Calhanas v. South Amboy Roller Rink

• Decision Date: 24 July 1996
• Citation: 679 A.2d 185,292 N.J.Super. 513
• Parties: Manuel CALHANAS and Dina Calhanas, his wife, Plaintiffs-Appellants, v. SOUTH AMBOY ROLLER RINK, d/b/a Roller Magic, John Doe (a Fictitious Name), Peter Poe (A Fictitious Name), and ABC Corp. (A Fictitious Name), Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 513

292 N.J.Super. 513

679 A.2d 185

Manuel CALHANAS and Dina Calhanas, his wife, Plaintiffs-Appellants, v. SOUTH AMBOY ROLLER RINK, d/b/a Roller Magic, John Doe (a

Fictitious Name), Peter Poe (A Fictitious Name),

and ABC Corp. (A Fictitious Name),

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued June 5, 1996.

Decided July 24, 1996.

Kenneth W. Elwood, Newark, for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Elwood, on the brief).

Nicholas A. Giuditta, III, Somerville, for respondents (Mr. Giuditta, on the brief).

Before Judges KING, LANDAU and HUMPHREYS.

The opinion of the court was delivered by

KING, P.J.A.D.

This case involves the "New Jersey Roller Skating Rink Safety and Fair Liability Act," N.J.S.A. 5:14-1 to -7; L. 1991, c. 28, effective February 19, 1991. The injured plaintiff Manuel Calhanas, and his wife, Dina Calhanas, who brought a derivative action, appeal from a summary judgment in favor of South Amboy Roller Rink (Roller Magic). Manuel Calhanas claimed that he was seriously injured while skating at defendant's rink on January 19, 1992. We conclude that Roller Magic's motion for summary judgment was improperly granted. We reverse. See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 539-40, 666 A.2d 146 (1995). The evidence available to the motion judge was not so "one-sided" that defendant was entitled to prevail as a matter of law. Id. at 540, 666 A.2d 146.

I.

Plaintiff, Manuel Calhanas, age 37 and a Kearny resident, had roller-skated at defendant Roller Magic's rink in South Amboy about 20 times over the past decade. On the afternoon of January 19, 1992 Calhanas and his family arrived at Roller Magic's rink at 2 p.m.

Plaintiff was injured at 4:30 p.m. during a "couples' skate." He was skating with his young daughter at the time. Plaintiff testified on deposition "there was a small kid going, crossing the rink, going a little wild, skating by himself." Plaintiff said that "as I was riding with my daughter, the kid comes from the left side, cutting across towards the center of the rink and hit me on my left-hand side. I lost my balance and fell and that's when I broke my leg ... in two places." Plaintiff testified that before the accident the rink had announced the slower-paced couples' session and he invited his daughter to skate with him. As plaintiff skated two or three times around the rink during this couples' session, he observed the young skater: "He was just going by himself, crossing, you know, in front of people." Dina Calhanas first noticed the child skating erratically during the prior "all skate" session. Manuel Calhanas also observed the child skating improperly during the prior all-skate session--"he was going fast and he kept crossing in front of people"--"I mean he keep, you know, zig zagging, riding in front of people ..."--"he was going too fast for what he was supposed to go"--"he was going faster than anybody else."

According to Roller Magic's representative, there were ten floor guards on duty at the time of the accident--four or five actually skating on the rink. No floor guards' testimony or affidavits were offered in opposition to the motion for summary judgment. Roller Magic's accident report, abstracted from the rink manager's handwritten notes, recorded plaintiff's account--"child cut in front of him and he fell forward." The child was never identified. Plaintiff suffered a severe fracture of the left tibia and fibula.

Plaintiff filed suit on August 18, 1993, claiming his injuries were caused by Roller Magic's negligence in failing to provide adequate rink supervision and to enforce its own safety rules. Posted rink rules caution customers: NO FAST SKATING; NO CUTTING ACROSS FLOOR; NO WEAVING IN AND OUT, and NO SKATING AGAINST THE CROWD. Plaintiff asserted that the floor guard's duty is to enforce these and other rules. Under defendant's rules, a floor guard had the authority to discipline a skater by ordering the skater to sit in the ten-minute "TIME OUT AREA" or to exclude the skater from the rink.

On October 27, 1995 Roller Magic moved for summary judgment, relying on the Skating Rink Safety and Fair Liability Act, N.J.S.A. 5:14-1 to -7 (Act). The deposition testimony of the plaintiffs was the only factual account of the events leading up to the collision. Roller Magic offered no factual version of the events but urged that its records implied adequate rink supervision at the time. Recognizing that this was a "very close case," the Law Division judge granted the motion for summary judgment.

II.

