Roy Steinberg v. Sahara Sam's Oasis, Llc(075294) ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Roy Steinberg, Ph.D. v. Sahara Sam’s Oasis, LLC (A-41-14) (075294)
Argued February 29, 2016 -- Decided August 23, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal, the primary issue is whether, under the statutory and regulatory provisions of the Carnival-
Amusement Rides Safety Act (the Safety Act), N.J.S.A. 5:3-31 to -59, the evidence in the summary judgment record
supports an action for gross negligence.
On April 4, 2010, plaintiff was a patron at Sahara Sam’s Oasis Water Park. One of the indoor rides at the
water park, the FlowRider, simulates riding a surfboard. A participant can lie prone on a bodyboard or stand on a
“flowboard,” which resembles a small surfboard. When a rider is in a standing position, an attendant holds one end of a
rope and offers the other end to the rider to assist with balance as he simulates surfing. Plaintiff gained admission to the
ride after he signed a form acknowledging the risks associated with using the FlowRider and waiving liability for any
injury caused by the negligence or other actions of Sahara Sam’s or its employees. According to plaintiff, the attendants
did not tell him that, as a first-time rider, he should lie on his stomach on the bodyboard or, if standing on the
flowboard, he should not hold the rope with two hands. Plaintiff stepped onto the flowboard and, while standing, an
attendant handed him a rope, which plaintiff wrapped around one hand and held in the other. The flowboard was then
released into the water. Within seconds, plaintiff fell from the board head-first, striking his head on the bottom surface,
which caused a spinal cord injury. The injury rendered plaintiff an incomplete paraplegic.
Sahara Sam’s contracted with Aquatic Development Group (ADG) for the purchase and installation of the
FlowRider, which was manufactured by Wave Loch, Inc. and ADG. To comply with the Safety Act, ADG submitted
the ride’s blueprints and the manufacturer’s 2007 operator’s manual, which included recommended safety signage, for
review to the New Jersey Department of Community Affairs, Amusement Safety Ride Unit (DCA). Based on the
information received from ADG, the DCA granted type certification in July 2008. Before the FlowRider went into
operation, Sahara Sam’s received the updated 2008 manufacturer’s manual, which provided for new signage with
pictorial displays and more explicit safety-warning language. At the time of plaintiff’s accident in 2010, the signage
from the 2007 manual, not the 2008 manual, was on display. The differences between the signage in use and the
signage that should have been installed is an essential component of plaintiff’s case because he claims he was not
placed on notice of the gravity of the danger and the precautions he should have taken to avoid injury.
In February 2009, one month before the FlowRider opened to the public, Wave Loch’s corporate designee for
training, Robert Chalfant, instructed Sahara Sam’s employees on the safe operation of the ride using the 2008 manual.
Chalfant told those in attendance that a first-time rider should lie in a prone position. Nevertheless, according to Sahara
Sam’s Aquatic Director, operators of the FlowRider did not advise first-time riders to lie in the prone position. Chalfant
also instructed employees that a rider should not wrap the balance rope around his wrists or hold the rope with two
hands because doing so would expose the rider to a greater risk of injury. According to Chalfant, the 2008
recommended signage should have been in place at the time the ride opened to the public.
The trial court granted summary judgment in favor of Sahara Sam’s, dismissing plaintiff’s civil action. The
court held that, before his admission to the ride, plaintiff signed a general waiver of liability that extinguished his right
to file a negligence action and any action arising under the Safety Act. The court also held that the summary-judgment
record did not support an action for gross negligence. In an unpublished opinion, a three-judge Appellate Division
panel, in a split decision, affirmed the trial court’s grant of summary judgment. The panel determined that plaintiff
entered into a valid recreational exculpatory agreement in which he agreed to waive any liability claim arising from
injuries suffered while participating in the FlowRider. Although it acknowledged that the waiver agreement could not
exonerate gross negligence, the panel rejected plaintiff’s argument that a reasonable jury could find that Sahara Sam’s
actions constituted gross negligence. In his dissenting opinion, Judge Hoffman asserted that the panel majority erred by
not viewing the evidence in the light most favorable to plaintiff on the gross-negligence claim and detailed the facts in
the record, which, if believed by a reasonable factfinder, would constitute gross negligence.
Based on the dissent in the Appellate Division, plaintiff appealed as of right the issue of whether the summary-
judgment record presented a genuine issue of material fact on his claim of gross negligence. The Court also granted
plaintiff’s petition for certification on the issue of whether Sahara Sam’s alleged violation of the Safety Act, standing
alone, precludes enforcement of the waiver and constitutes an independent basis for reversal of the trial court’s grant of
summary judgment. 220 N.J. 575 (2015).
HELD: The summary-judgment record, viewed in the light most favorable to plaintiff, would allow a reasonable finder
of fact to conclude that plaintiff’s injuries were caused by Sahara Sam’s gross negligence. Further, while a violation of
the Safety Act, standing alone, does not give rise to a private cause of action, particular violations of the Safety Act,
individually or in their aggregate, may be considered as evidence in determining whether Sahara Sam’s acted with gross
negligence.
