A Parent cannot sign away a minor’s right to sue in New Jersey, however, a parent can agree to arbitrate the minor’s claims.
Posted: January 24, 2022 Filed under: Indoor Recreation Center, Minors, Youth, Children, New Jersey, Release (pre-injury contract not to sue) | Tags: #TrampolineParks, Arbitration, Arbitration clause, Indoor Trampoline Park, Minor, New Jersey, Release, SKY ZONE INDOOR TRAMPOLINE PARK, Trampolene Park, Trampoline, Waiver Leave a commentAnother trampoline park case where the plaintiffs are required to arbitrate their claim even though the release which included the arbitration clause was not enforceable in New Jersey.
Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)
State: New Jersey
Plaintiff: David Johnson, an infant by his guardian ad litem, Shalonda Johnson, and Shalonda Johnson, individually
Defendant: Sky Zone Indoor Trampoline Park in Springfield, Sky Zone, LLC, Sky Zone Franchise Group, LLC, and Go Ahead and Jump 4, LLC
Plaintiff Claims: negligence
Defendant Defenses: release required arbitration of the claims
Holding: For the defendants, claims must be arbitrated
Year: 2021
Summary
The New Jersey Supreme Court held Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006), that a parent could not sign away a minor’s right to sue. See However, in Hojnowski the court stated a parent could agree to arbitrate a minor’s claims. This decision of the injuries received at a trampoline park held the same decision. When signing the release, the mother agreed to arbitration of any claims.
Facts
On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg. The appellate record did not include evidence of whether Johnson executed a second waiver.
The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.”
The mother filed a lawsuit for herself and her son. The defendant argued the arbitration clause in the release should apply. That would remove the litigation from the state court system and have a neutral arbitrator decide the case. Normally arbitrators do not hand out damages to the extend a jury would. The court agreed, leading to this appeal.
Analysis: making sense of the law based on these facts.
The argument was quite simple. The plaintiff argued that since the New Jersey Supreme Court had decided that a parent could not sign away a minor’s right to sue, that the release, including the arbitration clause should be thrown out.
The plaintiff first argued there was no real notice because the plaintiff had checked a box on the electronic form and that was not enough notice required to alert the plaintiff that she was going to have to arbitrate any claim. The defense countered that the plaintiff has completed the form giving the defendant a lot of contact information.
In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification.
The plaintiff then argued the arbitration clause was ambiguous and unenforceable as a matter of law.
As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.
The statement that the arbitration clause is only valid if the parties intended to arbitrate is good for arbitration clauses and contracts. The court also found the language requiring arbitration was not ambiguous or unenforceable.
Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced.
The court went further to state:
The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable.
The plaintiff then argued that forcing her to sign an exculpatory contract of adhesion right before a birthday party was a violation of the doctrines of procedural and substantive unconscionability.
We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent.
In New Jersey there is a four-part test to determine if an agreement is a contract of adhesion.
[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract.
The court’s response was they could not find anything in the agreement that rose to the level that the contract was a contract of adhesion under New Jersey law.
Although the case is not over, any damages will probably significantly reduce by requiring arbitration.
So Now What?
This is the second decision that is almost identical to this one. Can a release in New Jersey at a trampoline park require the parent to arbitrate the minor’s claim. See New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly. This decision does not mention the decision is Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206 which is almost identical in the facts.
There are two ways to limit damages in a state that does not allow a parent to sign a release giving up a minor’s right to sue. Assumption of the risk agreements and the defense of assumption of the risk. Did the parent AND the minor knowingly and voluntarily enter into the risk that caused the injury. This is only valid if you can prove the minor knew or you provided the minor with the education or knowledge to knowingly and voluntarily assume the risk. Voluntary is the easy part proving the minor knew of the risk is difficult.
Arbitration then is the next defense in this ladder to reduce damages. Most states do not allow an arbitrator to award more than the basic damages. Punitive damages cannot be awarded by arbitrators. Also, arbitrators are not over come by emotion or other factors that would influence them into awarding large damages.
Before putting an arbitration clause in your agreement, you need to determine two things.
- Is arbitration better than the court system in your state. If your state supports the use of a release, a release gets you out of a case without any damages. Even though arbitration will generally not give the plaintiff large awards, they usually award something.
