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Hojnowski v. Vans Skate Park3/10/2005
In this case, the agreement signed by Andrew's mother on his behalf provided that:"If you are injured and want to make a claim, you must file a demand before the American Arbitration Association." The agreement further eliminated the right to sue in a court of law."A provision in a written contract to settle by arbitration a controversy that may arise therefrom... shall be valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of a contract." N.J.S.A. 2A:24-1. The fact that the claim arises in tort, not contract, is immaterial. Garfinkel, supra, 168 N.J. at 137; Jansen, supra, 342 N.J. Super. at 258.
No New Jersey case has determined whether a parent, as a condition to her minor child's entry into a commercial recreational facility and participation in its activities, has the power to agree on behalf of that child that any claim for the minor's bodily injuries at the facility will be subject to arbitration. However the issue of the binding effect on non parties of a contractual arbitration clause has been addressed." on-signatories of a contract... may... be subject to arbitration if the nonparty is an agent of a party or a third party beneficiary to the contract." Garfinkel v. Morristown Obstetrics & Gynecology Assoc., 333 N.J. Super. 291, 308 (App. Div. 2000), rev'd on other grounds, 168 N.J. 124 (2001)(quoting Mutual Benefit Life Ins. Co. v. Zimmerman, 783 F.Supp. 853, 865 (D.N.J.), aff'd, 970 F.2d 899 (3d Cir. 1992)). See also Jansen, supra, 342 N.J. Super. at 261."The principle that determines the existence of a third party beneficiary status focuses on whether the parties to the contract intended others to benefit from the existence of the contract, or whether the benefit so derived arises merely as an unintended incident of the agreement." Broadway Maintenance Corp. v. Rutgers, The State Univ., 90 N.J. 253, 259 (1982)." he real test is whether the contracting parties intended that a third party should receive a benefit which might be enforced in the courts." Borough of Brooklawn v. Brooklawn Housing Corp., 124 N.J.L. 73, 77 (E. & A. 1940). See also Restatement (Second) of Contracts ยง 302 (1979).
In this case, it is clear that Andrew's mother intended that Andrew benefit from the contract that she signed on his behalf. Indeed, her execution of the agreement had no purpose other than to gain for her son the benefit of entry into the skatepark. That the entry was conditioned upon a relinquishment of the right to trial and its replacement with the right to mandatory arbitration does not render the contract against public policy or otherwise avoidable.
The substitution of one forum for another, in and of itself, has never been declared against the public policy of this State. We recognize that commentators have found fault with the arbitration process, focusing on concerns such as its cost, limitations upon discovery, the absence of an adequate evidentiary record to support the arbitrator's decision, the elimination of the right to a jury trial, and severe restrictions upon appellate review. See, e.g., Elizabeth G. Thornberg, Contracting with Tortfeasors: Mandatory Arbitration Clauses and Personal Injury Claims, 67 Law and Contemporary Problems 253 (Winter/Spring 2004). Nonetheless, those complaints have not gained a foothold in New Jersey's jurisprudence. A"State interest in favoring arbitration" has instead been recognized. Martindale, supra, 173 N.J. at 85. We perceive no rational basis for according additional weight in this case to the concerns enumerated by others, simply because the arbitration provision at issue governs the claims of a minor.
We derive support for our conclusion from Allgo
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