DAVID JOHNSON VS. SKY ZONE INDOOR TRAMPOLINE PARK IN SPRINGFIELD (L-5446-20, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 6, 2021
• Docket: A-2489-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2489-20

DAVID JOHNSON, an infant by his guardian ad litem, SHALONDA JOHNSON, and SHALONDA JOHNSON, individually,

Plaintiffs-Appellants, v.

SKY ZONE INDOOR TRAMPOLINE PARK IN SPRINGFIELD, SKY ZONE, LLC, SKY ZONE FRANCHISE GROUP, LLC, and GO AHEAD AND JUMP 4, LLC,

Defendants-Respondents. __________________________

Argued November 10, 2021 – Decided December 6, 2021

Before Judges Fuentes, Gilson, and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5446-20. Edward M. Colligan argued the cause for appellants (Colligan & Colligan attorneys; Edward M. Colligan, on the brief).

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

PER CURIAM

David Johnson, a child under the age of eighteen, was injured while

visiting a trampoline park owned and operated by Sky Zone, LLC, Sky Zone

Franchise Group, LLC and Go Ahead and Jump 4, LLC (collectively, Park or

defendants). Shalonda Johnson, individually and as guardian ad litem of her

minor son (collectively, plaintiffs),1 filed a civil action against defendants in the

Superior Court, Law Division, in Union County, seeking compensatory

damages. In lieu of filing a responsive pleading, defendants moved before the

Law Division to enforce an arbitration clause contained in an electronic

document Johnson signed as a condition of being permitted to enter the Park.

After considering the arguments of counsel and the exhibits submitted, the Law

Division judge assigned to the case granted defendants' motion to enforce the

1 In the interest of clarity, we will occasionally also refer to plaintiffs by their names; we will refer to the child by his first name and his mother by her last name. No disrespect is intended. A-2489-20 2 arbitration clause and dismissed the case with prejudice in an order entered on

March 24, 2021.

In this appeal, plaintiffs argue the arbitration clause contained in this

electronic general liability release contract is unenforceable. After reviewing

the record presented to the Law Division judge, we affirm the part of the order

enforcing the arbitration clause, vacate the dismissal of plaintiffs' complaint

with prejudice, and remand for the court to stay judicial proceedings related to

this case pending the outcome of the arbitration.2

I.

A.

On July 14, 2018, ten-year-old David and his mother visited the Park.

Before they were permitted entry, however, a Park employee apprised Johnson

she was required to sign a "Participation Agreement, Release and Assumption

of Risk" (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs

again visited the Park and, while jumping on a trampoline, David seriously

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

A-2489-20 3 injured his leg.3 The appellate record did not include evidence of whether

Johnson executed a second waiver.

The Agreement contains a general release provision "intended to release

and provide other benefits, legal protections and consideration" to defendants.

For example, it contains an "acknowledgement of potential injuries" provision,

which places patrons on notice that "participating in trampoline and other

activities is inherently and obviously dangerous." The Agreement also includes

a "voluntary assumption of risk acknowledgment" provision, which informs

patrons that they "are participating voluntarily at [their] own risk" and could

suffer "significant bodily injuries" or "die or become paralyzed, partially or

fully, through their use of the Sky Zone facility and participation in Sky Zone

activities."

Finally, the Agreement contains a "release of liability" section, which

requires patrons to "forever, irrevocably and unconditionally release, waive,

relinquish, discharge from liability and covenant not to sue [Sky Zone]" for

any and all claims . . . of whatever kind or nature, in law, equity or otherwise, . . . related to or arising, directly or indirectly, from [their] access to and/or use of the Sky Zone [f]acility, . . . including, without

3 In a certification submitted to the motion judge, Johnson averred the injury damaged "the growth plate in my son’s leg . . . and his leg did not continue to grow properly. He has undergone surgery to shorten the opposite leg and may need additional treatment in the future." A-2489-20 4 limitation, any claim for negligence, failure to warn or other omission, . . . personal injury, . . . [or] bodily harm . . . .

