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New Jersey Legal Research and Writing

Pre-Injury Tort Liability Waivers Alive and Well In New Jersey


By: Phillip R. Boyce, Esq. Although it did not garner much attention at the time, the New Jersey Supreme Courts decision in Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286 (2010) settles any doubts about the validity of pre-injury tort liability waivers and represents a paradigm shift toward the rights of premises owners. While these agreements have never been banned per se in New Jersey, the courts have expressed a degree of hostility toward liability waivers and have subjected them to close scrutiny. On a number of occasions, New Jersey courts have declined to enforce pre-injury liability waivers finding that the public policy of protecting plaintiffs from adhesion contracts outweighed the premises owners right to freedom of contract. See e.g. McCarthy v. Nat. Assn for Stock Car Auto Racing, Inc., 48 N.J. 539 (1967), Gershon v. Regency Dining Center, Inc., 368 N.J. Super. 237, Marcinczyk v. State of New Jersey Police Training Comn, 203 N.J. 586 (2010). However, each of these cases represented relatively narrow circumstances where the owners were attempting to curtail a duty imposed by statute. Stelluti represents the first time that the Supreme Court had the opportunity to address an ordinary pre-printed liability waiver in the context of an injury sustained by an adult in a non-essential recreational activity. Following that decision, it is clear that to the extent that New Jersey might have been moving toward a complete erosion of liability waivers, that trend was firmly halted. Stelluti arose from an injury sustained by the Plaintiff in a health club when the handlebars of an exercise bicycle broke during a spinning class. The liability waiver was a typical pre-printed agreement in which the Plaintiff assumed all risks and waived any and all claims or causes of action. Id. at 293. Plaintiffs expert opined that the accident could not have happened absent negligence. The trial court dismissed the case on summary judgment finding that the liability waiver barred claims for both negligence and gross negligence. The Appellate Division affirmed but modified slightly, holding that a liability waiver could not exclude gross negligence. Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super. 435, 439 (App. Div. 2009). The Supreme Court affirmed and provided the most thorough and comprehensive statement of the law of liability waivers in New Jersey to date. The Stelluti court adopted the test formulated by Appellate Division in Gershon which states that a pre-injury liability waiver will be enforced if (1) it does not adversely affect the public interest, (2) the exculpated party is not under a legal duty to perform, (3) it does not involve a public utility or common carrier, or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable. Id. at 304 (citing Gershon v. Regency Dining Center, Inc., 368 N.J. Super. 237, 248). While prior case law had established that a statutorily imposed duty could not be evaded, the crux of the decision in Stelluti was whether the ordinary duties imposed under the common law for negligence and/or gross negligence could be waived. On this issue, the Court concluded that public policy precluded the waiver of liability for reckless or gross negligence but that no such public policy concern existed for ordinary negligence. Id. at 306, 313. The Court noted that in essence it was harmonizing the common law with the legislatures approach in the Ski Lift Safety Act, N.J.S.A. 34:4A-1 (1979), the Equine Activities Liability Act, N.J.S.A. 5:15-1 (1988), and New Jersey Roller Skating Rink Safety and Fair Liability Act, N.J.S.A. 5:14-1 (1988). It is possible that subsequent case law will limit Stelluti to its facts, but clearly the opinion reads as an attempt to control the field on this aspect of New Jersey common law. Thus, to the extent that the New Jersey courts appeared to be moving toward further erosion of liability waivers, Stelluti has halted that trend.

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