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Hojnowski v. Vans Skate Park3/10/2005
13, 518 (App. Div. 1996), the New Jersey Roller Skating Rink and Fair Liability Act (the Roller Skating Act), N.J.S.A. 5:14-1 to -7, was passed in response to the decline of roller skating rinks both in this State (from 50 such facilities in 1981 to 21 in 1991) and nationwide (from 2,400 in 1975 to 1,150 in 1991). While similar evidence is not presently available regarding what may become of skateboarding facilities in the absence of the Legislature's protection, if they cannot contractually limit their liability, the majority's blanket invalidation of pre-tort releases in this setting may very well generate the type of evidence it presently seeks.
Secondly, I believe the evidence the majority claims is now absent can be found in our Legislature's findings in enacting the Roller Skating Act. While I agree that the Act does not expressly govern the rights and liabilities of the parties to this case, see N.J.S.A. 5:14-3(b) and (c), the activity in question certainly possesses similarities. Accordingly, I believe we should not discard but give substantial weight to the Legislature's finding that such activities are worthy of protection and that, without a clear delineation of the extent of an operator's liability, the survival of such facilities will be greatly jeopardized.
With regard to the less hazardous activity of roller skating, the Legislature made the following findings that I believe have equal or perhaps even greater applicability to skateboarding facilities:
a. The Legislature finds and declares that the recreational sport of roller skating is practiced by a large number of citizens of this State; provides a wholesome and healthy family activity which should be encouraged, and attracts to this State a large number of nonresidents, significantly contributing to the economy of this State. Therefore, the allocation of the risks and costs of roller skating is an important matter of public policy.
b. The Legislature finds and declares that roller skating rink owners face great difficulty in obtaining liability insurance coverage, and that when such insurance coverage is available, drastic increases in the cost of the insurance have taken place and many roller skating rink owners are no longer able to afford it.
This lack of insurance coverage adversely affects not only the roller skating rink owners themselves, but also patrons who may suffer personal injury and property damage as a result of accidents which occur on the premises of the roller skating rink.
In order to make it economically feasible for insurance companies to provide coverage to roller skating rinks, the incidence of liability should be more predictable. That predictability may be achieved by defining the limits of the liabilities of roller skating rink operators in order to encourage the development and implementation of risk reduction techniques. [N.J.S.A. 5:14-2.]
Since the Legislature has not enacted similar protections for both patrons and operators of skateboarding facilities, I believe that an entity, such as Vans, may attempt to fairly define the scope of its liability through the execution of an agreement such as that in question here. Because the Legislature has seen fit to protect roller skating rink operators by rendering predictable"the incidence of liability," N.J.S.A. 5:14-2(b), in order to render feasible the providing of liability coverage by insurance companies, I fail to see how it is contrary to public policy for a skateboarding facility operator to secure a similar level of predictability by obtaining pre-tort releases from patrons.
E. I also disagree with the majority's analysis because I believe the decision to permit the
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