- Are there benefits to arbitration in your state that outweigh other means of resolving the dispute.
In those states that do not support a parent signing away a minor’s right to sue, arbitration is probably a good result. See States that allow a parent to sign away a minor’s right to sue.
What do you think? Leave a comment.
Who am I
Jim Moss
I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry
I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses
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Michigan Trampoline Statute protects Trampoline Operator from claims that he violated ANSI standards.
Posted: November 15, 2021 Filed under: Assumption of the Risk, Indoor Recreation Center, Michigan | Tags: #TrampolineParks, ANSI, assumption of the risk, Failure to Warn, Indoor Trampoline Park, Michigan Trampoline Safety Act, Trampoline Leave a commentStatute did not require nor did the ANSI requirement state that the defendant trampoline park needed to tell the plaintiff, he was too fat and unskilled to jump on the trampoline.
Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021
State: Michigan
Plaintiff: Scott Redmond
Defendant: Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants, and Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights
Plaintiff Claims: Failure to comply with Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.
Defendant Defenses: It complied with the Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.
Holding: For the Defendant
Year: 2021
Summary
A 47-year-old 275 man was injured while attempting to jump from one trampoline to another at the defendant’s trampoline facility. He claimed the defendant had a duty to warn him of the risks and failed to follow ANSI standards.
The court found the plaintiff assumed the risks, so there was no duty to warn and ANSI standards were created for manufacturers and designers of trampolines, not operators.
Facts
Plaintiff, a 47 year-old, 275 pound man, sustained a severe ankle injury while jumping on a trampoline at a facility owned and operated by Spring Loaded II. Plaintiff’s injury was captured on a surveillance camera. Spring Loaded II’s trampoline court facility is a large room filled with trampolines that are connected to one another by padded frames. Plaintiff’s injury occurred as he attempted to jump from one trampoline to another. He gained momentum to hurdle a two-foot-wide section of padding by jumping near the edge of the trampoline. In doing so, his ankle buckled and he fell onto the trampoline. Although he was in close proximity to the padding, it does not appear that he touched the padding when he landed.
Analysis: making sense of the law based on these facts.
This is simply an interpretation of a surveillance video and the application of a statute to what the court saw on the video. The statute is the Michigan Trampoline Court Safety Act, § 691.1731 et. seq.
§ 691.1731. Short title This act shall be known and may be cited as the ‘trampoline court safety act’.”
Mich. Comp. Laws 691.1731 Short title
§ 691.1733. Operator; duties
An operator shall do all of the following:
(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.
(b) Comply with the safety standards specified in ASTM F2970 – 13, “Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts” published in 2013 by the American society for testing and materials.
(c) Maintain the trampoline court according to the safety standards cited in subdivision (b).
(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.
§ 691.1735. Trampoliner; duties
While in a trampoline court, a trampoliner shall do all of the following:
(a) Maintain reasonable control of his or her speed and course at all times.
(b) Read and follow all posted signs and warnings.
(c) Avoid bodily contact with other trampoliners or spectators.
(d) Not run on trampolines, over pads, or on platforms.
(e) Refrain from acting in a manner that may cause injury to others.
(f) Not participate in a trampoline court when under the influence of drugs or alcohol.
(g) Properly use all trampoline court safety equipment provided.
(h) Not participate in a trampoline court if he or she has a preexisting medical condition, a bone condition, a circulatory condition, a heart or lung condition, a back or neck condition, high blood pressure, or a history of spine, musculoskeletal, or head injury, if he or she has had recent surgery, or if she may be pregnant.
(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.
(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.
(k) Avoid crowding or overloading individual sections of the trampoline court.
(l) Use the trampoline court within his or her own limitations, training, and acquired skills.
(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.
The simple analysis of the plaintiff’s argument is the ANSI code which applies to the manufacturing of Trampolines was not met by the defendant, and the defendant did not pass on required notices established by the code to the plaintiff.
The first issue was defendants failed to pass on the size restrictions that ANSI requirements might require. The court denied this argument by stating the ANSI code applied to manufacturers not trampoline owners or operators.
However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.
