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Hojnowski v. Vans Skate Park3/10/2005
. As outlined at length earlier in this opinion, I cannot conclude that this express assumption of the risk is invalid or unenforceable either when applied to a claim based upon an adult's or a minor's injuries.
Another potential claim -- perhaps that upon which Andrew's claim is based -- is when a participant is struck or knocked off his or her skateboard by another participant. The pre-tort release expresses the patron's agreement to waive a claim if the patron is"injured by another person." Again, because such an occurrence normally falls within the inherent risks of the sport, I would uphold the release to this extent. Accord N.J.S.A. 5:14-6 (roller skaters assume the inherent risk of injury resulting"from incidental contact with other roller skaters or spectators"). However, the agreement also indicates that by executing the agreement, the patron agrees to"abide by the rules of safety/conduct posted in the park" and that the patron understands that"these rules are strictly enforced." I would interpret these provisions to mean that Vans has adopted rules for the use of the park and has voluntarily undertaken the obligation to strictly enforce those rules. Accordingly, a fair construction of these provisions would lead to the conclusion that Vans has not attempted to obtain the release of claims based upon the inadequacies of its posted warnings or claims based upon its negligent failure to strictly enforce those rules. As a result, I do not believe we need to decide whether a pre-tort release could secure the waiver of a claim based upon negligent supervision, because the only reasonable interpre tation of the agreement in question reveals that Vans made no attempt to bar such a claim.
In the final analysis, because of the absence of any evidence as to how this incident occurred, it cannot be said whether the pre-tort release governs this claim. For the reasons expressed above, I would apply the pre-tort release to bar any claim based upon a risk inherent in skateboarding, such as Andrew's falling from his skateboard without any impact from another skateboarder or if his fall was not otherwise caused by some defect in the structures or equipment supplied by Vans; I would also apply the pre-tort release to bar Andrew's claim even if he was thrown from his skateboard as the result of a collision with another skateboarder, because that circumstance is also the type of incident that arises from the inherent risk in the sport. However, I would permit the further pursuit of the claim if the collision resulted from a breach of the posted safety rules and from a failure of Vans to strictly enforce those rules -- not because I believe that a pre-tort release may not be obtained in this regard -- but because the agreement in question does not purport to release such a claim. Lastly, if Andrew claims that his injury was proximately caused by some defect in the structures, equipment or devices provided by Vans, I would permit the further pursuit of this claim because it is not encompassed by this release.
In short, because we do not know, and cannot discern from the record, how this incident occurred, it cannot be said whether Andrew's claim is barred by the pre-tort release. Hence, in my view, the arbitrator should be instructed to first determine how the incident occurred.
IV.
For these reasons, I concur in the majority's determination that the agreement in question is binding insofar as it requires that any viable claims be arbitrated and not resolved in a judicial forum. I also concur in the majority's holding that the trial judge should have ruled on the validity of the pre tort release and not referred that question to the arbitrator. And lastly, while I disa
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