McBride v. Minstar, Inc.

• Decision Date: 29 June 1994
• Docket Number: No. L-56776-89,L-56776-89
• Parties: Joseph McBRIDE, et al., Plaintiffs, v. MINSTAR, INC., et al., Defendants. Civ. A.
• Court: New Jersey Superior Court

Page 471

283 N.J.Super. 471

662 A.2d 592

Joseph McBRIDE, et al., Plaintiffs, v. MINSTAR, INC., et al., Defendants.

Civ. A. No. L-56776-89.

Superior Court of New Jersey, Law Division Monmouth County.

Decided June 29, 1994.

Michael D. Schottland, Schottland, Aaron & Manning, Freehold, for plaintiffs

Samuel A. DeGonge, Belleville, for defendant Raichle Molitor USA, Inc.

FISHER, J.S.C.

This case gives rise to a number of difficult questions concerning the legal effect of an exculpatory clause contained in a contract to sell ski equipment. Because these agreements are commonly used in the ski industry and the problems encountered in this case can be expected to reoccur, a full exposition of the matter is appropriate.

I PROCEDURAL HISTORY

A. Factual Background

Plaintiff Joseph McBride ("McBride") seeks damages for personal injuries sustained in a fall while skiing in Massachusetts on December 27, 1987. The day before, McBride purchased ski equipment from The Ski and Tennis Chalet, Inc. ("the Chalet") in Newton Centre, Massachusetts. This equipment included Tyrolia bindings manufactured by Raichle Molitor USA, Inc. ("Raichle"), which were mounted and tested by the Chalet.

B. Significant Procedural Events

The action was commenced on September 15, 1989. On October 22, 1991, McBride filed a Second Amended Complaint joining Raichle. McBride alleged that Raichle gave "an implied warranty that the ski binding[s] would be properly set by the ski mechanic [i.e., the Chalet], based upon the ski mechanic's analysis of the case and his proper setting of the release strength." Pb. (May 19, 1994) at p. 1.

This matter came before this court for trial on May 16, 1994. Previously, a number of procedural events were entertained by other members of this court. Those events warrant some discussion since the issues then raised have resurfaced during the current proceedings.

On August 20, 1993, Raichle, the only remaining defendant, moved for summary judgment asserting that there was no dispute that the Chalet was not its agent. That motion was denied. Thereafter, this matter was assigned to another judge for trial. Prior to trial, disputes arose as to the use of the deposition of a non-party witness taken in a Massachusetts action relating to this matter ¹, and a mistrial was ordered on February 7, 1994. ² Not long thereafter, Raichle again moved for summary judgment, asserting that the claim should be barred because the agreement between McBride and the Chalet contained an exculpatory clause. On May 13, 1994, that motion was denied by a third judge of the court.

Against this backdrop, this case came before me for trial on May 16, 1994. The issues surrounding the exculpatory clause, and whether the Chalet was Raichle's agent, were bifurcated from the remainder of the case. Those issues were tried to the court, without a jury, and decision reserved. The following constitutes this court's findings of fact and conclusions of law regarding the exculpatory clause (Part II, infra ) and the agency issue (Part III, infra ).

II

THE EXCULPATORY CLAUSE

A. The Facts

On December 26, 1987, when McBride purchased the ski equipment from the Chalet, he executed a document (P-1). The document consists of one sheet of paper approximately 7"' X 14"',

containing two columns of information. The column on the left states at the top in the largest letters on the entire document (and in red):

RETAIL AGREEMENT AND RELEASE OF LIABILITY

Following that, in slightly smaller print, is stated: "THERE ARE THREE STEPS TO COMPLETE THIS FORM." Those steps are then set forth: (1) "READ RELEASE OF LIABILITY, THEN INITIAL AND SIGN IN APPROPRIATE AREAS", (2) "FILL IN BLUE-SHADED AREA ON RIGHT HALF OF FORM" and (3) "SIGN AND DATE THE AGREEMENT AFTER EQUIPMENT IS DELIVERED TO YOU".

Step 1, which contains the exculpatory clause in question, states in white letters against a blue background: "PLEASE READ CAREFULLY BEFORE SIGNING". The entire text of the exculpatory clause is as follows:

I accept for use as is the equipment listed on this form and accept full responsibility for the care of this equipment. I have made no misrepresentations to this ski shop regarding my height, weight, age or skiing ability.

