13-3a(3), is a man-made danger, obvious to an operator, that is not an inherent risk of using a “ski area.” A ski area is defined in part by N.J.S.A. 5:13-2b as real property “utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.” Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed [***15] all posted warnings.”

Defendant argues alternatively that even if plaintiffs may recover under the Ski Statute, the Statute does not apply to trespassers. We already suggested that even at common law, [*318] defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable. We find nothing in the statute that suggests that the Legislature meant to supplant the common law in that respect. The Statute does not exempt trespassers from the definition of skiers to whom operators have a limited responsibility. We quote the [HN13] N.J.S.A. 5:13-2c definition in full:

“Skier” means a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration.

[Emphasis added.]

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover [***16] under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

Our understanding of the Legislature’s intent is fortified by a change in the Assembly bill before it became the Statute. The bill originally contained a section that read:

No operator shall be liable to any person who is a trespasser, which shall include, but not be limited to, persons using the facilities who fail, when required to do so, to pay lift fees or other fees required in connection with the use of these facilities. The operator shall be liable to skiers and others only as specified in this section.

[A. 1650, 198th Leg., 1st Sess. § 3(c) (1978).]

That provision was deleted before the Statute was adopted. The Statement accompanying the final version of the bill stated in part, “The complete removal of liability on the part of a ski area operator to trespassers would be eliminated.” Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Assembly No. 1650 (November 20, 1978).

The two remaining arguments that we will briefly address are that the motion judge erroneously granted partial summary judgments to Maurizzi and to Carmelitano. [***17] The motions were properly granted.

[*319] There was no evidence presented in opposition to Maurizzi’s motion that he authorized plaintiffs to use his toboggan, which he had stored in his home. There was no evidence that a toboggan is so inherently dangerous that Maurizzi should have secured it from use by adults. There was no evidence that Maurizzi knew that using the toboggan on the Bunny Buster trail would be especially dangerous.

As to Carmelitano, although there was evidence, presented in opposition to her motion, that some members of the group drank beer at the condominium before the accident, there was no evidence that Carmelitano served the beer, much less that she served it to anyone who was visibly intoxicated. Indeed, there was no evidence that beer-drinking was a cause of the accident. See Gustavson v. Gaynor, 206 N.J.Super. 540, 503 A.2d 340 (App.Div.1985), certif. denied, 103 N.J. 476, 511 A.2d 655 (1986).

[**781] We are satisfied from a careful reading of this record that the remaining issues that defendant has raised in its brief are clearly without merit and therefore require no discussion. R. 2:11-3(e)(1)(E).

[***18] Affirmed.


New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.

Plaintiff’s claims were dismissed because the plaintiff failed to present enough evidence to support any elements of his claim for his injuries skydiving.

Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

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

Plaintiff: Joseph Dare and Patricia Dare

Defendant: Freefall Adventures, Inc., John Ed-Dowes, Warren Acron and Eric Keith Johnson, Defendants-Respondents.

Plaintiff Claims:

Defendant Defenses:

Holding:

Year: 2002

The plaintiff was injured when he attempted to avoid colliding with another sky diver. The co-participant had left the airplane first and was lower than the plaintiff; therefore, the co-participant had the right of way.

The plaintiff had been jumping from this site with the defendant for two years, which totaled 137 jumps, including every week the six months before the accident.

Prior to jumping the plaintiff signed a release. The release was five pages long and included an indemnity agreement. The plaintiff also signed a release for Cross Keys Airport, Inc.

The plaintiff sued his co-participant sky diver, as well as the jump facility for his injuries.

The plaintiff denied that it was the cause of his injury; however, he had made arrangements to have his wife photograph him during the jump. In order to allow his wife the opportunity to photograph him, he had to steer through buildings towards the concession trailer where his wife was located.

The defendants filed a motion for summary judgment, which was granted because the plaintiff failed to establish a prima facie case of negligence.

Prima facie, Latin for first look, which legally means the plaintiff, could not establish any facts or sufficient facts to support its claims. A plaintiff must show enough to the court to establish the very basics supporting the elements in its claim.

The defendant had argued that based on the release it should be awarded its attorney fees and costs also; however, the trial court did not grant this motion.

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

The court first looked at the standard of care between participants in a sporting event.

…the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports.

The reckless standard is a greater standard than the negligence standard. That means the acts of the co-participant to be liable for the injuries of another participant must be beyond negligent acts.

The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.

Another reason for the application of the reckless standard rather than the negligence standard is the concern that the lower standard would create a flood of lawsuits for any sporting injury.

Recklessness under New Jersey law “entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”

“The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'”. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”

The court also felt that a failure on the part of the plaintiff to provide expert testimony as to what standard of care was for skydiving doomed the plaintiff’s claims.

   skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards.

The appellate court upheld the trial courts dismissal of the plaintiff’s claims against the other co-participant sky diver. The court then looked at the plaintiffs’ claims against the defendant sky diving operation. The court found that the recklessness standard did not apply to the facility.

Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Plaintiffs failed to demonstrate such a material increase in risk.

For the plaintiff to make a claim against the defendant facility, he would have to prove that facility materially increased the risks over that of a normal sky-diving facility. Again, the plaintiff failed to prove that or provide enough evidence to proceed with his claims.

There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed sky-divers. It is undisputed that once airborne, it was their duty alone to proceed with due care.

Plaintiff also claimed the landing zone of the defendant facility was not in accordance with regulatory minimums; however, he never stated what those minimums were or how the defendant’s facility failed to meet those minimums.

The appellate court upheld the dismissal of the plaintiff’s claims.

We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard applied to Freefall, and, based on the evidentiary material submitted, summary judgment was properly granted to all defendants.

The court then looked at the indemnification provisions in the release which the court called “fee shifting provisions.”

The court looked at how other states had handled fee shifting provisions in sky-diving cases. New Jersey had not looked at the issue in skydiving, but had examined the issue in other cases, which had found the provisions were void.

The court reiterated that the plaintiff’s claim had been dismissed based on the plaintiff’s failure to present a prima facie case, not based on the release. The fee shifting provisions were part of the release. Under New Jersey law, “that sound judicial administration is best advanced if litigants bear their own counsel fees.” Even when fee shifting provisions are allowed, they will be strictly construed.

Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee.

Reviewing construction law and finding no recreational case law where a fee shifting provision had been upheld the court determined the provisions were void as a violation of public policy.

Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees.

The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.

The court also justified its decision by saying that because skydiving was regulated boy by the FAA and the New Jersey Department of Transportation it would be wrong to allow recovery of attorney fees by the defendant when the plaintiff argued the regulations had been violated, Even though the plaintiff’s arguments had no proof.

The defendant also attempted to argue the plaintiff’s complaint was frivolous which under a New Jersey statute would have allowed the defendant to recover their attorney fees defending a frivolous claim. However, the court found there were enough bases in the plaintiff’s complaint that it did not meet the frivolous claim threshold.

So Now What?

As stated in several other cases, indemnification clauses, even when well written, as you might assume from a five-page release, rarely result in recovery of attorney fees.

This also shows that the length of the release is not a deterrent, whether the release is effective in some court. Some people balk at a release over one page. However, when stopping a multi-million dollar claim a few pieces of paper are not a big issue.

Have your release written so that it protects you and all possible co-defendants and maybe includes a well-written indemnification clause.

What do you think? Leave a comment.

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Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

Joseph Dare and Patricia Dare, his Wife, Plaintiffs-Appellants, v. Freefall Adventures, Inc., John Ed-Dowes, Warren Acron and Eric Keith Johnson, Defendants-Respondents. Joseph Dare and Patricia Dare, his Wife, Plaintiffs-Respondents, v. Freefall Adventures, Inc., and John Eddowes, Defendants-Appellants, Warren Acorn and eric Keith Johnson, Defendants.

A-2629-00T1, A-2789-00T1

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

February 4, 2002, Argued

March 21, 2002, Decided

COUNSEL: Stephen Cristal, argued the cause for Joseph and Patricia Dare, appellants in A-2629-00T1 and respondents in A-2789-00T1 (Mark J. Molz, attorney; Mr. Cristal, on the brief).

Kelly Johnson, argued the cause for Freefall Adventures, Inc. and John Eddowes, respondents in A-2629-00T1 and appellants in A-2789-00T1 (Ms. Johnson, on the brief).

Vincent J. Pancari, argued the cause for respondent Eric K. Johnson in A-2629-00T1 (Kavesh, Pancari, Tedesco & Pancari, attorneys; Robert Pancari, on the brief).

JUDGES: Before Judges HAVEY, COBURN and WEISSBARD. The opinion of the court was delivered by HAVEY, P.J.A.D.

OPINION BY: HAVEY

OPINION

[**127] [*209] The opinion of the court was delivered by

[**128] HAVEY, P.J.A.D.

Plaintiff Joseph Dare was injured in a skydiving accident when he attempted to avoid colliding with defendant Eric Keith Johnson, a co-participant in the jump. 1 Prior to the jump, plaintiff signed a release/waiver agreement with the operator of the skydiving facility, defendant Freefall Adventures, Inc. (Freefall), under [*210] hich plaintiff released [***2] Freefall from any claims for injuries arising from Freefall’s negligence. The agreement further provided that, in the event plaintiff instituted a suit against Freefall, plaintiff agreed to pay Freefall’s counsel fees incurred in defending the suit. The trial court granted summary judgment in favor of all defendants dismissing plaintiffs’ personal injury action. The court concluded that plaintiffs failed to establish a prima facie case of negligence. 2 It also dismissed Freefall’s counterclaim in which it demanded counsel fees in accordance with the release/waiver agreement, as well as the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8.

1 Two appeals, A-2629-00T1, filed by plaintiffs, and A-2789-00T1, filed by defendants Freefall and John Eddowes, have been consolidated for purpose of this opinion.

2 Plaintiff Patricia Dare, Joseph’s wife, filed a per quod claim.

We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard [***3] applied to Freefall, and, based on the evidentiary material submitted, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995), summary judgment was properly granted to all defendants. We further hold that the fee-shifting provision under the release/waiver agreement signed by plaintiff is void as against public policy, and that Freefall is not entitled to counsel fees under the Frivolous Claims Statute. We therefore affirm dismissal of Freefall’s counterclaim.

Considering the evidentiary material in a light most favorable to plaintiffs, id. at 523, 666 A.2d 146, these are the facts. On July 9, 1995, plaintiff Joseph Dare, a licensed and experienced skydiver, having jumped on 137 prior occasions, utilized the skydiving facilities operated by Freefall 3 in Williamstown, Gloucester County. Plaintiff had been using the Freefall facility for over two years and nearly every week for the six months preceding his accident.

3 Freefall refers also to defendant John Eddowes, part owner of Freefall, and defendant Warren Acorn who, according to plaintiffs’ complaint, was a Freefall employee.

[***4] Prior to his jump on July 9, 1995, plaintiff executed a five-page “Waiver of Rights, Release and Indemnity Agreement” which [*211] defined the risks of injury or death associated with skydiving.

Page 3 of the waiver provided:

1. I hereby RELEASE AND DISCHARGE . . . FREEFALL . . . from any and all liability, claims, demands or causes of action that I may hereinafter have for injuries and damages arising out of my participation in parachuting activities.

2. I further agree that I WILL NOT SUE OR MAKE CLAIM against [Freefall] for damages or other losses sustained as a result of my participation in parachuting activities. . . . I also agree to INDEMNIFY AND HOLD [Freefall] HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in connection with any action brought as a result of my participation in parachuting activities. . . .

Page 4 provided:

2. EXEMPTION FROM LIABILITY. [Plaintiff] . . . releases [Freefall] [**129] . . . from any and all liability . . . arising out of any . . . injury to [plaintiff] . . . while participating in any of the activities contemplated by this AGREEMENT . . . whether such . . . injury results [***5] from the negligence of [Freefall] . . . .

3. COVENANT NOT TO SUE. [Plaintiff] agrees never to institute any suit or action at law or otherwise against [Freefall], its owners, officers, agents, employees, servants, or lessors . . . by reason of injury to [plaintiff] . . . arising from the activities contemplated by this AGREEMENT. . . .

[Emphasis added.]

A second “Agreement and Release,” signed by plaintiff, in favor of Cross Keys Airport, Inc. and Freefall stated:

5. REIMBURSEMENT FOR LEGAL FEES AND EXPENSES. The [plaintiff] expressly agrees and covenants to fully reimburse [Freefall] for all legal costs and reasonable counsel fees . . . paid by [Freefall], for the . . . defense of any and all actions or cause of action or claim or demand for damages whatsoever, which may hereafter arise or be instituted or recovered against [Freefall], by the [plaintiff] . . . regardless of any negligence on the part of [Freefall] . . . .

[Emphasis added.]

On the day of the jump, plaintiff was accompanied by defendant Eric Johnson, another licensed and experienced skydiver, in the airplane transporting the divers to the drop [***6] zone. Johnson jumped first, followed by plaintiff. Plaintiff claims that he was injured because he was required to make an emergency turn during his descent in order to avoid colliding with Johnson. In his certification, plaintiff states:

Defendant Johnson [was] skydiving in a reckless manner; he was far outside the [landing] pattern, he was too low to the ground over the airplane runway. It was reckless of him to be that close to the runway at that altitude. It is one of the [*212] most basic rules of skydiving that you cannot land on or near a runway. Defendant Johnson was essentially being a “hot-dog,” which is inappropriate.

Because Defendant Johnson was so far outside the [landing] pattern, he had to recklessly cut across wind back toward the drop zone, and in doing so was heading right into [plaintiff’s] path of travel. Had [plaintiff] not maneuvered, [they] would have collided. In trying to avoid the collision, [plaintiff] maneuvered quickly, which caused [plaintiff] to fall down to the ground.

In his deposition plaintiff stated that during his descent the closest he came to Johnson was between 150 and 175 feet. He further acknowledged that since Johnson jumped first, [***7] Johnson had the right of way. 4 Plaintiff also admitted that prior to the jump he had arranged with his wife to have her photograph him during his jump. According to defendants, this plan required plaintiff to steer his flight toward a concession trailer operated by his wife, which was surrounded by buildings and other dangerous obstacles. Defendants argue that plaintiff’s sudden diversion from this path was necessary to avoid striking the buildings near his wife’s trailer.

4 [HN1] The United States Parachute Association, Skydiver’s Information Manual § 4.19F (1995), provides:

Right-of-way: The lower person has the right of way, both in freefall and under canopy. The higher person should always yield to anyone below. It is important to avoid collisions at all costs.

[**130] [HN2] The New Jersey Department of Transportation regulates parachuting centers in order “to foster, control, supervise and regulate sport parachuting. . . .” N.J.A.C. 16:58-1.2. The pertinent rules require participants to meet various training and licensing [***8] standards before parachuting, and define the manner and place where a jumper should exit the aircraft. However, the regulations do not impose any express duties upon the operator of the skydiving facility or define the standard controlling a skydiver’s conduct during his descent. See N.J.A.C. 16:58-1.1 to -3.1. Also, the Federal Aviation Administration (FAA) has appointed the United States Parachuting Association (USPA) to oversee the sport of parachuting. The USPA promulgates rules which: (1) require licensing; (2) prohibit jumps into hazardous areas and the use of [*213] alcoholic beverages and drugs; and (3) establish standards regarding canopy control, maneuvering and landing. See Skydiver’s Information Manual, supra, at § 4.06C(1); § 4.19; § 4.20D and § 4.23. Otherwise, skydiving is a self-regulated industry.

I

In granting summary judgment in favor of Johnson, the trial court concluded that even under the negligence, rather than the recklessness, standard, see Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994), plaintiffs had failed to demonstrate a prima facie case. The court stated:

The facts basically are that this defendant, Johnson, exited the [***9] airplane prior to [plaintiff] exiting the airplane. At the time . . . just before the accident, the plaintiff indicates that the closest he got to Mr. Johnson was between 150 and 175 feet which is half a football field away. Everyone concedes that the person lowest–closest to the ground has the right-of-way. Clearly, [plaintiff] was altering his drop pattern to some extent. His observation was that he thought Johnson was closer to the runway than he should have been, but that does not appear to me to be any proximate cause at all.

I frankly don’t see how reasonable men could differ on this even giving all of the necessary inferences to the plaintiff for this particular motion. I think I am compelled to grant the summary judgment in favor of this defendant. Given the fact that there is no expert to give us any guidance with respect to any other standard of care, even applying a basic standard of care in a negligence matter, I just can’t see how [Johnson] could have contributed to this accident at all.

We are satisfied that plaintiffs had the burden of proving that Johnson’s conduct was reckless, rather than negligent. In Crawn, a case involving an injury during an informal [***10] softball game, the Court held that [HN3] “the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Id. at 497, 643 A.2d 600. The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports. Id. at 501, 643 A.2d 600. The Court added:

[HN4] Our conclusion that a recklessness standard is the appropriate one to apply in the sports context is founded on more than a concern for a court’s ability to discern [*214] adequately what constitutes reasonable conduct under the highly varied circumstances of informal sports activity. The heightened standard will more likely result in affixing liability for conduct that is clearly unreasonable and [**131] unacceptable from the perspective of those engaged in the sport yet leaving free from the supervision of the law the risk-laden conduct that is inherent in sports and more often than not assumed to be “part of the game.”