1. Plaintiff concedes that the liability-waiver agreement he signed before participating in the FlowRider bars his
negligence claim. Instead, he argues that Sahara Sam’s is accountable for its statutory violations of the Safety Act and
its gross negligence, which were the proximate cause of the injuries. The Court addresses only those claims raised by
plaintiff that are not barred by the waiver agreement. The Court rejects plaintiff’s implied argument that a violation of
the Safety Act, standing alone, gives rise to a private right of action. The Safety Act and its accompanying regulations
set forth an administrative framework for ensuring the safety of those attending carnivals and amusement parks,
including water parks, in New Jersey. The DCA is charged with the responsibility of enforcing the Safety Act and its
regulations. The Safety Act provides for administrative sanctions against the operator of a carnival or amusement park
for violating the statutory or regulatory scheme. It does not give rise to a private cause of action or a tort-liability
scheme, but articulates legislative and regulatory standards of conduct intended to protect members of the public who
patronize amusement parks. Violations of those standards may be considered as evidence of negligence, or even gross
negligence, in a common-law cause of action. (pp. 18-21)
2. Certain regulations promulgated under the Safety Act are intended to inform and protect patrons using water park
rides. For example, a water-ride operator must post signs required or recommended by the ride manufacturer. The
owner must train operators of the ride based on manufacturer requirements covered by the operational manual. Here,
for example, the owner of Sahara Sam’s did not post the signs recommended in the manufacturer’s 2008 operator’s
manual. If Sahara Sam’s failed to post the signage as required by the Safety Act, then a jury may consider that failure
as evidence of negligence, provided that there is a showing that the violation is relevant to the accident. In sum, in
certain circumstances, the violation of a statutory duty of care may be admissible as evidence of negligence. In this case
such evidence is permissible because the aggregation of alleged negligent acts or omissions may be considered in
determining whether Sahara Sam’s conduct reached the level of gross negligence. (pp. 22-23)
3. The principal issue in this appeal is whether the record, when viewed in the light most favorable to plaintiff,
supported the trial court’s grant of summary judgment dismissing plaintiff’s claim of gross negligence. Gross
negligence falls on a continuum between ordinary negligence and recklessness. Negligence is defined generally as the
failure to exercise that degree of care for the safety of others, which a person of ordinary prudence would exercise under
similar circumstances. Gross negligence is a higher degree of negligence. While negligence is the failure to exercise
ordinary or reasonable care that leads to a natural and probable injury, gross negligence is the failure to exercise slight
care or diligence. Although gross negligence is something more than inattention or mistaken judgment, it does not
require willful or wanton misconduct or recklessness. The Court endorses the definition of gross negligence found in
the New Jersey Civil Model Jury Charge and rejects the trial court’s and appellate panel majority’s description of gross
negligence as the equivalent of willful conduct. Negligence, gross negligence, recklessness, and willful conduct fall on
a spectrum, and the difference between negligence and gross negligence is a matter of degree. (pp. 24-28)
4. On a motion for summary judgment, the strength of Sahara Sam’s case is not at issue. At this procedural stage, the
Court must simply view the record in the light most favorable to plaintiff and resolve whether, on that basis, a
reasonable factfinder could find that plaintiff’s injuries were proximately caused by the gross negligence of Sahara
Sam’s. Based on that standard, the Court agrees with the dissent in the Appellate Division that the trial court erred in
granting summary judgment. The FlowRider is an extreme sport and high-risk recreational activity that simulates
surfing. Nevertheless, at the time that plaintiff participated in the ride, Sahara Sam’s did not post the updated signage
recommended by the manufacturer. The factfinder is permitted to draw inferences from Sahara Sam’s failure to follow
the manufacturer’s recommendations and to consider as evidence of negligence the failure to comply with safety
regulations promulgated under the Safety Act. The issue is not whether Sahara Sam’s failed to exercise reasonable care
in any one instance. Rather, it is whether viewing the entire tableau in the light most favorable to plaintiff, a factfinder
could conclude that by not implementing the safety features in the 2008 operator’s manual and not giving plaintiff the
necessary safety instructions, Sahara Sam’s failed to exercise slight care or diligence or demonstrated an extreme
departure from the standard of reasonable care. Viewed in that light, a rational factfinder could conclude that the
proximate cause of plaintiff’s injuries was the gross negligence of Sahara Sam’s. (pp. 28-32)
The judgment of the Appellate Division, which affirmed the trial court’s grant of summary judgment, is
REVERSED. The gross-negligence claim is REINSTATED and the matter is REMANDED to the trial court for
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-41 September Term 2014
075294
ROY STEINBERG, Ph.D. and TAMI
BOGUTZ STEINBERG, h/w,
Plaintiffs-Appellants,
v.
SAHARA SAM’S OASIS, LLC,
a/k/a SAHARA SAM’S, LLC,
Defendant-Respondent,
and
WAVE LOCH, INC., AQUATIC
DEVELOPMENT GROUP, INC., ITT
WATER & WASTEWATER, ITT
CORPORATION, ITT FLYGT
CORPORATION, SAMBE
CONSTRUCTION COMPANY, INC.,
SAMBE CONSTRUCTION CO., INC.,
AQUATIC BUILDERS LTD., H20
ENTERTAINMENT GROUP, LLC, and
HYDROTECH SYSTEMS, LTD.,
Defendants.
Argued February 29, 2016 – Decided August 23, 2016
On appeal from and certification to the
Superior Court, Appellate Division.
Barry J. Muller argued the cause for
appellants (Fox Rothschild, attorneys; Mr.
Muller and Jonathan D. Weiner, of counsel,
and on the briefs).
Laura M. Danks argued the cause for
respondent (Capehart & Scatchard, attorneys;
Ms. Danks and Christopher J. Hoare, on the
briefs).
1
Lary I. Zucker and Walter F. Kawalec, III,
submitted a brief on behalf of amici curiae
World Waterpark Association and New Jersey
Amusement Association (Marshall Dennehey
Warner Coleman & Goggin, attorneys).
E. Drew Britcher and Kristen B. Miller
submitted a brief on behalf of amicus curiae
New Jersey Association for Justice
(Britcher, Leone & Roth, attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
While a patron at defendant Sahara Sam’s Oasis Water Park,
plaintiff Roy Steinberg suffered a catastrophic spinal cord
injury while participating in a water ride that simulated riding
a surfboard. Plaintiff filed a lawsuit against Sahara Sam’s
Oasis, LLC, alleging that his injuries were caused by its gross
negligence and violations of statutory and regulatory provisions
of the Carnival-Amusement Rides Safety Act (the Safety Act),
N.J.S.A. 5:3-31 to -59. Plaintiff claims that Sahara Sam’s
failed to post safety signage that warned of the ride’s dangers,
to instruct him on how to safely ride the simulated surfboard,
to properly train its employees on safety procedures concerning
the ride, and to comply with the mandates of the Safety Act.