The legislative history of the Act suggested that between 1981 and 1991 the number of roller skating rinks in New Jersey dropped from 50 to 21. That fall-off paralleled a nationwide drop in the number of rinks listed by the Roller Skating Rink Operators of America, from 2,400 in 1975 to 1,150 in 1991. In this context, and at the industry's urging, the Legislature passed and Governor Florio signed the Act effective February 19, 1991. The Legislature expressed concern that rink owners were having difficulty obtaining liability insurance and that the coverage they did obtain was often prohibitively expensive. N.J.S.A. 5:14-2b. This motivated the Legislature, which viewed roller skating as "a wholesome and healthy family activity" which attracts "a large number of nonresidents" to the State and contributes significantly to our economy, to act. N.J.S.A. 5:14-2a. The Legislature expressed the intent that the Act would make it easier for rinks to obtain insurance by making the incidence of liability more predictable. N.J.S.A. 5:14-2b. Seven other states have enacted statutes defining and limiting the liability of roller rink operators since 1989. ¹

The Act, specifically N.J.S.A. 5:14-6, confirms that skaters have knowledge of and assume "the inherent risks of roller skating, insofar as those risks are obvious and necessary." This section provides that skating's inherent risks "include, but are not limited to, injuries which result from incidental contact with other roller skaters ... which are not otherwise attributable to a rink operator's breach of his duties as set forth in [ N.J.S.A. 5:14-4]." N.J.S.A. 5:14-6. N.J.S.A. 5:14-7 provides, in pertinent part,

The assumption of risk set forth in [ N.J.S.A. 5:14-6] shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a roller skater ... for injuries resulting from the assumed risks, notwithstanding the provisions of [ N.J.S.A. 2A:15-5.1 et seq.] relating to comparative negligence, unless an operator has violated his duties or responsibilities under this act, in which case the provisions of [the comparative-negligence statutes] shall apply. [ N.J.S.A. 5:14-7; emphasis added.]

N.J.S.A. 5:14-7 also provides, "Failure [of skaters] to adhere to the duties set out in [ N.J.S.A. 5:14-5 and -6] shall bar suit against an operator to compensate for injuries resulting from roller skating activities, where such failure is found to be a contributory factor in the resulting injury, unless the operator has violated his duties or responsibilities under the act, in which case the provisions of [the comparative-negligence statutes] shall apply." N.J.S.A. 5:14-7. Roller Magic has not alleged that Calhanas failed to adhere to any of his duties as a skater under N.J.S.A. 5:14-5 and -6. Thus, there was no question of plaintiff's comparative negligence raised on the summary judgment motion. As we construe the Act, summary judgment for Roller Magic was appropriate only if Calhanas' injury was caused by "incidental contact" and if it was not attributable to breach of any of Roller Magic's duties.

III.

In granting summary judgment for Roller Magic the judge had to find that Calhanas' injuries were caused by "incidental contact" with the child. On the facts of this case, that determination was for the jury, not for the judge.

The Act does not define "incidental contact." Because the structure of the Act and the sponsors' statements demonstrate that the Act was expressly "modeled" on the "Act Defining the Responsibilities and Liabilities of Ski Area Operators and Skiers" (Skiing Act), L. 1979, c. 29, §§ 1-11, effective February 22, 1979, any definition of "incidental contact" in the Skiing Act could be an appropriate source of guidance. But the Skiing Act's assumption-of-risk provision does not use the term "incidental contact." See N.J.S.A. 5:13-5. Of the seven other states which have roller-rink liability statutes in force, Illinois and Indiana do use the term "incidental contact." Ind.Code § 43-4-43-6(b)(1); Ill.Ann.Stat. ch. 745, para. 72/25. Like our statute, the Indiana and Illinois statutes do not define the term. There are no reported cases in either jurisdiction suggesting what type of contact so qualifies. The few New Jersey cases employing the term "incidental contact" beyond the skiing and roller-skating contexts are not helpful; they use the term only in passing, without defining it. See, e.g., Henry v. Haussling, 114 N.J.L. 222, 225, 176 A. 564 (Sup.Ct.1935); Slingerland v. Gillespie, 67 N.J.L. 385, 394, 51 A. 475 (Sup.Ct.1902). Three such cases use "incidental" to mean "fortuitous" or "not significant." See Stehney v. Perry, 907 F.Supp. 806, 823 (D.N.J.1995) (only incidental contact involved in attaching polygraph equipment to person); State v. D.R., 109 N.J. 348, 353, 537 A.2d 667 (1988) (incidental contact contrasted with sexual contact); B.C. v. Cumberland Reg. Sch. Dist. Bd. Ed., 220 N.J.Super. 214, 229, 531 A.2d 1059 (App.Div.1987) (although field hockey may involve incidental contact, it is not a contact sport).

For purposes of this Act, however, the better reading of "incidental" is probably the one advanced by Roller Magic: "likely to happen or naturally appertaining." The purpose of the statutory scheme suggests that this is the proper way to understand the term. The Act speaks...