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Hojnowski v. Vans Skate Park3/10/2005
see no reason why his parent's promise not to seek damages for the injuries resulting from such inherent risks should not be enforced. Such an agreement, if executed by a parent in conjunction with a child's use of a ski slope or a roller skating rink, would not be void against, but entirely consistent with, public policy. I believe the same approach should be adopted here.
Just as the Roller Skating Act does not immunize operators but merely"afford them more predictable liability exposure," Derricotte v. United Skates of Am., 350 N.J. Super. 227, 235 (App. Div. 2002) (quoting Calhanas, supra, 292 N.J. Super. at 525), Vans' pre-tort release purports to do much the same thing. It makes no attempt to insulate Vans from all claims of all types, but instead advises patrons of their right to sue for some claims but not others. Just as the Legislature has erected parameters for the operation of roller skating rinks that define the operator's obligations and the risks that patrons assume, I find no public policy that would prevent a skateboarding facility from setting reasonable parameters regarding its undertaking through the securing of pre-tort releases.
III.
The only question that remains is whether the pre-tort release in question pushes the parameters of what claims may be released and what should be preserved beyond reason.
In this regard, it is important to recognize that the pre tort release does not attempt to extinguish claims based upon some unfitness or unsafe condition of the equipment supplied by Vans, but only claims that are based upon the inherent risks of the sport that the patron has assumed. Paragraph 3(c) of the document in question suggests that the patron gives up any claim unless injured because"Vans intentionally failed to prevent or correct a hazard caused by unsafe equipment and devices." Certainly, a court should not permit enforcement of a release of intentionally wrongful conduct, and the release so acknowledges. In addition, it is observed that the complaint does not allege any intentional conduct by Vans that gave rise to Andrew's claim.
The question that follows is whether the agreement includes a release of claims based upon Vans' negligent failure"to prevent or correct a hazard caused by unsafe equipment and devices." Because the following paragraph of the agreement indicates that the patron does"not give up the right... o have safe equipment, structures and devices at the Park for our intended use," or to seek"compensation for our injury... if you are hurt because the equipment, structure and devices at the Park are not safe for our intended use," I would conclude that the agreement intended to permit a party to seek relief when an injury is proximately caused by some condition or equipment that was rendered or became unsafe as a result of negligent acts or omissions. This approach comports with the principle that an exculpatory agreement, when ambiguous, should be construed against the party relying upon its terms. See Chemical Bank of N.J. v. Bailey, 296 N.J. Super. 515, 528 (App. Div.), certif. denied, 150 N.J. 28 (1997).
The construction of the agreement that appears most logical is that all claims are released unless specifically preserved within the document. That is, the document states that"Vans is asking you to give up legal rights in order to enter this park," followed by the statement that"using Vans' Park, or even entering the Park as a spectator may increase your risk of harm." The only reasonable interpretation of this language is that, by executing the document, the patron has expressly assumed the risks inherent in participating in skateboarding or merely watching others engaging in the sport
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