The trial court granted summary judgment in favor of Sahara
Sam’s, dismissing plaintiff’s civil action. The court held
that, before his admission to the ride, plaintiff signed a
general waiver of liability that extinguished his right to file
a negligence action and any action arising under the Safety Act.
2
The court also held that the summary-judgment record did not
support an action for gross negligence. A three-judge panel of
the Appellate Division affirmed in a split decision. The
dissenting judge concluded that the evidence, when viewed in the
light most favorable to plaintiff, provided sufficient support
for a gross-negligence action.
We agree with the dissenting Appellate Division judge that
the summary-judgment record, viewed in the light most favorable
to plaintiff, would allow a reasonable finder of fact to
conclude that plaintiff’s injuries were caused by Sahara Sam’s
gross negligence. Stated differently, if a reasonable
factfinder believed that Sahara Sam’s acts and omissions
demonstrated its failure to exercise the slightest degree of
care or an extreme departure from the standard of reasonable
care, then a verdict of gross negligence could be returned.
We also hold that a violation of the Safety Act, standing
alone, does not give rise to a private cause of action.
Particular violations of the Safety Act, individually or in
their aggregate, however, may be considered as evidence in
determining whether Sahara Sam’s acted with gross negligence.
We therefore vacate the trial court’s grant of summary
judgment, reinstate plaintiff’s gross-negligence action, and
remand to the trial court for proceedings consistent with this
opinion.
3
I.
Plaintiff filed a civil action in the Superior Court, Law
Division, alleging that he suffered a catastrophic spinal cord
injury as a proximate result of the negligence, gross
negligence, and recklessness of Sahara Sam’s.1 Plaintiff’s wife,
Tami Bogutz-Steinberg,2 filed a consortium claim. Both are
seeking monetary damages.
Sahara Sam’s moved for summary judgment. The trial court
granted the motion and dismissed plaintiff’s complaint, and the
Appellate Division affirmed. “In reviewing a grant of summary
judgment, ‘we apply the same standard governing the trial court
-- we view the evidence in the light most favorable to the non-
moving party.’” Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35
(2015) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581,
584 (2012)). Because plaintiff is the non-moving party, we
present the evidence from the summary-judgment record in the
light most favorable to his case.
1 Plaintiff also named as defendants Wave Loch, Inc., Aquatic
Development Group, Inc., ITT Water & Wastewater, ITT Corp., ITT
Flygt Corp., Sambe Construction Co., Inc., Aquatic Builders
Ltd., H2O Entertainment Group, LLC, and Hydrotech Systems, Ltd.,
who are alleged to have caused plaintiff’s injuries based on a
variety of legal theories. Those defendants are not parties to
this appeal.
2 Although Roy Steinberg and his wife are both plaintiffs, for
the convenience of the reader, we refer to Mr. Steinberg as
plaintiff throughout this opinion.
4
A.
On April 4, 2010, plaintiff and his two children were
patrons at Sahara Sam’s Oasis Water Park, which is located in
Berlin Township, Camden County. One of the indoor rides at the
water park is called the FlowRider, which simulates riding a
surfboard. A participant can either lie prone on a bodyboard or
stand on a “flowboard,” which resembles a small surfboard. The
flowboard, if chosen, is placed on a sheet of water, two-and-
one-half to three inches deep, flowing toward the rider like an
oncoming wave. When a rider is in a standing position, an
attendant holds one end of a rope and offers the other end to
the rider to assist with balance as he simulates surfing.
Plaintiff gained admission to the ride after he signed a
form both acknowledging the risks associated with using the
FlowRider and waiving liability for any injury caused by the
negligence or other actions of Sahara Sam’s or its employees.
According to plaintiff, the attendants did not tell him that, as
a first-time rider, he should lie on his stomach on the
bodyboard or, if standing on the flowboard, he should not hold
the rope with two hands. In short, plaintiff claims he was
given minimal instruction before undertaking the ride.
Plaintiff stepped onto the flowboard and, while standing,
an attendant handed him a rope, which plaintiff wrapped around
5
one hand and held in the other.3 The flowboard was then released
into the water. Within seconds, plaintiff fell from the board
head-first, striking his head on the bottom surface, which
caused a spinal cord injury. The injury rendered plaintiff an
“incomplete paraplegic.”4
B.
Sahara Sam’s contracted with Aquatic Development Group
(ADG) for the purchase and installation of the FlowRider, which
was manufactured by Wave Loch, Inc. and ADG. To comply with the
Safety Act, ADG submitted the ride’s blueprints and the
manufacturer’s 2007 operator’s manual, which included
recommended safety signage, for review to the New Jersey
Department of Community Affairs, Amusement Safety Ride Unit
(DCA). The purpose of the submissions was to secure type
certification, which is a precondition for the operation of the
ride and “all rides of essentially the same design.” N.J.S.A.
5:3-32(j). Based on the information received from ADG, the DCA
3 According to the lifeguard on duty, after plaintiff wrapped the
rope around his hand, he instructed plaintiff not to do so, and
plaintiff then unwrapped the rope.
4 We find that, based on a review of the videotape of the
accident, there is a genuine issue of material fact concerning
whether plaintiff held the rope with one or two hands. However,
viewing the videotape in the light most favorable to plaintiff,
as we must at this stage, we determine that a reasonable jury
could conclude that plaintiff held the rope with two hands.
6
granted type certification in July 2008.5 The FlowRider’s
installation was completed in February 2009.
Before the FlowRider went into operation, Sahara Sam’s
received the updated 2008 manufacturer’s manual, which provided
for new signage with pictorial displays and more explicit
safety-warning language.6 Nevertheless, at the time of
plaintiff’s accident in 2010, the signage from the 2007 manual,
not the 2008 manual, was on display. The differences between
the signage in use and the signage that should have been
installed is an essential component of plaintiff’s case because
plaintiff claims he was not placed on notice of the gravity of
the danger and the precautions he should have taken to avoid
injury.