[Id. at 508, 643 A.2d 600 (emphasis added).]

Since Crawn, the recklessness [***11] standard of care has been applied to other informal sports activities. See, e.g., Obert v. Baratta, 321 N.J. Super. 356, 729 A.2d 50 (App.Div.1999) (applying recklessness standard when softball player sued teammate for injuries sustained as a result of teammate’s pursuit of fly ball during informal intra-office game); Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 513, 679 A.2d 185 (App.Div.1996) (applying recklessness standard where roller skater suffered broken leg from collision with another skater). In Schick v. Ferolito, 167 N.J. 7, 767 A.2d 962 (2001), where a golfer was struck by an errant tee-shot, the Court expanded the Crawn holding to “all recreational sports,” whether perceived as “contact” or “noncontact” activities. Id. at 18, 767 A.2d 962. The Court observed that:

The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was [***12] not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.

[Id. at 18-19, 767 A.2d 962]

[HN5] Skydiving is a popular, “risk-laden” recreational sport. Crawn, supra, 136 N.J. at 508, 643 A.2d 600. Therefore, there is no basis in fact or law to conclude that the recklessness standard under Crawn is inapplicable. Moreover, Crawn’s policy underpinnings clearly apply. As in recreational softball games or golf, it would hardly promote “vigorous participation” in the activity if skydivers were exposed to lawsuits when their mere negligence during descent caused an injury to a co-participant. Further, application of the simple negligence standard may invite a floodgate of [*215] litigation generated by voluntary participation in the activity. Id.136 N.J. at 501, 643 A.2d 600.

Even considering plaintiffs’ proofs most indulgently, we conclude that plaintiffs fail to meet the recklessness standard. [HN6] Reckless behavior entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger [***13] is apparent.” Schick, supra, 167 N.J. at 19, 767 A.2d 962 (citing Prosser & Keeton on Torts § 34, at 214 (5th Ed.1984)). “The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'” Ibid. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.” Schick, supra, 167 N.J. at 20, 767 A.2d 962.

It is undisputed that Johnson, who jumped first, had the right-of-way during the descent and, according to skydiving standards, plaintiff had a duty to yield if, as plaintiff claims, Johnson altered his course. In addition, plaintiff was never closer than 150 to 175 feet to Johnson during the descent. Plaintiffs fail to demonstrate how, considering such a distance, Johnson “‘proceeded in disregard of a [**132] high and excessive degree of danger'” to plaintiff. Id. 167 N.J. at 19, 767 A.2d 962.

Moreover, unlike the applicable standard of care governing an informal softball game, where expert testimony is not required, [***14] Crawn, supra, 136 N.J. at 508-09, 643 A.2d 600, skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards. The trial court correctly determined that because of the complexities and variables involved in applying pertinent skydiving guidelines, expert testimony was necessary to establish what standard of care applied to Johnson, and how he deviated from that [*216] standard. See Butler v. Acme Markets, Inc., 89 N.J. 270, 283, 445 A.2d 1141 (1982) [HN7] (expert testimony is necessary when the subject matter “is so esoteric that jurors . . . cannot form a valid judgment as to whether the conduct of the party was reasonable”); see also Giantonnio v. Taccard, 291 N.J. Super. 31, 43-44, 676 A.2d 1110 (App.Div.1996) (holding that expert testimony was required to establish the standard of care in the safe conduct of a funeral procession). Plaintiffs presented no such expert testimony, despite the opportunity to do so. In the circumstances, summary judgment was properly granted in [***15] favor of Johnson.

II

Plaintiffs next argue that the trial court erred in granting summary judgment to Freefall, contending that fact issues exist as to whether Freefall maintained and operated a reasonably safe skydiving facility. Freefall contends that Crawn’s recklessness standard applies.

Plaintiffs submitted certifications stating that Freefall: (1) exercised no control over the “reckless” behavior of skydivers using the facility; (2) permitted the consumption of drugs and alcohol by skydivers; (3) did not conform to applicable skydiving standards of care; and (4) established a drop zone that was not in conformance with industry standards.

We first reject Freefall’s argument that the recklessness standard applies. The Crawn/Schick recklessness standard was imposed in the context of claims arising out of injuries caused by a co-participant in the sports activity. Here, the question is what duty of care is owed by the operator of a facility where the injury occurred. Since Crawn, we have addressed this distinction.

For example, in Underwood v. Atlantic City Racing Ass’n, 295 N.J. Super. 335, 685 A.2d 40 (App.Div.1996), certif. denied, [***16] 149 N.J. 140, 693 A.2d 110 (1997), we held that the Crawn standard did not apply where a jockey was injured during a race because plaintiff’s theory was that the accident occurred as a result of the [*217] negligent installation of lighting by the racetrack, a condition that was not “inherent in sports and . . . not assumed to be ‘part of the game.'” Id. at 343, 685 A.2d 40 (quoting Crawn, supra, 136 N.J. at 508, 643 A.2d 600).

Similarly, in Rosania v. Carmona, 308 N.J. Super. 365, 367, 706 A.2d 191 (App.Div.), certif. denied, 154 N.J. 609, 713 A.2d 500 (1998), we concluded that the recklessness standard did not apply where a karate (dojo) student was injured by an instructor, holding that:

in this commercial setting, the jury should have been charged that defendants owed a duty to patrons of the dojo not to increase the risks inherent in the sport of karate under the rules a reasonable student would have expected to be in effect at that dojo . . . . the jury [**133] should have been charged that the correct scope of duty owed by the expert instructor and the academy was one of due care . . . .

[Id. at 368, 706 A.2d 191 (emphasis added).]

Thus, the [***17] question for the jury was whether the risks inherent in the karate match between plaintiff and his instructor “were materially increased beyond those reasonably anticipated,” applying “the ordinary duty owed to business invitees. . . .” Id. at 374, 706 A.2d 191.

Finally, in Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J. Super. 527, 777 A.2d 380 (App.Div.), certif. denied, 170 N.J. 387, 788 A.2d 722 (2001), we held that the owner of a sports facility owed a “limited” duty to protect spectators from flying hockey pucks by providing secure seats for those spectators who request them, and also to screen any seats “that pose an unduly high risk of injury. . . .” Id. 342 N.J. Super. at 534, 777 A.2d 380. We concluded that imposition of this limited duty was “indirectly” supported by Crawn’s observation that [HN8] “‘the risk of injury is a common and inherent aspect of informal sports activity'” and “‘participants . . . assume the ordinary risks of those activities.'” Id. at 535, 777 A.2d 380 (quoting Crawn, supra, 136 N.J. at 500-01, 643 A.2d 600). We added:

[HN9] Although the operator of a sports facility is subject to a standard of care based on negligence rather than the recklessness [***18] standard applicable to participants in recreational sporting activities, McLaughlin [v. Rova Farms, Inc.], supra, 56 N.J. [288] at 303-04, 266 A.2d 284, it is appropriate in defining a sports facility [*218] operator’s duty of care to consider that any spectators choose to “assume the ordinary risks” of being struck by a flying ball or puck in order to obtain an unobstructed view of the playing field and that these are “common and inherent” risks of attending a baseball or hockey game. Crawn, supra, 136 N.J. at 500-01, 643 A.2d 600.

[Schneider, supra, 342 N.J. Super. at 535, 777 A.2d 380 (emphasis added).]

Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515, 688 A.2d 1018 (1997), plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Rosania, supra, 308 N.J. Super. at 374, 706 A.2d 191. Plaintiffs failed to demonstrate such a material increase [***19] in risk.

There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed skydivers. It is undisputed that [HN10] once airborne, it was their duty alone to proceed with due care.

Further, no competent proof of drug abuse was presented; plaintiff conceded that he knew of no incident of drug use on the day in question. Also, John Eddowes, owner of Freefall, testified that his facility adhered to the industry’s “eight hour rule,” prohibiting consumption of alcohol within eight hours of a jump. Johnson [**134] testified that he complied with this rule, and there was no other evidence presented that Freefall personnel knew or should have known that Johnson or other jumpers [***20] had not complied with it. Although plaintiff stated that he smelled alcohol while on the aircraft, he was unable to say from whom the odor emanated. [*219] Moreover, there was no showing of how, even if alcohol had been consumed, that fact contributed to plaintiff’s accident. Tellingly, plaintiff opted to jump notwithstanding his alleged awareness of alcohol consumption.

Finally, plaintiffs claimed that Freefall’s drop zone was not in accordance with regulatory minimum size requirements. But no evidence, expert or otherwise, was presented to establish: (1) how, and to what degree, Freefall’s drop zone was not in compliance with industry standards; and (2) if the drop zone was substandard, how this deficiency was a proximate cause of plaintiff’s injury. Indeed, it is undisputed that Freefall’s facility was licensed and inspected by the Department of Transportation, and the facility was never cited for the size or condition of the drop zone. We conclude that summary judgment was properly granted in Freefall’s favor.

III

In its separate appeal, Freefall argues that the trial court erred in dismissing its counterclaim demanding counsel fees due it under the release/waiver signed by plaintiff. [***21] Alternatively, Freefall claims that counsel fees should have been awarded to it pursuant to the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and the court rule governing frivolous actions. R. 1:4-8.

As noted, prior to his jump plaintiff signed an agreement releasing Freefall from any liability in the event plaintiff is injured, even if the injury was a result of Freefall’s own negligence. Moreover, the agreement had a fee-shifting provision, requiring plaintiff to pay Freefall’s counsel fees in the event plaintiff instituted suit seeking damages. The trial court found it unnecessary to address the enforceability of the release/waiver agreement, since, as it observed during Freefall’s motion for reconsideration, the sole “issue was whether or not [plaintiffs’] claim was frivolous.” In concluding that Freefall failed to make a viable claim under the Frivolous Claims Statute, the court underscored [*220] New Jersey’s public policy “to afford litigants an opportunity to have access to the courts.”

[HN11] In New Jersey, disclaimers or limitations of liability are not favored. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 373, 161 A.2d 69 (1960). [***22] Nevertheless, courts in other jurisdictions have upheld exculpatory contracts signed by participants in skydiving or parachuting. See e.g., Allan v. Snow Summit, Inc., 51 Cal.App.4th 1358, 59 Cal. Rptr.2d 813 (Cal.App.1996); Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 29 Cal. Rptr.2d 177 (Cal.App.1993); Hulsey v. Elsinore Parachute Ctr., 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (Cal.App.1985); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989); Jones v. Dressel, 623 P.2d 370 (Colo.1981). Other cases hold that such releases are void as to a claim of gross negligence or willful or wanton conduct. See e.g., In re Pacific Adventures, Inc., 27 F. Supp. 2d 1223 (D.Haw.1998); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D.Haw.1993); Falkner v. Hinckley Parachute Ctr., Inc., 178 Ill. App. 3d 597, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989).

Although New Jersey courts have not addressed release/waiver agreements in the context of skydiving, we have considered the effect of such agreements in other sporting activities. For example, we have observed [***23] that a release from liability for injuries arising from ski injuries in an application to become a member of a condominium [**135] association, may be void as against public policy because of its adhesive nature, and further because the release cannot relieve the owner of the ski resort from its statutory duty of care under N.J.S.A. 5:13-3a. Brough v. Hidden Valley, Inc., 312 N.J. Super. 139, 155, 711 A.2d 382 (App.Div.1998). But see McBride v. Minstar Inc., 283 N.J. Super. 471, 486, 662 A.2d 592 (LawDiv.1994), aff’d 283 N.J. Super. 422, 662 A.2d 567 (App.Div.) , certif. denied, 143 N.J. 319, 670 A.2d 1061 (1995) (upholding an exculpatory clause as part of an agreement to purchase ski equipment, because, in part, the release does not undermine a statutory duty of care or contravene public policy).

[*221] In McCarthy v. Nat. Ass’n for Stock Car Auto Racing, Inc., 87 N.J. Super. 442, 449-50, 209 A.2d 668 (LawDiv.1965), aff’d, 90 N.J. Super. 574, 218 A.2d 871 (App.Div.) , certif. granted, 47 N.J. 421, 221 A.2d 221 (1966), aff’d, 48 N.J. 539, 226 A.2d 713 (1967), the Law Division determined that [***24] a release in NASCAR’s favor was void because NASCAR’s obligation to inspect plaintiff’s vehicle was a “positive duty” imposed by New Jersey’s statutory law. See also Chemical Bank of New Jersey Nat. Ass’n 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) (holding that while an exculpatory clause in a private contract may limit liability, courts will not enforce such a clause “if the party benefitting from exculpation is subject to a positive duty imposed by law or . . . if exculpation of the party would adversely affect the public interest”).

In this case, we need not decide whether, under the agreement signed by plaintiff, he waived his right to sue Freefall, since we have affirmed the summary judgment dismissing plaintiffs’ suit on substantive grounds. However, we must determine whether the contractual fee-shifting provision under the agreement is enforceable.

[HN12] “New Jersey has a strong policy disfavoring shifting of attorneys’ fees.” North Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569, 730 A.2d 843 (1999). We adhere to the “American rule” that “‘the prevailing [***25] litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.'” Rendine v. Pantzer, 141 N.J. 292, 322, 661 A.2d 1202 (1995) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L. Ed. 2d 141, 147 (1975)). Thus, our Supreme Court’s basic approach has been “‘that sound judicial administration is best advanced if litigants bear their own counsel fees.'” Satellite Gateway Communications, Inc. v. Musi Dining Car Co., Inc., 110 N.J. 280, 285, 540 A.2d 1267 (1988) (quoting State of New Jersey, Dep’t of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 504, 468 A.2d 150 (1983)).

[*222] Nevertheless, New Jersey law permits parties to a contract to shift liability for attorneys’ fees. See Cohen v. Fair Lawn Dairies, Inc., 86 N.J. Super. 206, 214-16, 206 A.2d 585 (App.Div.), certif. granted, 44 N.J. 412, 209 A.2d 145 aff’d, 44 N.J. 450, 210 A.2d 73 (1965). “However, even where attorney-fee shifting is controlled by contractual provisions, courts will strictly construe that provision in light of the general policy disfavoring the award of attorneys’ [***26] fees.” North Bergen Rex Transp., Inc., supra, 158 N.J. at 570, 730 A.2d 843. Notably, New Jersey cases which uphold enforcement of such fee-shifting provisions generally involve breach of agreements entered into in the commercial setting, such as leases, sale of goods, construction contracts and promissory notes. See Hatch v. T & L Assocs., 319 N.J. Super. 644, 648, 726 A.2d 308 (App.Div.1999) (promissory note); [**136] McGuire v. City of Jersey City, 125 N.J. 310, 327, 593 A.2d 309 (1991) (lease); Glenfed Fin. Corp. v. Penick Corp., 276 N.J. Super. 163, 182-83, 647 A.2d 852 (App.Div.1994) (loan agreement), certif. denied, 139 N.J. 442, 655 A.2d 444 (1995); Specialized Med. Sys., Inc. v. Lemmerling, 252 N.J. Super. 180, 185-86, 599 A.2d 578 (App.Div.1991) (sale of goods), certif. granted, 127 N.J. 565, 606 A.2d 375, app. dism. 142 N.J. 443, 663 A.2d 1352 (1992). Freefall has cited no New Jersey case holding that a fee-shifting provision as part of a waiver or release given in a sports activity is enforceable.

Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, [***27] whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee. Ramos v. Browning Ferris Indus. of So. Jersey, Inc., 103 N.J. 177, 191, 510 A.2d 1152 (1986). Nevertheless, we have held “that [HN13] ‘there is no essential public policy impediment to an indemnitor undertaking to indemnify the indemnitee in respect of the indemnitee’s own negligence.'” Leitao v. Damon G. Douglas Co., 301 N.J. Super. 187, 192, 693 A.2d 1209 (App.Div.), certif. denied, 151 N.J. 466, [*223] 700 A.2d 879 (1997) (quoting Doloughty v. Blanchard Constr. Co., 139 N.J. Super. 110, 116, 352 A.2d 613 (Law Div. 1976)). However, this public policy statement has generally been applied in the context of indemnification clauses under construction contracts. See Leitao, supra, 301 N.J. Super. at 192-93, 693 A.2d 1209, and cases cited therein. That principle is derived “from the judicial recognition that ordinarily the financial responsibility for the risk of injury during the course of a construction [***28] project is shifted in any event by the primary parties to their insurance carriers. . . .” Doloughty, supra, 139 N.J. Super. at 116, 352 A.2d 613.

Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees. Clearly, it discourages the average recreational participant from seeking the refuge of our courts for fear that he may face the retribution of a substantial legal fee if he does so. [HN14] It is one thing to hold a party to a fee-shifting provision in a contract negotiated in a commercial setting; it is another when an amateur sports participant is asked to agree to such a provision shortly before he engages in the activity. The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.

Also significant is the fact that both the FAA and New Jersey’s Department of Transportation have recognized that skydiving is a high-risk sport. By regulating the activity, the agencies have [***29] made it a matter of public interest that skydiving facilities be licensed and that agency oversight is necessary to assure that the facilities be operated in a safe and compliant manner. To allow an operator to recoup its counsel fees when, as here, the injured party claims that the operator deviated from those regulations, obviously runs counter to that sound policy. See McCarthy, supra, 87 N.J. Super. at 448-49, 209 A.2d 668 [HN15] (although an immunity [*224] clause may be enforceable if it does not contravene public policy, “[t]he situation becomes entirely different in the eyes of the law when the legislation in question is, as here, [**137] legislation obviously intended for the protection of human life. In such event, public policy does not permit an individual to waive the protection which the statute is designed to afford him”).

