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Hojnowski v. Vans Skate Park3/10/2005
e decisions regarding the upbringing of a child which -- despite all good intentions -- we should not interfere with, (d) there are unaccounted countervailing public policies that, in my view, override the policy exalted in the majority's opinion, and (e) the pre-tort release does not overreach but, instead, secures only the waiver of the child's claims to injuries resulting from his assumption of the risks inherent in skateboarding, and, therefore, is in harmony with the policies endorsed by our Legislature in enacting laws that govern similar sporting activities.
A. Absent the overriding public policy that the majority has announced, there is no legal reason why a parent cannot enter into an agreement that releases a child's claim before it accrues, as occurred here. A parent has the right to enter into contracts on a child's behalf. In fact, the majority, in upholding the arbitration provision and the waiver of a trial by jury, has so held. Thus, any limitation on the right of a parent to contractually affect a child's interests comes not from contract law nor has that power been limited by the Legislature.
In considering the basis for the majority's ruling, I do recognize that a court may, with the exercise of great caution, withhold its power to enforce a contract when warranted by a compelling and plainly apparent public policy. See, e.g., Sparks v. St. Paul Ins. Co., 100 N.J. 325, 334-35 (1985). But I believe it is important to emphasize that it is only in the potentially murky area of what does or does not conform to public policy -- an area into which we should tred with caution, Allen v. Commercial Cas. Ins. Co., 131 N.J.L. 475, 478 (E. & A. 1944), because, in so doing, we infringe upon the parties' common law freedom of contract -- where an obstacle to the enforcement of this pre-tort release lurks.
B. It is also, in my view, important to emphasize that public policy is not hostile to the enforcement of pre-tort releases that are given in similar circumstances. The pre-tort release in question -- if executed by an adult for the adult's use of the skateboarding facility -- would undoubtedly be deemed valid. Such pre-tort releases are normally invalidated only when their execution is demanded in exchange for the released party's providing of a necessary service or commodity of great import, where the released party is under a public duty to exercise care, or where the parties are in grossly disproportionate bargaining positions. See Mayfair Fabrics v. Henley, 48 N.J. 483, 487 (1967); McBride v. Minstar, Inc., 283 N.J. Super. 471, 490 (Law Div. 1994), aff'd o.b. sub nom, McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div.), certif. denied, 143 N.J. 319 (1995). In this sense, a court should not enforce a pre-tort release when, for example, it is demanded by a hospital prior to treating a patient, Tunkl v. Regents of Univ. of Calif., 383 P.2d 441 (Cal. 1963), or when included in a residential apartment lease by a landlord possessing superior bargaining power, Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575 (App. Div. 1955).
Here, the pre-tort release was requested of Anastasia in exchange for permitting Andrew to use Vans' facility. The right to skateboard in a privately-owned facility is not a"necessity" nor may any patron seeking admittance be assumed to be in a grossly disproportionate bargaining position. Patrons that do not approve of such an agreement's terms may simply depart and skateboard elsewhere. See McBride, supra, 283 N.J. Super. at 491. As a result, the courts of most states, including this State, have upheld exculpatory agreements of various types when executed in connection with a person's participation in sporting activities, see,
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