The 2007 FlowRider signage provided: “PARTICIPATION ON
THIS RIDE AND CONSENT OF WAIVER INDICATES YOU UNDERSTAND THE
POTENTIAL TO GET INJURED SHOULD YOU FALL WHILE PARTICIPATING.”
(Emphasis added). The 2008 recommended signage provided:
“RIDING THE FLOWRIDER IS AN EXTREME SPORT AND HIGH RISK
RECREATIONAL ACTIVITY. YOU WILL FALL.” (Emphasis added).
The 2007 signage provided: “Pregnant women and persons
with or having a history of heart, back, neck, shoulder or joint
5 The type certification was good for three years.
6 Neither ADG nor Wave Loch submitted the 2008 manufacturer’s
operator’s manual to the DCA for Sahara Sam’s FlowRider.
7
problems should not ride.” (Emphasis added). The 2008
recommended signage provided: “If you suspect that your health
or safety could be at risk, or you could aggravate a pre-
existing condition of any kind, DO NOT RIDE!” (Emphasis added).
The 2007 signage provided: “THIS IS AN EXTREME WATER
ATTRACTION . . . . BODY MUSCLES AND BONES COULD SUSTAIN INJURY.
. . . SAHARA SAM’S IS STRESSING THE POTENTIAL FOR INJURY ON
THIS ATTRACTION IN ADVANCE OF YOUR PARTICIPATION.” (Emphasis
added). In addition, the waiver form signed by plaintiff stated
that “[a]lthough many before you have ridden the FlowRider
without any problem whatsoever, injuries are possible because of
the nature of the ride.” (Emphasis added). The 2008
recommended signage provided: “FAILURE TO COMPLY WITH SIGNS OR
INSTRUCTIONS MAY INCREASE THE RISK OF SEVERE PERMANENT INJURIES
OR EVEN DEATH.” (Emphasis added).
The 2008 recommended signage also displayed warnings for
which there were no equivalent warnings in the 2007 signage.
For example, the 2008 recommended signage instructed
participants that “FALLING MAY RESULT IN THE BOARD STRIKING YOUR
BODY; OR YOUR BODY STRIKING THE SURFACE OF THE FLOWRIDER WITH
GREAT FORCE” and that “BEFORE ATTEMPTING TO RIDE, WATCH THE
SAFETY VIDEO AND UNDERSTAND THE RISKS OF THIS ACTIVITY.”
(Emphasis added).
8
Unlike the 2007 signage, the 2008 recommended signage
contains drawings that illustrate the dangers of riding a
flowboard and safety techniques for the rider. One picture
shows a rider falling from a flowboard, another a rider striking
his head on the board and a hard surface, and yet another a
rider curling in a ball and covering his head with his arms to
protect against injury. Other pictures show the proper manner
to ride a flowboard.
In February 2009, one month before the FlowRider opened to
the public, Wave Loch’s corporate designee for training, Robert
Chalfant, instructed Sahara Sam’s employees on the safe
operation of the ride using the 2008 manual. Chalfant told
those in attendance that a first-time rider should lie in a
prone position -- flat on his stomach.7 As part of learning to
ride the FlowRider, Sahara Sam’s Aquatic Director, Brandon
Moore, rode for the first time in the prone position.
Nevertheless, according to Moore, operators of the FlowRider did
not advise first-time riders to lie in the prone position.
Chalfant also instructed employees that a rider should not wrap
the balance rope around his wrists or hold the rope with two
hands because doing so would expose the rider to a greater risk
7 At his deposition, Chalfant identified the 2008 manual as the
one he used while instructing Sahara Sam’s employees. Sahara
Sam’s takes the position that it never received the 2008 manual.
9
of injury. According to Chalfant, the 2008 recommended signage
should have been in place at the time the ride opened to the
public.
Sahara Sam’s received a safety video referenced in the 2008
manual. Lifeguards who were not present at the February 2009
training, however, were not shown this video, and the video
referenced in the 2008 recommended signage was not made
available to users of the FlowRider. Sahara Sam’s owner, Ilya
Girlya, admitted during his deposition that the water park did
not have written safety training protocols and that his staff
was not required to read the operator’s manual or any equivalent
materials.8
According to plaintiff’s deposition testimony, he received
very little instruction on how to ride the flowboard and did not
receive the new-rider orientation suggested by the 2007 and 2008
manuals. Plaintiff admittedly signed the waiver form without
reading it and did not pay attention to the warnings on the
signs. According to the attendant, the instructions given to
plaintiff about the FlowRider lasted less than a minute. The
attendant, moreover, did not specifically warn plaintiff about
the risks associated with the ride or, in keeping with the 2008
8 Four months before plaintiff’s accident, the DCA inspected the
FlowRider -- based on the 2007 operator’s manual -- and did not
find any violations.
10
manual, caution him that severe permanent injuries or even death
could result from the failure to follow instructions. Plaintiff
indicated that the attendant did not assess plaintiff’s level of
experience with the FlowRider or tell him that a first-time
rider should lie in the prone position.9 Plaintiff also stated
that the attendant did not tell him how to use the rope or warn
against holding the rope with two hands. Had the updated
signage been in place or had he been told that he could be
severely injured while riding the flowboard, plaintiff
maintained he would not have participated in the FlowRider.
Sahara Sam’s Aquatic Director reported the accident to the DCA
the same day that it occurred. According to Sahara Sam’s owner,
the next day a DCA inspector checked the FlowRider and gave
approval for the ride to remain open.
C.
The trial court granted defendant’s summary-judgment motion
and dismissed plaintiff’s action against Sahara Sam’s.10 The
court found that, as a precondition to his participation in the
FlowRider, plaintiff agreed in writing to waive his right to
9 The lifeguard on duty testified that he asked plaintiff whether
it was plaintiff’s first time riding, and that plaintiff told
him he was choosing to ride in a standing position because he
was an experienced snowboarder.