IV

We reject Freefall’s argument that the trial court erred in denying its application for counsel fees under the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8. We cannot say that plaintiffs’ complaint was filed in bad faith or that plaintiffs knew or should have known that their complaint was without reasonable basis in law or [***30] equity, and could not be supported by a good faith argument under existing law. N.J.S.A. 2A:15-59.1b(1) and 59.1b(2). See also McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 548-49, 626 A.2d 425 (1993). In our view, the validity of the release/waiver agreement signed by plaintiff was at least debatable. See McCarthy, supra, 87 N.J. Super. at 446-47, 209 A.2d 668. Furthermore, because the negligence, rather than recklessness, standard applied to Freefall, plaintiffs’ theory based on purported violations of industry standards, though not factually supported, cannot be deemed frivolous. Finally, although we agree with the trial court that ultimately expert testimony was necessary to establish a case against Freefall, that question was at least open to debate when plaintiffs filed their complaint. See Crawn, supra, 136 N.J. at 508-10, 643 A.2d 600 (holding that plaintiff was not required to produce expert testimony to establish tortious conduct of a co-participant in an informal softball game).

Affirmed.


Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent

No. A-4172-88T2

Superior Court of New Jersey, Appellate Division

236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

September 19, 1989, Argued

October 4, 1989, Decided

COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).

Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).

JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.

OPINION BY: PRESSLER

OPINION

[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.

1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).

[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.

Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.

With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:

[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.

At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.

The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.

2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).

The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.

3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.

[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4

4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.

By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):

[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.

(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).

The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.

We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.

Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.

5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.

[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings


Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

Paul M., Plaintiff, v. John A. and Mark Cooley, et al., Defendants.

Civ. A. No. 10-5723 (NLH)(AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

March 25, 2014, Decided

March 25, 2014, Filed

PRIOR HISTORY: Smith v. Kroesen, 2013 U.S. Dist. LEXIS 167619 (D.N.J., Nov. 26, 2013)

COUNSEL: [**1] DOMINIC ROMAN DEPAMPHILIS, D’AMATO LAW FIRM PC, EGG HARBOR TOWNSHIP, NJ, On behalf of plaintiff.

CLARK B. LEUTZE, MARGOLIS EDELSTEIN, MOUNT LAUREL, NJ, On behalf of defendant Mark Cooley.

JUDGES: Noel L. Hillman, U.S.D.J.

OPINION BY: Noel L. Hillman

OPINION

[*440] HILLMAN, District Judge

Presently before the Court is the motion of defendant, Mark Cooley, for summary judgment in his favor on the claims of plaintiff, Paul Smith, that defendant is liable for injuries plaintiff sustained while playing in a rugby match. For the reasons expressed below, defendant’s motion will be granted.

BACKGROUND

On April 10, 2010, plaintiff Paul Smith, a member of the Jersey Shore Sharks rugby team, was playing in a rugby match against Old Gaelic Rugby Football Club, which was coached by defendant Mark Cooley. A rugby match is comprised of two, 40-minute halves, and it is typical to have 70 pile-ups of players and over 100 collisions with other players. During the first half of the match that day, plaintiff and a player from Old Gaelic got into a “ruck,” which is described to the Court as an on-the-field argument.1 The two players rolled on the ground, and plaintiff gave the Old Gaelic player a short jab to the ribs. Although the play had moved [**2] to the other end of the field, another Old Gaelic player, defendant John Kroesen, saw the ruck and, according to plaintiff, came from behind and intentionally kicked him in the face. Plaintiff sustained a left orbital fracture and a nasal fracture, for which plaintiff underwent surgery.

1 In rugby, a “ruck” also refers to efforts by opposing teams huddled over a dropped ball to kick it to a teammate to gain possession.

Plaintiff filed suit against Kroesen claiming that Kroesen’s conduct was intentional assault and battery, or at a minimum, grossly negligent. Plaintiff then filed an amended complaint,2 adding Cooley as a defendant, claiming that Cooley was grossly negligent in his coaching of the Old Gaelic team, and is responsible for plaintiff’s injuries caused by Kroesen.3 Kroesen did not answer plaintiff’s complaint, and the clerk has entered default against him. Plaintiff and Cooley went to arbitration to resolve plaintiff’s claims against Cooley, but following the arbitrator’s decision, plaintiff sought a trial de novo. Cooley has now filed for summary judgment on plaintiff’s claims against him. Plaintiff has opposed Cooley’s motion.

2 The Court granted plaintiff’s unopposed motion [**3] to file an amended complaint. (See Docket No. 8, Nov. 11, 2011.)

3 Plaintiff also added as defendants the Old Gaelic Rugby Football Club, the Eastern Pennsylvania Rugby Union (“EPRU”), and the Mid-Atlantic Rugby Football Union (“MARFU”), which oversees EPRU. On October 31, 2012, plaintiff dismissed by consent his claims against MARFU. Old Gaelic and EPRU were never served with the amended complaint, and plaintiff has abandoned his claims against them. (Pl. Attorney Cert. ¶ 9, Docket No. 38-1.)

DISCUSSION

A. Subject Matter Jurisdiction

This Court may exercise subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.4 The citizenship of the [*441] parties is as follows: plaintiff is a citizen of New Jersey; defendant Kroesen is a citizen of Pennsylvania; defendant Mark Cooley is a citizen of Pennsylvania; defendant Old Gaelic Rugby Football Club, Inc. is a corporation incorporated in the Commonwealth of Pennsylvania with its principal place of business at 712 Bower Road, Shermans Dale, Pennsylvania; defendant Eastern Pennsylvania Rugby Union, Inc. (“EPRU”) is a corporation [**4] incorporated in the Commonwealth of Pennsylvania with its principal place of business at 2107 Fidelity Building, Philadelphia, Pennsylvania 19103; and Mid-Atlantic Rugby Football Union, Inc. is a Delaware corporation with its principal place of business at 800 King Street, Wilmington, Delaware.

4 On November 26, 2013, the Court issued an Order to Show Cause directing plaintiff to provide a certification properly stating the citizenship of the parties before the case could proceed, as the citizenship of the parties was not properly pleaded in the original or amended complaints. (See Docket No. 36.) Plaintiff complied with the Court’s Order, and the citizenship of the parties has now been properly averred. (See Pl. Attorney Cert., Docket No. 38-1.)

B. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [**5] Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that [**6] contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001).

C. Analysis

Cooley has moved for summary judgment in his favor on several bases. One basis is that he is immune from liability for plaintiff’s injuries under N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., both of which afford immunity to volunteer athletic coaches for damages incurred by a player during an organized sports competition. Cooley also argues that plaintiff’s claims against him are barred by plaintiff’s assumption of the risk of injury in the very physical game of rugby, as well as by the annual rugby participation agreement, which includes a provision that by agreeing to play in the league, plaintiff releases all other members and coaches from liability for any damages suffered by plaintiff [*442] through his participation in the league. In addition to these outright bars to plaintiff’s claims against Cooley, Cooley also argues that no facts demonstrate that Cooley was negligent in his coaching duties rendering him liable for [**7] plaintiff’s injuries.

Plaintiff has opposed Cooley’s motion as to the application of N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., his assumption of risk, and the release from liability in the participation agreement. With regard to the volunteer immunity statutes, plaintiff argues that N.J.S.A. 2A:62A-6 does not apply to Cooley because he never completed a safety orientation and training skills program as required by N.J.S.A. 2A:62A-6(c)(2),5 and because Cooley was “grossly negligent,” which conduct is excluded from immunity by N.J.S.A. 2A:62A-6(c)(1). Plaintiff also argues that Cooley cannot avail himself of 42 U.S.C. § 14501 at this point because he failed to plead it as an affirmative defense in his answer to plaintiff’s complaint, and because plaintiff was grossly negligent, which is also exempted from immunity under the federal volunteer immunity act.

5 Cooley represents that in order to serve as a coach for Old Gaelic he completed nationwide USA Rugby training, which included “injury prevention and first aid procedures and general coaching concepts,” as required by N.J.S.A. 2A:62A-6(c)(2). Plaintiff contends, however, that in order to satisfy N.J.S.A. 2A:62A-6(c)(2), plaintiff [**8] was required to take a safety orientation program specifically provided in New Jersey. As set forth below, we need not resolve this issue.

Plaintiff further rejects Cooley’s arguments that because he assumed the risk of being injured by knowingly playing in a contact sport, and because he signed a release from liability for damages resulting from participating in the contact sport, Cooley cannot be held liable for plaintiff’s damages. Plaintiff contends that because Cooley was grossly negligent in his coaching of Old Gaelic, plaintiff did not assume the risk of injury that was beyond the bounds of typical rugby play–namely, Kroesen’s kick to plaintiff’s face that resulted from Cooley’s poor coaching of Kroesen. Plaintiff also contends that the participation agreement releases do not apply to Cooley’s gross negligence.

Even accepting all of plaintiff’s arguments – that the volunteer immunity statutes do not apply, that he did not assume the risk of the injuries he suffered, and that the participation agreements do not bar his claims – plaintiff has failed to establish sufficient facts from which a jury could conclude that Cooley was grossly negligent in his coaching duties.

Under New Jersey [**9] law, in order to prove that a person acted negligently, the plaintiff must establish: (1) a duty of care owed to the plaintiff by the defendant; (2) that defendant breached that duty of care; and (3) that plaintiff’s injury was proximately caused by defendant’s breach. Boos v. Nichtberger, 2013 N.J. Super. Unpub. LEXIS 2455, 2013 WL 5566694, *4 (N.J. Super. App. Div. Oct. 10, 2013) (citing Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97 (App. Div. 1997)). The burden of proving a negligence claim rests with the plaintiff, and as part of that burden, it is vital that plaintiff establish that his injury was proximately caused by the unreasonable acts or omissions of the defendant. Id. (citing Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11, 706 A.2d 1193 (App. Div.), cert. denied, 156 N.J. 386, 718 A.2d 1215 (1998)) (other citation omitted).

With regard to a claim of gross negligence, “the difference between ‘gross’ and ‘ordinary’ negligence is one of degree rather than of quality.” Fernicola v. Pheasant Run at Barnegat, 2010 N.J. Super. Unpub. LEXIS 1614, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. 2010) (quoting Oliver v. Kantor, 122 N.J.L. 528, 532, [*443] 6 A.2d 205 (Sup. Ct. 1939), aff’d o.b., 124 N.J.L. 131, 10 A.2d 732 (E. & A. 1940)). “Gross negligence refers to behavior which constitutes indifference to [**10] consequences.” Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing Banks v. Korman Assocs., 218 N.J. Super. 370, 373, 527 A.2d 933 (App. Div. 1987)).

Cooley argues that plaintiff cannot provide any facts to establish that he caused Kroesen to kick plaintiff in the face during a rugby match. Cooley argues that there is no evidence to support that Cooley knew that Kroesen was prone to violence beyond what is typical during a rugby match, which is supported by the fact that Kroesen had never previously received a yellow card (for a small infraction resulting in a period of time out from a game) or a red card (for a serious infraction resulting in discharge from the game).6 Moreover, Cooley argues that plaintiff has not provided any evidence to suggest that Cooley failed in his duty as a coach by affirmatively encouraging Kroesen or any of his players to act violently during a rugby match, or by failing to appreciate a player’s violent tendencies.7

6 Plaintiff does not dispute that he had received three yellow cards in the past.

7 Cooley also counters plaintiff’s allegations that Kroesen intentionally kicked plaintiff in the face, because it is not clear whether [**11] Kroesen, who, according to Cooley and other players, was attempting to save his teammate from being punched by plaintiff, slipped while entering the fray. The dispute over the nature of Kroesen’s and plaintiff’s actions during the altercation is not material to the resolution of plaintiff’s claims against Cooley, however, because to decide Cooley’s motion for summary judgment, it must be accepted as true that Kroesen intentionally kicked plaintiff in the face.

In the context of arguing that Cooley is not entitled to immunity under N.J.S.A. 2A:62A-6(c)(1) because he was grossly negligent in his coaching duties, plaintiff argues that his negligence claim against Cooley is supported by his liability expert, Dr. Leonard K. Lucenko, who is qualified in federal and state courts as an expert in the field of physical education, recreation, coaching, and sports risk management and safety. According to Dr. Lucenko, Cooley deviated from reasonable coaching standards as follows:

1. The failure to exercise due care and foresight even though it was foreseeable that noncompliance with the Laws of the Game of Rugby created the environment for serious and permanent injury.

2. The failure to understand [**12] and appreciate well known coaching risk management principles, such as the nine legal duties of a coach.

3. The failure to properly teach and enforce the Laws of the Game of Rugby.

4. The failure to recognize the dangerous conditions created by the failure to comply with the Laws of the Game of Rugby.

5. The failure to instruct and train the players on what actions to take regarding fighting.

6. The failure to closely monitor and supervise Mr. Kroesen given his intensity as a player.

7. The failure to effectively and adequately address the intense play of Mr. Kroesen, which was resulting in injuries to other players.

8. The failure on the part of Mr. Cooley to understand he was bound by the USA Rugby Coaches’ Code of Conduct.

9. The failure to adopt and follow the principles outlined in the Code of Conduct.

(Pl. Opp. at 13, citing Ex. A.) Plaintiff argues that Dr. Lucenko’s conclusions [*444] present material disputed evidence as to whether Cooley was grossly negligent in his coaching duties, and therefore his claim against Cooley should be sent to a jury to decide.

Gross negligence requires substantial proof beyond simple negligence; it requires wanton or reckless disregard for the safety of others. [**13] Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing In re Kerlin, 151 N.J. Super. 179, 185, 376 A.2d 939 (App. Div.1977)). Setting aside any expert qualification issues under Daubert,8 and accepting as true all of Dr. Lucenko’s findings that Cooley failed to properly instruct his players with regard to the propriety of fighting during a rugby match, the Court cannot find that plaintiff has provided sufficient disputed facts to send to a jury on the issue of proximate causation. None of Dr. Lucenko’s conclusions, nor any of the other evidence in the record, demonstrate that Cooley acted indifferently, willfully, or wantonly in his coaching of Kroesen such that he should be held legally responsible for the injuries plaintiff sustained when Kroesen kicked plaintiff in the face.

8 Federal Rule of Evidence 702, as amended in 2000 to incorporate the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), imposes an obligation upon a district court to ensure that expert testimony is not only relevant, but reliable. As the Third Circuit has made clear, “the reliability analysis [required by Daubert] applies to all aspects of an [**14] expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir. 2012) (citations omitted). To be admissible, expert testimony must concern subject matter beyond the average juror’s understanding, be sufficiently reliable, and be offered by a sufficiently qualified expert. DeHanes v. Rothman, 158 N.J. 90, 727 A.2d 8 (N.J. 1999).

As noted by the New Jersey courts, the question of the scope of duty among coaches and players is intertwined with considerations of public policy. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *3 (N.J. Super. Law Div. 2006) (citing Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (N.J. 1993)). The “strong social policy to facilitate free and aggressive participation in athletic activity requires . . . leeway at least where no specific rule or statute has been violated. Otherwise courts and juries will become de facto athletic directors, second guessing actor’s conduct in reviewing generalized claims of negligence.” Id. (citations omitted). “The fact is that any athletic endeavor involves some degree of risk. Coaches are expected to absorb such risks, just like [**15] participants in informal games or athletes on a scholastic gridiron. . . . [J]udges are not athletic directors. They should not formulate standards of care which require them and juries to function as if they were.” Id. (citation omitted).9

9 It is interesting to note that Dr. Lucenko served as plaintiff’s expert in Egerter, where a track coach sued her 8th grade student for injuries she sustained when the student hit her with a shot put. Dr. Lucenko concluded in that case that plaintiff organized, supervised and conducted the practice session in an appropriate and professional manner, but that it was the instantaneous and negligent decision by the student to throw the shot before given the instruction to do so that led to the plaintiff’s severe and life altering injuries. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *1 (N.J. Super. Law Div. 2006). On defendant’s motion for summary judgment, the court found that the recklessness standard of negligence applied, and there was no evidence that the student acted recklessly.

In an earlier case proceeding under the same school of thought, and one that is similar to plaintiff’s case here against Cooley, a student in one high school filed suit [*445] against a [**16] soccer coach from another high school for injuries he sustained when an opposing player “undercut” him. Nydegger v. Don Bosco Preparatory High School, 202 N.J. Super. 535, 495 A.2d 485, 485 (N.J. Super. Ct. Law Div. 1985). The student’s allegations against the opposing team’s coach were that he taught his players to compete in an “aggressive and intense manner” and that winning the game is all important. In resolving the coach’s motion to dismiss, the court concluded, “[I]n the absence of an instruction by a coach to one of his players to commit a wrongful act or his instructing one in moves or procedures that would increase the risk of harm to opposing players, a coach is not responsible to a player on an opposing team who is injured.” Nydegger, 495 A.2d at 485. The court elaborated:

Interscholastic sports are not compulsory school programs. Students who participate do so voluntarily. Those who participate in a sport such as soccer expect that there will be physical contact as a result of 22 young men running around a field 50 by 100 yards. Physical contact is not prohibited by the rules of soccer. Injuries do result. Those who participate are trained to play hard and aggressive.

