Defense Digest

Liability Releases For Minors In New Jersey - Arbitration As An Alternative To A Release

In a case of first impression in New Jersey, the Appellate Division in Hojnowski v. Vans Skate Park, 375 N.J. Super. 568 (2005), held that a pre-injury liability release signed by a parent on behalf of their child was enforceable as to the agreement to arbitrate claims. This decision has very compelling implications for New Jersey businesses that provide a forum for minors to engage in sporting or other amusement activities that may be deemed hazardous, such as skate parks and off-road vehicle parks.

The Hojnowski case involved a minor, Andrew Hojnowski, age 12, who was injured at Vans Skate Park. The minor wanted to use the skate park, and as required by the Park, his mother executed a release on his behalf. This release waived Andrew Hojnowski's right to sue the skate park if he sustained injuries while using the park, unless his injuries were caused by intentional conduct of the Park or its employees. The release also contained a provision subjecting all claims to AAA arbitration. The document acknowledged and described the inherent risks involved in skateboarding, in-line skating, and bicycle riding. As the Hojnowski Court noted, Andrew's mother presumably read the document in full and signed it on Andrew's behalf. Several days later, Andrew fractured his femur while skateboarding at the skate park. The Hojnowski's subsequently filed a lawsuit in the New Jersey Superior Court, on Andrew's behalf, claiming negligence by the skate park facility operator. The trial court dismissed the case in Superior Court and found that the parties must resolve their claims via arbitration. The plaintiffs appealed. The two issues before the Appellate Division were:

Arbitration

The appellate court found that the arbitration provision was enforceable, relying on the existing public policy that encouraged arbitration. Thus, this appellate decision is a signal to skate park operators and other similar business owners to use an arbitration provision in lieu of a release to limit their liability as to minor patrons. Arbitration is highly favored in New Jersey, and it provides a less expensive and more efficient means of resolving claims. Business owners may also be able to expect lower awards to plaintiffs by putting the case in the hands of a neutral, experienced attorney rather than a jury of lay people, who may issue an award based more on sympathy to a child than the propriety of the award.

Release of Liability

Despite finding the arbitration provision enforceable, the release of liability was found to be unenforceable, although both provisions were in a document signed by Mrs. Hojnowski, rather than Andrew.

In ruling that the pre-tort liability release signed by Andrew's mother was not enforceable, the court relied partially on prior decisions of the court, which have held that a parent may not release an existing claim belonging to the child and the settlement of such claim is subject to approval by a court. For example, if a child is hurt and then his parents bring litigation on his behalf, a parent must get court approval to settle with the defendant in the case, in the form of a friendly hearing. According to the Hojnowski majority, the purpose of this rule is to guard a minor against an improper compromise of his rights. The court also stated that, although a parent has a right to permit a child to engage in activities that are accompanied by an inherent risk, they should not, at the same time, be able to waive the child's claim based on negligence.

The court may have found the release unenforceable, more so due to its broad language rather than the other concerns they discuss. The court thought that the broad and "far-reaching" release essentially eliminated liability for anything other than intentional conduct so that the park could not be held liable for negligence.

The case had a strong dissent by one of the judges of the Appellate Division. The dissenting judge took the position that the majority opinion conflicts with a parent's right under the Due Process Clause of the U.S. Constitution to make decisions regarding their child's upbringing. The decision is also troubling when considering that parents have the right to contract on behalf of their children in numerous other contexts. This decision could lead to a slippery slope of limiting a parent's rights to enter into contracts for their children and, thus, limiting a multitude of options, services, or benefits available to children through their parents. As the dissent points out, although New Jersey holds that parents cannot release existing claims, there are different considerations at play where a tort has already been committed. Parents may have medical bills to pay or need money otherwise and will seek to settle quickly for financial reasons. In the case of a pre-tort release, there is no such imminent financial stress. Parents can read a pre-tort release, understand it, and decide if they want to sign it to allow their child to participate in that particular activity.

The New Jersey Supreme Court has granted certification for appeal on this matter. As it stands now, this decision is the law of the land until the New Jersey Supreme Court comes to its own conclusion. STAY TUNED….

*Deirdre is an associate in our Cherry Hill, NJ Office and can be reached at dcollins@mdwcg.com or (856) 414-6035.