10The trial court denied the summary-judgment motions of
defendants H20 Entertainment Group, LLC and Sambe Construction
Co., Inc.
11
seek damages from Sahara Sam’s in the event he suffered injuries
during the ride. The court determined that under Stelluti v.
Casapenn Enterprises, LLC, 203 N.J. 286, 304 (2010), plaintiff
entered into a valid waiver and therefore his negligence and
statutory-violation claims were barred. The court recognized
that, under Stelluti, the waiver did not extinguish a potential
gross-negligence claim. The court, nevertheless, determined
that, even if Sahara Sam’s committed negligent acts, those acts
did not rise “to the level of the willful conduct that is
defined by our courts as gross negligence.”
Plaintiff appealed.
D.
In an unpublished opinion, a three-judge Appellate Division
panel, in a split decision, affirmed the trial court’s grant of
summary judgment. The panel determined that plaintiff entered
into a valid “recreational exculpatory agreement” in which he
agreed to waive any liability claim arising from injuries
suffered while participating in the FlowRider. The panel,
evidently, found that the waiver agreement barred plaintiff’s
negligence claim.
Without regard to the waiver agreement, the panel concluded
that plaintiff did not present sufficient evidence that Sahara
Sam’s violated any statutory provision of the Safety Act or any
of the accompanying regulations. The panel reasoned that the
12
DCA approved the 2007 manual and safety signage by granting type
certification for the FlowRider for a period of three years and
therefore “Sahara Sam’s was in full compliance with the DCA
certification.” The panel noted that neither ADG nor Wave Loch
submitted the updated 2008 manual and signage to the DCA to
amend the type certification, as required by regulation. On
that basis, the panel declined to impose on Sahara Sam’s the
obligation to comply with the manufacturer’s 2008 operator’s
manual and the recommended 2008 safety signs.
Although it acknowledged that the waiver agreement could
not exonerate gross negligence, the panel nevertheless rejected
plaintiff’s argument that a reasonable jury could find that
Sahara Sam’s actions constituted gross negligence. The panel
stated that “the motion judge did not err in characterizing
gross negligence as the equivalent of willful conduct.” The
panel maintained that, viewing the record in the light most
favorable to plaintiff, the evidence did not raise a genuinely
disputed issue of material fact that Sahara Sam’s operation of
the FlowRider constituted anything more than simple negligence.
In his dissenting opinion, Judge Hoffman asserted that the
panel majority erred by not viewing the evidence in the light
most favorable to plaintiff on the gross-negligence claim.
Judge Hoffman detailed the facts in the record, which, if
believed by a reasonable factfinder, would constitute gross
13
negligence. Judge Hoffman also disagreed with the trial court
and the panel majority that gross negligence requires willful
conduct, citing to the Model Civil Jury Charge for gross
negligence, which states that “[g]ross negligence . . . is more
than ordinary negligence, but less than willful or intentional
misconduct,” Model Jury Charge (Civil) § 5.12 “Gross Negligence”
(2009) (emphasis added).
Unlike the panel majority, Judge Hoffman concluded that
Sahara Sam’s had a duty to comply with the signage requirements
of the 2008 manual and that ADG’s failure to forward a copy of
the updated manual to the DCA did not absolve Sahara Sam’s of
its obligation, under both the Safety Act’s regulations and the
common law. According to the dissent, “Sahara Sam’s common law
tort liability establishes a distinct duty of care owed to its
patrons, and the Safety Act does not supersede that duty of
care.” Last, Judge Hoffman concluded that “Sahara Sam’s
violation of numerous safety and operation instructions of the
manufacturer, which in turn constituted regulatory violations,
provided sufficient evidence to present a jury question” on
gross negligence.
E.
Based on the dissent in the Appellate Division, plaintiff
appealed as of right the issue of whether the summary-judgment
record presented a genuine issue of material fact on his claim
14
of gross negligence. See R. 2:2-1(a)(2). We also granted
plaintiff’s petition for certification on the issue of whether
Sahara Sam’s alleged violation of the Safety Act, standing
alone, “precludes enforcement of the Waiver and constitutes an
independent basis for reversal of the trial court’s grant of
summary judgment.” See Steinberg v. Sahara Sam’s Oasis, LLC,
220 N.J. 575 (2015).
Additionally, we granted the motions of the New Jersey
Association of Justice (NJAJ) and World Waterpark Association
and New Jersey Amusement Association (collectively World
Waterpark and Amusement Associations) to appear as amici curiae.
II.
The parties agree that the waiver signed by plaintiff
before participating in the FlowRider bars him from pursuing a
negligence claim against Sahara Sam’s. They also apparently
agree that the waiver is unenforceable against a claim alleging
gross negligence or a claim alleging the breach of a duty
imposed by statute. See Stelluti, supra, 203 N.J. at 303, 313.
With those stipulations in mind, we now turn to the
arguments of the parties.
A.
Plaintiff contends that the record contains sufficient
evidence, when viewed in the light most favorable to him, to
support a claim of gross negligence against Sahara Sam’s. To
15
buttress this contention, he points to (1) Sahara Sam’s failure
to post the signs with graphics recommended in the 2008
operator’s manual, warning of the potential risk of severe
permanent injury or death from a mishap on the FlowRider; (2)
the failure of staff to recommend that he lie in the prone
position for his first ride; and (3) the failure of the
attendant to instruct him to release the rope when he fell from
the flowboard.
Plaintiff also argues that the trial court mistakenly
defined gross negligence as the equivalent of willful conduct.
He asserts that the proper standard was whether Sahara Sam’s
failed to exercise the slightest degree of care or diligence in
its operation of the FlowRider.
Plaintiff maintains that, because of the high degree of
risk posed by the FlowRider, Sahara Sam’s failure to abide by
the Safety Act’s requirements and the manufacturer’s
recommendations presents a genuine issue of material fact that
Sahara Sam’s conduct constituted gross negligence. Plaintiff,
moreover, implicitly suggests that violations of the Safety Act
give rise to an independent cause of action.