[N]o student or parent [**17] is blind to the realities of interscholastic athletics. The possibility of a serious injury exists regardless of the care exercised by schools and their personnel. Imposing liability upon schools and their coaches based on negligent or wrongful acts of players, committed during the course of play would have the practical effect of eventually eliminating interscholastic athletics. Interscholastic athletic activities have become an integral part of the intellectual, physical and social development of young people. No matter what the intentions or good purpose, a coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.

A coach cannot be held responsible for the wrongful acts of his players unless he teaches them to do the wrongful act or instructs them to commit the act. There is absolutely no evidence in the record that would support such a finding. Teaching players to be intense and aggressive is an attribute. All sports and many adult activities require aggressiveness and intensity.

Id. at 486-87.

The rationale in Nydegger holds true in this case. Plaintiff voluntarily [**18] participated in an aggressive contact sport where it is common to engage in on-field “rucks.” Plaintiff was involved in a ruck that day, administering a “short jab in the ribs” to the other player, when Kroesen intervened and kicked plaintiff in the face. Absent evidence that Cooley directed Kroesen specifically, or his team in general, to inflict violence onto opposing team players as part of the game, Cooley cannot be held liable for plaintiff’s injuries. Additionally, any of Cooley’s alleged failings as a coach as articulated by Dr. Lucenko cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did. See, e.g., id., at 486 (“[A] coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.”); Divia v. South Hunterdon Regional High School, 2005 WL 977028, *7 (N.J. Super. Ct. App. Div. 2005) (explaining that proximate cause is the efficient cause, the one which necessarily sets the other causes in operation; it is the act or omission, which [**19] directly brought about [*446] the happening complained of, and in the absence of which the happening complained of would not have occurred) (citing Verdicchio v. Ricca, 179 N.J. 1, 843 A.2d 1042, 1057 (N.J. 2004) (explaining that merely establishing that a defendant’s negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor)).

In sum, the evidence in the record, viewed most favorably to plaintiff, cannot support his claim that Cooley was grossly negligent in his coaching of Kroesen such that Cooley can be held liable for plaintiff’s injuries inflicted by Kroesen during the rugby match. Consequently, Cooley’s motion for summary judgment must be granted.10 An appropriate Order will be entered.

10 Plaintiff’s only remaining claim in this case is against Kroesen, upon whom the Clerk entered default at plaintiff’s request. (See 1/28/2011 Docket Entry.) As directed in the accompanying Order, plaintiff shall commence prosecution of his claim against Kroesen within 30 days, or this matter will be closed for lack of prosecution.

Date: March 25, 2014

At Camden, New Jersey

/s/ Noel L. Hillman

NOEL L. HILLMAN, U.S.D.J.

ORDER

For the reasons expressed [**20] in the Court’s Opinion filed today,

IT IS on this 25th day of March , 2014

ORDERED that defendant Mark Cooley’s motion for summary judgment [34] is GRANTED; and it is further

ORDERED that, within 30 days of the date of this Order, plaintiff shall commence prosecution of his claims against defendant John A. Kroesen. If plaintiff fails to do so, plaintiff’s case will be closed for lack of prosecution.

/s/ Noel L. Hillman

NOEL L. HILLMAN, U.S.D.J.


Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Releases work for future injuries and for injuries that may have all ready occurred.

This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.

In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.

The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.

Summary of the case

After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.

Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.

Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.

The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:

“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”

An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.

Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.

The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.

So Now What?

Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.

1        Make sure your release has language to top future claims and past claims.

2.      Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.

You just never know when a release from the future may stop a claim from the past.

What do you think? Leave a comment.

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Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542

The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)

Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”

This case

The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.

In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.

The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.

The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:

N.J.S.A. § 5:13-4. Duties of skiers  

(4)        Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”

If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.

The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.

Do any of those issues rise to the level that they are reckless?

In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:

….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)

Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)

A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)

done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)

…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500

Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:

·        failed to keep a proper lookout

·        made a panic stop

·        turned to his left in front of decedent

In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.

The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.

          1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.

          2. It was created as a guideline, not a standard of care.

          3. Only Montana has incorporated the code in its statute.

So Now What?

My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.

Every lawsuit based ski area land; the ski area is going to have to do things that cost money.

1.      Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.

2.    Employees will be deposed and attend trial; the resort is going to have to pay them to attend.

3.    When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.

These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.

This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.

From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.

From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.

The industry needs to:

·        Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.

·        Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.

·        Define the Skier Responsibility Code as help, not the standard of care.

What do you think? Leave a comment.

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NJ court holds ski statute stops suit by snowboarding expert for hitting a post

Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584

You hit a post as an expert and expect the resort to be at fault

In this New Jersey decision, the plaintiff sued Mountain Creek Resort for the injuries he sustained when he snowboarded into a piece of PVC pipe holding orange netting. The netting was used to separate two runs, one for experts and one for beginners.

The plaintiff stated he swerved to avoid a cluster of skiers hitting the post. Under New Jersey law a manmade object should be removed as soon as possible, unless necessary for the normal operation of the resort. N.J.S.A. 5:13-3(a)(3)
 
The plaintiff claimed the defendant “plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” The judge at the trial court level dismissed the plaintiff’s case in the middle of the trial because the plaintiff had failed to prove his case.

The judge had also limited the testimony of the plaintiff’s expert witness because the expert witness had only visited the site once and his opinion included information and photographs that were not relevant to the facts of the case. The plaintiff’s expert did not have experience in running a ski operation so a large part of his opinion on the operation of the resort was also excluded.

After the dismissal the plaintiff appealed where the NJ Appellate court reached this decision finding for the defendant.

Analysis

The analysis of this case is very different. Normally you look at what the defendant did wrong, but what the plaintiff failed to do.

First the plaintiff hired an expert who either was asked or on his own went beyond the parameters of his area of expertise. An expert witness can only testify about what they have expertise either through experience, education or skill has specialized knowledge or expertise in an area. However that area is strictly defined. When an expert offers opinions beyond the area of expertise the court is required to eliminate or restrict the testimony.

Second, to go forward with a case and to ultimately win a decision at the trial court level the plaintiff has to prove all of the points necessary to prove negligence or to prove the statute was violated. Here, when the plaintiff lost the expert witnesses testimony he did not have enough proof to sustain his case.

What do you think? Leave a comment.

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Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584

Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Mark Neustadter and Katherine Neustadter, Plaintiffs-Appellants, v. Mountain Creek Resort, Inc., Defendant-Respondent.
DOCKET NO. A-5671-05T5
Superior Court of New Jersey, Appellate Division
2008 N.J. Super. Unpub. LEXIS 1584
September 11, 2007, Argued
February 15, 2008, Decided

NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Certification denied by Neustadter v. Mountain Creek Resort, 195 N.J. 521, 950 A.2d 907, 2008 N.J. LEXIS 721 (2008)
PRIOR HISTORY: [*1]
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-670-03.
CORE TERMS: pole, man-made, hazard, ski, skier, trail, sufficient evidence, involuntary dismissal, expert testimony, failed to present, fence post, fencing, slope, ski resort, assumption of risk, photographs, correctly, hazardous, skiing, snow, reconstructed, snowboarders, ski area, reasonable time, legitimate inferences, essential element, case-in-chief, additionally, practicable, inflexible
COUNSEL: John R. Lanza argued the cause for the appellants (Lanza & Lanza, LLP, attorneys; John R. Lanza, of counsel; Mr. Lanza and Kenneth W. Thomas, on the brief).
Samuel J. McNulty argued the cause for the respondent (Hueston McNulty, attorneys; Mr. McNulty, of counsel and on the brief).
JUDGES: Before Judges Skillman, Yannotti and LeWinn.
OPINION
PER CURIAM
Plaintiffs, husband and wife, appeal from the trial court’s grant of an involuntary dismissal at the end of their case seeking damages for injuries allegedly sustained by plaintiff-husband, Mark Neustadter (hereinafter “plaintiff”), in an accident on defendant’s premises, a ski resort.
On January 7, 2002, plaintiff, an acknowledged snowboarding expert, was injured while snowboarding at defendant’s resort when he collided with a post supporting orange netting on the slope. The gravamen of his negligence claim was that the post was so deeply embedded in snow, and of such an inflexible material, that it was immovable and took the full force of his body, resulting in a shattered knee.
At the conclusion of plaintiff’s case, the trial judge determined that plaintiff had not presented [*2] sufficient evidence to allow the jury reasonably to find liability on defendant’s part. The judge also concluded that plaintiff had failed to adduce any evidence to show the injury in question was caused by the collision with the identified fence post. Accordingly, the judge dismissed the complaint.
Plaintiff raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ [SIC] MOTION FOR AN INVOLUNTARY DISMISSAL PURSUANT TO R. 4:37-2(b)
A. AS TO THE MEDICAL EXPERT, DR. WEISS
B. AS TO THE LIABILITY EXPERT, MR. HANST
1. THE PHOTOGRAPHS
2. THE ALLEGED NET OPINION
POINT II: THE TRIAL COURT IMPROPERLY LIMITED THE EXPERT TESTIMONY OF DR. WEISS AND MR. HANST
POINT III: THE TRIAL COURT ERRED BY PERMITTING DEFENDANT TO CROSS-EXAMINE PLAINTIFF’S EXPERT WITH A DOCUMENT IT FAILED TO PRODUCE IN DISCOVERY
POINT IV: THE TRIAL COURT IMPROPERLY EXCLUDED THE INTRODUCTION OF PLAINTIFF’S MEDICAL BILLS INTO EVIDENCE
POINT V: THE TRIAL COURT SHOULD NOT HAVE PERMITTED DEFENDANT TO NAME A MEDICAL EXPERT AFTER THE CONCLUSION OF THE ARBITRATION
Having thoroughly reviewed the trial record, we are convinced the judge properly limited the testimony of plaintiff’s liability expert and correctly [*3] concluded that plaintiff had not presented sufficient evidence to allow the jury reasonably to find liability on defendant’s part. This conclusion makes it unnecessary to reach the other issues raised on appeal.
In his complaint, plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” He set forth the “particulars” of defendant’s negligence as follows:
a) Defendant knew, or in the exercise of reasonable care should have known, that the unprotected pole was dangerous, and Defendant failed to warn Plaintiff of that condition;
b) Defendant failed to cover the pole with a material in order to protect Plaintiff from being injured should Plaintiff come into contact with the pole;
c) Defendant knew, or should have known, that the pole, if left open and exposed was likely to be dangerous to ski[ers] and snowboarders, and with such knowledge Defendant failed to cover the pole or use any other means to keep it safe for its business invitees;
d) Defendant failed to cover the pole with a protective covering for the protection of skiers [*4] and snowboarders; and
e) Defendant permitted the pole to be left unprotected and defective and dangerous knowing that the pole would necessarily pose a risk of harm to Plaintiff and other business invitees, skiers, and snowboarders.
Plaintiff proffered John H. Hanst as his liability expert. Hanst rendered a report on May 21, 2005. Other than his review of documents, Hanst’s opinions were based solely upon his one and only site visit to the ski resort on March 24, 2005, more than three years after plaintiff’s accident.
During that site visit Hanst “reconstructed” the accident with plaintiff and described the reconstruction in his report as follows: “We walked up the trail to the area where the incident occurred. The area was modestly changed. . . . A few of the fence posts have been covered with padding although the majority of them were not padded.” (Emphasis added). Hanst included photographs of the reconstructed accident scene in his report.
Defendant challenged Hanst’s report and testimony in an in limine motion. Defendant contended that Hanst described “conditions that were not those described by the Plaintiff. . . . H[is report] talk[ed] about a condition that did not exist and [wa]s [*5] not relevant or material to the case that w[ould] be before th[e] Court.”
In ruling on that motion, the trial judge found that Hanst’s report described conditions that were not in existence “on the date of [plaintiff’s] . . . accident. . . . They were at a [much later] time . . . when the conditions on the slope were not the same. Nobody can say they were the same.” (Emphasis added).
The judge limited Hanst’s testimony to “what conditions should exist on a ski slope and how the conditions on the day in question deviated, based upon the testimony of Mr. Neustadter.” The judge also ruled Hanst’s photographs of the reconstructed accident scene inadmissible because they “specifically show poles that are different from those that are described by Mr. Neustadter as existing in the area where he was injured on the day in question.” In the course of his ruling, the judge noted that Hanst’s report did not address plaintiff’s claim that “the poles had been in the snow too long and ice had formed around them and possibly they didn’t flex the way they should.”
At trial, plaintiff testified that he swerved to avoid a cluster of skiers ahead of him. This caused him to collide with a PVC pole, one to [*6] two inches in diameter, that was supporting orange mesh fencing erected to distinguish the expert trail from the novice trail.
At the conclusion of Hanst’s voir dire, the judge limited his qualification as an expert to the area of alpine skiing, and excluded him from giving expert testimony on the subject of “mountain management” since he had no experience in that field. The sum total of Hanst’s liability testimony was that a rigid pole was a “man-made hazard,” and the ski operator had an obligation to reduce or eliminate that hazard.
After plaintiff had completed presentation of his case-in-chief, defendant moved for involuntary dismissal of the complaint pursuant to Rule 4:37-2(b). The judge granted the motion finding that plaintiff failed to present sufficient evidence to establish liability under the Ski Statute, N.J.S.A. 5:13-1 to -11. The judge additionally found that plaintiff failed to present sufficient evidence to show that any negligence on the part of defendant was a proximate cause of his injury. On June 23, 2006, the judge entered an order memorializing his findings. This appeal followed.
Plaintiff argues that the judge erred by granting defendant’s motion for involuntary [*7] dismissal of their complaint. He maintains that defendant had a duty under the Ski Statute to remove any “obvious man-made hazard” from the premises. Plaintiff contends that he presented evidence showing that he struck a man-made fence pole. He contends further that, because his evidence showed that the post was rigid, thereby constituting a “hazard,” the jury should have been permitted to determine whether defendant failed to discharge its duty to remove the pole. We disagree.
Rule 4:37-2(b) provides that, upon completion of a plaintiff’s case-in-chief,
the defendant . . . may move for dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.
In other words, dismissal is appropriate where the court determines that no rational jury could conclude from the evidence that an essential element of plaintiff’s case is present. “The trial court is not concerned with the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to [*8] the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). Where, as here, plaintiff failed to adduce expert testimony on the essential element of liability, such failure will warrant dismissal of his personal injury action.
The Ski Statute clearly defines the respective liabilities of skiers and ski operators, and sets forth the duties of both and the assumption of risk borne by skiers. N.J.S.A. 5:13-1 to -5. The statute states that a skier’s assumption of risk under N.J.S.A. 5:13-5 bars recovery for injuries sustained due to “the inherent risks of skiing . . . created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions.” N.J.S.A. 5:13-6 states that a skier’s assumption of risk:
shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, . . . unless an operator has violated his duties or responsibilities under this act, in which case the provisions of [comparative negligence] shall apply.
The Ski Statute imposes upon the ski operator a duty to “[r]emove as soon as practicable obvious, man-made hazards.” N.J.S.A. 5:13-3(a)(3). [*9] However, the statute expressly exempts a ski operator from liability for its failure to remove man-made hazards such as fencing or poles which are necessary for the normal operation of a ski resort, as follows:
No operator shall be responsible to any skier or other person because of its failure to [remove obvious man-made hazards] if such failure was caused by . . . the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type, racing poles, or any other object or piece of equipment utilized in connection with the maintenance of trails . . . used in connection with skiing.
[N.J.S.A. 5:13-3(b)(3) (emphasis added).]
In addition, a ski operator shall not be held liable for failure to remove obvious, man-made hazards unless the operator “has knowledge of the failure to [remove man-made hazards]” or “should have reasonably known of such condition and having such knowledge has had a reasonable time in which to correct [the] condition.” N.J.S.A. 5:13-3(d).
Plaintiff failed to present any evidence to support his allegations that the fence post was an obvious, man-made hazard; or that defendant had actual or constructive [*10] knowledge of an obvious, man-made hazard relating to plaintiff’s injuries; or that defendant failed to remove such a hazard within a reasonable time. Therefore, the trial judge correctly found that plaintiff failed to present sufficient evidence from which a jury could reasonably find that defendant failed to meet its duty under N.J.S.A. 5:13-3(a)(3) to “[r]emove as soon as practicable obvious, man-made hazards.” As the trial judge recognized, liability may not be imposed under the Ski Statute if a ski operator’s failure to comply with N.J.S.A. 5:13-3(a)(3) was caused by the “location of man-made facilities” that are “necessary for the ordinary operation of the ski area[.]”
In his decision on the record, the judge aptly observed that there was nothing inappropriate about the placement of the fence posts delineating the expert trail and the novice trail; and it was plaintiff’s burden to show, through expert testimony, that something had happened to the poles after their installation which rendered them hazardous and not “necessary for the ordinary operation” of the facility. The judge properly determined that plaintiff had not met his burden in this regard. Moreover, the judge rightly [*11] found that plaintiff had not presented any evidence to show that defendant was aware, or reasonably should have been aware, that the poles had become hazardous for a reasonable period of time in which to address that condition. Therefore, the judge correctly determined that the evidence presented by plaintiff, and the “legitimate inferences” that could be drawn from that evidence, were insufficient to “sustain a judgment in plaintiff’s favor.” R. 4:37-2(b).
Plaintiff additionally argues that the judge erred by limiting Hanst’s testimony at trial. Again, we disagree. A trial judge has the discretion to determine whether an expert is competent to testify. Carey v. Lovett, 132 N.J. 44, 64, 622 A.2d 1279 (1993). As we stated previously, the judge barred Hanst from testifying concerning the fencing on defendant’s premises because Hanst’s opinions were not based on the conditions that existed at the time plaintiff was injured. At trial, the judge also precluded Hanst from testifying that defendant should have had special “break away poles” and refused to permit Hanst to speculate as to whether weather conditions that might have existed at the time of the accident caused the PVC poles to become inflexible. [*12] None of those issues had been addressed in Hanst’s report. We are convinced that the judge did not abuse his discretion by limiting Hanst’s testimony.
Affirmed.