The next issue was ANSI required an operation’s plate to be firmly affixed to the trampoline. The defendant argued there was no operation’s plate because the trampoline did not come with one. The operation’s information was to include the maximum size of someone allowed on the trampoline. At the time of his injury, the plaintiff testified in his deposition; he weighed 275 pounds.
The court struck this argument down because the failure to post the plate was not the cause of the plaintiff’s injury. There must be a causal connection, proximate cause, to prove negligence. Generally, the court found trampolines are designed to hold 300 lbs., so that would not have changed the issues with the plaintiff since he weighed less than the design of the trampoline. Finally, there was no argument by the plaintiff that if the information were posted, he would not have used the trampoline.
However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.
The plaintiff argued the defendant violated an ANSI standard for:
…failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury.
Again, the court struck this down because the ANSI standard was for designers and manufacturers not operators. The standard argued by the plaintiff that was not met also had a duty to inform the manufacture of any incident within seven days of the incident which was not done in this case. Again, the failure to notify the manufacture of the incident within seven days was not the cause of the plaintiff’s injury.
The plaintiff next argued the defendant had a duty to warn of the risks of jumping on a trampoline when you were fat or the risks of jumping from one trampoline to another.
The court found the defendant did not have a duty to warn of jumping on a trampoline near the edge or jumping from one trampoline to another. The statute states “An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary.” An assumption of the risk statement set out in the statute. Based on the video, the plaintiff clearly accepted the risks of his actions and as such assumed the risk requiring no duty to warn on the part of the defendant.
The plaintiff argued:
Plaintiff contends that product sellers have a duty to transmit safety-related information when they know or should know that the buyer or user is unaware of the information, and this duty may be attributed to a successor in possession of the product. Plaintiff posits that Spring Loaded II had a duty to transmit safety-related information to its patrons regarding the increased risks associated with patron weight and jumping from one trampoline to another because Spring Loaded II was a successor in possession of trampolines.
However, this argument fails because it speaks to defects in the product. In this case, there were no defects in the trampoline that caused the plaintiff’s injuries.
There was a dissent in the decision. The dissenting judge agreed with the majority that there was no violation of the Michigan Trampoline Safety Act. However, the dissent did believe that there was a valid failure to warn claim. This argument stems from the dissenting judges view of the video where he believes the plaintiff’s toe touched the foam padding at the edge of the trampoline, leading to a requirement on the part of the defendant to warn patrons of jumping from mat to mat. Because the dissenting judge viewed the video differently than from the majority, he felt that factual issues should be allowed to go to the jury.
However, the dissent is just that, a minority opinion and the majority opinion is the way the decision is handled.
The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.
So Now What?
-
The defendant should immediately post notices of the dangers of jumping from trampoline to trampoline and other risks. Just because the defendant won the appeal does not mean that the dissent is not an important legal analysis that can be ignored.
- Included in those warnings should be one about fitness and weight of anyone jumping.
- Included in those warnings should be one about fitness and weight of anyone jumping.
- The defendant should use a release. A release in Michigan would have stopped this lawsuit sooner or might have prevented it from starting.
- I would even post the Michigan Trampoline Safety Act duties required of a patron, and the risks accepted by a patron.
What do you think? Leave a comment below.
Copyright 2020 Recreation Law (720) 334 8529
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Kentucky determines that a parent cannot sign away a child’s right to sue.
Posted: July 22, 2019 Filed under: Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: House of Boom, Indoor Trampoline Park, Kentucky, Kentucky Supreme Court, Minor's right to sue, parent, Parents right to waive minor's right to sue, Release, Trampoline, Trampoline Park, Waiver, \ 2 CommentsCourts are allowed to pick and choose the case law they relied upon and to distinguish or ignore the case law the court does not like. In this case, the Kentucky Supreme Court ignored law it did not like or simply found a way around the case law it did not want to agree with.
Citation: E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697
State: Kentucky, Supreme Court of Kentucky
Plaintiff: Kathy Miller, as Next Friend of Her Minor Child, E.M.
Defendant: House of Boom Kentucky, LLC
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: for the plaintiff
Year: 2019
Summary
Kentucky Supreme Court rules that a parent cannot sign away a minor’s right to sue.
