Smith v. Adventure Air Sports Kennesaw, LLC

• Decision Date: 06 October 2020
• Docket Number: A20A1118
• Court: Georgia Court of Appeals
• Parties: SMITH et al. v. ADVENTURE AIR SPORTS KENNESAW, LLC et al.

357 Ga.App. 1

849 S.E.2d 738

SMITH et al.

v.ADVENTURE AIR SPORTS KENNESAW, LLC et al.

A20A1118

Court of Appeals of Georgia.

October 6, 2020

Certiorari Denied May 3, 2021

Michael J. Blakely Jr., Ted L. Mann, for Appellant.

Christine Lupo Mast, Joseph Hall Wieseman, Atlanta, for Appellee.

Dillard, Presiding Judge.

Noah Edward Smith, along with his parents, Dewayne Smith and Leah Smith, appeal from the trial court's grant of Adventure Air Sports Kennesaw, LLC and Scott Rice's¹ motion to compel arbitration. The Smiths argue that (1) the contract between the parties is unenforceable, (2) the contract was unconscionable, (3) Adventure Air Sports negligently failed to follow its own procedures, and (4) Dewayne and Leah's arguments are separate from Noah's contentions. For the reasons set forth infra , we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

This Court reviews the grant or denial of a motion to compel arbitration de novo to see if the trial court's decision is correct as a matter of law;² but we defer to the trial court's factual findings unless they are clearly erroneous.³ So viewed, the record shows that Adventure Air Sports is an indoor facility that consists of trampolines, foam pits, games, and other amusement activities. And prior to purchasing tickets or participating in facility activities, a patron must execute a contractual waiver, which he or she is given the opportunity to read and sign electronically. To agree to the terms of the contract, the patron must provide his or her name, address, date of birth, email address, and telephone number. The contract provides, in pertinent part, a release of liability as follows:

(1) RELEASE OF LIABILITY: I acknowledge that my or my child(ren)/ward(s)’s use of ADVENTURE AIR SPORTS’ facilities and participation in Activities offered by ADVENTURE AIR SPORTS entails known and unknown risks that could result in physical or emotional injury including, but not limited to[,] broken bones, sprained

or torn ligaments, paralysis, death, or other bodily injury. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the Activities. Despite all known and unknown risks, I hereby expressly assume all risks associated with participation in the Activities offered by ADVENTURE AIR SPORTS and voluntarily remise, release, acquit, and satisfy and forever discharge ADVENTURE AIR SPORTS and agree to hold it harmless of and from all, and all manner of action and actions or omission(s), cause and cause of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills specialties, covenants, contracts, controversies, agreement, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, including, but not limited to, any and all claims which allege negligent acts and/or omissions committed by ADVENTURE AIR SPORTS, whether the action arises out of any damage, loss, personal injury, or death to me or my child(ren)/ward(s) while participating in or as a result of participation in any of the Activities. This Release of Liability, is effective and valid regardless of whether the damages, loss or death is a result of any act or omission on the part of ADVENTURE AIR SPORTS.⁴

The contract then goes on to provide for arbitration as follows: "Any controversy between the parties hereto involving any claim arising out of or relating to a breach of agreement, shall be submitted to and be settled by final and binding arbitration in Cobb County, Georgia, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association."

At the end of reviewing the electronic agreement, the patron clicks the "accept" button and receives a system-generated signature certificate that reflects the date and time the contract was executed. A copy of this form is also saved to the Adventure Air Sports computer system and emailed to the patron, at which point entry tickets may be purchased. Importantly, when a patron is a minor, a parent or legal guardian must execute the agreement on the minor's behalf and identify the minor in the contract. And if the parent does not accompany the minor to the facility, prior to being admitted, an employee will check the Adventure Air Sports database for an executed waiver and will also check a copy of the signing parent or guardian's driver's license, at which point the electronic waiver is marked as "validated."