Stelluti v. Casapenn Enterprises, Llc, d/b/a Powerhouse Gym, 203 N.J. 286; 1 A.3d 678; 2010 N.J. LEXIS 750

GINA STELLUTI, Plaintiff-Appellant, v. CASAPENN ENTERPRISES, LLC, d/b/a POWERHOUSE GYM, Defendant-Respondent, and ABI PROPERTY PARTNERSHIP, d/b/a PAVILION CENTER and STAR TRAC FITNESS, Defendants.

A-43 September Term 2009
SUPREME COURT OF NEW JERSEY
203 N.J. 286; 1 A.3d 678; 2010 N.J. LEXIS 750
March 9, 2010, Argued
August 5, 2010, Decided
PRIOR HISTORY: [*1]
On certification to the Superior Court, Appellate Division, whose opinion is reported at 408 N.J. Super. 435, 975 A.2d 494 (2009).
Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super. 435, 975 A.2d 494, 2009 N.J. Super. LEXIS 173 (App.Div., 2009)
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).
Gina Stelluti v. Casapenn Enterprises, LLC, d/b/a Powerhouse Gym (A-43-09)
Argued March 9, 2010 — Decided August 5, 2010
LAVECCHIA, J., writing for a majority of the Court.
The Court considers whether a pre-injury waiver of liability agreement that the plaintiff, Gina Stelluti, signed when she became a member at a private fitness center precludes her from recovering for her injuries.
On January 13, 2004, Stelluti entered into an agreement with defendant Powerhouse Gym (Powerhouse) for membership at its Brick, New Jersey facility. As part of the process of joining the facility, Stelluti signed and dated a waiver and release form. The form stated, in part, that the member assumed all risks of negligence on the part of Powerhouse, including injury from malfunctioning equipment. [*2] The same day that Stelluti signed the form and became a member, she participated in a spinning class. As the class began, the participants started out pedaling the spin bikes in a seated position. Shortly afterward, the instructor told the participants to change from a seated to a standing position on their bikes. When Stelluti rose to a standing position, the adjustable handlebars dislodged from the bike. She fell forward while her feet remained strapped to the pedals. Stelluti’s injuries included pain in her neck and shoulders, soreness in her thighs and back, a cracked tooth, and bruises. She later was diagnosed with back and neck strain and alleges that she suffers from chronic pain associated with myofascial pain syndrome.
Stelluti filed a complaint against Powerhouse and others. With regard to Powerhouse, Stelluti alleged negligence in failing to maintain and set up the bike, failing to properly instruct her on its use, failing to provide warnings and safe equipment, and other claims. Powerhouse filed a motion for summary judgment based on the waiver of liability agreement that Stelluti signed. The trial court granted the motion, finding that 1) the waiver agreement was enforceable [*3] because Powerhouse was not subject to a requirement to perform under a specific duty imposed by law; 2) the waiver was not unconscionable and Stelluti read and understood the agreement’s provisions; and 3) the exculpatory language in the waiver agreement covered claims sounding in both negligence and gross negligence.
The Appellate Division affirmed. 408 N.J. Super. 435, 975 A.2d 494 (App. Div. 2009). The panel held that the agreement was not unconscionable and therefore was valid. However, it determined that the agreement could only immunize Powerhouse from ordinary negligence and not from reckless, willful or wanton, or palpably unreasonable behavior. Because the facts in this matter did not support a claim for more than ordinary negligence, the panel held that summary judgment in favor of Powerhouse was proper. The Supreme Court granted Stelluti’s petition for certification. 200 N.J. 502 983 A.2d 1110 (2009).
HELD: The Court affirms the judgment of the Appellate Division, which upheld the dismissal of plaintiff Gina Stelluti’s negligence claims against defendant Powerhouse Gym for injuries she sustained on exercise equipment. It is not contrary to the public interest, or to a legal duty owed, to enforce the [*4] pre-injury waiver of liability agreement that Stelluti entered into with Powerhouse Gym, which limited the gym’s liability for injuries arising from a patron’s participation in instructed activity and voluntary use of the gym’s equipment.
1. A contract of adhesion is defined as one presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the adhering party to negotiate. Although a contract of adhesion may require one party to choose either to accept or reject it as is, the agreement may be enforced. Here, Powerhouse’s agreement was a contract of adhesion, but Stelluti was not in a position of unequal bargaining power such that the contract must be voided. Stelluti could have taken her business to another fitness club, could have found another means of exercising aside from joining a gym, or could have sought advice before signing up and using the facility’s equipment. The agreement was not void based on any notion of procedural unconscionability. (Pp. 15-18)
2. In considering whether the agreement was enforceable even though it was exculpatory, the Court agrees with the trial court’s determination that Stelluti understood the terms of [*5] the agreement. The Court then considers whether Powerhouse had a legal duty to perform that governs here. The Court previously has recognized that certain activities require the participant to assume some risk because injuries are common. For such activities, the standard of care to be met must exceed mere negligence because the risk of injury cannot be eliminated through the exercise of reasonable care. Furthermore, although the Legislature has enacted statutes that allocate the risks and responsibilities of the parties who control and those who participate in certain types of recreational activities, it has not addressed private fitness centers. However, the common sense behind a risk-sharing approach does not make it unreasonable to employ exculpatory agreements, within limits, in private contractual arrangements between fitness centers and their patrons. (Pp. 18-29)
3. To determine whether the public interest would be adversely affected by enforcement of the exculpatory agreement in this matter, the Court engages in a balancing of public-policy interests. The Court explains that, by its nature, exercising entails vigorous physical exertion. Injuries are common and may result from [*6] faulty equipment, improper use of equipment, inadequate instruction, inexperience, poor physical condition of the user, or excessive exertion. Although there is a public interest in holding a health club to its duty to maintain its premises in a condition safe from defects that it is charged with knowing or discovering, it need not ensure the safety of its patrons who voluntarily assume some risk by engaging in strenuous physical activities that have a potential to result in injuries. Any requirement to guarantee a patron’s safety from all risk in using equipment that is passed from patron to patron could chill the establishment of health clubs, which perform a salutary purpose by offering activities and equipment so that patrons can enjoy challenging physical exercise. However, it would be contrary to the public interest to condone willful blindness to problems that arise with the equipment provided for patrons’ use. Therefore, the Court holds private fitness centers to a duty not to engage in reckless or gross negligence. If Powerhouse’s management or employees had been aware of a piece of defective exercise equipment and failed to remedy the condition or warn adequately of the dangerous [*7] condition, or if Powerhouse had dangerously or improperly maintained equipment, it could not exculpate itself from such reckless or gross negligence. The record in this matter, however, does not support such a showing. (Pp. 29-34)
4. The Court holds that it is not contrary to the public interest, or to a legal duty owed, to enforce Powerhouse’s agreement limiting its liability for injuries sustained as a matter of negligence that resulted from a patron’s voluntary use of equipment and participation in instructed activity. The exculpatory agreement between Powerhouse and Stelluti is enforceable as to the injury she sustained when riding the spin bike. (Pp. 34)
The judgment of the Appellate Division that sustained the summary judgment award to Powerhouse is AFFIRMED.
JUSTICE ALBIN, DISSENTING, joined by JUSTICE LONG, believes that the exculpatory clause in this matter should be void as against public policy because it unfairly allocates the risk from the commercial operator, who is in the best position to remove and prevent dangers on the premises, to an unwary patron. He maintains that the majority’s opinion will encourage a lack of due care on the part of commercial entities.
COUNSEL: Edward A. Genz [*8] argued the cause for appellant (Montenegro, Thompson, Montenegro & Genz, attorneys).
Russell S. Massey argued the cause for respondent (Billet & Associates, attorneys; Mr. Massey and Robert Douglas Billet, on the briefs).
E. Drew Britcher submitted a brief on behalf of amicus curiae New Jersey Association For Justice (Britcher, Leone & Roth, attorneys; Mr. Britcher and Jessica E. Choper, on the brief).
JUDGES: JUSTICE LaVECCHIA delivered the opinion of the Court. CHIEF JUSTICE RABNER and JUSTICES WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN, joined by JUSTICE LONG, filed a separate, dissenting opinion.
OPINION BY: LaVECCHIA
OPINION
JUSTICE LaVECCHIA delivered the opinion of the Court.
On January 13, 2004, while participating in a spinning 1 class at a private fitness center, the handlebars on plaintiff Gina Stelluti’s spin bike dislodged from the bike, causing her to fall and suffer injuries. In this appeal we must determine whether plaintiff should be bound to a pre-injury waiver of liability that she executed in connection with her membership application and agreement. We conclude, for the reasons expressed herein, that the exculpatory agreement between the fitness center [*9] and Stelluti is enforceable as to the injury Stelluti sustained when riding the spin bike. In doing so [HN1] we reject the argument that limited liability waivers are per se invalid in private fitness center venues. Our decision affirms the Appellate Division judgment that upheld the dismissal of plaintiff’s claim.
1 “Spinning” is a popular exercise class offered by fitness centers. It involves riding a stationary bike led by a fitness instructor who gives commands to change positions, adjust the bike’s tension, and increase or decrease cadence.
I.
Stelluti entered into an agreement with defendant Powerhouse Gym 2 for membership at its Brick, New Jersey facility. To do so, she filled out three forms: a “Membership Agreement” form; a “Member Information” form; and a “Health/Safety Consent” form. The “Member Agreement” and “Member Information” forms requested basic personal information. The “Health/Safety Consent” form asked a series of questions about the patron’s physical condition, and further, required a patron answering “yes” to any question to submit a doctor’s note before commencing physical activity. The form also encouraged patrons to wear “proper footwear and attire,” to ask for assistance [*10] with equipment or classes, and to notify the manager if medical assistance was needed.
2 Powerhouse Gym is a trade name of Casapenn Enterprises, LLC.
Stelluti completed the forms, signed and dated them, and answered “no” in response to all questions on the “Health/Safety Consent” form. That same day, she also signed and dated a “Powerhouse Fitness (The Club) Waiver & Release Form” (waiver). 3 The waiver, a standard pre-printed form drafted exclusively for Powerhouse, provided as follows:
POWERHOUSE FITNESS (The Club)
WAIVER & RELEASE FORM
Because physical exercise can be strenuous and subject to risk of serious injury, the club urges you to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise activity. You (each member, guest, and all participating family members) agree that if you engage in any physical exercise or activity, or use any club amenity on the premises or off premises including any sponsored club event, you do so entirely at your own risk. Any recommendation for changes in diet including the use of food supplements, weight reduction and or body building enhancement products are entirely your responsibility and you should [*11] consult a physician prior to undergoing any dietary or food supplement changes. You agree that you are voluntarily participating in these activities and use of these facilities and premises and assume all risks of injury, illness, or death. We are also not responsible for any loss of your personal property.
This waiver and release of liability includes, without limitation, all injuries which may occur as a result of, (a) your use of all amenities and equipment in the facility and your participation in any activity, class, program, personal training or instruction, (b) the sudden and unforeseen malfunctioning of any equipment, (c) our instruction, training, supervision, or dietary recommendations, and (d) your slipping and/or falling while in the club, or on the club premises, including adjacent sidewalks and parking areas.
You acknowledge that you have carefully read this “waiver and release” and fully understand that it is a release of liability. You expressly agree to release and discharge the health club, and all affiliates, employees, agents, representatives, successors, or assigns, from any and all claims or causes of action and you agree to voluntarily give up or waive any right [*12] that you may otherwise have to bring a legal action against the club for personal injury or property damage.
To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence on the part of the Club, its agents, and employees.
If any portion of this release from liability shall be deemed by a Court of competent jurisdiction to be invalid, then the remainder of this release from liability shall remain in full force and effect and the offending provision or provisions severed here from.
By signing this release, I acknowledge that I understand its content and that this release cannot be modified orally.
Signed: /s/ Gina Stelluti Names of family members (if applicable):
Printed Name:
Dated: 1/13/04
Any patron who declined to sign the waiver was not permitted to use the Powerhouse Gym.
3 Plaintiff has claimed in her certification and deposition that the Powerhouse employee did not tell her that she was signing a release form. She also claimed she was not provided with a personal copy of the signed release.
Stelluti’s injury occurred at the gym the day that she joined. After signing the requisite paperwork to become a member, she went to participate [*13] in a spinning class. She advised the instructor of her inexperience and the instructor helped her to adjust the bike seat for height and showed her how to strap her feet to the pedals. The instructor then told Stelluti to watch and imitate her during the class.
As the class began, the participants started out pedaling in a seated position. Shortly afterward, the instructor told the participants to change from a seated to a standing position on their bikes. When Stelluti rose to a standing position, the handlebars dislodged from the bike. 4 As a result, Stelluti fell forward while her feet remained strapped to the pedals. With assistance, she succeeded in detaching herself from the bike. When she tried to resume participation after resting for fifteen minutes, she soon had to quit, finding herself in too much pain to continue.
4 As stated by Stelluti, she did not pull up on the handlebars as she stood. Rather, she described the handlebars as feeling loose as she held onto them when rising. She also said that she did not detect that the handlebars were loose before she stood up in the pedals.
Stelluti’s injuries included pain in her neck and shoulders, soreness in her thighs and back, a [*14] cracked tooth, and bruises on her legs. After a hospital visit, she was diagnosed with back and neck strain, prescribed medication, and discharged with a recommendation for a follow-up appointment with a doctor. She claims also to experience persistent pain as a result of the incident. Her medical expert has stated that three years after her accident Stelluti suffers from chronic pain associated with myofascial pain syndrome. 5
5 Myofascial pain syndrome is described as on-going or long-lasting pain stemming from the connective tissue (fascia) of muscles. WebMD, Myofascial Pain Syndrome, http://www.webmd.com/a-to-z-guides/myofascial-pain-syndrome-topic-overview.
Stelluti filed a timely complaint for damages in the Law Division against Powerhouse; Star Trac, the manufacturer of the spin bikes used at Powerhouse; and ABI Property Partnership, the premises owner. The complaint alleged the following negligence claims against Powerhouse and ABI: 1) “fail[ing] to properly maintain and set up the stationary bike”; 2) “fail[ing] to properly instruct the plaintiff as to how to use the bike [or] exercise proper care”; 3) “caus[ing] a dangerous and hazardous condition to exist”; 4) “allow[ing] [*15] a nuisance to exist”; 5) “fail[ing] to provide proper safeguards or warnings on the bike”; 6) “fail[ing] to provide proper and safe equipment”; 7) “maintain[ing] the bike in an unsafe, hazardous and/or defective manner”; and 8) acting in “a negligent, careless and reckless manner so as to cause an unsafe hazardous and/or defective condition to exist . . . [and failing] to provide proper safeguards and/or warnings.” Plaintiff also asserted a products liability claim against Star Trac Fitness. 6
6 Defendants Star Trac and ABI are no longer parties to the case. ABI was not represented at oral argument on Powerhouse’s motion for summary judgment, nor was ABI a party to the case before the Appellate Division. See Stelluti v. Casapenn Enters., 408 N.J. Super. 435, 443 n.3, 975 A.2d 494 (App. Div. 2009). Further, we were informed at oral argument that plaintiff’s claims against Star Trac have been resolved.
This appeal comes to us from a summary judgment record. That record reveals the following contrasting views about the spin bike that was involved in Stelluti’s fall and resultant injuries.
Powerhouse submitted an expert liability report that described the mechanics of a Star Trac Fitness Johnny G. Spinner [*16] Pro bike. According to that expert’s examination of an exemplar bike, 7 the handlebars have a chrome stem post and the entire, unitary piece — handlebars and post — may be detached and separated from the bike frame. The chrome post, which is approximately seven inches tall, contains seven elevation positioning holes, each approximately three-quarters of an inch apart. At the lower end of the post, a horizontal line and arrow, pointing down to the word “Maximum,” indicates the furthest extension point of the post. However, Powerhouse’s expert opined that an inexperienced user “would not notice th[at] mark.” The chrome post fits into a vertical support member that extends from the bike’s frame base. A locking pin — a threaded rod fitted with a spring-loaded pin and handle –secures the post to the frame. The pin is inserted into one of the elevation holes and is locked into place by tightening its handle. The expert noted that there is “no noticeable difference” between the appearance of the post when it is locked in place or when the post merely is resting on top of an elevation locking pin. Powerhouse’s expert concluded that plaintiff’s accident “occurred because the handlebars [*17] present on the stationary exercise bicycle that she was using unexpectedly and without warning separated from the bicycle causing her to fall.”
7 The actual bike on which Stelluti had sustained her injury could not be identified.
Stelluti’s liability expert, a college professor with an advanced degree in physical education and certifications in specialized fitness activities including spinning instruction, issued a report that opined that Powerhouse was “negligent in providing a safe environment” and, specifically that the spinning instructor “failed to provide effective specific supervision, instruction and assistance” to Stelluti. He also stated that Stelluti sustained her injuries as a result of the handlebar stem becoming dislodged from the locked position and explained how the handlebars may be raised or lowered, and locked into place, consistent with defendant’s liability expert. Plaintiff’s expert also agreed with those statements by defendant’s representatives, the spinning instructor, and plaintiff, that the only way the handlebars could have become dislodged would be if the lock pin had not been engaged and, instead, the stem had been resting on the lock pin. He explained that, [*18] when in that position, the stem would recede only one inch into the vertical support member, thus creating an unstable position for the handlebars. Therefore, when plaintiff raised herself from a seated position, and leaned forward and downward on the handlebars, the handlebars and post would separate from the frame.
