It Was Not Fun To Stay (Swim) At The YMCA For This Plaintiff Or His Counsel

by: Peter J. Gallagher (@pjsgallagher)


A "garden variety slip and fall case" led to an instructive Appellate Division opinion on exculpatory clauses and the requirements of the New Jersey Court Rules governing appellate practice. The plaintiff prevailed on its appeal and had its lawsuit against defendant, which had been dismissed by the trial court, reinstated; but his counsel had to endure a scolding from the Appellate Division in the process.

In Walters v. YMCA, Plaintiff sued for injuries suffered after he slipped on the steps leading from an indoor pool at the YMCA in Newark, New Jersey. The YMCA did not deny that plaintiff slipped, but argued that plaintiff's claims were barred by a broad exculpatory clause in his membership agreement, which purported to hold the YMCA harmless for "any personal injuries or losses sustained . . . on  any YMCA premises or as a result of a YMCA sponsored activit[y]."  The trial court granted the motion and plaintiff appealed.

The Appellate Division reversed, holding that the exculpatory clause was "unenforceable as against public policy" because enforcing it would "eviscerate the common law duty of care owed by defendant to its invitees." The Appellate Division distinguished Walters from a prior decision, Stelluti v. Casapenn Enters., Inc., in which the New Jersey Supreme Court held that an exculpatory clause shielded a health club from injuries sustained by a plaintiff when the handlebars of her stationary bike dislodged and caused her to fall during a spinning class. In that case, the inherently risky nature of the plaintiff's physical activity was "the key consideration . . . to justify enforcing the exculpatory clause at issue." In Walters by contrast, the type of accident — slipping and falling while walking on stairs — "could have occurred in any business setting." Accordingly, the "inherently risky nature of defendant's activities as a physical fitness club was immaterial" to the Appellate Division's analysis.


Instead, the court concluded that the exculpatory clause in Walters – which was part of what the court described as a "one-sided contractual agreement" — was too broad. If applied literally, the court noted, the clause would shield the YMCA from all claims by any individual on its premises regardless of the cause. This was "inimical to the public interest because 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." However, the Appellate Division was careful to note that its decision was limited to the facts of the case, and specifically did not "hold [ ] that all businesses 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." 

While plaintiff prevailed on his appeal, the Appellate Division took his counsel to task for his “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.” Rather than providing a “narrative chronological summary incorporating all pertinent evidence” as the rule requires, plaintiff’s statement of facts just referred the court to appellant’s answers to interrogatories and to the medical reports identifying his alleged injuries. The court described this Statement of Facts as “shoddy” and explained why it chose to comment on this deficiency as follows:

“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.”     

Ultimately, the court considered imposing a $400 sanction — the same fine, adjusted for inflation,  that the Appellate Division imposed against an attorney in 1977 for similar conduct — but decided against it, expressing its hope that the “strongly worded message” it delivered in its opinion would produce the “same deterrent effect.”

Ultimately, the Appellate Division's "strongly worded message" should have the same effect on all attorneys who find themselves handling an appeal. However, counsel should pay close attention to the Statement of Facts not only to avoid a "bench slap" from the Appellate Division but also because the Statement of Facts is the first chance counsel has to begin persuading the court. Attorneys should give the court a "narrative chronological summary incorporating all pertinent evidence," but should do so in a compelling way that begins to convince the judge that the attorney’s client is right. This way, when the court gets to the legal argument portion of the brief, it is already leaning in your favor.

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