N.J. Appellate Division Affirms Summary Judgment on Liability Waiver

On October 31, 2014, the New Jersey Appellate Division affirmed the Trial Court’s grant of Summary Judgment in the case of Steinberg v. Sahara Sam’s Oasis, et al.  In its 2-1 decision, the majority affirmed the 2013 dismissal of all injury claims against the owner of an indoor water park arising from an accident on a water ride because plaintiff had signed a Liability Waiver.

FACTS

A 44 year old psychologist sustained a serious spinal cord injury while riding a simulated surf machine called the FlowRider inside the indoor water park in Berlin, N.J.  The FlowRider’s design uses high powered water jets to create a continuous water flow up an inclined membrane to simulate an ocean wave.  Riders are given the option of riding a “boogie board” on their stomach or standing up like a surfer.  Most riders ride the wave on their stomach.  Riders standing on the board usually “wipe out” for the first few times until they learn to balance on the rushing water flow.  Prior to entering the ride, all riders of the FlowRider are required to sign a liability waiver which acknowledges the physical risks of riding the FlowRider and releasing Sahara Sam’s from all liability.  Plaintiff was recorded on closed circuit security video reading and signing the two-page document prior to riding the FlowRider and being given a special wrist band indicating he had signed the waiver before riding the FlowRider.

Plaintiff opted to ride the FlowRider standing up his first time.  He was shown on video being instructed by the attendants on how to position his feet and balance while the board was on the dry deck and the use of a tether rope.  Plaintiff stood on the board while the attendant slowly pushed the board into the water flow.  Plaintiff held one end of a tether rope for balance but moments after the attendant released the end of the board, plaintiff pitched forward from his standing position and landed on the top of his head in the shallow water flow.

Plaintiff fractured several cervical vertebrae and bruised his spinal cord.  He underwent emergency spinal fusion and was rendered was an incomplete quadriplegic until he was rehabilitated to the point where he could walk without any assistance.

PROCEDURAL HISTORY

The plaintiff filed suit in N.J. Superior Court Camden County against the owner and operator of the water park, the inventor of the FlowRider, the builder who installed the ride, as well as several component manufacturers.  The other defendants settled with plaintiff at mediation.  Sahara Sams Oasis, represented by Christopher J. Hoare, Esq. and Laura M. Danks, Esq. of Capehart Scatchard filed a motion for summary judgment based on N.J. Supreme Court decision in Stelluti v. Casapenn Enterprises, 1 A.3d 678, 203 N.J. 286 (2010).  The trial court granted Sahara Sams’ motion for summary judgment finding that the facts in the FlowRider case were on all fours with the Stelluti decision.  Plaintiff appealed.

In Stelluti, a patron of a health club injured herself during a spinning class after signing a membership application which contained liability waiver language.   The N.J. Supreme Court applied general contract principles to liability waivers and held that under New Jersey law, release of liability contracts signed by adult patrons who voluntarily use recreational and fitness facilities are generally enforceable.  The exceptions to the applicability of such waivers are: (1) contracts of adhesion, (2) contract which violate  public policy, or (3) where there is evidence of willful or gross negligence.  New Jersey is unique among many states such as California and New York, both of which disfavor liability waivers as against public policy.

THE APPELLATE DECISION IN STEINBERG

In his appeal, Steinberg argued that Stelluti should not apply to the Steinberg accident because Sahara Sams’ employees had not given adequate verbal instructions to the plaintiff prior to his ride and that this constituted gross negligence.  Plaintiff also cited a later edition of the FlowRider operators’ manual that had been published by the manufacturer after the date of installation of the ride at Sahara Sams which contained an additional warning sign that was not in place on the day of the accident.  The N.J. Appellate Division held no exceptional circumstances existed and that waiver signed by plaintiff was enforceable.   In a 29 page opinion, the majority  analyzed the language of the waiver signed by Mr. Steinberg, the video of waiver signing, the conduct of Sahara Sams’ employees, and the numerous warning signs and messages around the FlowRider.  The panel noted that the New Jersey Department of Community Affairs, which licenses all amusement park rides in the state, had reviewed and approved the FlowRider’s design, manual, and warning signage shortly before the accident.  The panel found no evidence of gross negligence on the part of Sahara Sams or its employees.   The majority also rejected Steinberg’s claims that the FlowRider lacked additional signage and rider instructions recommended by the inventor and manufacturer of the ride in subsequent editions of the Operations Manual for the FlowRider.  The panel noted that riding the FlowRider was not required and that as an adult, plaintiff knew the risks of serious physical injury and voluntarily released Sahara Sams from liability.

A lone dissenting opinion held that factual issues as to gross negligence were present in the case and would have reversed the trial court’s grant of summary judgment and remanded the case for trial.

Sahara Sam’s was insured by First Mercury Insurance and defended by the Christopher J. Hoare, Esq. and Laura M. Danks, Esq. of  Capehart Scatchard at the trial level and on appeal.  Laura Danks, Esq. argued the case for Sahara Sams.  The Plaintiff was represented by the law firm of Saltz Mongelluzzi at the trial level and Fox Rothschild on the appellate brief.

For a full copy of the appellate opinion or more information, please contact Christopher J. Hoare, Esq. at choare@capehart.com.