Stelluti’s expert report also referenced a protocol 8 that, he said, every certified spinning instructor should follow, including “proper handlebar height adjustment” before each class to “help ensure a comfortable position on the bike and avoid undue strain on the back.” The protocol noted that students should be reminded “to check that the ‘pop pin’ is fully engaged in to make sure that the handlebars are secure.” The expert also referred to the Star Trac Group Cycles Owners Guide, which emphasized that “[p]roper instruction from a certified Spinning instructor should be used to properly fit the group cycle for use” and that “[u]sers should be aware of the features, functions and proper operation of the cycle before using the cycle for the first time.” In conclusion, Stelluti’s expert report stated that “[t]he proximal cause and mechanism of injury are a direct result [*19] of a lack of appropriate instructions in setting up the plaintiff’s bike by the instructor.”
8 The expert referred to the Madd Dog Athletics Johnny G. Spinning Instructor Manual.
As noted, defendant filed a motion for summary judgment. Before ruling, the trial court required additional briefing on whether common law premises liability imposed an affirmative duty that served to invalidate the use of an exculpatory agreement in this setting. Following submission of that additional briefing and argument, the court entered an order granting summary judgment in favor of Powerhouse, finding Powerhouse’s waiver effective to exculpate it from plaintiff’s negligence claims. The judge made several findings: 1) that the exculpatory agreement was enforceable because Powerhouse was not subject to a requirement to perform under a specific legal duty imposed by statute or by regulation; 2) that the waiver signed by Stelluti was not unconscionable and, further, that plaintiff had read and understood the agreement provisions when she signed them; and 3) that the exculpatory language would be applied to cover claims sounding in both negligence and gross negligence.
Plaintiff appealed, and in a comprehensive [*20] decision penned by Judge Sabatino, the Appellate Division affirmed the order granting summary judgment to defendant. Stelluti v. Casapenn Enters., 408 N.J. Super. 435, 440, 975 A.2d 494 (App. Div. 2009). Importantly, the appellate decision pared back the permissible reach of defendant’s exculpatory agreement with its patrons, holding “that the exculpatory agreement only insulated [defendant] from ordinary negligence respecting the use of the exercise equipment at its facility,” and that the agreement could not insulate defendant from “extreme conduct such as reckless, willful or wanton, or palpably unreasonable acts or omissions diminishing the safe condition of its equipment.” Id. at 439, 975 A.2d 494. Acknowledging that a fitness club owes a general duty to invitees who come onto its premises, the panel explained that the question was whether, and to what extent, the agreement entered into by Stelluti eliminated the duty that Powerhouse owed to her. Id. at 446, 448, 975 A.2d 494.
Recognizing that the standardized pre-printed document required for membership to the club constituted a contract of adhesion, Id. at 448-50, 975 A.2d 494, the panel first applied the factors identified in Rudbart v. North Jersey District Water Supply Commission, 127 N.J. 344, 356, 605 A.2d 681 (1992), [*21] and determined that the agreement was not unconscionable and therefore was valid. Stelluti, supra, 408 N.J. Super. at 449-50, 975 A.2d 494. The panel then addressed the agreement’s enforceability in light of its exculpatory nature. Id. at 453, 975 A.2d 494. In performing that inquiry, the panel considered the test that had been identified by another appellate panel in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 248, 845 A.2d 720 (App. Div. 2004), which stated that an exculpatory agreement
is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.
[Id. at 454, 975 A.2d 494 (citing Gershon, supra, 368 N.J. Super. at 248, 845 A.2d 720).]
Addressing considerations one, two, and four under Gershon (because the third plainly was inapplicable), the panel explained that Powerhouse has a general legal duty to its business invitee patrons and, therefore, “[a]n unbounded waiver of liability [would] unjustifiably eviscerate [] those protections for business invitees.” Id. at 454-55, 975 A.2d 494. However, the panel also cited [*22] other countervailing public policy considerations, including the importance of encouraging physical fitness and the necessity for fitness facilities to have access to the protections of exculpatory agreements due to the potential for substantial financial exposure from injuries associated with exercise equipment and activities in a gym. Id. at 455-57, 975 A.2d 494. The panel balanced those public interest and policy considerations against the state interest in the established common law on premises liability, and found that although the public policy interests could not justify a complete waiver of liability, the exculpatory agreement was valid but required some paring. Id. at 457-59, 975 A.2d 494 (stating that “[i]f Powerhouse, or any other fitness club, so sharply deviated from the ordinary standards of reasonable care, public policy dictates that the exculpatory agreement should not protect it from liability”). The panel held that Powerhouse’s exculpatory agreement could only immunize it from ordinary negligence and not “reckless, willful or wanton, or palpably unreasonable [behavior].” Id. at 439, 975 A.2d 494.
Focusing on the liability question raised by the facts in this matter, and expressly not addressing the validity [*23] of the agreement either as to hazards posed by other equipment on the premises not used routinely for exercising or as to other dangerous conditions that could arise on any premises, the panel addressed whether plaintiff’s proofs raised her above the exculpatory bar against liability for ordinary negligence associated with use of the fitness equipment. Id. at 459-60, 975 A.2d 494. The appellate panel concluded, like the trial court, that it could not determine exactly how the handlebars became detached, but that, even if the instructor had failed to check the handlebars, or a cleaning-crew member mistakenly had removed the pin, and the equipment was not examined before Stelluti or any other patron was allowed to use the equipment, those acts did not rise to a reckless or extreme deviation from a duty of care. Id. at 460, 975 A.2d 494. 9 In sum, even though the agreement attempted to protect Powerhouse from acts or omissions concerning the safety of its equipment that constituted more than ordinary negligence, because there was no genuine issue of fact that rose above a cause of action in ordinary negligence, the panel held that summary judgment in favor of Powerhouse was proper and affirmed the judgment. Id. at 460-61, 975 A.2d 494.
9 The [*24] panel also found that the record presented no evidence that Powerhouse had neglected over time to maintain its equipment. Stelluti, supra, 408 N.J. Super. at 460-61, 975 A.2d 494.
We granted plaintiff’s petition for certification, 200 N.J. 502, 983 A.2d 1110 (2009). Plaintiff argues that the language of the agreement was unclear and ambiguous, and thus inadequate; that it is an unconscionable contract of adhesion not entitled to be enforced; and that it is contrary to public policy to allow an exculpatory agreement to be applied in the instant context. In respect of her last point, plaintiff maintains that the spinning instructor’s failure to check the handlebars before she allowed Stelluti to mount the bike and begin the spin class amounted to gross negligence and, therefore, summary judgment should not have issued.
Powerhouse refutes each of plaintiff’s arguments, and generally agrees with the reasoning of the Appellate Division decision, parting company only as to the panel’s holding that declared the agreement inapplicable to gross negligence claims.
II.
The issue of general public importance in this appeal, see R. 2:12-4, concerns the enforceability of an exculpatory agreement executed in a commercial setting [*25] involving membership in an exercise facility, where the exculpation brought about by the agreement does not implicate the violation of any statutory or regulatory legal duty owed by the facility. It is not the circumstances of the forming of this take-it-or-leave-it waiver agreement that drew our attention, although that is among Stelluti’s points of error in seeking certification. We reject that claim of error in her petition and, substantially for the reasons expressed in Judge Sabatino’s opinion, we affirm the Appellate Division’s assessment of this agreement as a contract of adhesion but one that does not suffer from procedural unconscionability concerns. We add briefly the following.
[HN2] A contract of adhesion is defined as one “presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate.” Rudbart, supra, 127 N.J. at 353, 605 A.2d 681 (citations omitted). Although a contract of adhesion may require one party to choose either to accept or reject the contract as is, the agreement nevertheless may be enforced. See id. at 353, 356-61, 605 A.2d 681 (noting such considerations as “the subject matter of the contract, the parties’ relative [*26] bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract”). Plainly, courts can, and do, refuse to enforce an unconscionable contract of adhesion. See Muhammad v. County Bank of Rehoboth Beach, Del., 189 N.J. 1, 15, 912 A.2d 88 (2006). When making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest. Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40, 912 A.2d 104 (2006). 10
10 As Delta Funding, supra, exemplifies, a finding of a high level of procedural unconscionability alone may not render an entire agreement unenforceable. 189 N.J. at 40-41, 912 A.2d 104 (holding contract one of adhesion but not unenforceable, despite finding one party to possess greater sophistication and bargaining power).
Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical “take-it-or-leave-it basis.” No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, [*27] see Rudbart, supra, 127 N.J. at 356, 605 A.2d 681, we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic “position of unequal bargaining power” such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented “as is” to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.
To the extent that any contract of adhesion also would require review to [*28] determine whether its enforcement implicates a matter of public interest, see ibid., that test overlaps, and is subsumed by the more precise analysis employed when assessing whether to enforce an exculpatory agreement. We therefore turn to consider the specific type of contract whose enforceability is the reason certification was granted in this appeal.
III.
[HN3] As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S. Ct. 476, 477, 75 L. Ed. 1112, 1116 (1931) (“The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”). See generally 11 Williston on Contracts § 30:9, at 96 (Lord ed., 4d ed. 1999). Out of respect for that very basic freedom, courts are hesitant to interfere with purely private agreements. See, e.g., Twin City Pipe Line Co., supra, 283 U.S. at 356-57, 51 S. Ct. at 477, 75 L. Ed. at 1116 (evaluating unenforceability with “caution”); Allen v. Commercial Cas. Ins. Co., 131 N.J.L. 475, 478, 37 A.2d 37 (E. & A. 1944) (finding [*29] freedom to contract “sacred,” and thus not to be interfered with “lightly” (citation omitted)); Chem. Bank v. Bailey, 296 N.J. Super. 515, 526-27, 687 A.2d 316 (App. Div.) (noting ability of parties to apportion risk of loss through contractual limitation of liabilities), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997).
However, certain categories of substantive contracts, including those that contain exculpatory clauses, have historically been disfavored in law and thus have been subjected to close judicial scrutiny. See 11 Williston on Contracts, supra, § 30:9, at 103-04 (citing types of contractual provisions that require strict construction, including “forfeitures, penalties, provisions limiting a party’s legal rights, and provisions that depend for their validity or enforceability on the subjective judgment of one of the parties”). Our Court previously expressed a similar disfavor for such agreements and applied careful scrutiny to the interests involved. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 333, 901 A.2d 381 (2006) (holding unenforceable parent’s execution of exculpatory agreement on behalf of child). That said, despite the warnings about disfavor and calls for careful scrutiny, we do enforce contracts that [*30] contain exculpatory clauses unless such provision proves adverse to the public interest. See Mayfair Fabrics v. Henley, 48 N.J. 483, 487, 226 A.2d 602 (1967).
In that consideration, [HN4] it has been held contrary to the public interest to sanction the contracting-away of a statutorily imposed duty. McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). An agreement containing a pre-injury release from liability for intentional or reckless conduct also is plainly inconsistent with public policy. See Hojnowski, supra, 187 N.J. at 333, 901 A.2d 381. Beyond those clear parameters to inviolate public policy principles, the weighing process becomes opaque. The Appellate Division identified four considerations, pertinent to the enforcement of an exculpatory agreement, when rendering its decision in Gershon. The Gershon court said that an exculpatory agreement
will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.
[Gershon, supra, 368 N.J. Super. at 248, 845 A.2d 720 (citations omitted).]
The Gershon test, used [*31] by the panel below, captures the essential features to be explored when considering whether enforcement of an exculpatory agreement would be contrary to public policy. Other courts in sister jurisdictions have developed similar tests. One, which originated with the Supreme Court of California in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963), uses six inquiries 11 and it also has been identified as helpful. See Hojnowski, supra, 187 N.J. at 348, 901 A.2d 381 (LaVecchia, J., dissenting). Although slightly more nuanced, Tunkl’s considerations are not inconsistent with Gershon’s, and can provide additional guidance when applying the Gershon test that has been employed by our appellate courts and that we find acceptable also in the resolution of the instant exculpatory agreement. We thus turn to consider the specifics of the agreement.
11 Tunkl references the following inquiries as pertinent when determining whether to enforce an exculpatory agreement: 1) whether the agreement involves a business generally suitable for public regulation; 2) whether the exculpated party provides a service important and necessary to the public; 3) whether the exculpated party offers services [*32] to any person of the public seeking those services; 4) whether the exculpated party possesses a stronger bargaining power relative to the member of the public seeking services; 5) whether the exculpated party presents the member of the public with a contract of adhesion; and 6) whether the member of the public is under the control of the exculpated party and thus is subject to the careless risks of the more powerful party. Tunkl, supra, 383 P.2d at 445-46.
IV.
A.
[HN5] As a threshold matter, to be enforceable an exculpatory agreement must “reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences.” Gershon, supra, 368 N.J. Super. at 247, 845 A.2d 720 (citing Knorr v. Smeal, 178 N.J. 169, 177, 836 A.2d 794 (2003); Country Chevrolet, Inc. v. Twp. of N. Brunswick Planning Bd., 190 N.J. Super. 376, 380, 463 A.2d 960 (App. Div. 1983)). When a party enters into a signed, written contract, that party is presumed to understand and assent to its terms, unless fraudulent conduct is suspected. Rudbart, supra, 127 N.J. at 353, 605 A.2d 681.
The agreement in question explicitly stated that it covered “the sudden and unforeseen malfunctioning [*33] of any equipment, . . . use of all amenities and equipment in the facility and . . . participation in any activity, class, program, personal training or instruction.” In addition, the agreement explicitly covered negligence: “this release is also for negligence on the part of the Club, its agents, and employees.” Further, terms that limited Powerhouse’s liability — “entirely at your own risk,” “assume all risks,” and “release of liability,” — were set forth prominently in the written document that Stelluti signed and from which she now seeks to be excused. Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement, see ibid., and the finding to that effect is unassailable.
Furthermore, as we have already addressed and rejected Stelluti’s argument in respect of unequal bargaining power, we need address that aspect of Gershon’s inquiries no further. And, because Powerhouse is not a public utility or common carrier, that inquiry is inapplicable to our analysis. Besides [*34] not being such an entity, Powerhouse also was not providing a necessary service akin to that provided by a public utility or common carrier. Thus refined, our analysis in this matter turns on the first two inquiries identified in Gershon, supra: whether enforcement will implicate a matter of public interest and the related question of whether Powerhouse is under some legal duty to perform. 368 N.J. Super. at 248, 845 A.2d 720.
B.
[HN6] When considering whether enforcement of the instant exculpatory agreement would adversely affect the public interest, the inquiry naturally blends into an examination of whether the exculpated party is under a legal duty to perform. Exculpatory agreements that attempt to release liability for statutorily imposed duties have been held invalid. See, e.g., McCarthy, supra, 48 N.J. at 543, 226 A.2d 713 (holding exculpatory clause limiting liability arising out of car racing unenforceable due to statute regulating field and its expressed public policy in protecting participants and spectators). When the subject of an exculpatory agreement is not governed by statute, we also have considered common law duties in weighing relevant public policy considerations. See Hojnowski, supra, 187 N.J. at 335, 901 A.2d 381. [*35] To a certain extent, we cannot view Gershon’s public-interest inquiry separate from the question of whether there is a legal duty owed that is inviolate and non-waivable. In performing the weighing of public policy interests, then, we must take into account, in this private setting, both the extant common law duties and the right to freely agree to a waiver of a right to sue, which is part and parcel to the freedom to contract to which we earlier adverted. The mere existence of a common law duty does not mean that there is no room for an exculpatory agreement. In other words, our analysis begins from the starting point that public policy does not demand a per se ban against enforcement of an exculpatory agreement based on the mere existence of a duty recognized in the common law in respect of premises liability.
[HN7] It is well recognized that the common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm. See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314 (2003); Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517, 688 A.2d 1018 (1997). That standard of care [*36] encompasses a duty “to guard against any dangerous conditions on [the] property that the owner either knows about or should have discovered[,] . . . [and] to conduct a reasonable inspection to discover latent dangerous conditions.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993) (citations omitted). That said, the law recognizes that for certain activities conducted by operation of some types of business, particularly those that pose inherent risks to the participant, the business entity will not be held liable for injuries sustained “so long as [the business] 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.'” Hojnowski, supra, 187 N.J. at 340-41, 901 A.2d 381 (citation omitted). When it comes to physical activities in the nature of sports — physical exertion associated with physical training, exercise, and the like — injuries are not an unexpected, unforeseeable result of such strenuous activity.
