NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1062-12T3
JAMES F. WALTERS,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
August 18, 2014 v. APPELLATE DIVISION YMCA,
Defendant-Respondent.
______________________________________
Argued January 29, 2014 – Decided August 18, 2014
Before Judges Fuentes, Fasciale and Haas.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L- 2830-12.
John J. Pisano argued the cause for appellant.
William T. Hilliard argued the cause for respondent (Sweet Pasquarelli, attorneys; Josephine M. DiCosmo, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff James F. Walters appeals from the order of the
Law Division dismissing his personal injury cause of action
against defendant YMCA. Applying the Supreme Court's holding in
Stelluti v. Casapenn Enters., Inc., 203 N.J. 286 (2010), the trial court granted defendant's motion for summary judgment
based on an exculpatory clause in the membership agreement
signed by plaintiff as a condition of accessing defendant's
facilities and using its physical exercise equipment.
Plaintiff argues the trial court erred in construing the
exculpatory clause as a bar to his cause of action because his
accident was caused by a negligently maintained stair tread.
According to plaintiff, the basis of his cause of action is
predicated on the ordinary common law duty of care owed by all
business operators to its invitees, and thus it is completely
unrelated to the inherent risky nature of the activities offered
by health clubs.
Defendant argues the "hold harmless" provision in the
membership agreement plaintiff voluntarily signed is a
reasonable condition commonly imposed on all those who wish to
engage in sports and related physical activities. According to
defendant, the accident and resulting injuries are entirely
foreseeable consequences given the nature of the activities and
facilities offered, including a swimming pool. Defendant argues
the trial court correctly concluded that the accident fell well
within the scope of the exculpatory clause.
The motion judge concluded the Supreme Court's holding in
Stelluti was dispositive of the legal issues raised in this
2 A-1062-12T3 case. The judge found plaintiff was contractually barred from
seeking compensatory damages against defendant based on a claim
of ordinary negligence. The judge rejected plaintiff's argument
seeking to limit the scope of the Court's holding in Stelluti to
apply only to claims based on engaging in the kind of risky
activities offered by health clubs. Although plaintiff was not
engaged in any physical exercise when he slipped and fell on the
steps that led to the indoor pool, the judge found the pool area
was "just another type of equipment that is being offered by the
health club."
I
We disagree with the motion judge and reverse. A close
reading of Justice LaVecchia's analysis in Stelluti reveals that
the Court's holding was grounded on the recognition that health
clubs, like defendant, are engaged in a business that offers its
members the use of physical fitness equipment and a place to
engage in strenuous physical activities that involve an inherent
risk of injury. The Court upheld the defendant's limited
exculpatory clause in Stelluti because the injury sustained was
foreseeable as an inherent aspect of the nature of the business
activity of health clubs.
As Justice LaVecchia clearly explained on behalf of a
majority of the Court:
3 A-1062-12T3 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 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 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.
[Stelluti, supra, 203 N.J. at 312-313 (emphasis added).]
Indeed, the legal question presented by this case, whether
a fitness center or health club can insulate itself through an
exculpatory clause from the ordinary common law duty of care
owed by all businesses to its invitees, was specifically not
addressed or decided by the Court in Stelluti. We again quote
directly Justice LaVecchia's emphatic, cautionary language
addressing this issue:
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
4 A-1062-12T3 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 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 [the defendant]'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 [the defendant] and Stelluti enforceable as to the injury Stelluti sustained when riding the spin bike.
[Id. at 313 (emphasis added).]
Here, defendant submitted to the trial court a "Statement
of Material Facts" in support of its motion for summary
judgment. Paragraph three alleges plaintiff was injured when
"he slipped on the steps leading from the pool." (Emphasis
added). In response, plaintiff stipulated to this allegation,
but added a reference to a photograph that, in his view,
depicted "that the stair treads on defendant's stairs
incorporated slip resistant rubber on all stairs, but for the
bottom stair where same evidently was cut off due to wear,
thereby creating a non-slip resistant tread surface." The
"stairs" referred to by plaintiff led to an indoor pool in
defendant's facility in Newark.
