Arbitration Provision Bounced Again, Even After Kindred Nursing Decision.

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Arbitration (pd)As readers of this blog know, arbitration provisions in consumer contracts are difficult to enforce in New Jersey. (Click here or here for a refresher.) There was some belief that the U.S. Supreme Court's recent decision in Kindred Nursing Centers Ltd. P'ship v. Clark might change this, but it does not appear, at least not yet, that it has. In a recent case, Defina v. Go Ahead and Jump 1, LLC d/b/a Sky Zone Indoor Trampoline Park, the Appellate Division was asked to revisit, in light of Kindred Nursing, its prior decision refusing to enforce an arbitration provision in a contract between a trampoline park and one of its customers. The Appellate Division did so, but affirmed its prior decision, holding that Kindred Nursing did not require New Jersey courts to change the manner in which they approach arbitration provisions.

I wrote about Defina in its first go-around with the Appellate Division — Bounce Around The (Court)Room: Trampoline Park's Arbitration Provision Deemed Unenforceable. The underlying facts of the case are unfortunate. A child fractured his ankle while playing "Ultimate Dodgeball" at a trampoline park. Before entering the facility, the child's father signed a document entitled, "Participation Agreement, Release and Assumption of Risk." The document contained an arbitration provision, which provided: 

If there are any disputes regarding this agreement, I on behalf of myself and/or my child(ren) hereby waive any right I and/or my child(ren) may have to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. I further agree that the arbitration will take place solely in the state of Texas and that the substantive law of Texas shall apply.

Notwithstanding this provision, the child's parents sued the trampoline park in state court, alleging tort claims for simple negligence and gross negligence, and statutory claims for alleged violations of the Consumer Fraud Act and the Truth in Consumer Contract, Warranty and Notice Act. 

Continue reading “Arbitration Provision Bounced Again, Even After Kindred Nursing Decision.”

Bounce Around The (Court)Room: Trampoline Park’s Arbitration Provision Deemed Unenforceable

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Sky zone (pd)In the interest of full disclosure, I have taken my kids to the Sky Zone Trampoline Park near our home and we have always had a great time. For those who have never been, these types of places are full of trampolines, but not your parents' trampolines (assuming your parents had trampolines and your experience with them was slightly better than the children of Springfield). They are huge facilities where you can "free jump," play dodge ball on trampolines, use trampolines to dunk a basketball, jump off trampolines into foam pits, etc. As you might expect, before you are allowed to jump, you need to sign a waiver, usually electronically either before you get to the facility or when you get there. I have done this on behalf of myself and my kids and of course, being a lawyer, read each word carefully as my kids were excitedly asking me, on a seemingly endless loop, when we could start jumping. In a recent decision, Defina v. Go Ahead and Jump 1, LLC d/b/a Sky Zone Indoor Trampoline Park, the Appellate Division considered whether the arbitration provision contained in this waiver was enforceable. It ruled that it was not, which is perhaps not surprising given the recent trend in New Jersey courts regarding the enforceability of arbitration agreements. (I wrote about this trend here and here.)

In Defina, plaintiff was a minor who, through her parents, sued Sky Zone for injuries allegedly suffered at the facility. Before using the facility, plaintiff's father signed a "Participation Agreement, Release and Assumption of Risk." Among other things, the agreement required parties to release, discharge, and hold Sky Zone harmless for  any claims arising out of Sky Zone's "ordinary negligence." The waiver did not preclude lawsuits arising out of Sky Zone's alleged gross negligence or willful and wanton misconduct, but it did require that those claims be arbitrated pursuant to a separate arbitration provision, which provided:

If  there  are  any  disputes  regarding  this agreement,  I  on  behalf  of  myself  and/or  my child(ren)  hereby  waive  any  right  I  and/or my child(ren) may have to a trial and agree that  such  dispute  shall  be brought  within one  year  of  the  date  of  this  Agreement  and will  be  determined  by  binding  arbitration before  one  arbitrator  to  be  administered  by JAMS    pursuant    to    its    Comprehensive Arbitration  Rules  and  Procedures.  I  further agree  that  the  arbitration  will take  place solely  in  the  state  of  Texas  and  that  the substantive  law  of  Texas  shall  apply.

