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Hojnowski v. Vans Skate Park3/10/2005
-6.2, and to trustees, directors, officer and voluntary members of non-profit organizations by N.J.S.A. 2A:53A-7.1.
In a skateboard context, we do not find, as does our colleague, that the"law's solicitude for the rights of children" has been unjustifiably"exalted over the public's interest in the continued viability of businesses that make available places for such sporting activities." We view children to trump economic concerns such as these. We are aware of no public policy that requires the law to provide facilities such as that operated by Vans with an environment from which to operate a business apparently free from the risk of litigation except in the most egregious of cases.
Nor are we persuaded that, in the context of this litigation, we are equipped with the facts that would enable us to determine that skateboarding outside a facility such as Vans is so unsafe that the Vans of this country must be legally protected at the expense of a minor's tort rights in the manner that our colleague sets forth. The record contains nothing with respect to the comparative dangers of skateboarding in various venues. To be sure, reported cases can be utilized to create a parade of horribles. However, we lack any evidence by which we can compare the incidence, circumstance or severity of injuries in skateboard facilities of various types to injuries sustained elsewhere. If, as our colleague postulates, skateboarding is indeed more dangerous when conducted in the streets and a valuable resource providing a safe venue for the sport will be faced with economic extinction as the result of this decision, then the Legislature can be apprised of that fact and can act, as it has to protect other industries that it deemed to be both important and threatened.
We note in this context the protections against liability for dangers inherent in the sport that already have been afforded to certain other commercial enterprises by the provisions of N.J.S.A. 5:13-1 to -11, governing skiing, tobogganing and sledding; the New Jersey Roller Skating Rink Safety and Fair Liability Act, N.J.S.A. 5:14-1 to -7; and N.J.S.A. 5:15-1 to -12, governing equestrian activities. If the Legislature regards our decision relating to child skateboarders as contrary to any manifestation by it of a willingness to render participants solely responsible for injuries resulting from the inherent risks of this or any other sport, the Legislature remains free to act.
We do not, as a matter of principle, reject the proposition that a parent should be empowered to permit a child to engage in activities that are accompanied by a degree of inherent risk. What we hold here is that the parent should not, at the same time, be able to waive the child's claim based on negligence. An issue arises in this context as to whether the parent should be permitted to waive liability for those injuries arising as the result of a danger inherent to the sport of skateboarding or any other sport. We see nothing to be gained by that process, so long as assumption of the risk remains as a defense to any claim of liability. We reach this conclusion, in part, because we find it impossible to define as a matter of law what constitutes a danger inherent to a sport that could definitively be encompassed in a waiver. Such a determination must be made on a case-by-case basis after full consideration of the factual circumstances giving rise to the injury. As a consequence, the existence of a waiver by a parent of this type of liability will not serve to lessen litigation. A determination will still be required by a judge or arbitrator whether the facts support the imposition of liability.
Moreover, we regard utilization of the doctrine of a
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