Amicus NJAJ submits that the liability waiver form signed
by plaintiff is an unenforceable exculpatory agreement because
it is contrary to public policy. But, as earlier explained, the
waiver is not at issue in this case.
16
B.
Sahara Sam’s argues that the record is devoid of evidence
of gross negligence or a Safety Act violation concerning the
operation of the FlowRider and therefore the Appellate Division
properly affirmed the grant of summary judgment. Sahara Sam’s
insists that the differences in signage recommended in the 2007
and 2008 manuals were slight. It also notes that the
manufacturer of the FlowRider inspected and approved of the 2007
signage in place at the time of the accident and that the DCA
did not find any violations of the Safety Act after receiving a
report of the accident. It further contends that the record
does not establish proximate cause between an act or omission by
Sahara Sam’s and the injuries suffered by plaintiff.
Sahara Sam’s states that plaintiff was aware that the
FlowRider was a high-risk recreational activity, having
witnessed participants fall before he set foot on the flowboard,
and that plaintiff’s admission that he did not read the warnings
on the waiver form or on the posted 2007 signs establishes that
the 2008 signs would not have stopped him from going on the
ride. It also stresses that neither the 2007 nor the 2008
manual required that first-time riders lie in a prone position
or required the use of an orientation video. Sahara Sam’s,
moreover, maintains that a review of the video of the accident
belies plaintiff’s claim that he rode the flowboard with the
17
rope wrapped around his wrist and that, even if an attendant did
not adequately instruct him on the proper use of the rope, such
a singular mistake would not evidence gross negligence because
plaintiff released the rope before he fell. Finally, Sahara
Sam’s states that the trial court and appellate panel properly
equated gross negligence with willful conduct.
Amici World Waterpark and Amusement Associations
essentially argue that the Legislature intended the DCA, through
its enforcement of the Safety Act, to have the principal
responsibility in ensuring the safety of water-amusement rides
and that the present lawsuit represents an encroachment into an
exclusive executive-branch function. According to amici, the
DCA exercised its responsibility by issuing type certification
to Sahara Sam’s, and, if permitted to proceed, the present
lawsuit would “upend the statutory scheme in place.”
III.
Plaintiff concedes that the liability-waiver agreement he
signed before participating in the FlowRider bars his negligence
claim. See Stelluti, supra, 203 N.J. at 305, 313. Instead, he
argues that Sahara Sam’s is accountable for its statutory
violations of the Safety Act and its gross negligence, which
were the proximate cause of the injuries that rendered him an
incomplete paraplegic.
18
A liability waiver -- a pre-injury release -- in a consumer
agreement that exculpates a business owner from liability for
tortious conduct resulting from the violation of a duty imposed
by statute or from gross negligence is contrary to public policy
and unenforceable. Id. at 303, 313 (noting that business owner
cannot, through waiver-of-liability agreement, contract away
duty imposed by statute or exculpate itself for acts that
constitute recklessness or gross negligence). Therefore, we now
turn to those claims raised by plaintiff that are not barred by
the waiver agreement.
A.
We reject plaintiff’s implied argument that a violation of
the Carnival-Amusement Rides Safety Act (the Safety Act),
N.J.S.A. 5:3-31 to -59, standing alone, gives rise to a private
right of action.11 The Safety Act and its accompanying
regulations set forth an administrative framework for ensuring
the safety of those attending carnivals and amusement parks,
including water parks, in New Jersey. The DCA is charged with
the responsibility of enforcing the Safety Act and the
regulations promulgated pursuant to the Act. N.J.S.A. 5:3-38.
11N.J.S.A. 5:3-57(a) states that, “[a]s a precondition to
bringing any suit in connection with an injury against an
amusement park operator, a rider shall report in writing to the
amusement park operator all the details of any accident within
90 days from the time of the incident giving rise to the suit,”
but does not itself create a right of action.
19
The Safety Act provides for administrative sanctions against the
operator of a carnival or amusement park for violating the
statutory or regulatory scheme. For example, in a suit brought
by the DCA, an operator who “fails to comply with the provisions
of [the Safety Act] shall be liable to a fine of not more than
$5,000 per day for each violation.” N.J.S.A. 5:3-54. The DCA
is also empowered “to bring injunctive proceedings in any court
. . . to compel compliance with any lawful order made by [it]
pursuant to [the Safety Act].” N.J.S.A. 5:3-53.
The Act implements an administrative and regulatory scheme
enforced by the executive branch; it does not give rise to a
private cause of action or a tort-liability scheme. In that
respect, the Safety Act is unlike the Consumer Fraud Act,
N.J.S.A. 56:8-1 to -195, which “provides a private cause of
action to consumers who are victimized by fraudulent practices
in the marketplace.” Gonzalez v. Wilshire Credit Corp., 207
N.J. 557, 576 (2011) (citing Lee v. Carter-Reed Co., 203 N.J.
496, 521 (2010)). Indeed, under the Consumer Fraud Act,
citizens are empowered to act as “private attorneys general” in
bringing civil actions to enforce the Act. Lemelledo v.
Beneficial Mgmt. Corp., 150 N.J. 255, 268-69 (1997).
The Safety Act is also unlike the Ski Act, N.J.S.A. 5:13-1
to -12; the Roller Skating Rink Safety and Fair Liability Act,
N.J.S.A. 5:14-1 to -7; and the Equine Activities Liability Act,
20
N.J.S.A. 5:15-1 to -12. Those statutes set forth tort-liability
schemes in which the duties of operators and patrons are
enumerated and the conditions for filing a lawsuit are precisely
defined. See N.J.S.A. 5:13-3 to -10; N.J.S.A. 5:14-4 to -7;
N.J.S.A. 5:15-3 to -12.
Although the Safety Act does not give rise to a private
cause of action or set forth a tort-liability scheme, it does
articulate legislative and regulatory standards of conduct
intended to protect members of the public who patronize
amusement parks, and, as such, violations of those standards may
be considered as evidence of negligence, or even gross
negligence, in a common-law cause of action. See Alloway v.