Facts
House of Boom, LLC (“House of Boom”) is a for-profit trampoline park located in Louisville, Kentucky. The park is a collection of trampoline and acrobatic stunt attractions. On August 6, 2015, Kathy Miller purchased tickets for her 11-year-old daughter, E.M., and her daughter’s friends to go play at House of Boom. Before purchasing the tickets, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability.
Once Miller checked the box, E.M. participated in activities at House of Boom. She was injured when another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break. Miller, as next friend of her daughter, sued House of Boom for the injury. House of Boom, relying on Miller’s legal power to waive the rights of her daughter via the release, moved for summary judgment. The Western District of Kentucky concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and requested Certification from this Court which we granted. Both parties have briefed the issue and the matter is now ripe for Certification.
So, the plaintiff sued in Federal District Court. Because the issue of whether or not a parent could sign away a minor’s right to sue had not been reviewed by the Kentucky Supreme Court, the federal district court asked the Kentucky Supreme Court to review the case. The Kentucky Supreme court did with this decision.
Analysis: making sense of the law based on these facts.
The sole question before the court was whether a parent could sign away a minor’s right to sue.
The question before this Court is whether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company.
The court in reviewing the case law from other states on this issue decided the cases had been determined in one of four categories.
House of Boom categorizes these decisions in as those that enforced the waiver and those that did not, but the decisions of those jurisdictions more accurately fall into four distinct categories: (1) jurisdictions that have enforced a waiver between a parent and a for-profit entity; (2) jurisdictions that have enforced waivers between a parent and a non-profit entity; (3) jurisdictions that have declared a waiver between a parent and a for-profit entity unenforceable; and (4) jurisdictions that have declared a waiver between a parent and a non-profit entity unenforceable.
By making this distinction in the cases to start, the court immediately eliminated much of the case law supporting the defendants. In most states, a non-profit has no different legal duty to patrons then a for profit, and none that I can find in Kentucky. However, by using these categories the court was able to place this case in the category with only one other decision that could support the defendant.
House of Boom is a for-profit trampoline park, and eleven out of twelve jurisdictions that have analyzed similar waivers between parents and for-profit entities have adhered to the common law and held such waivers to be unenforceable.
The court then justified it classifications and reasoning by stating a commercial entity had more ways to deal with the cost of the liability than a non-profit.
A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions.
However, none of the factors listed above are any different from the situations or requirements to do business for a non-profit operation.
The court then fell back on a legal fallacy that plaintiffs have been arguing for years.
A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment. “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.
However, no cases I’ve read have ever stated that the injury was caused because the defendant did not have to deal with liability issues. Any breach of a duty of care that has occurred were not across the board, just spotty.
The court concluded:
Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf.
So Now What?
The plaintiff’s mother purchased tickets for several kids. So, for the majority of the children, the release was void to begin with. One release was signed for multiple possible plaintiffs by someone who did not have the legal authority to sign on their behalf anyway.
The category’s trick was interesting. By restricting the cases it reviewed to artificial categories the Kentucky Supreme Court eliminated several cases that supported the defendant’s position. On top of that, it also then ignored cases after the initial cases it reviewed that supported the use of a release signed by a parent for a child in for-profit or commercial situations.
The Ohio Supreme Court found that a parent could sign away a minor’s right to sue in a non-profit case: Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998). Subsequent decisions in Ohio by the appellate courts have also upheld a release signed by the parent of the injured child: Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
By placing blinders on the case law it was looking at, it is a lot easier to ignore decisions you do not want to deal with.
It is disturbing when a court, weaves its way through case law to reach a conclusion it could have easily reached without circular path. Either the court works its way around lots of decisions or the court realized this decision was going against the general flow of law in the US on this issue and wanted to justify its decision.
Statutes and prior law in Kentucky say a parent’s rights are not absolute in controlling their child and thus a parent cannot sign away their minor child’s right to sue.
What do you think? Leave a comment.
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Indoor trampoline park company held liable for its actions in creating safety rules for its sub-groups creating liability for itself from the sub-group’s customers.
Posted: April 29, 2019 Filed under: Arizona, Indoor Recreation Center | Tags: Contractor, duty, employee handbook, Flip, Handbook, Indoor Trampoline Park, Legal Duty, Safety Rules, Somersault, Trampoline, Trampoline facility, Trampoline Park Leave a commentThe parent company knew the employee handbook, which contained safety rules, which was given to the companies operating trampoline parks would be used to keep the customers of the parks safe. When the employee handbook was badly written, the parent company was liable to the injured plaintiff.
