Hojnowski v. Vans Skate Park
Decision Date | 10 March 2005 |
Citation | 868 A.2d 1087,375 N.J. Super. 568 |
Parties | Andrew HOJNOWSKI, a minor, through his Parents and Guardians ad Litem, Jerry HOJNOWSKI and Anastasia Hojnowski, and Jerry Hojnowski and Anastasia Hojnowski, in their own right, Plaintiffs-Appellants, v. VANS SKATE PARK, Defendant-Respondent, and v. McCown DeLeeuw Company, Defendant. |
Court | New Jersey Superior Court |
Bafundo, Porter, Borbi & Clancy, Cherry Hill, for appellant (Robert A. Porter, on the brief).
Reilly, Supple & Wischusen, for respondent (Alex W. Raybould, on the brief).
Before Judges FALL, PAYNE and C.S. FISHER.
The opinion of the court was delivered by
PAYNE, J.A.D.
Plaintiffs Andrew Hojnowski, a minor, and his parents, Jerry and Anastasia Hojnowski, appeal from an order of the trial court dismissing without prejudice the personal injury complaint filed by the parents on behalf of Andrew and themselves against Vans Skate Park (properly known as Vans, Inc.) to permit an arbitration to take place under rules established by the American Arbitration Association (AAA). On appeal, plaintiffs argue that the pre-tort release signed by Anastasia Hojnowski on behalf of her son, which contains an arbitration provision as well as a limitation of liability, is not enforceable against the son. Its enforceability against the parents is not raised as an issue.
On January 3, 2003, Andrew Hojnowski, age twelve, fractured his femur while skateboarding at a skatepark facility operated by Vans. He has subsequently undergone two surgeries for the repair of the injury. In a complaint filed against Vans and its alleged corporate owner, plaintiffs claimed that Vans was liable for Andrew's injuries as the result of its negligent failure to supervise activities at the park, to control activities of aggressive skateboarders, to warn Andrew's parents that the activities of aggressive skateboarders would not be monitored, and to provide a safe place to skateboard.
Prior to Andrew's accident, on December 26, 2002, as a condition of use of the park, Andrew's mother executed on Andrew's behalf a document entitled "Release and Waiver of Liability and Jury Trial with Indemnity (For All Vans Skateparks, Stores and Facilities (Collectively, "Parks") in New Jersey)." The document commenced by stating:
Please read this document. It affects Your legal rights against Vans, Inc. if you are injured. Do not sign this document unless you understand it. If You are a minor, Your parent or guardian is required to sign this legal document.
Additionally, the document, at its conclusion, required a "yes" or "no" response to the following question: "Do You understand that You are giving up rights by signing this document if You are hurt?" Andrew's mother responded "yes" to this question.
The body of the document commenced with a description of the dangers of skateboarding, in-line skating and bicycle riding. It then set forth the following provisions of relevance to this litigation:
5. Who is Bound By This Document?
You are bound by this document. Anyone who has or can obtain Your rights is also bound by this document, such as Your family, relatives, guardians, executors or anyone responsible for You....
Following the institution of suit, Vans filed for commercial arbitration with the AAA. Plaintiffs then moved to enjoin the arbitration and to invalidate the pre-tort release signed by Andrew's mother. Vans cross-moved for summary judgment. The court granted Vans' motion, dismissing plaintiffs' complaint without prejudice1 and ordering that the parties submit to arbitration. It made no ruling on the validity of the contract's limitation of liability, finding that the issue was within the jurisdiction of the arbitrator.
We are informed that the parties have selected as arbitrator a person with significant experience in tort law, thereby rendering irrelevant any argument by plaintiffs that the arbitration cannot proceed under the auspices of an organization whose focus is upon commercial matters — an argument that we find in any event to be factually unsupported.
We construe the document executed by Anastasia Hojnowski on behalf of her son Andrew as bipartite, consisting of an agreement to arbitrate and a pre-tort liability waiver. We first address, as a matter entirely separate from the issue of the validity of the liability waiver, whether in the circumstances presented, a parent can enter into an enforceable contract, binding on the parent's minor child, that waives the right to trial by jury of the minor's bodily injury claims and requires submission of "any dispute" to arbitration. We hold that a parent has such power.
certif. denied, 170 N.J. 205, 785 A.2d 434 (2001).
We read an agreement relating to arbitration liberally to find arbitrability if that is reasonably possible. Garfinkel, supra, 168 N.J. at 132, 773 A.2d at 673; Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282, 633 A.2d 531, 535 (1993); Jansen, supra, 342 N.J.Super. at 257-58, 776 A.2d at 818-19.
In this case, the agreement signed by Andrew's mother on his behalf provided that: "If you are injured and want to make a claim, you must file a demand before the American Arbitration Association." The agreement further eliminated the right to sue in a court of law. "A provision in a written contract to settle by arbitration a controversy that may arise therefrom... shall be valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of a contract." N.J.S.A. 2A:24-1.2 The fact that the claim arises in tort, not contract, is immaterial. Garfinkel, supra, 168 N.J. at 137,773 A.2d at 673; Jansen, supra, 342 N.J.Super. at 258,776 A.2d at 819.
No New Jersey case has determined whether a parent, as a condition to her minor child's entry into a commercial recreational facility and participation in its activities, has the power to agree on behalf of that child that any claim for the minor's bodily injuries at the facility will be subject to arbitration. However the issue of the binding effect on non-parties of a contractual arbitration clause has been addressed. "[N]on-signatories of a contract ... may ... be subject to arbitration if the nonparty is an agent of a party or a third party beneficiary to the contract." Garfinkel v. Morristown Obstetrics & Gynecology Assoc., 333 N.J.Super. 291, 308, 755 A.2d 626, 636 (App.Div.2000), rev'd on other grounds, 168 N.J. 124, 773 A.2d 665 (2001) (quoting Mutual Benefit Life Ins. Co. v. Zimmerman, 783 F.Supp. 853, 865 (D.N.J.), aff'd, 970 F.2d 899 (3d Cir.1992)). See also Jansen, supra, 342 N.J.Super. at 261,
"The principle that determines the existence of a third party beneficiary status focuses on whether the parties to the contract intended others to benefit from the existence of the contract, or whether the benefit so derived arises merely as an unintended incident of the agreement." Broadway Maintenance Corp. v. Rutgers, The State Univ., 90 N.J....
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