Bradlees, Inc., 157 N.J. 221, 236 (1999) (finding applicable in
workplace injury case “the well-established principle that the
violation of a legislated standard of conduct may be regarded as
evidence of negligence if the plaintiff was a member of the
class for whose benefit the standard was established”); J.S. v.
R.T.H., 155 N.J. 330, 349 (1998) (stating that violation of
child-abuse reporting statute, N.J.S.A. 9:6-8.10, “may
constitute evidence of negligence in [appropriate]
circumstances”); Fortugno Realty Co. v. Schiavone-Bonomo Corp.,
39 N.J. 382, 391-92 (1963) (noting that violation of “statute
would be applicable as evidence of negligence” provided
plaintiff is member of “class for whose benefit the statute was
21
enacted”). In addition, violations of “regulations are
pertinent in determining the nature and extent of any duty of
care.” Alloway, supra, 157 N.J. at 236; see also id. at 240-41
(“Facts that demonstrate [a regulatory] violation constitute
evidence of negligence that is sufficient to overcome a motion
for summary judgment.”).
The Safety Act provides that an operator of a carnival-
amusement ride must post “in a conspicuous public place on or
near the ride . . . . [a]ll applicable written warnings and
directions regarding . . . the proper use of the ride and the
potential injuries in connection with improper use of the ride.”
N.J.S.A. 5:3-36.2(b). Certain regulations promulgated under the
Safety Act are intended to inform and protect patrons using
water park rides. For example, a water-ride operator must post
“[s]igns required or recommended by the ride manufacturer.”
N.J.A.C. 5:14A-12.6(o)(1).12 N.J.A.C. 5:14A-4.12(b) also
provides that an amusement-ride owner shall post “in a
conspicuous location” “clearly legible” warnings “for each ride
which comply with manufacturer’s requirements . . . and [the
Safety Act].” In addition, the owner of an amusement ride must
12N.J.A.C. 5:14A-12.6(o)(1) does not state that an amended type
certification is a precondition for updating safety signage
recommended by the manufacturer. Here, according to plaintiff,
the manufacturer did not submit the 2008 updated manual to the
DCA before the accident in 2010.
22
“comply with any manufacturer’s recommendation or requirement,”
N.J.A.C. 5:14A-4.5(a), and “with the manufacturer’s operating
manual,” N.J.A.C. 5:14A-9.8(a). Significantly, the owner must
train operators of the ride “based on manufacturer requirements
covered by the operational manual.” N.J.A.C. 5:14A-4.8(b).
In this case, for instance, the owner of Sahara Sam’s did
not post the signs recommended in the manufacturer’s 2008
operator’s manual, which would have warned patrons that the
failure to follow instructions could lead to severe permanent
injuries or even death. Illustrations on the unposted signs
would have instructed riders on the proper way to fall to avoid
injury. If Sahara Sam’s failed to post the signage as required
by the Safety Act, then a jury may consider that failure as
evidence of negligence, provided that there is a showing that
the violation is relevant to the accident. See Alloway, supra,
157 N.J. at 236.
In sum, in given circumstances, “the violation of a
statutory duty of care” may be admissible as evidence of
negligence. Waterson v. Gen. Motors Corp., 111 N.J. 238, 263
(1988). In this case such evidence is permissible because the
aggregation of alleged negligent acts or omissions may be
considered in determining whether Sahara Sam’s conduct reached
the level of gross negligence.
B.
23
The principal issue in this appeal is whether the record,
when viewed in the light most favorable to plaintiff, supported
the trial court’s grant of summary judgment dismissing
plaintiff’s claim of gross negligence. To address this issue,
we must first define gross negligence.
The tort of gross negligence falls on a continuum between
ordinary negligence and recklessness, a continuum that extends
onward to intentional conduct. See Introductory Notes, Model
Jury Charge (Civil) § 5.12 “Gross Negligence” (2009); see also
Saba v. Compagnie Nationale Air Fr., 78 F.3d 664, 668 (D.C. Cir.
1996) (“There is a continuum that runs from simple negligence
through gross negligence to intentional misconduct.
Recklessness, or reckless disregard, lies between gross
negligence and intentional harm.”).
A business owner owes a duty of care to patrons invited
onto the business’s premises -- a duty “to take reasonable
precautions to prevent the occurrence of foreseeable harm” to
those patrons. Weinberg v. Dinger, 106 N.J. 469, 484 (1987);
accord Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)
(stating that property owner owes higher degree of care to
business patron than social guest because of furtherance of
commercial interests). Stated differently, a business owner has
a duty “[t]o act non-negligently” toward the business’s patrons.
Weinberg, supra, 106 N.J. at 484; accord Hopkins, supra, 132
24
N.J. at 433. Negligence is defined generally as the failure to
exercise “that degree of care for the safety of others, which a
person of ordinary prudence would exercise under similar
circumstances.” Model Jury Charge (Civil) § 5.10A “Negligence
and Ordinary Care – General” (2009); see also Aiello v.
Muhlenberg Reg’l Med. Ctr., 159 N.J. 618, 632 (1999) (defining
negligence as “the failure to exercise reasonable care”). The
duty of care owed to a business patron must take into
consideration the magnitude and likelihood of harm to which the
patron is exposed by activities on the premises. McLaughlin v.
Rova Farms, Inc., 56 N.J. 288, 303 (1970).
As is evident by its descriptive name, gross negligence is
a higher degree of negligence, see Monaghan v. Holy Trinity
Church, 275 N.J. Super. 594, 599 (App. Div. 1994), and
undoubtedly denotes “the upper reaches of negligent conduct,”
Parks v. Pep Boys, 282 N.J. Super. 1, 17 n.6 (App. Div. 1995).
See also Kain v. Gloucester City, 436 N.J. Super. 466, 482 (App.
Div.) (noting that gross negligence “is commonly associated with
egregious conduct”), certif. denied, 220 N.J. 207 (2014).