We have seen this before in Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. A second case will create greater concern and liability for actions of “safety” experts in the outdoor recreation industry.
Citation: Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640
State: Arizona, United States District Court, D. Arizona
Plaintiff: Blake Haines
Defendant: Get Air Tucson Incorporated, et al
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses:
Holding: for the Plaintiff on the negligence claim and for the defendants on the Gross Negligence claim
Year: 2018
Summary
A prior company of some sort created safety rules in an employee handbook which were poorly written. The prior or parent company gave these rules to the trampoline parks to use. A plaintiff argued, successfully, the parent company was liable to him because the rules were poorly written, and the court agreed.
Third party contractors are increasingly brought into lawsuits because of their actions. The contractors are hired to decrease the risk to the customers, and the courts are holding when they fail, they are liable for their actions.
Facts
These facts on how the injury occurred, and the relationship between the parties came from a different decision in this case.
On September 8, 2013 Haines was at the Get Air Tucson indoor trampoline park and performed a move where he flipped multiple times off of a platform and into a foam pit. Haines “suffered catastrophic injuries from the maneuver, including fractured cervical vertebrae resulting in paralysis.” Following this incident, Haines filed suit in Pima County Superior Court on September 5, 2014 against the following defendants: Get Air Tucson, Inc.; Get Air Tucson Trampolines, LLC; Get Air Management, Inc.; Get Air, LLC; Trampoline Parks, LLC; Patti Goodell; Jacob Goodell; Kiersten Goodell; Scott Goodell; Alan McEwan Jr.; Val Iverson, individually and as owner or operator of Trampoline Parks, LLC; Jane and/or John Does #s 1-20; ABC Corporations 1-10; XYZ Partnerships 1-10; and ABC Limited Liability Corporations (LLCs) 1-10. Haines alleged claims for negligence, negligent design, negligence in safety standards, negligent supervision, negligent hiring and training of personnel, piercing the corporate veil, and punitive damages. Id.
There are three parties to this lawsuit. The plaintiff who was injured at the Defendant Get Air Tucson’s facility, Get Air Tucson and GALLC. GALLC was a former trampoline park that is no longer in business but seemingly a parent company?
GALLC created an employee handbook to be used by its clients (trampoline parks or franchisors). The plaintiff claims he was injured because of the “allegedly deficient safety rules contained in the Employee Handbook.” The handbook does not clearly define what a somersault is. The plaintiff was injured when he did a flip.
As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson.
The case had been referred to a magistrate who created an order dismissing the gross negligence claims but keeping the negligence claims. That magistrate’s order was then reviewed, which is the decision this article is based on.
Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH [employee handbook] as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. Judge Markovich found that summary judgment on the issue of a breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff.
Analysis: making sense of the law based on these facts.
The defendant GALLC argued it had no duty to the plaintiff.
In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported.
The court then reviewed how a duty was created and what the courts looked for in making that decision.
To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.
Whether or not a duty exists is a legal question to be determined by a court of law. A duty can arise if a special relationship exists between the parties or because of an “undertaking” of the defendant.
Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship.
So, the relationship alone between the plaintiff and GALLC was not enough to create a duty. However, the court did find a relationship because of GALLC’s attempt to create safety rules in the employee handbook for its customers.
However, even though there was no direct business-customer relationship, Plaintiff and GALLC, nevertheless, had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona’s case law as well as sections 323 and 324A of the Restatement (Second) of Torts.
The Restatement (Second) of Torts states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
The court found that GALLC undertook to render services, the creation of the employee handbook, which contained safety rules, which were necessary to protect the customers of Get Air Tucson. Plaintiff alleged in its complaint that GALLC failed to exercise reasonable care for the creation of the safety rules, thus creating liability.
GALLC, failing to exercise reasonable care in developing the safety rules increased the harm to Get Air Tucson’s’ customers, like the plaintiff.
Additionally, the failure to perform a duty, development of reasonable safety rules, which Get Air Tucson owed to its customers, created liability.
The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.