I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the use of this ski equipment involve a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.

I understand that the ski equipment being furnished forms a part of or all of the ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my safety or freedom from injury while skiing. I further agree and understand that this ski-boot-binding system may reduce but does not eliminate the risk of injuries to the bottom one-third of my lower leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my knees or any other parts of my body.

I agree that I will release this ski shop from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any other person. I agree NOT to make a claim against or sue this ski shop of injuries or damages related to skiing and/or the use of this equipment. I agree to release this ski shop from any such responsibility, whether it results from the use of this equipment by the user, or whether it arises or results from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment of this ski equipment. (Please initial [initials of McBride] ).

I hereby agree to accept the terms and conditions of this contract. This document constitutes the final and entire agreement between this ski shop and the undersigned. There are NO WARRANTIES, express or implied, which extend beyond the description of the ski equipment listed on this form.

I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this ski shop and I sign it of my own free will.

(P-1). ³

The only person to testify during the non-jury trial was plaintiff Joseph McBride. The only other testimony presented consisted of two depositions of Chris O'Neill, the Chalet salesman who sold the equipment to McBride.

Raichle argues that the agreement quoted above bars the present claim and urges the court to reconsider the order of May 13, 1994 (which denied Raichle's motion for summary judgment through the application of New Jersey law). Raichle contends that the prior ruling was erroneous because Massachusetts law should have applied and would have, if applied, compelled the enforcement of the exculpatory clause and the dismissal of the action. Accordingly, it is necessary to first consider whether reconsideration of the prior order is prohibited.

B. Law of the Case

It cannot be doubted that a court has the power to modify or correct its interlocutory orders prior to the entry of a final judgment. See, R. 4:42-2; Siren v. Behan, 224 N.J.Super. 130, 135, 539 A.2d 1244 (App.Div.1988), certif. granted and summarily remanded on other grounds, 113 N.J. 323, 550 A.2d 442 (1988). This power has existed in New Jersey since at least the turn of the century. In Lyle v. Staten Island Terra-Cotta Lumber Co., 62 N.J.Eq. 797, 805, 48 A. 783 (E. & A.1901), the Court recognized that a lower court possesses the power "to correct, pendente lite Upon such a request a court must weigh a number of considerations: Should the court perpetuate a prior ruling, although it believes it to be erroneous, merely to give deference to a colleague's decision? Should the court expend valuable judicial resources on the trial of unnecessary issues? On the one hand, confidence in the vitality of interlocutory orders may be shaken by a free use of such inherent power; on the other, a slavish approach to the law of the case doctrine may lead to the wasting of judicial resources. In exercising its discretion, a court must balance these considerations "in the service of the ultimate goal of substantial justice." Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 264, 531 A.2d 1078 (App.Div.1987).

                an obvious fallacy in one of its own orders."   Stated another way, prior to the entry of final judgment, "the trial court has complete power over its interlocutory orders and may revise them when it would be consonant with the interest of justice to do so."  Ford v. Weisman, 188 N.J.Super. 614, 619, 458 A.2d 142 (App.Div.1983) (emphasis added)
                

In the final analysis, there is nothing about the law of the case doctrine that strictly prohibits the reconsideration of the prior rulings and this court is permitted (if not obligated) to revisit and correct prior interlocutory orders believed to be erroneous. Upon becoming the trier of fact on these issues, it remains imperative for the court to apply the law as understood to the facts found to exist. In completing this undertaking, the court should not be rigidly bound by a prior interlocutory view which is erroneous. In doing "what is fair, right and just in the circumstances", Johnson, supra, 220 N.J.Super. at 264, 531 A.2d 1078, it is necessary to vacate the prior inconsistent interlocutory order and consider again the validity, enforceability and scope of the exculpatory clause.

C. Choice of Law

1. Choosing the Correct Choice of Law Rule

Since New Jersey is the forum, its choice of law rules determine which state's substantive law should apply to the various With respect to the legal effect of a contract, "the law of the place of the contract ordinarily governs the choice of law because this rule will generally...