5 A-1062-12T3 At the time the accident occurred, plaintiff had been a
member of this YMCA for over three years. The continuous health
membership agreement he signed contains the following
exculpatory or "hold harmless" provision, which we recite as
written in the agreement, using all capital letters:
I AGREE THAT THE YMWCA WILL NOT BE RESPONSIBLE FOR ANY PERSONAL INJURIES OR LOSSES SUSTAINED BY ME WHILE ON ANY YMWCA PREMISES OR AS A RESULT OF A YMWCA SPONSORED ACTIVITIES [SIC]. I FURTHER AGREE TO INDEMNIFY AND SAVE HARMLESS THE YMWCA FROM ANY CLAIMS OR DEMANDS ARISING OUT OF ANY SUCH INJURIES OR LOSSES.
II
We review a motion seeking summary judgment using the same
standard used by the trial judge. Bhagat v. Bharat A. Bhagat &
Cranbury Hotels, LLC, 217 N.J. 22, 38 (2014). We must
determine, based on the competent evidential materials submitted
by the parties, whether there are genuine issues of material
fact and, if not, whether the moving party is entitled to
summary judgment as a matter of law. Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Based
on our review of the record, we are satisfied there are no
6 A-1062-12T3 material issues of fact in dispute, and the case is ripe for
disposition as a matter of law.1
The plaintiff in Stelluti, supra, was injured when the
handlebars of her stationary bike dislodged and caused her to
fall during a spinning class at a private fitness center. 203
N.J. at 291. The inherently risky nature of this type of
physical activity was the key consideration the Court found to
justify enforcing the exculpatory clause at issue. Id. at 312-
313.
Here, plaintiff's accident and resulting injuries occurred
when plaintiff slipped on a step and fell, as he walked to
defendant's indoor pool. Plaintiff did not injure himself while
swimming in the pool or using any physical fitness equipment.
The type of accident involved here could have occurred in any
business setting. The inherently risky nature of defendant's
activities as a physical fitness club was immaterial to this
accident. Stated in the vernacular of the personal injury bar,
this is a "garden variety slip and fall case."
1 At this point, we must note that plaintiff's appellate brief failed to present the salient facts of this case in compliance with the rules of appellate practice. We were thus compelled to conduct our own independent review of the record to ascertain the facts that established the basis of plaintiff's claim. We will address counsel's deficiency in more detail after we complete our analysis of the issues raised by the parties in this appeal.
7 A-1062-12T3 Under these circumstances, plaintiff argues here, as he did
at the trial level, that defendant should be held liable to
compensate him for his injuries pursuant to the common law duty
all business owners owe to its invitees. Our colleague Judge
Sabatino aptly described that duty of care in the Appellate
Division's decision in Stelluti v. Casapenn Enters., 408 N.J.
Super. 435, 446 (App. Div. 2009), aff'd, 203 N.J. 286 (2010):
In general, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, (2003). This duty of care flows from the notion that "business owners 'are in the best position to control the risk of harm.'" Hojnowski v. Vans Skate Park, 187 N.J. 323, 335 (2006) (quoting Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 517 (1997) (citations omitted)); see also Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 447 (1993).
We are thus compelled to address and answer the question
the Supreme Court intentionally left unanswered in Stelluti, to
wit: whether an exculpatory clause that insulates a physical
fitness club, like defendant, from liability "for any personal
injuries or losses sustained by [a member] while on any [of the
club's] premises" is enforceable when the accident and resulting
injuries sustained by the member/invitee was not caused by or
related to an inherently risky physical fitness activity. In
8 A-1062-12T3 answering this question, we will apply the same standards the
Supreme Court applied in Stelluti.
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."
[Stelluti, supra, 203 N.J. at 298 (quoting Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 248 (App. Div. 2004)).]
Applying the Gershon factors, we emphasize "that business
establishments in New Jersey have well-established duties of
care to patrons that come upon their premises." Stelluti,
supra, 408 N.J. Super. at 455 (citing Cardona v. Eden Realty
Co., 118 N.J. Super. 381 (App. Div.), certif. denied, 60 N.J.
354 (1972) (finding an exculpatory clause, which attempted to
immunize a residential landlord from negligence contrary to
public policy); Kuzmiak v. Brookchester, Inc., 33 N.J. Super.
575, 580-88 (App. Div. 1955) (nullifying a similar exculpatory
provision in an apartment lease)).