On March 31, 2017, a contract was executed on behalf of Noah Smith, who was then 17 years old. It is undisputed that, rather than have one of his parents sign the contract, Noah executed the agreement in his father Dewayne's name without his parents’ permission or knowledge. Then, on June 26, 2017, Adventure Air Sports asked Noah to perform trampoline maneuvers to create a promotional marketing video. So, on that day, Noah did not purchase a ticket and was instead paid a small sum as compensation for his time and the use of his image. Tragically, while Noah performed maneuvers on the trampoline, he suffered serious and debilitating injuries, resulting in paralysis caused by an injury to his spinal cord

. Dewayne was not with Noah at the facility that day, nor had he ever accompanied his son to Adventure Air Sports. But in the Adventure Air Sports computer system, Noah's waiver was marked as "validated," meaning an employee reviewed a copy of Dewayne's driver's license prior to admitting Noah into the facility.

On April 5, 2019, the Smiths filed suit against Adventure Air Sports and its chief operating officer, Scott Rice, to recover for the injuries Noah sustained. Adventure Air Sports went on to file a motion to dismiss the Smiths’ suit and compel arbitration based on the contract executed prior to Noah's use of the trampoline park. The trial court granted Adventure Air Sports's motion, and this appeal by the Smiths follows.

1. For starters, the Smiths argue that the contract is unenforceable because it was executed by a minor.⁵ We disagree.

The Smiths are correct that, generally speaking, "the contract of a minor is voidable."⁶ But minors may be estopped from voiding contracts when those agreements are induced by fraud and deceit, such as when a false representation is made by a minor as to the minor's age.⁷ And while we have never had the opportunity to address a factual situation in which a minor has forged his parent or legal guardian's signature in order to execute a contract and enjoy its benefits, we see no meaningful distinction between this case and those in which a minor has lied about his or her age.⁸ Indeed, estoppels do not apply to or affect minors, "except in cases [in which] a[ ] [minor's] fraudulent act or representation is made with a view to deceive or defraud."⁹

The key question before us, then, is "whether the minor has arrived at those years of discretion when a fraudulent intent could be reasonably imputed to him."¹⁰ And this rule is made analogous to situations in which it is "sought to hold a minor responsible for a tort or crime involving fraud, and his capacity for conceiving or executing a fraudulent intent is to be determined."¹¹ Indeed, once it is determined that the minor had the capacity for conceiving and executing a fraudulent intent, it is unnecessary for the other contracting party to

go further and prove that they made an independent investigation as to the age of the [minor], [when] no fact or circumstance appears in the evidence ... to throw some doubt or suspicion on the truthfulness of the representation, and thus prevent [the other party] from relying wholly thereon, but charge [the other party] with the duty of making an additional investigation.¹²

Additionally, in Georgia, a person may be considered or found guilty of a crime once a person "has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime."¹³ And as for civil liability, "[i]nfancy is no defense to a tort action so long as the defendant has reached the age of discretion and accountability prescribed by Code Section 16-3-1 for criminal offenses."¹⁴ Here, Noah was 17 when he executed the contract for his own benefit by using his father's name. Thus, at 17, Noah certainly had the capacity to conceive and execute a fraudulent intent, and the trial court did not err by concluding that he was estopped from voiding the contract.¹⁵

2. Next, the Smiths argue that even if the arbitration agreement is valid, it is unconscionable. Again, we disagree.

An unconscionable contract is "abhorrent to good morals and conscience"¹⁶ and is an agreement in which "one of the parties takes a fraudulent advantage of another."¹⁷ But an agreement is not unconscionable merely because it appears to favor one party over another or may lead to hardship.¹⁸ Indeed, we have repeatedly emphasized that parties should "be entitled to contract on their own terms without the courts saving one side or another from the effects of a bad bargain."¹⁹ As a result, in the absence of a showing that Noah "was fraudulently induced into signing the ... agreement, [ ]or that [he] was delusional or insane at the time the contract was signed,"²⁰ we find no reversible error in the face of Noah's admitted forgery.²¹

3. Although the Smiths include an enumerated error that Adventure Air Sports should be unable to assert an equitable remedy against Noah because it has "unclean hands," the Smiths limit this assertion to their enumeration of errors and fail to include it as a separate argument within their appellate brief, thereby abandoning the contention by failing to provide argument or citation of authority in support of same.²² But to the extent the Smiths argue within their brief that Adventure Air Sports "did not follow its own procedures," and was, accordingly, negligent in failing to discover Noah's fraud, we will address that claim.

Specifically, the Smiths assert that...