State Supreme Court Invalidates Waiver of Liability in the Name of Public Policy

Nov 10, 2006

The Supreme Court of New Jersey has affirmed the ruling of an appeals court, which invalidated a pre-injury release signed by the parents of a minor, who was injured while playing at a skate park.
Specifically, the court noted that upholding such waivers would remove the incentive for commercial enterprises to protect the safety of minors.
The incident in question occurred in January 2003, when 12-year-old Andrew Hojnowski was injured while skateboarding at a facility operated by Vans, Inc. (Vans). On a previous visit to the facility, Andrew’s mother had executed a release on Andrew’s behalf, which was required in order for Andrew to enter the skate park. Among other things, the exculpatory release contained a clause that limited Vans’ liability for injury.
Nevertheless, Andrew, acting through his parents as guardians ad litem, sued Vans after the injury, alleging negligent supervision and failure to warn and negligent failure to provide a safe place.
Vans responded by filing a demand for commercial arbitration with the American Arbitration Association. The Hojnowskis then moved to enjoin the arbitration and invalidate the pre-injury release signed by Andrew’s mother and Vans cross-moved for summary judgment. The trial court granted Vans’ motion, dismissing the Hojnowskis’ complaint without prejudice and ordering arbitration.
The plaintiffs appealed. The panel of judges affirmed the order to arbitrate and then introduced a new twist. Interestingly, it ruled that because the issue presented a question of public policy, the trial court should have ruled on the validity of the waiver. In a split decision, the majority determined that a pre-injury release of liability executed by a parent on behalf of a minor child violates public policy and is, therefore, unenforceable.
The defendants appealed.
The New Jersey Supreme Court wrote that “because exculpatory agreements can encourage a lack of care, courts closely scrutinize liability releases and invalidate them if they violate public policy. The relevant public policy implicated in this case is the protection of the best interests of the child under the parents patriae doctrine, which refers to the State’s capacity as provider of protection to those unable to care for themselves. In keeping with that doctrine, the Legislature and the courts have historically afforded considerable protections to claims of minor children. The most significant of those protections concerns the compromise or release of a minor’s post-injury claims.
“Children are not in a position to discover hazardous conditions or insure against risks,” the court continued. “In addition, the expectation that a commercial facility will be reasonably safe is especially important where the patron’s are minors. To permit waivers of liability would remove a significant incentive for operators of these types of facilities that attract children to take reasonable steps to protect their safety. The overwhelming majority of jurisdictions are in accord with the decision to invalidate such waivers.”
Andrew Hojnowski et al. v. Vans Skate Park et al.; S.Ct.N.J.; A-17/A-45 September Term 2005; 2006 N.J. LEXIS 1080; 7/17/06
Attorneys of Record: (for appellant and cross-respondent) Richard C. Wischusen of Reilly, Supple & Wischusen. (for respondents and cross-appellants) Robert A. Porter Bafundo, Porter, Borbi & Clancy.


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