[HN8] Our Court recognized that reality associated with sports and sport activity when we held that some activities, due to their very nature, [*37] require the participant to assume some risk because injury is a common and inherent aspect of the activity. Crawn v. Campo, 136 N.J. 494, 500, 643 A.2d 600 (1994). In Crawn, we considered the duty of care owed to individuals who participate in informal recreational sports, softball in that particular instance. Id. at 497, 643 A.2d 600. We determined that the standard of care must exceed mere negligence because of the inherent risk of injury that cannot be eliminated through the exercise of reasonable care. Id. at 500, 643 A.2d 600. To determine the proper standard of care, we focused on the relationship between the participants and the nature of risk involved, specifying unique aspects of recreational activities such as the inherent and expected physical contact and high level of emotional intensity, both deemed appropriate when participating in those sports. Id. at 504, 643 A.d 600. We stressed the centrality of public policy and fairness in reaching our conclusion about the appropriate standard of care. Id. at 503, 643 A.2d 600. Two important public policies were identified: 1) “promotion of vigorous participation in athletic activities” as evidenced by pervasive interest and participation in recreational sports, and 2) the “avoid[ance of] a flood [*38] of litigation.” Id. at 501, 643 A.2d 600. That said, those interests do not completely immunize participants. Id. at 503-04, 643 A.2d 600. [HN9] Participants retain a duty to participate in a reasonable manner, with regard for other players, and also in a way that fits with the common expectations of acceptable conduct for the activity. Id. at 501, 507, 643 A.2d 600. Thus, the Crawn decision held that “liability arising out of mutual, informal, recreational sports activity should not be based on a standard of ordinary negligence but on the heightened standard of recklessness or intent to harm,” Id. at 503, 643 A.2d 600, a standard that “recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields.” Id. at 508, 643 A.2d 600. Application of that standard later was extended to sports that do not involve physical contact. See Schick v. Ferolito, 167 N.J. 7, 18, 767 A.2d 962 (2001) (upholding recklessness standard to the game of golf, finding “no persuasive reasons to apply an artificial distinction between ‘contact’ and ‘noncontact’ sports”).
[HN10] Assumption of risk associated with physical-exertion-involving discretionary activities is sensible and has been applied in many [*39] other settings, including by the Legislature with reference to certain types of recreational activities. Recognizing that some activities involve a risk of injury and thus require risk sharing between participants and operators, the Legislature has enacted statutes that delineate the allocation of risks and responsibilities of the parties who control and those who participate in some of those activities. See N.J.S.A. 5:13-1 to -11 (Ski Act); N.J.S.A. 5:14-1 to -7 (Roller Skating Rink Safety and Fair Liability Act); N.J.S.A. 5:15-1 to -12 (Equine Act). Although no such action has been taken by the Legislature in respect of private fitness centers, that does not place the common sense of a risk-sharing approach beyond the reach of commercial entities involved in the business of providing fitness equipment for patrons’ use. The sense behind that approach does not make it unreasonable to employ exculpatory agreements, within limits, in private contractual arrangements between fitness centers and their patrons.
An exculpatory agreement that covered a unique form of recreational activity was considered previously in Hojnowski, supra, where we held unenforceable an exculpatory agreement executed [*40] by a parent on behalf of a minor seeking to use a skateboarding facility. 187 N.J. at 338, 901 A.2d 381. The relevant public policy implicated by that case centered on the state’s parens patriae power over minors and the need to encourage commercial recreational facilities that attract children to take reasonable steps to ensure children’s safety. Id. at 333-38, 901 A.2d 381. Due to the perceived public interest in that unique context, we concluded that the exculpatory agreement would not bar the minor’s tort claim. Id. at 338, 901 A.2d 381. Importantly, the Court’s holding treated skateboarding as a non-essential activity that did not implicate the public interest. Id. at 347-48, 901 A.2d 381 (LaVecchia, J., dissenting). Further, we did not decide whether the exculpatory agreement would be valid if executed and enforced against an adult. Id. at 347, 901 A.2d 381. The decision in Hojnowski does not stand for the proposition that there exists a per se ban, based on the common law duty owed to business invitees concerning premises liability, against the enforcement of an exculpatory agreement in personal recreational-type activities including, as here, private fitness centers. Thus, in considering Gershon’s legal-duty question and whether the public interest [*41] would be adversely affected by enforcement of the instant exculpatory agreement, we find it necessary to engage in a balancing of all relevant public-policy interests. 12
12 The dissent conflates those two considerations by arguing, in substance, that it is contrary to the public interest even to allow for an exculpation provision that pertains to premises liability under the common law. Indeed, the dissent goes even further, by converting Gershon’s first inquiry into a requirement that the exculpatory agreement serve the public interest. See post at (slip op. at 16). Plainly, that recharacterization does not fairly reflect our jurisprudence.
C.
To properly balance the public-policy interests implicated in the instant matter one must consider the nature of the activity and the inherent risks involved. 13 Engaging in physical activity, particularly in private gyms and health clubs is commonplace in today’s society. The United States Bureau of Labor estimates that over the next decade jobs for physical fitness workers will increase faster than other occupations due to the increasing recognition of health benefits associated with physical activity and, consequently, increase the amount [*42] of time and money spent on fitness. U.S. Dep’t of Labor, Bureau of Labor Statistics: Occupational Outlook Handbook 3 (2010-11), http://www.bls.gov/oco/pdf/ocos296.pdf.
13 Our focus here substantially contemplates one of Tunkl’s inquiries, specifically whether the member of the public is under the control of the exculpated party and thus subject to the careless risks by the more powerful party. See Tunkl, supra, 383 P.2d at 445-46. That question takes into account the patron’s opportunity for self-protection, which removes the possibility that the injury could only be prevented by the operator. See Robert Heidt, The Avid Sportsman and the Scope for Self-Protection: When Exculpatory Clauses Should be Enforced, 38 U. Rich. L. Rev. 381, 460-73 (2004).
By its nature, exercising entails vigorous physical exertion. 14 Injuries from exercise are common; indeed minor injuries can be expected — for example, sore muscles following completion of a tough exercise or workout may be indicative of building or toning muscles. Those injuries and others may result from faulty equipment, improper use of equipment, inadequate instruction, inexperience or poor physical condition of the user, or excessive [*43] exertion. See Thomas M. Fleming, Annotation, Liability of Proprietor of Private Gymnasium, Reducing Salon, or Similar Health Club for Injury to Patron, 79 A.L.R.4th 127, § 2[a] (1990).
14 The dictionary defines the term “exercise” as “[a]ctivity requiring physical or mental exertion, esp. when performed to maintain or develop fitness.” Webster’s II New College Dictionary 392 (2d ed. 1999).
[HN11] Although there is public interest in holding a health club to its general common law duty to business invitees — to maintain its premises in a condition safe from defects that the business is charged with knowing or discovering — it need not ensure the safety of its patrons who voluntarily assume some risk by engaging in strenuous physical activities that have a potential to result in injuries. Any requirement to so guarantee a patron’s safety from all risk in using equipment, which understandably is passed from patron to patron, could chill the establishment of health clubs. Health clubs perform a salutary purpose by offering activities and equipment so that patrons can enjoy challenging physical exercise. There has been recognized a “positive social value” in allowing gyms to limit their liability [*44] in respect of patrons who wish to assume the risk of participation in activities that could cause an injury. See Robert Heidt, The Avid Sportsman and the Scope for Self-Protection: When Exculpatory Clauses Should be Enforced, 38 U. Rich. L. Rev. 381, 389 (2004). And, further, it is not unreasonable to encourage patrons of a fitness center to take proper steps to prepare, such as identifying their own physical limitations and learning about the activity, before engaging in a foreign activity for the first time.
However, [HN12] just as we held in Crawn, supra, that there remains a standard for liability even in contact recreational sports, albeit a heightened one, 136 N.J. at 503-04, 643 A.2d 600, there is also a limit to the protections that a private fitness center reasonably may exact from its patrons through the mechanism of an exculpatory agreement. Although it would be unreasonable to demand that a fitness center inspect each individual piece of equipment after every patron’s use, it would be unreasonable, and contrary to the public interest, to condone willful blindness to problems that arise with the equipment provided for patrons’ use. 15 Thus, had Powerhouse’s management or employees been aware [*45] of a piece of defective exercise equipment and failed to remedy the condition or to warn adequately of the dangerous condition, or if it had dangerously or improperly maintained equipment, Powerhouse could not exculpate itself from such reckless or gross negligence. That showing was not made on this record.
15 Indeed, even in those areas where the Legislature has imposed an assumption of risk by patrons of some recreational activities, certain common risks were legislatively retained for operators of such facilities. See N.J.S.A. 5:13-1 to -11 (ski facilities); N.J.S.A. 5:14-1 to -7 (roller rinks); N.J.S.A. 5:15-1 to -12 (providers of equestrian activities). Importantly, among those risks were knowingly providing equipment that is faulty to the extent that it causes or contributes to injury; liability for injuries by a known dangerous latent condition on property for which warning signs have not been posted; and intentional injuries caused by the operator. Guided by the Legislature’s own sense of operator risk that cannot be shirked, we regard such knowing and intentional acts of negligence as equivalent to the gross negligence that has been historically beyond the reach of exculpatory [*46] agreements.
As previously noted, the Appellate Division specifically found that the record was barren of evidence that Powerhouse had neglected over time to maintain its equipment. Stelluti, supra, 408 N.J. Super. at 460-61, 975 A.2d 494 (finding absence of any “chronic or repetitive patterns of inattention to the safety of the equipment”). There simply was no evidence in this record rising to such reckless or gross negligence in respect of Powerhouse’s duty to inspect and maintain its equipment. Thus, we do not share the concern voiced by the dissent. Our decision cannot reasonably be read to signal that health clubs will be free to engage in “chronic or repetitive patterns of inattention to the safety of the[ir] equipment.” Ibid. Nor do we share the dissent’s view that today’s holding gives a green light to permit widespread use of exculpatory agreements in restaurants, malls, and supermarkets. That extrapolation fails to account for our careful examination into the relevant nature of the type of activity that takes place in a private health club.
In sum, the standard we apply here places in fair and proper balance the respective public-policy interests in permitting parties to freely contract in [*47] this context (i.e. private fitness center memberships) and requires private gyms and fitness centers to adhere to a standard of conduct in respect of their business. Specifically, we hold such [HN13] business owners to a standard of care congruent with the nature of their business, which is to make available the specialized equipment and facility to their invitees who are there to exercise, train, and to push their physical limits. That is, we impose a duty not to engage in reckless or gross negligence. We glean such prohibition as a fair sharing of risk in this setting, which is also consistent with the analogous assumption-of-risk approach used by the Legislature to allocate risks in other recreational settings with limited retained-liability imposed on operators.
D.
In the instant matter, like the Appellate Division, we feel no obligation to reach and discuss the validity of other aspects of the agreement not squarely presented by the facts of Stelluti’s case. Thus, we need not address the validity of the agreement’s disclaimer of liability for injuries that occur on the club’s sidewalks or parking lot that are common to any commercial enterprise that has business invitees. With respect [*48] to its agreement and its limitation of liability to the persons who use its facility and exercise equipment for the unique purpose of the business, we hold that it is not contrary to the public interest, or to a legal duty owed, to enforce Powerhouse’s agreement limiting its liability for injuries sustained as a matter of negligence that result from a patron’s voluntary use of equipment and participation in instructed activity. As a result, we find the exculpatory agreement between Powerhouse and Stelluti enforceable as to the injury Stelluti sustained when riding the spin bike.
V.
For the foregoing reasons, we affirm the judgment of the Appellate Division that sustained the award of summary judgment to defendant.
CHIEF JUSTICE RABNER and JUSTICES WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICE LONG joins.
DISSENT BY: ALBIN
DISSENT
JUSTICE ALBIN, dissenting.
Today the Court has abandoned its traditional role as the steward of the common law. For the first time in its modern history, the Court upholds a contract of adhesion with an exculpatory clause that will allow a commercial, profit-making company to operate negligently [*49] — injuring, maiming, and perhaps killing one of its consumer-patrons — without consequence. Under the Court’s ruling, a health club will have no obligation to maintain its equipment in a reasonably safe manner or to require its employees to act with due care toward its patrons. That is because, the Court says, a health club patron has the right to contract not only for unsafe conditions at a health club, but also for careless conduct by its employees. The Court’s decision will ensure that these contracts of adhesion will become an industry-wide practice and that membership in health clubs will be conditioned on powerless consumers signing a waiver immunizing clubs from their own negligence. The Court’s ruling undermines the common-law duty of care that every commercial operator owes to a person invited on to its premises.
Without the incentive to place safety over profits, the cost to the public will be an increase in the number of avoidable accidents in health clubs. And like the plaintiff in this case, the victims of the clubs’ negligence will suffer the ultimate injustice — they will have no legal remedy.
Tens of thousands of New Jersey citizens join health clubs to stay healthy [*50] — to reduce the prospect of suffering from heart disease or a stroke, to battle obesity, and to improve the likelihood of living a longer life. The irony is that those who seek to live a better lifestyle through membership at a health club, now, will have a greater likelihood of having their well-being impaired through the careless acts of a club employee.
The ruling today is not in the public interest, not consistent with this Court’s long-standing, progressive common-law jurisprudence protecting vulnerable consumers, and not in step with the enlightened approaches taken by courts of other jurisdictions that have barred the very type of exculpatory clause to which this Court gives its imprimatur.
Because in upholding the exculpatory agreement the Court wrongly dismisses the case of plaintiff, Gina Stelluti, I respectfully dissent.
I.
Ms. Stelluti’s case was dismissed by the trial court on defendant’s motion for summary judgment. Therefore, in reviewing the correctness of that decision, the facts must be viewed in the light most favorable to her. Senna v. Florimont, 196 N.J. 469, 475 n.1, 958 A.2d 427 (2008); see also R. 4:46-2(c). Those facts present a cautionary tale.
On January 13, 2004, Gina Stelluti, [*51] then thirty-nine years old, joined the Powerhouse Gym (also referred to as Powerhouse Fitness and the Club) in Brick, New Jersey. 1 She arrived at the Club that day at 8:30 a.m., intending to participate in the 8:45 a.m. spin class. Before the spin class, with the assistance of a Powerhouse employee, Ms. Stelluti completed a “Membership Agreement” form, a “Member Information” form, a “Health/Safety Consent” form, and a “Powerhouse Fitness (The Club) Waiver & Release Form.” As a condition of membership, she agreed to pay an enrollment fee and monthly fees. The waiver form signed by Ms. Stelluti released Powerhouse from liability for any injury she might suffer regardless of Powerhouse’s fault. Powerhouse immunized itself from liability even if it caused serious bodily injury or death through the negligent maintenance of its equipment or the careless acts of its instructors and other employees. The waiver form was not explained to Ms. Stelluti. No one disputes that the contract was non-negotiable and offered on a take-it-or-leave-it basis, the very essence of a contract of adhesion. 2
1 Powerhouse Gym is the trade name for the health club operated by defendant Casapenn Enterprises, LLC.
2 “[T]he [*52] essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n and First Fid. Bank, 127 N.J. 344, 353, 605 A.2d 681 (citations omitted), cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L. Ed. 2d 145 (1992).
Fifteen minutes after her arrival and completion of the paperwork, Ms. Stelluti was in the spin class. She informed the Powerhouse instructor that she had never taken a spin class before. The instructor told Ms. Stelluti to watch her during the class. The instructor strapped Ms. Stelluti’s feet into the bicycle and adjusted the bicycle seat. The class began, and shortly afterwards the handlebars to Ms. Stelluti’s bicycle came flying off, causing Ms. Stelluti to fall forward onto the floor while her feet were still strapped to the bike. Ms. Stelluti’s physical-education expert concluded that the accident occurred because Powerhouse’s instructor did not properly supervise or instruct Ms. Stelluti concerning the handlebars’ “snap pin” adjustment to the spin bicycle. In short, this [*53] avoidable accident occurred because the instructor carelessly forgot to make certain that the bicycle’s handlebars were secured.
As a result of her injuries, Ms. Stelluti suffered pain to her back, neck, and shoulders, and soreness in her thighs. She also sustained a cracked tooth. Ms. Stelluti, a waitress, had no health insurance and received treatment through charity-care facilities located at Community Medical Center in Toms River, Ocean Medical Center, and Jersey Shore University Medical Center. Three years after the accident, a board certified orthopedist offered his opinion that Ms. Stelluti suffered from “permanent chronic pain associated with myofascial pain syndrome.”
Ms. Stelluti filed a lawsuit against Powerhouse, alleging that its negligence caused the accident. More specifically, she claims that Powerhouse failed to maintain the spin bicycle in a safe manner, to give her proper instructions in the use of the equipment, and to use due care in supervising her during the spin class.
The trial court upheld the exculpatory clause against Ms. Stelluti’s claims and granted Powerhouse’s motion for summary judgment. The Appellate Division affirmed, concluding that Powerhouse’s contract [*54] of adhesion exculpated it from ordinary negligence. 408 N.J. Super. 435, 448, 459, 975 A.2d 494 (App. Div. 2009). The appellate panel held that “at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.” Id. at 459, 975 A.2d 494. The panel found that “[t]he fact that the class instructor may not have checked or tightened plaintiff’s handlebars does not amount to anything worse than an unfortunate and perhaps careless omission” and that if “the pin was left in a non-secure position overnight by the club’s maintenance or cleaning crew, that only would comprise an isolated act of simple negligence.” Id. at 460, 975 A.2d 494.