The court also found that there was a genuine issue of material fact because GALLC allegedly breached its duty to exercise reasonable care in the creation of the safety rules when the definition of a somersault which was used in the rules, and the definition was not clear. The issue was, did the actions of the plaintiff flipping constitute a somersault?
On top of that, when the manual or rules are not clear or are ignored, this creates greater liability on the companies involved.
Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, “as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults.
The court found GALLC was liable not because of its relationships between the parties, but because its actions constituted an independent undertaking that created a duty.
However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence.
So Now What?
Safety is always scary. How much do you write? If you don’t write enough, you don’t cover everything, and you could be found liable. If you write too much you don’t cover everything, and you are still found liable because either you did not cover the issue at hand, or you did not follow the rules you created.
You can’t follow the rules if the rules are too much to remember. You can’t handle an incident with a notebook in one hand trying to figure out what to do next.
Worse, you are a third party, and you inspect or write safety issues, and you are now liable to the customers of your customer who you were trying to protect. In Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry the defendant did an inspection of the property. The injured plaintiff argued the inspection was insufficient, and the defendant owed her a duty.
In this case the rules where insufficient, badly written, and seemingly not enforced, creating a duty to the injured plaintiff.
If you are an inspector or a rule writer, a third-party contractor hired to teach, inspect or write you had better to it correctly and completely. On top of that you better have a great liability insurance policy and contract with your client to protect you.
If you are a third-party contractor, expect to see more claims like this in the future.
What do you think? Leave a comment.
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Louisiana does not allow the use or releases. A trampoline park tried to use an assumption of risk agreement with an arbitration clause and liquidated damage’s clause which the LA Supreme Court found to be a contract of Adhesion.
Posted: March 26, 2018 Filed under: Louisiana | Tags: Adhesion Contract, Contract of Adhesion, Indoor Trampoline Park, Louisiana, Louisiana Supreme Court, Trampoline, Trampoline Park Leave a commentIf you are going to have check boxes, then every paragraph has to have check boxes.
Duhon v. Activelaf, LLC and Lloyds, London, 2016-0818 (La. 10/19/16); 2016 La. LEXIS 2089
State: Louisiana, Supreme Court of Louisiana
Plaintiff: James Duhon
Defendant: Activelaf, LLC, D/B/A Skyzone Lafayette and Underwriters at Lloyds, London
Plaintiff Claims: Negligence
Defendant Defenses: Mandatory Arbitration
Holding: for the Plaintiff
Year: 2016
Summary
Louisiana does not allow the use of a release so amusement and recreation businesses always scramble to find ways to protect themselves. However, you can go too far.
This trampoline park had an arbitration clause hidden in a paragraph. The Louisiana Supreme Court determined that made the agreement and adhesion contract and voided the agreement.
Facts
The plaintiff sued. The defendant filed a motion to require mandatory arbitration as required under the agreement. The trial court denied the motion, and the defendant appealed. The defendant appealed the trial court decision to the appellate court which upheld the mandatory arbitration clause. The plaintiff appealed, and the Supreme Court of Louisiana reversed the appellate court and held the arbitration clause was not enforceable.
Louisiana does not allow the use of a release. See States that do not Support the Use of a Release. Louisiana Civil Code Art. 2004 (2015) voids all releases.
The contract, as explained by the court, has terms that become important in this decision’s analysis. The contract included a video and photography release, allowed the defendant to email the signors, waives the signor’s right to sue, mandatory arbitration clause and a liquidated damage’s clause requiring the signor to pay the defendant $5,000 if the plaintiff sued.
Three paragraphs then had boxes next to them had that to be checked. The rest of the paragraphs did not.
The total issues of the agreement, the fact the important clauses were not identified, and only three paragraphs required check boxes were of issue before the court.
Analysis: making sense of the law based on these facts.
The court found that signing the agreement electronically did not mean anything.
As an initial matter, we note the electronic nature of the Agreement in this case is of no legal consequence and does not fundamentally change the principles of contract. Louisiana law gives legal effect to both electronic contracts and signatures. We interpret and analyze the terms of the Agreement using the same rules that we would apply to oral and written contracts.
Louisiana law, like federal law, favor arbitration clauses. Arbitration does not require on the court system, allows hiring of an agreeable arbiter by the parties, is much cheaper and much quicker than a trial.