The arbitration provision also provided that anyone who ignored the provision and sued in court would be liable to Sky Zone for $5,000 in liquidated damages. Finally, the agreement also contained a provision, in bold type, which provided that, by signing the agreement, an individual "may be found by a court of law to have waived [his or her] right to maintain a lawsuit against [Sky Zone]."

Continue reading “Bounce Around The (Court)Room: Trampoline Park’s Arbitration Provision Deemed Unenforceable”

Not Quite “Lord of the Flies.” New Jersey Court Rules on Liability For Injuries To Minors During Sporting Events

by:  Peter J. Gallagher (@pjsgallagher)

When I was around ten-years-old, I showed up for soccer practice a little late and found an ambulance at the field waiting to take one of my teammates to the hospital. He and another one of my teammates collided while both were going after the ball and one of them broke his leg. As far as I know, no lawsuit was ever filed. Earlier this week, the Appellate Division issued its opinion in C.J.R. v. G.A., and established the standard that might have applied had my teammates (or their parents) been a little more litigious.

    In C.J.R., the Medford youth lacrosse team was playing the Marlton youth lacrosse team. In the waning seconds of the game, with Medford ahead by one goal, plaintiff, a member of the Medford team, had the “ball nestled in the basket of his stick” when defendant, a player on the Marlton team, struck him in the forearm. The blow knocked plaintiff to the ground. He was later taken to a hospital and treated for a fractured arm. Plaintiff’s father sued both defendant and defendant’s father (the latter for negligent supervision). The trial court granted summary judgment to both defendants and plaintiff appealed, but only as to the dismissal of his claims against the child.

 

 

Continue reading “Not Quite “Lord of the Flies.” New Jersey Court Rules on Liability For Injuries To Minors During Sporting Events”

Who Says Babies Don’t Play Bocce? Law Division Rules On Age Restricted Housing Conversion

by: Gregory S. Ricciardi

With the continuing strain on residential development projects, some developers may seek relief in the form of a recent New Jersey law, which allows for the conversion of age-restricted projects to non age-restricted projects.  A recent opinion from the Law Division may serve as a helpful tool to developers seeking to take advantage of the law.

Heritage at Towne Lake, LLC v. Planning Board of Sayreville interprets and applies N.J.S.A. 45:45:22A-46.3 (the “Conversion Statute”), which regulates the conversion of age restricted units to non-age restricted units in development projects.  In this case, the Sayreville Planning Board (the “Board”) denied a developer’s application to convert a one hundred eighty-four (184) unit, age restricted community to a non-age restricted community, containing the same number of units, but configured differently. 

Pursuant to the Conversion Statute, the approving board has broad discretion to require the applicant to prove that the conversion can be granted  without substantial determinant  to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.  The Conversion Statute establishes a set of criteria that applicants must prove, which include: (1) that the site meets RSIS standards; (2) recreation improvements and other amenities are revised, as needed, to meet the needs of the converted development; (3) water and sewer systems are adequately designed;  and (4) sufficient parking is available to accommodate the converted development. 

In addition to arguing that the applicant failed to meet the burden of proof as to the conditions of the Conversion Statute, the Board claimed that approving the conversion application would create a density violation.  Since the applicant received a density bonus for age-restricted development, if the conversion were approved, the Board argued that the project would require a (d) variance for density pursuant to N.J.S.A. 40:55D-70d(5).  The court dismissed this argument, citing the plain meaning of the Conversion Statute, which states:

“No application for an amended approval seeking the authority to construct a converted development shall be considered a “use variance” or other “d variance” application pursuant to subsection d.  of section 57 of P.L.  1975, c 291 (C:4055D-70).”

The court ultimately concluded that the applicant had met its burden of proof and that the denial of the conversion application by the board was unreasonable.  The court remanded the matter back to the Board an ordered that the conversion be approved subject to the conversion of the originally proposed bocce courts to a “tot lot” for children.  

The Conversion Statute remains an attractive option for distressed, age-restricted development projects, provided the projects and the application for conversion can meet the statutory requirements, including a 20% set aside for affordable housing.    The publication of this decision helps shed light on the conversion process and eliminate confusion as to its application.