I cannot conclude that the “careless omission” — the failure to properly instruct Ms. Stelluti or to maintain equipment in a safe condition — is beyond the protection of our common law, merely because Powerhouse compels a patron to sign an exculpatory clause. Powerhouse’s “simple negligence” has had lasting, painful consequences for Ms. Stelluti, a first-time participant at the health club’s spin class. Additionally, Ms. [*55] Stelluti did not have the burden of proving that Powerhouse committed multiple acts of negligence against an assortment of patrons. It should have been enough that Powerhouse committed an act of negligence against Ms. Stelluti. Typically, a plaintiff prosecuting a personal-injury lawsuit need show only that she suffered from an act of negligence; she is not required to establish that the act was part of a larger pattern of negligence. Negligence has been defined as
[the] failure to exercise, in the given circumstances, that degree of care for the safety of others, which a person of ordinary prudence would exercise under similar circumstances. It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.
[Model Jury Charge (Civil), Negligence and Ordinary Care — General § 5.10A(1) (pre-1984).]
This Court must assume, for purposes of the summary judgment motion, that Powerhouse was negligent. Like the appellate panel, the Court concludes that Ms. Stelluti’s signature on the waiver form exculpates Powerhouse from its own lack of due care. That legal [*56] conclusion flies in the face of the progressive development of the common law by this Court over the course of decades.
II.
A.
“Exculpatory agreements have long been disfavored in the law because they encourage a lack of care.” Hojnowski v. Vans Skate Park, 187 N.J. 323, 333, 901 A.2d 381 (2006) (emphasis added) (citations omitted). “For that reason, courts closely scrutinize liability releases and invalidate them if they violate public policy.” Ibid. (citation omitted); see also Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 578, 675 A.2d 209 (1996) (“[C]ourts will not enforce an exculpatory clause if . . . exoneration of the party would adversely affect the public interest.” (citation and internal quotation marks omitted)); Mayfair Fabrics v. Henley, 48 N.J. 483, 487, 226 A.2d 602 (1967) (“[W]here there is unequal bargaining power, the public interest may call for rejection of an exculpatory clause exacted by the dominant party . . . .”). Public policy is expressed not only in legislation, but also through the common law as developed by this Court. See Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 98, 415 A.2d 1156 (1980).
A common-law duty — such as the duty to exercise reasonable care in maintaining commercial premises open [*57] to consumers — is “derive[d] from considerations of public policy and fairness.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993) (citation omitted). Under our common law, business owners owe “a duty of reasonable or due care to provide a safe environment” to their patrons and “to discover and eliminate dangerous conditions” on their premises. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314 (2003). Because business owners are in the best position to prevent the risk of harm to their customers, it is fair they should be responsible for injuries caused by their negligence. See Hojnowski, supra, 187 N.J. at 335, 901 A.2d 381. Unlike the customer, “[t]he operator of a commercial recreational enterprise 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.” Ibid. The customer has no ability or right to control commercial premises, and therefore allowing a business owner to transfer the risk to the customer would undermine the very purpose of our premises-liability law. See Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (Vt. 1995).
“No contract can be sustained if it is [*58] inconsistent with the public interest or detrimental to the common good.” Vasquez, supra, 83 N.J. at 98, 415 A.2d 1156 (citation omitted). That is true whether the contract violates a statutory or common-law duty. The common law is not an inferior kind of law, as is suggested by the Court’s opinion today. The Legislature may enact a statute that alters or overrides the common law, but until such time the common law holds no lesser status than a statute when it commands that a duty be obeyed.
In the past, this Court has struck down exculpatory clauses that violated public policy, expressed either in the common law or a statute, particularly when there was inequality in bargaining power between the parties to the contract. See, e.g., Hojnowski, supra, 187 N.J. at 338, 901 A.2d 381 (holding that “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”); Carvalho, supra, 143 N.J. at 569, 578-79, 675 A.2d 209 (striking down exculpatory agreements between construction site engineer, township, and developer that exonerated engineer from liability to injured construction worker); McCarthy v. NASCAR, Inc., 48 N.J. 539, 540-43, 226 A.2d 713 (1967) (striking [*59] down exculpatory agreement between NASCAR and racecar driver injured in accident as contrary to public policy expressed in statutory scheme); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 364-67, 377, 403-04, 161 A.2d 69 (1960) (invalidating contractual provision exculpating manufacturer from liability for personal injury to purchaser of automobile). Cf. Horelick v. Pa. R.R. Co., 13 N.J. 349, 357, 99 A.2d 652 (1953) (noting in common carrier case that “[f]or negligent failure to discharge such responsibility to its passengers, the [Railroad] would seemingly be accountable even if the tickets issued by it had contained express provision to the contrary”); Blauvelt v. Citizens Trust Co., 3 N.J. 545, 554-55, 71 A.2d 184 (1950) (noting that New Jersey “courts have applied a strict construction to such exculpatory clauses . . . and have said that they do not relieve a trustee of liability where a loss results from negligence in the administration of the trust,” but finding no negligence (internal citations omitted)).
On the other hand, this Court has recognized that sophisticated commercial entities, exercising equal bargaining power, are capable of protecting their own interests. See, e.g., Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 230, 864 A.2d 387 (2005) [*60] (“Ordinarily, we are content to let experienced commercial parties fend for themselves and do not seek to ‘introduce intolerable uncertainty into a carefully structured contractual relationship’ by balancing equities.” (citation omitted)). Thus, this Court has upheld an exculpatory clause in a contract between a commercial landlord and commercial tenant, who were not in unequal bargaining positions, and allowed them to distribute risk between themselves as they saw fit. Mayfair Fabrics, supra, 48 N.J. at 488-90, 226 A.2d 602.
B.
Never before in the modern era has this Court upheld an exculpatory clause in which a commercial enterprise protects itself against its own negligence at the expense of a consumer, who had no bargaining power to alter the terms of the contract. The high courts of other states have struck down exculpatory clauses similar to the type that our Court now validates. See, e.g., Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 741-42, 747-48 (Conn. 2005) (finding that exculpatory agreement releasing recreational snowtube operator from prospective liability caused by operator’s negligence violates public policy and therefore is unenforceable); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 796 (Vt. 1995) [*61] (invalidating contractual agreement exculpating ski operator from liability for its negligence in personal-injury claim brought by patron); Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 244 Va. 191, 418 S.E.2d 894, 895-96, 8 Va. Law Rep. 3381 (Va. 1992) (invalidating pre-injury release clause exculpating community association from its negligence in allegedly causing injury in swimming portion of athletic event).
Under Virginia’s common law, contractual “provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited ‘universally.'” Hiett, supra, 418 S.E.2d at 896-97 (citation omitted). Since 1890, Virginia’s law has held that one party cannot “put the other parties to the contract at the mercy of its own misconduct” because “[p]ublic policy forbids it, and contracts against public policy are void.” Id. at 896 (quoting Johnson’s Adm’x v. Richmond & D. R. Co., 86 Va. 975, 11 S.E. 829, 829 (Va. 1890)). The 1890 Virginia Supreme Court found that exculpatory agreements are barred “where an enlightened system of jurisprudence prevails.” Johnson’s Adm’x, supra, 11 S.E. at 829.
The Vermont Supreme Court in Dalury held “that the exculpatory agreements which defendants require [*62] skiers to sign, releasing defendants from all liability resulting from negligence, are void as contrary to public policy.” 670 A.2d at 796. Vermont’s high court concluded that enforcing such an exculpatory agreement would undermine the state’s premises-liability law. Id. at 799. It further explained:
The policy rationale is to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. Defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the cost of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.
[Ibid.]
The Connecticut Supreme Court agreed with the reasoning of Dalury in striking down an exculpatory agreement immunizing a snowtube operator from its own negligence. Hanks, supra, 885 A.2d at 743-46. [*63] Connecticut’s high court observed that “[t]he societal expectation that family oriented recreational activities will be reasonably safe is even more important where . . . patrons are under the care and control of the recreational operator as a result of an economic transaction.” Id. at 744. It also noted that “it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control.” Id. at 745.
In New York, by statute, exculpatory agreements that exempt gymnasiums and other similar recreational facilities from liability for their negligence are “void as against public policy and wholly unenforceable.” N.Y. Gen. Oblig. Law § 5-326 (2010). 3
3 N.Y. Gen. Oblig. Law § 5-326 (2010) declares that exculpatory agreements
between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such [*64] establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
These cases, as well as the New York statute, show that the right to contract should be subordinate to the greater public interest.
C.
Unlike health clubs, the allocation of risks between ski operators, roller skating rinks, equine establishments, and their customers is governed by statute, not the common law. See N.J.S.A. 5:13-1 to -11 (ski statute); N.J.S.A. 5:14-1 to -7 (Roller Skating Rink Safety and Fair Liability Act); N.J.S.A. 5:15-1 to -12 (Equine Act). However, even in those statutes, the Legislature has not suggested that commercial operators in those fields can exempt themselves from liability through the use of exculpatory clauses.
Moreover, the Legislature has seen no need to give health clubs the power to immunize themselves from their own negligence. Indeed, as part of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -181 (N.J.S.A. 56:8-1 to -195 as of December 1, 2010), the Legislature has given consumers statutory protection from unscrupulous health club service contracts. N.J.S.A. 56:8-39 to -48. Nowhere in that statutory scheme does the Legislature give approval to a health club to insert an [*65] exculpatory clause in a contract of adhesion — the ultimate device by which a commercial interest, through the use of superior bargaining power, forces consumers to accept terms contrary to their best interests.
It is hard to imagine how the public interest could be served by permitting health clubs to exempt themselves from the common law governing premises liability. Tens of thousands of people in this State go to health clubs to maintain healthy lifestyles and to improve their health. See Active Marketing Group, 2007 Health Club Industry Review 5-6 (2007), available at http://activemarketinggroup.com/AssetFactory.aspx?did=32 (estimating that as of 2005, New Jersey had more than 1000 health clubs, and that 16.6% of its population belonged to one); Miriam A. Cherry, Exercising the Right to Public Accommodations: The Debate over Single-Sex Health Clubs, 52 Me. L. Rev. 97, 103 (2000) (noting reasons why people attend health clubs). In 2006, the Legislature made a finding that “as many as 30 million people now visit health and exercise centers in this country.” N.J.S.A. 2A:62A-30(d).
The benefits of exercise are beyond dispute. The Surgeon General has declared “that Americans can substantially [*66] improve their health and quality of life by including moderate amounts of physical activity in their daily lives.” U.S. Dep’t of Health and Human Servs., Physical Activity and Health: A Report of the Surgeon General 3 (1996), available at http://www.cdc.gov/nccdphp/sgr/pdf/sgrfull.pdf. Moreover, the United States Department of Health and Human Services has found that “[b]eing physically active is one of the most important steps that Americans of all ages can take to improve their health” and that “[r]egular physical activity reduces the risk of many adverse health outcomes.” 2008 Physical Activity Guidelines for Americans, at vi, available at http://www.health.gov/paguidelines/pdf/paguide.pdf. The health benefits of exercise include lower risks of early death, coronary heart disease, stroke, high blood pressure, obesity, adverse blood lipid profile, type 2 diabetes, metabolic syndrome, colon cancer, and breast cancer, to name a few. Id. at 9. Some health clubs even have rehabilitation/physical therapy programs for accident or stroke victims.
Whatever the Court says in its opinion, people will continue to go to health clubs, even if they are compelled to sign away their rights in a contract [*67] of adhesion. Most people do not have at their individual disposal the sophisticated exercise machinery and equipment, indoor tracks, pools, and trainers offered at health clubs. Gina Stelluti is a perfect example — a waitress without health insurance, who could not possibly afford to purchase the equipment available at a health club.
Ms. Stelluti does not claim that Powerhouse should be the general guarantor for every injury suffered in its facility. This case is not about a health club patron asserting that the facility is legally responsible for an injury caused by over-exertion, misuse of equipment, or from the act of another patron over whom the club has no control. Rather, Ms. Stelluti merely argues that a health club should be held responsible if it does not maintain its equipment in a reasonably safe manner and if its instructors do not exercise due care — matters over which a club does have control. It is one thing to assume a risk of which one is aware. It is another thing to say, as the Court does, that one should assume the risk for a dangerous condition of which one is unaware and over which one has no control. That health club members should assume the risk, as suggested [*68] by the Court, for the club’s failure to inspect and maintain its equipment in a reasonably safe condition runs completely contrary to the rationale underlying our common law governing premises liability.
D.
Tort law is not just about compensating victims, but also about preventing accidents. By allowing a health club to eliminate its duty to exercise a reasonable degree of care, the majority has decreased the incentives for health clubs to provide a reasonably safe environment for their patrons. This will inevitably lead to more preventable accidents. Because health clubs will not have a legal incentive to maintain their equipment in a reasonably safe manner, how many cases will there be of handlebars flying off of spin bikes, of cables to weight machines breaking, of pools mistakenly treated with the wrong amounts or kinds of chemicals? Increasing profits is the dominant force motivating most commercial establishments; increasing public safety had been one of the objectives of tort law.
Powerhouse has not introduced any evidence that striking down the exculpatory clause will lead to an exorbitant financial expense or that increased insurance premiums cannot be minimally passed along [*69] to patrons. Hojnowski, supra, 187 N.J. at 335-36, 901 A.2d 381 (noting that commercial recreational operators can “spread the costs of insurance among its customers”). Our Court did not permit an automobile manufacturer — through an exculpatory clause in a contract — to immunize itself for personal injury caused by a defective car in Henningsen, supra, 32 N.J. at 365-67, 404, 161 A.2d 69, although building safer cars arguably might cost more. Encouraging safely built automobiles was in the public interest. Safer cars result in fewer serious injuries and deaths, and presumably fewer lawsuits. Similarly, invalidating exculpatory clauses that insulate health clubs from their own negligence will encourage health club owners to keep their premises reasonably safe, which will result in fewer injuries and deaths, and fewer lawsuits.
There is a simple logic behind the law of premises liability: when business owners exercise due care, there are fewer accidents; when there are fewer accidents, there are fewer lawsuits; when there are fewer lawsuits, insurance premiums are more likely to go down rather than up. See, e.g., David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice [*70] Liability Part of the Problem or Part of the Solution?, 90 Cornell L. Rev. 893, 917-20 (2005) (detailing how tort liability and high insurance premiums led anesthesiologists to enact reforms, and “[a]s anesthesia became safer, lawsuits against anesthesiologists became less frequent and liability premiums for anesthesiologists declined significantly”).
Not only is it unfair to saddle a blameless patron with the costs of the club’s negligence, but we must recognize that the costs of preventable injuries are shouldered by society in many different ways, including through unemployment insurance, social services, and increased health-care costs. Ms. Stelluti — a victim without health insurance — is a case in point. Although her injuries were caused by the negligence of a commercial, profit-making entity, the State, which subsidizes charity care, will pick up a good part of the cost of her medical bills.
E.
Finally, the Court relegates the common law to second-class status, allowing a contract of adhesion to eviscerate protections intended to safeguard the health and lives of consumers. In doing so, the Court has revived the discredited doctrine that the right to contract trumps the public [*71] interest — in this case, the public interest expressed in the common law. The Court’s decision brings to mind the Lochner era of the early twentieth century when the United States Supreme Court struck down social-welfare legislation under the banner of the right to contract. See, e.g., Lochner v. New York, 198 U.S. 45, 57-58, 64, 25 S. Ct. 539, 543-44, 546, 49 L. Ed. 937, 941-42, 944-45 (1905) (striking down state law that regulated maximum number of hours bakers could work); Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 539, 545, 561-62, 43 S. Ct. 394, 395-97, 402-03, 67 L. Ed. 785, 789, 791, 798 (1923) (striking down legislation setting minimum wages for women and children in District of Columbia). In time, the Supreme Court rejected the Lochner-era right-to-contract philosophy that was used to invalidate legislation advancing the public welfare. See Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525, 536-37, 69 S. Ct. 251, 257, 93 L. Ed. 212, 221 (1949).
The right to contract is not a blank check for commercial interests to impose conditions on consumers through exculpatory clauses that violate the public’s health and safety. The adverse effects of today’s decision [*72] may be far-reaching and long felt. Other commercial entities may see this case as a signal that exculpatory clauses, extracted through contracts of adhesion, may apply to their industries, trades, and professions. If health club owners can protect themselves from their own negligence, why wouldn’t malls, supermarkets, and restaurants do the same?
III.
The exculpatory clause to which the Court gives its blessing should be void as against public policy. That is so because the exculpatory clause in this case unfairly allocates the risk from the commercial operator, who is in the best position to remove and prevent the dangers on the premises, to the unwary patron, and because it encourages lack of due care. Exalting the right to contract — a contract of adhesion, no less — over the public interest is not in keeping with this Court’s development of a progressive and enlightened common law.
I therefore respectfully dissent.
JUSTICE LONG joins in this opinion.