We will examine the provisions of this exculpatory clause
in defendant's agreement giving due deference to the freedom to
contract and the right of competent adults to bind themselves as
they see fit. Stelluti, supra, 203 N.J. at 302-303. However,
9 A-1062-12T3 we are mindful that exculpatory agreements "have historically
been disfavored in law and thus have been subjected to close
judicial scrutiny." Id. at 303. Any ambiguities in language
about the scope of an exculpatory agreement's coverage, or
doubts about its enforceability, should be resolved in favor of
holding a tortfeasor accountable. "The law does not favor
exculpatory agreements because they encourage a lack of care."
Gershon, supra, 368 N.J. Super. at 247; see also Hojnowski,
supra, 187 N.J. at 333.
Judge Sabatino noted in the Appellate Division version of
Stelluti, supra, that an exculpatory clause construed
to its outermost limits of protection . . . [would preclude] literally any and all claims or causes of action[.] [Such a prospect] threatens an adverse impact upon the public interest. As we have already noted, business establishments in New Jersey have well-established duties of care to patrons that come upon their premises. An unbounded waiver of liability unjustifiably eviscerates those protections for business invitees.
[408 N.J. Super. at 455 (internal quotations omitted).]
Given the expansive scope of the exculpatory clause here,
we hold that if applied literally, it would eviscerate the
common law duty of care owed by defendant to its invitees,
regardless of the nature of the business activity involved.
Such a prospect would be inimical to the public interest because
10 A-1062-12T3 it would transfer the redress of civil wrongs from the
responsible tortfeasor to either the innocent injured party or
to society at large, in the form of taxpayer-supported
institutions. This directly addresses and responds to factors
one and two under Gershon, supra, 368 N.J. Super. at 248.2
The "Waiver and Release Form" in Stelluti, supra, included
a relatively lengthy narrative explanation of the inherent risk
of being seriously injured while engaging in strenuous physical
exercise. 203 N.J. at 293. Here, the exculpatory clause,
although far more brief in language, is considerably more
legally expansive in the scope of activity defendant sought to
insulate from civil liability. By signing the membership
agreement, plaintiff purportedly agreed to hold defendant
harmless "for any personal injuries or losses sustained by me
while on any YMCA premises or as a result of a YMCA sponsored
activities." The key word here is the disjunction "or," which
expands the scope of the exculpatory clause to include injuries
2 In the interest of clarity, our analysis and ultimate legal conclusion are predicated on the facts of this case. Echoing the cautionary message sent by Justice LaVecchia in Stelluti, we do not hold here that all business operators are precluded from contractually bargaining away their common law duty owed to invitees to provide a reasonably safe environment for doing that which is in the scope of the invitation. Every case in which one party seeks to enforce contractually bargained-for exculpatory protection from a certain kind of liability must be examined and decided based on the particular circumstances of the case.
11 A-1062-12T3 resulting "while on the premises" or as a result of
participating in defendant's "sponsored activities."
We reasonably assume the agreement, especially the
exculpatory clause, signed by plaintiff is a contract of
adhesion, thus meeting the final relevant factor under Gershon,
supra, 368 N.J. Super. at 248. As the Court did in Stelluti,
supra, we recognize that "[w]hen a party enters into a signed,
written contract, that party is presumed to understand and
assent to its terms, unless fraudulent conduct is suspected."
203 N.J. at 305. However, all contracts are subject to judicial
scrutiny to determine their enforceability. Here, defendant
seeks to shield itself from all civil liability, based on a one-
sided contractual arrangement that offers no countervailing or
redeeming societal value. Such a contract must be declared
unenforceable as against public policy.
Finally, defendant also argues that swimming in the pool is
a "sponsored activity," and therefore an accident resulting from
slipping on the steps leading into the pool is also covered
under the "activities" part of the clause. Such an
interpretation ignores the cause of this accident. Plaintiff
was not injured using the pool. Thus, based on the record
before us, we conclude the language in defendant's exculpatory
12 A-1062-12T3 clause is void and unenforceable as against public policy for
the reasons expressed here.
III
Unfortunately, we cannot complete our task as appellate
judges without noting appellant's counsel's complete disregard
of Rule 2:6-2(a)(4), which describes in detail how an
appellant's brief must present the facts of the case. A brief
must include
A concise statement of the facts material to the issues on appeal supported by references to the appendix and transcript. The statement shall be in the form of a narrative chronological summary incorporating all pertinent evidence and shall not be a summary of all of the evidence adduced at trial, witness by witness.
