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Hojnowski v. Vans Skate Park3/10/2005
legitimate public interest in having the judiciary intervene in, or override, such a decision. Indeed, it is interesting to observe that this court has shown more deference to the decisions of a parent to settle or not settle a child's pending claim than the majority has given to Anastasia's pre-tort decisions. See, e.g., Zukerman, supra, 232 N.J. Super. at 95- 97.
D. The public policy that has led the majority to conclude that a pre-tort release may not validly bar a child's personal injury claim is the law's solicitude for the rights of children. That is certainly a laudable consideration that should not be discounted, but here it has been exalted over the public's interest in the continued viability of businesses that make available places for such sporting activities. In refusing to permit a parent to waive a child's future tort claim, I believe the majority has failed to appreciate the impact this decision may have upon the operators of such facilities and, indeed, upon other children such as Andrew.
The result of the majority's decision may be the inability of operators of such facilities to profitably stay in business. It may be expected that with the evisceration of pre-tort releases, a facility such as Vans may anticipate an increase in insurance premiums, or an unavailability of liability insurance, that may render its business unprofitable. In addition, it is unlikely this economic impact could be overcome by excluding children and allowing only adults into the facility. The vast majority of skateboarders are minors and, thus, barring their admission would undoubtedly lead to a precipitous decline in such a facility's income.
Extrapolating further, the barring of minors from such facilities would cause their return to the streets, driveways and sidewalks in their communities, where the dangers to themselves and others are undoubtedly greater than in the controlled setting of a skateboard facility. See, e.g., Rosen v. Knaub, 857 P.2d 381 (Ariz. 1993) (skateboarder hit by truck on a residential street at night); Calhoon v. Lewis, 96 Cal. Rptr. 2d 394 (Cal. App. 2000) (skateboarder impaled on metal pipe located in a planter in a friend's driveway); Bartell v. Palos Verdes Peninsula Sch. Dist., 147 Cal. Rptr. 898, 899 (Cal. App. 1978) (12-year old fatally injured while playing a skateboard version of"crack the whip" on a school playground after hours); Plante v. Hinton, 742 N.Y.S.2d 159 (App. Div. 2002) (during Memorial Day parade, a skateboarder's maneuver startled a mule team, causing the mule-pulled wagon to tip over; as a result, a four-year old passenger of the wagon was dragged face first on asphalt for 50 to 60 feet); Miller v. Likins, 34 P.3d 835 (Wash. App. 2001) (14-year old skateboarder struck by a car on a curve in a poorly-lit road at night); Elaine Marie Tomko, Annotation, Liability of Motorist for Injury to Child on Skateboard, 24 A.L.R.5th 780 (1994). The majority's advancement of a public policy in favor of the right of a child to seek a tort remedy assumes that the choice presented is between the child having access to such a facility with a right to sue and the child having access to such a facility without a right to sue. In fact, the choice we may very well be making is between the child having access to such a facility without a right to sue and no such facility at all.
The majority asserts that there is no evidence to suggest that such recreational facilities would be lost if operators cannot protect themselves through pre-tort releases. My first response is that this evidence may very well come in the form of closed businesses in the near future. For example, as Judge King recognized in Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 5
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