The enforceability of these exculpatory provisions are not part of this

appeal. We express no opinion as to whether these exculpatory provisions are

enforceable under our State's common law, as expressed by our Supreme Court

in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), and Hojnowski v. Vans

Skate Park, 187 N.J. 323 (2006).

The dispositive issue in this appeal concerns the enforceability of t he

section in the Agreement entitled, in part, "arbitration of disputes." The

Agreement is presented to the patrons at a kiosk in the form of an electronic

document. The patrons are expected to read it and acknowledge their consent

to be bound by the terms contained therein by placing an electronic "checkmark"

and entering certain personally identifying information. Defendants argue

David's mother placed an electronic checkmark where indicated, and thus

acknowledged she understood and agreed "to arbitrate any dispute as set forth

in this section" and waived "[her] right, and the right(s) of [her] minor child(ren)

. . . to maintain a lawsuit against [defendants] . . . for any and all claims covered

by this Agreement."

A-2489-20 5 This section also provides the following recitation of the rights plaintiffs

agreed to waive as a precondition to enter the Park and participate in the

activities available therein:

By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. Reciprocally, [the Sky Zone defendants] waive their right to maintain a lawsuit against [plaintiff] . . . for any and all claims covered by this [a]greement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD'S ACCESS TO AND/OR USE OF THE SKY ZONE PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE BROUGHT WITHIN ONE YEAR OF ITS ACCRUAL (i.e., the date of the alleged injury) FOR AN ADULT AND WITHIN THE APPLICABLE STATUTE OF LIMITATIONS FOR A MINOR AND BE DETERMINED BY ARBITRATION IN THE COUNTY OF THE SKY ZONE FACILITY . . . BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY [JUDICIAL ARBITRATION AND MEDIATION SERVICES (JAMS)] PURSUANT TO ITS RULE 16.1 EXPEDITED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF

A-2489-20 6 APPROPRIATE JURISDICTION. This [a]greement shall be governed by, construed and interpreted in accordance with the laws of the State of New Jersey, without regard to choice of law principles. Notwithstanding the provision with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this [a]greement shall be governed by the Federal Arbitration Act (9 U.S.C., Sec. 1-16). I understand and acknowledge that the JAMS Arbitration Rules to which I agree are available online for my review at jamsadr.com, and include JAMS Comprehensive Arbitration Rules & Procedures; Rule 16.1 Expedited Procedures; and, Policy On Consumer Minimum Standards Of Procedural Fairness.

[(Emphasis in original).]

The Agreement also contained a merger and a severability clause, in

which Johnson acknowledged: "I have had sufficient opportunity to read this

entire document. I have read and understood and voluntarily agree to be bound

by its terms." The clause further provided:

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

A-2489-20 7 B.

Plaintiffs filed their personal injury complaint against defendants on

August 13, 2020. The Law Division entered default against defendants on

December 28, 2020, for failure to file a timely responsive pleading. On

January 8, 2021, defendants' counsel notified plaintiffs' counsel he intended to

file a motion to dismiss the complaint in lieu of an answer pursuant to

Rule 4:6-2(e), based on plaintiffs' failure to state a claim upon which relief may

be granted. The attorneys thereafter entered into a Consent Agreement, stating

in relevant part:

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

[(Strikethrough in original).]

Plaintiff's counsel unilaterally struck "or Otherwise Plead" from the

Consent Order. On February 2, 2021, the Law Division accepted the Consent

Agreement and vacated the default. Defendants moved to dismiss the complaint

and compel arbitration on January 30, 2021. Defendants' motion came for oral

argument before the Law Division on March 24, 2021. Plaintiffs' counsel argued

the arbitration clause presented to Johnson was unenforceable based on both the

A-2489-20 8 obscure, technical language used in the document, and by presenting it as part

of an electronic document in a kiosk located outside the Park's entrance.