[Ibid. (Emphasis added).]
In utter disregard of these precisely worded instructions,
plaintiff's appellate brief contained the following information
under the heading "STATEMENT OF FACTS":
As indicated in plaintiff's answers to interrogatories (Pa10-12), on 3/21/12 plaintiff slipped and fell due to a defective stair riser at defendant's premise. Attached please find medical records documenting plaintiff's injuries as follows:
1. 03/23/12 UMDNJ left knee surgical records (Pa47-48)
2. Left knee Scar photograph (Pa49)
13 A-1062-12T3 We take the time to note these deficiencies not out of some
eccentric compulsion or fastidious need to enforce procedural
formalities. Failure by an attorney to clearly and accurately
narrate the salient facts of a case, followed by a precise
citation to the page number in the appendix or transcript,
needlessly increases the amount of time and effort required to
familiarize ourselves with the appellate record. This also
shows a lack of professional respect, not only to the court, but
to the legal profession itself. Some may say this kind of
professional shoddiness is an unfortunate byproduct of our
times. This not the case. As our colleagues aptly observed
thirty-seven years ago:
[Rule] 2:6-2, prescribing the contents of an appellant's brief, is not without purpose. A conforming brief will give this court the full benefit of counsel's knowledge of the case. Material deficiencies, such as those encountered in appellant's brief, require this court to consume time in an effort to guess at the essential nature of the controversy from the testimony which gave rise to it, instead of devoting its necessarily limited time to determining how the issues properly raised should be resolved. Besides being an imposition on this court, such deficiencies are patently unfair to other litigants whose equally legitimate demands on the court's time are presented in a manner conforming in all respects to the requirements of the rules.
[Miraph Enters., Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J. Super. 504, 508 (App. Div. 1977) (emphasis added.)]
14 A-1062-12T3 Our colleagues also noted that "[l]ack of familiarity with
appellate court procedures is no excuse. R[ule] 2:6-2 is clear
and unambiguous in its requirements. Attorneys who rarely
appear in this court need only consult this rule to determine
what is required. The brief herein shows a flagrant disregard of
the minimum rule requirement." Ibid. Our sentiment in Miraph
Enters., was approvingly cited and the indignation expressed
therein adopted by our Supreme Court in In re Haft, 98 N.J. 1, 8
(1984).
The attorney in Miraph Enters., supra, was sanctioned under
Rule 2:9-9 in the form of a $100 fine "to be paid personally and
not billed to his client." 150 N.J. Super. at 508. In
determining the severity of this monetary sanction, we emphasize
this opinion was published in 1977. Our colleagues nevertheless
noted:
We recognize that the modest fine imposed provides an inadequate response to the serious violation of rule requirements; its imposition and payment will, we earnestly hope, be viewed as evidence of the refusal of this court to tolerate similar infractions of the rule which, in the future, may not be disposed of with such financial leniency.
Adjusting for inflation for the past thirty-seven years, we
estimate the comparable value in 2014 would be approximately
15 A-1062-12T3 $400. We seriously considered imposing such a sanction here for
the same policy reason of deterrence our colleagues expressed in
Miraph Enters. We nevertheless opt to forgo this option, hoping
the strongly worded message we deliver here will produce the
same deterrent effect.
All judges were lawyers for at least ten years before
accepting this great responsibility. N.J. Const. art. VI, § 6,
¶ 2. No matter how long we have held this Constitutional
office, none of us ever forget how hard we worked when we
practiced law, the emotional toll our career exacted on us
personally and on our loved ones, and the economic pressure
involved in managing the business side of a law office.
However, both lawyers and judges have a common obligation to
discharge the respective responsibilities of our office, ever
mindful of our ethical duty to uphold the highest possible
standards of the legal profession. The kind of shoddy work
presented by appellant's counsel here diminishes our profession
and must be condemned as unacceptable in the strongest possible
terms.
IV
The order of the Law Division granting defendant's motion
for summary judgment and dismissing plaintiff's personal injury
cause of action is reversed. The matter is remanded for such
16 A-1062-12T3 further proceedings as may be required. We do not retain
jurisdiction.
Reversed and remanded.
17 A-1062-12T3