The plaintiff argued the agreement in this case was adhesive. If a contract is found to be an adhesion contract, the contract is void. The court defined an adhesion contract as:
Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.
The court stated that just because a contract was a standard form contract does not immediately mean it was an adhesion contract. “Therefore, we are not willing to declare all standard form contracts adhesionary; rather, we find standard form serves merely as a possible indicator of adhesion.”
The court then looked at other cases and came up with the following test to determine if the arbitration clause in a contract was adhesionary. The court must look at:
(1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties.
The test is not a definitive test, but one that the court must use and apply to all arbitration clauses and evaluate each clause.
Using those four requirements the court looked at the clause in this agreement.
The first problem the court found was the arbitration clause was hidden in the agreement. There was no check box for the paragraph which contained the clause, no heading, no bold type, nothing to indicate there was an important clause in the paragraph.
However, the lack of distinguishing features and the specific placement of the arbitration clause serve to conceal the arbitration language from Sky Zone patrons. The Agreement is structured with check boxes next to the first three paragraphs, followed by five additional paragraphs without corresponding check boxes.
Additionally, the paragraph containing the arbitration clause contained several different legal points. Consequently, the court thought the arbitration clause was hidden in the agreement and difficult to find.
Thus, looking at the Agreement as a whole, the arbitration language appears to be the only specific provision not relegated to a separate paragraph or set apart in some explicit way. Here, the two-sentence provision mandating arbitration is camouflaged within the confines of an eleven-sentence paragraph, nine of which do not discuss arbitration. The effect of the placement of the arbitration language is to cloak it within a blanket of boilerplate language regarding rules and risks of participating in the Sky Zone activities.
Consequently, the court held the plaintiff did not consent to the arbitration clause.
The court then went on to find more issues with the agreement. The court found there was no mutuality in the arbitration clause. Meaning the plaintiff was bound to arbitrate and the defendants were not.
The court was also disturbed when it found a punitive provision which required an injured patron, if they sued, to pay the defendant $5,000.00 within sixty days of filing a lawsuit. The $5,000 would earn interest at 12% per year.
Even more troublesome in this case is the punitive provision compelling patrons to pay Sky Zone liquidated damages of $5,000 within sixty days should the patron file suit, with legal interest added at 12% per year. Sky Zone has no mutual obligation in the Agreement.
The court found the arbitration clause was adhesionary and unenforceable.
Considering the lack of mutuality together with the obscure placement of the arbitration language in the Agreement, and in comparison to the contract in Aguillard, we are compelled to find the arbitration clause in the Sky Zone Agreement is adhesionary and unenforceable.
The case could proceed to trial.
The decision had two short concurring decisions and one dissenting decision.
So Now What?
Here three items doomed the defendant. The first was the check boxes. Electronically, the check boxes do not provide the same problems as with a paper agreement. However, having three check boxes next to relatively unimportant clauses and no check boxes next to the clause at issue disturbed the court and found it an attempt to hide the arbitration clause from signors.
The second was the fact a major clause in a contract was hidden. It was mixed in a paragraph with other legal clauses and not pointed out as an important clause.
The third was the clause requiring the plaintiff to pay the defendant if they filed suit. Honestly, this one caught me off guard. There was no legal basis for it. Nothing was required by a party to do or not to do such as sue and lose. Filing a lawsuit was going to cost the plaintiff $5,000.
Arbitration clauses are good in those states that do not recognize a release. See States that do not Support the Use of a Release. You do not want to use an arbitration clause if you are in a state where releases are valid. Arbitration does not allow motions; you just go to a hearing. When you have the opportunity to win by using the release, the arbitration clause may set you up for a longer fight. Also, arbitrators are more than likely to split decisions, providing some benefit to both sides of the arbitration.
Many state laws encouraging arbitration clauses also limit the types of damages an arbitrator can award. Many do not allow an arbitrator to award punitive damages. If you are in a recreation industry where damages may be excessive, arbitration may provide a benefit.
A release allows you to win without having to pay the plaintiff anything. If you have a state that supports a release, use a release.
Arbitration clauses require more work than simply requiring arbitration. You need to define what type of arbitration, where and how the rules will be applied. You just can’t require it without knowing what you are getting yourself into.