Plaintiff's counsel also emphasized the circumstances under which Johnson

allegedly waived her son's constitutional right to a jury trial: "[M]y client went

in July [2018] to be a guest at a birthday party. The . . . defense . . . alleges that

she signed this Agreement at that time and at that time, they’re saying that she

signed an agreement that was good forever."

In response, defense counsel argued Johnson did a great deal more than

merely place a checkmark on a section of an electronic document. "We don’t

just have the electronic signatures. We have her name, her address, her phone

number, her date of birth . . . it’s not merely that you have [Janay's] certification.

You have identifiers that Skyzone would not have gotten without the plaintiff."

The reference made by defense counsel to "Janay's certification" relates to

Michael Janay, the Managing Member of defendant Go Ahead and Jump 4,

LLC., who averred:

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

A-2489-20 9 . . . [A]ll patrons who enter the Park are required to provide a valid email address when electronically signing the Participation Agreement.

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

....

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

After considering the arguments of counsel, the motion judge granted

defendants' motion on March 24, 2021. The judge explained the basis of his

decision in a Statement of Reasons attached to the order.

II.

Against this factual backdrop, plaintiffs argue the arbitration agreement is

ambiguous and unenforceable as a matter of law. We reject these arguments and

affirm the part of the Law Division's Order upholding the enforceability of the

arbitration clause. Because the Law Division's decision to enforce this

arbitration provision is purely a question of law, our standard of review is de

A-2489-20 10 novo. Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020); see also

Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019)

("Whether a contractual arbitration provision is enforceable is a question of law,

and we need not defer to the interpretative analysis of the trial . . . court[] unless

we find it persuasive.").

As a matter of public policy, our Supreme Court has upheld arbitration as

a "favored means of dispute resolution." Hojnowski, 187 N.J. at 342. The Court

has consistently endorsed a "strong preference to enforce arbitration agreements,

both at the state and federal level." Hirsch v. Amper Fin. Servs., LLC, 215 N.J.

174, 186 (2013). In determining whether a valid agreement to arbitrate exists,

we will apply "state contract-law principles." Hojnowski, 187 N.J. at 342.

Guided by these principles, "[a]n arbitration agreement is valid only if the

parties intended to arbitrate because parties are not required 'to arbitrate when

they have not agreed to do so.'" Kernahan, 236 N.J. at 317 (quoting Volt Info.

Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478

(1989)).

Mutuality of assent is the hallmark of an enforceable contract. Thus, the

initial inquiry is whether the parties actually and knowingly agreed to arbitrate

their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration

provision must be "sufficiently clear to place a consumer on notice that he or

A-2489-20 11 she is waiving a constitutional or statutory right . . . ." Atalese v. U.S. Legal

Servs. Grp., L.P., 219 N.J. 430, 443 (2014). "No particular form of words is

necessary to accomplish a clear and unambiguous waiver of rights." Id. at 444.

If, "at least in some general and sufficiently broad way," the language of the

clause conveys arbitration is a waiver of the right to bring suit in a judicial

forum, the clause will be enforced. Id. at 447. "The key . . . is clarity." Barr v.

Bishop Rosen & Co., 442 N.J. Super. 599, 607 (App. Div. 2015).

Here, plaintiffs claim the arbitration clause is ambiguous and therefore

unenforceable because it contains "void, inaccurate, misleading and ambiguous

language . . . ." and "confusing lower[-]case passages and all upper[-]case bold

passages." Plaintiffs argue Hojnowski, 187 N.J. at 327, "prohibits a parent of a

minor child from releasing the child's potential tort claims arising out of the use

of a commercial recreational facility." According to plaintiffs, JAMS, the

named forum in the arbitration provision, is "not permitted to conduct arbitration

in New Jersey" and thus the agreement should fail. We disagree.

