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Hojnowski v. Vans Skate Park3/10/2005
pursuit of a tort remedy, which is the upshot of the majority's decision, must be squarely centered upon the understanding that the creation of a tort standard -- or, viewed from another legal viewpoint, the rejection of a free and voluntary contract -- should have as its consequence the creation of safer premises and products. The imposition of tort liability is useful in society not merely to compensate injured persons but to deter unsafe conduct by those found liable and others similarly situated. In this way, the law has a shadowy, beneficial impact that guides and molds future conduct.
Here, the result of the majority's decision is, in my view, all shadow and no benefit. Preventing Vans from insulating itself from claims for injuries sustained by a skateboarder that result from the inherent risks of the sport cannot possibly prompt Vans to mold its conduct in a beneficial way. The imposition of all the tort liability in the world on an operator of such a facility, for injuries resulting from the sport's inherent risks, will not bring about a beneficial change in its facility. If Andrew merely fell off his skateboard, I fail to see how the imposition of tort liability on Vans would cause Vans to make any beneficial alteration in its premises. Thus, the imposition of tort liability in such an instance would produce no societal benefit. And, if Vans is to be held responsible for injuries resulting from a skateboarder's mere fall from his skateboard, should we either anticipate or welcome a change in the facility that would protect against similar future occurrences? If such facilities felt compelled by the possibility of tort liability to adopt additional safety precautions to prevent such inevitable injuries, will skateboarding eventually take place in a large padded room by participants wrapped in styrofoam and suspended by wires to catch them from hitting the ground upon falling? At that point, if not much sooner, skateboarding ceases to be skateboarding. An overreaching onslaught of tort liability upon such businesses would eventually bring an end to skateboarding and numerous other"extreme sports" as practiced in controlled facilities.
These views, I hasten to add, are not mine alone. The Legislature has already determined that there is a place in society for other inherently hazardous sports, such as skiing, sledding and tobogganing, N.J.S.A. 5:13-1 to -11, roller skating, N.J.S.A. 5:14-1 to -7, and equine animal activities, N.J.S.A. 5:15-1 to -12. Indeed, while the Legislature has not enacted similar legislation regarding skateboarding, it is noteworthy that skateboarding may be viewed as a combination of roller skating and skiing or sledding, sports our Legislature has determined worthy of its protection through the creation of parameters governing liability and the assumption of risk. Because of its concern that businesses involved in such sports are endangered by ruinous lawsuits and spiraling insurance costs -- thus causing an unwarranted detrimental impact on the State's economy -- the Legislature has enacted standards of care that preclude claims for injuries to participants, regardless of age, resulting from the inherent risks of skiing, sledding, tobogganing and using other similar vehicles, N.J.S.A. 5:13-5, roller skating, N.J.S.A. 5:14-6, and equestrian sports, N.J.S.A. 5:15-3.
Since it would seem, without knowing more about how this accident occurred, Andrew's claim for damages must fail if it is shown that his injury occurred as a result of a risk he assumed, such as falling off his skateboard, being struck or knocked off his skateboard by another participant, by some defect in his own skateboard, or in failing to heed instructions as to the use of the facility, I
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