For other cases looking at Louisiana law on releases and recreation see:
Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Articles looking at arbitration clauses in outdoor recreation.
What do you think? Leave a comment.
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The Idaho Supreme Court holds there is no relationship between signs posted on the side of the indoor trampoline park, and a duty owed to the injured plaintiff
Posted: April 24, 2017 Filed under: Idaho | Tags: Causation, Idaho Supreme Court, Indoor Trampoline Park, JumpTime, Proximate Cause, Trampoline Leave a commentThe Plaintiff in attempting to do a triple front flip broke his neck. Plaintiff argued that the manual of the indoor trampoline park, and the signs on the walls created a duty on the part of the employees of the defendant to stop him from doing the flips.
Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90
State: Idaho, Supreme Court of Idaho
Plaintiff: Seth Griffith
Defendant: Jumptime Meridian, LLC
Plaintiff Claims: Negligence
Defendant Defenses: No Causation
Holding: For the Defendant
Year: 2017
This is a sad case; the 17-year-old plaintiff was injured attempting front flips at the defendants’ indoor trampoline park. The plaintiff went there with his girlfriend and his girlfriend’s siblings. Eventually, the plaintiff ended up near a foam pit where you could land after attempting maneuvers on the trampoline. The pit was near where his girlfriend was located.
He had been performing several double flips successfully. At two different time’s employees of the defendant commented about his double flips. One said it was pretty cool and the other one said, “oh that was pretty sweet.” At no time, did anyone from the defendant admonished him to not to perform the flips he was doing. He was landing in the foam pit with his legs extended downward and on his butt, so he wouldn’t hit his face on his knees. Signs are on the wall said that the plaintiff could not land that way.
The plaintiff filed this complaint alleging that because he was under the age of 18, the defendant had a duty to supervise him. He could show that the defendant’s written policy manual instructed employees to enforce the rules written on the walls of the defendants trampoline park in several places.
The defendant moved for summary judgment alleging that there was no relationship between the duty allegedly owned to the plaintiff and the plaintiff’s accident. In proving negligence one must prove duty, a breach the duty, an injury, and the injury was proximately caused by the breach of the duty.
The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed to the Idaho Supreme Court. Idaho does not have an intermediate appellate court.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements under Idaho law to prove negligence.
The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.
The court then reviewed the actions of the plaintiff leading up to his injury. He did not tell anyone that is going to attempt to do the flip that caused his injury. Nor was any evidence introduced stating that the employee of the defendant could have or should have known that the plaintiff was going to do a triple flip. The plaintiff argued that he should be entitled to reasonable inference that if the defendant had enforced its rules when he was landing improperly, then he would have never attempted the triple flip.
…Plaintiff attempted the triple front flip. He did not tell anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”
However, the court did not buy that argument. The court did find that there was no evidence that landing on your back was more dangerous than landing any other way. The plaintiff even testified that he felt safer to land the way he was because it avoided the risk of hitting his face of his knees.
Nor could the plaintiff prove or produce any evidence that he would’ve changed his actions if he had been admonished by an employee. Nothing in the record of the depositions of the plaintiff remotely suggested that idea.
The court simply held that there was no way the defendant could be responsible for the accident giving rise to his injury because it was solely the decision of the injured plaintiff.
Plaintiff’s testimony does not support an inference that JumpTime was in any way responsible for his decision to try the triple front flip. Therefore, the district court did not err in granting summary judgment to JumpTime based upon the lack of evidence regarding causation.
So Now What?
Honestly, it takes a tough court to look at an injured plaintiff, possibly one wheelchair, and not want to award him some damages for his injuries. However, in this case the action of the plaintiff was such a stretch in trying to tie in his injury to something that the defendant had done.
What was of interest in this case was one of the arguments the plaintiff made saying that the signs on the wall describing to the patrons of the defendant how to land in the foam pit established a standard of care that was the defendant’s employee’s duty to monitor and enforce.
In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip.
Thankfully, the court did not buy this argument. It is a fine line we walk when we’re trying to train young employees and having them work with even younger patrons to keep safe. You write the rules, tell the employees to enforce the rules, but in some cases there is no way that you can guess what a patron is going to do. Here the plaintiff expected the defendant to guess what his actions would be and the court would not accept that.
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