The language in the arbitration clause states plaintiffs were "agreeing to

arbitrate any dispute as set forth in this section" and were "waiving [their]

right . . . to maintain a lawsuit." It sets forth, "[b]y agreeing to arbitrate,

[plaintiffs] understand that [they] will NOT have the right to have [their]

claim[s] determined by a jury." This language clearly and unambiguously puts

A-2489-20 12 plaintiffs on notice that they are waiving the right to a jury trial and the right to

pursue their claims in a court of law. This part of the Agreement is therefore

enforceable. See Flanzman, 244 N.J. at 137-38 (citing Atalese, 219 N.J. at 444-

45).

Plaintiffs' reliance on Hojnowski is misplaced. Writing for a unanimous

Court, then Justice Zazzali4 made clear "permitting arbitration of a minor's

claims is consistent with New Jersey case law discussing the enforceability of

arbitration agreements that affect the rights of children." 187 N.J. at 343. Here,

plaintiff's mother signed the Agreement that included an arbitration clause.

The unavailability of JAMS does not render the arbitration clause

unenforceable. Although the parties agree JAMS is not available to arbitrate

this case, the Agreement contains a severability clause that states: "If any term

or provision of this [agreement] shall be held illegal, unenforceable, or in

conflict with any law governing this [agreement] the validity of the remaining

portions shall not be affected thereby." Severability clauses "are indicative of

the parties' intent that the agreement as a whole survives the excision of an

4 In October 2006, Governor Jon Corzine appointed Justice Zazzali to succeed Deborah T. Poritz as Chief Justice. Chief Justice Zazzali served in this capacity until June 17, 2007, when he reached the mandatory retirement age for all members of the New Jersey Judiciary. A-2489-20 13 unenforceable provision." Arafa v. Health Express Corp., 243 N.J. 147, 169 n.2

(2020). As the Supreme Court explained in Flanzman:

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

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

[244 N.J. at 139.]

The arbitration clause at issue here must be interpreted in accordance with

New Jersey law and the Federal Arbitration Act (FAA). The FAA and the NJAA

provide for a court-appointed arbitrator if the designated arbitrator is

unavailable. Id. at 141. The arbitration clause enables the parties to seek from

a court "provisional remedies in aid of arbitration." The language in the

Agreement does not show the parties intended to forego arbitration if JAMS is

unavailable. The designation of JAMS was not integral to the enforcement of

A-2489-20 14 the arbitration clause. Thus, the unavailability of JAMS does not invalidate the

arbitration clause.

We next address plaintiffs' arguments attacking the enforcement of the

arbitration clause based on the doctrines of procedural and substantive

unconscionability. In essence, plaintiffs argue requiring Johnson to read and

sign an ambiguous contract of adhesion immediately before a birthday party left

her with no other choice but to assent. Our Supreme Court has described the

factors that constitute the doctrines of procedural and substantive

unconscionability:

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

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

A-2489-20 15 [Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40 (2006) (internal citations omitted) (quoting Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 356 (1992)).]

Here, plaintiffs merely recycle their arguments relying on the Agreement's

alleged ambiguity without applying or analyzing the factors established by the

Court in Delta Funding. We discern no basis, in fact or in law, to conclude this

arbitration provision is substantively unconscionable. Finally, plaintiffs'

allegations that defendants acted intentionally and recklessly have no basis in

fact and are not worthy of further comment by this court. Plaintiffs' remaining

argument lack sufficient merit to warrant discussion in a written decision. R.

2:11-3(e)(1)(E).

The order of the Law Division upholding the enforceability of defendants'

arbitration clause is affirmed. However, we vacate the part of the order that

dismisses plaintiffs' complaint with prejudice and remand the matter to the Law

Division to stay any judicial proceedings related to this case pending the

outcome of the arbitration. GMAC, 205 N.J. at 584 n.7; N.J.S.A. 2A:23B-7(g).

Affirmed in part, reversed in part, and remanded consistent with this

opinion. We do not retain jurisdiction.

A-2489-20 16