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Hojnowski v. Vans Skate Park3/10/2005
ssumption of the risk to provide a better means for sorting out the liability of the parties than waiver, since a negligence based defense has a greater potential for nuanced application and, when appropriate, utilization of concepts of comparative negligence. It further holds the potential for influencing the conduct of Vans and other skateboard facilities in a manner designed to minimize the risk of injury to skateboarders such as Andrew, while protecting it from liability for self-induced injury.
We thus return, as the bedrock of our decision, to the principle that the judiciary must stand as guardians of the State's children in the context of this case. As the Court stated in Cooper, supra,
To allow a parent or guardian to execute exculpatory provisions on his minor child's behalf would render meaningless for all practical purposes the special protections historically accorded minors. In the tort context especially, a minor should be afforded protection not only from his own improvident decision to release his possible prospective claims for injury based on another's negligence, but also from unwise decisions made on his behalf by parents who are routinely asked to release their child's claims for liability. [48 P.3d at 1234.]
Were we to decide otherwise, we would be relieving an alleged wrongdoer from its traditional legal responsibility to provide compensation for injuries caused by its negligence and shifting the economic burden to families, public welfare agencies and private charities without any concomitant benefit to either an injured child or his parents. Cf. Gershon v. Regency Diving Ctr, Inc., 368 N.J. Super. 237, 249 (App. Div. 2004).
We therefore void the release at issue because it limits the tort remedies available to Andrew to less than the law, if unfettered, would otherwise allow. We do not, however, foreclose to Vans any defenses available to it under the facts and the common law, including assumption of the risk. See Del Tufo v. Twp of Old Bridge, 147 N.J. 90, 112-13 (1996).
Affirmed in part; reversed in part. The matter is referred to the arbitrator for further proceedings consistent with this opinion.
FISHER, J.A.D., concurring in part and dissenting in part.
So her twelve-year old son Andrew Hojnowski (Andrew) could utilize a skateboarding facility owned and operated by defendant Vans Skate Park (Vans), plaintiff Anastasia Hojnowski (Anastasia) executed, on December 26, 2002, a document that purported to release certain future tort claims and to require arbitration of any unreleased claims. Andrew was injured while skateboarding at Vans' facility on January 3, 2003, prompting his parents to file a complaint in the Law Division. While the trial judge concluded, by way of Vans' motion, that the arbitration provision was enforceable, the judge also declined to determine whether any of the claims were barred by the release leaving, instead, those issues to be resolved by the arbitrator. This appeal followed.
I. In Section I of the majority opinion, my colleagues have found enforceable the provisions that contain the waiver of a trial by jury and the consent to arbitration. While I agree, I do so because -- as more fully explained below in the discussion concerning the release provisions also contained in the agreement -- I believe that, in the absence of legislatively- imposed limits, our courts should defer to a parent's decisions in such matters.
In Section II, the majority has held that the trial judge should have considered the validity of the release provisions. I also agree that, in determining the scope of the arbitrator's authority, the trial judge should have resolved
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