Jump Back! Parent Lacks Apparent Authority to Bind Someone Else’s Child To Trampoline Park Waiver

By: Peter J. Gallagher (LinkedIn)

When the history of arbitration agreements in New Jersey is written – OK, maybe that is an “if” more than a “when” – it will owe a great debt to trampoline parks. Over the past several years, New Jersey courts have issued numerous decisions regarding the enforceability of arbitration agreements at these parks. I have written about several of them – “Court Bounces Trampoline Park’s Arbitration Provision“, “Bounce Around the {Court}Room: Trampoline Park’s Arbitration Provision Deemed Unenforceable“, and “Arbitration Provision Bounced Again, Even After Kindred Nursing Decision“. (Note: These titles prove, if nothing else, that I am not very original.) In Gayles v. Sky Zone Trampoline Park, we have another entry on the list.

The plaintiff in Gayle was a child who attended a birthday party at the defendant trampoline park. The birthday boy invited several friends to the party, including plaintiff. The birthday boy’s parent told the other children’s parents that they could drop their children off and she would drive them to the party. Plaintiff’s parent took plaintiff’s mother up on the offer and dropped plaintiff off at the birthday boy’s house on the day of the party.

When the birthday boy’s mother arrived at the trampoline park with the children – her own and the other party-goers, including plaintiff – she was directed to a “waiver station,” where she completed and signed a waiver that included an arbitration provision. She testified at deposition that this process was “quick” and that she “completed the Agreement without reading it fully and without assistance from defendant’s staff.”

The first paragraph of the waiver read, in part: “I further certify that I am the parent or legal guardian of the child(ren) listed above on this Agreement or that I have been granted power of attorney to sign this Agreement on behalf of the parent or legal guardian of the child(ren) listed in this Agreement.” The second paragraph contained a waiver of rights, including the right to sue in court and file any claim for “accidents . . . within the scope of the risk assumed.” And the fourth paragraph contained a broad arbitration provision, requiring that all claims be adjudicated through binding arbitration administered by JAMS. The arbitration provision also provided for liquidated damages of $5,000 if a patron sued instead of abiding by the arbitration requirements.

Not surprisingly, none of the children’s parents executed a power of attorney in favor of the birthday boy’s mother, but she believed that they had authorized her to sign the waiver.

Unfortunately, while playing on a trampoline, plaintiff fractured his leg. He sued. The trampoline park moved to dismiss and compel arbitration. The trial court denied the motion. At the close of discovery, both sides moved for summary judgment. Both motions were denied. The trampoline park moved for reconsideration, which was also denied, and then appealed.

On appeal, the trampoline park argued that the trial court should have compelled arbitration because the birthday boy’s mother had apparent authority to execute the waiver on plaintiff’s behalf. It also argued that “the implications” of denying arbitration would “place[] an unreasonable, if not impossible, burden on . . . defendant to verify and validate the certifications made by all adult patrons who accompany minors to its facility.”

The Appellate Division disagreed. It held that apparent authority requires some conduct on the part of the principal that misleads a third-party into thinking that the principal’s agent has authority to bind the principal. Conduct by the “supposed agent” alone will not satisfy this standard. In other words, in Gayle, even if the birthday boy’s mother claimed she was acting on plaintiff’s behalf, that was not enough. Evidence of apparent authority had to come from plaintiff’s mother, not the birthday boy’s mother. And, in Gayle, the Appellate Division found this lacking.

The court held that plaintiff’s mother leaving plaintiff with the birthday boy’s mother and allowing plaintiff to be taken to the park with the other children did not create the appearance that the birthday boy’s mother could execute the waiver on plaintiff’s behalf. And the birthday boy’s mother’s execution of the waiver – which included a representation that she was each child’s parent or guardian or had a power of attorney for each – was not enough either. The trial court held that it was unreasonable for the trampoline park employees not to question the birthday boy’s mother about this representation, particularly since she signed on behalf of “ten children with eight different surnames.”

Finally, the Appellate Division rejected the trampoline park’s argument that denying arbitration “place[d] an unreasonable burden upon [the trampoline park[ and similar recreational businesses.” The trampoline park argued, essentially, that “its business model would be untenable if it were required to secure consent or powers-of-attorney from the parents of each juvenile at its facility.” The Appellate Division disagreed, observing that the park could require something akin to an old-school permission slip, a document on its website that parents could sign and bring to the facility, “similar to the procedure utilized all the time for school trips and the like.”

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