Whereas negligence is “the failure to exercise ordinary or
reasonable care” that leads to a natural and probable injury,
gross negligence is “the failure to exercise slight care or
diligence.” Introductory Notes, Model Jury Charge (Civil) §
5.12 “Gross Negligence” (2009). Although gross negligence is
25
something more than “inattention” or “mistaken judgment,” it
does not require willful or wanton misconduct or recklessness.
Model Jury Charge (Civil) § 5.12 “Gross Negligence” (2009).
The New Jersey Civil Model Jury Charge defines gross
negligence as
an act or omission, which is more than
ordinary negligence, but less than willful or
intentional misconduct. Gross negligence
refers to a person’s conduct where an act or
failure to act creates an unreasonable risk of
harm to another because of the person’s
failure to exercise slight care or diligence.
[Ibid.]
The model jury charge also conveys that gross negligence is an
indifference to another by failing to exercise even scant care
or by thoughtless disregard of the consequences that may follow
from an act or omission. See id. n.1.
Similar definitions of gross negligence have been adopted
by other jurisdictions. See, e.g., City of Santa Barbara v.
Super. Ct., 161 P.3d 1095, 1099 (Cal. 2007) (defining gross
negligence “as either a ‘want of even scant care’ or ‘an extreme
departure from the ordinary standard of conduct’” (quoting
Eastburn v. Reg’l Fire Prot. Auth., 80 P.3d 656, 662 (Cal.
2003))); Thompson v. Bohlken, 312 N.W.2d 501, 504 (Iowa 1981)
(defining gross negligence as more “than ordinary inadvertence
or [i]nattention” and as “differ[ing] from ordinary negligence
only in degree, not kind”); Ambrose v. New Orleans Police Dep’t
26
Ambulance Serv., 639 So. 2d 216, 219-20 (La. 1994) (“[G]ross
negligence has been described as an ‘extreme departure from
ordinary care or the want of even scant care.’” (quoting W. Page
Keeton, et al., Prosser & Keeton on the Law of Torts, § 34, at
211 (5th ed. 1984); 65 C.J.S. Negligence § 8(4)(a) at 539-40
(1966 & Supp. 1993))); Cowan v. Hospice Support Care, Inc., 603
S.E.2d 916, 918 (Va. 2004) (defining gross negligence as
“showing indifference to another and an utter disregard of
prudence that amounts to a complete neglect of the safety of
such other person,” but which “demonstrat[es] something less
than willful recklessness” (citing Koffman v. Garnett, 574
S.E.2d 258, 260 (Va. 2003); Griffin v. Shively, 315 S.E.2d 210,
213 (Va. 1984); Ferguson v. Ferguson, 181 S.E.2d 648, 653 (Va.
1971))).
We endorse the definition of gross negligence found in our
Civil Model Jury Charge and reject the trial court’s and
appellate panel majority’s description of gross negligence as
the equivalent of willful conduct. We recognize that gross
negligence has been subject to varying definitions and find
understandable the error of the trial and appellate courts.13 To
13Unlike New Jersey, a number of jurisdictions make no
distinction between gross negligence and recklessness. See
Restatement (Second) of Torts § 282 (1965) (“[G]ross negligence
. . . is sometimes construed as equivalent to reckless
disregard.”); see also, e.g., W. Cash & Carry Bldg. Materials,
27
be clear, reckless and willful conduct are degrees of civil
culpability greater than gross negligence. Reckless conduct is
“the conscious disregard . . . to a known or obvious risk of
harm to another” whereas “[w]illful misconduct implies an
intentional deviation from a clear duty” owed to another.
Anderson v. Massillon, 983 N.E.2d 266, 273 (Ohio 2012). In sum,
negligence, gross negligence, recklessness, and willful conduct
fall on a spectrum, and the difference between negligence and
gross negligence is a matter of degree.
IV.
We now apply those principles to determine whether the
trial court properly granted summary judgment. On a motion for
summary judgment, if the evidence of record -- the pleadings,
depositions, answers to interrogatories, and affidavits --
“together with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the issue to the
trier of fact,” then the trial court must deny the motion. R.
Inc. v. Palumbo, 371 So. 2d 873, 877 (Miss. 1979) (equating
gross negligence with “reckless indifference to consequences”
(quoting Teche Lines, Inc. v. Pope, 166 So. 539, 540 (Miss.
1936))); Colnaghi, U.S.A. v. Jewelers Protection Servs., 611
N.E.2d 282, 284 (N.Y. 1993) (equating gross negligence with
“reckless disregard” and “intentional wrongdoing” (citing Sommer
v. Fed. Signal Corp., 593 N.E.2d 1365, 1371 (N.Y. 1992)));
Sheets v. Pendergrast, 106 N.W.2d 1, 5 (N.D. 1960) (describing
gross negligence as “practically willful” (citing Rettler v.
Ebreck, 71 N.W.2d 759 (N.D. 1955); Norgart v. Hoselton, 39
N.W.2d 427 (N.D. 1949); Farmers’ Mercantile Co. v. N. Pac. Ry.
Co., 146 N.W. 550 (N.D. 1914))).
28
4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995). On the other hand, when no genuine issue of
material fact is at issue and the moving party is entitled to a
judgment as a matter of law, summary judgment must be granted.
R. 4:46-2(c); see Brill, supra, 142 N.J. at 540.
Our task is not to weigh the evidence, not to decide who
has the better case or who is more likely to succeed before the
jury. The strength of Sahara Sam’s case is not at issue.
Although the facts are hotly disputed between the parties, at
this procedural stage, our role is simply to view the record in
the light most favorable to plaintiff and resolve whether, on
that basis, a reasonable factfinder could find that plaintiff’s
injuries were proximately caused by the gross negligence of
Sahara Sam’s.
Based on that standard, we agree with the dissent in the
Appellate Division that the trial court erred in granting
summary judgment. A brief review of the relevant evidence,
presented in the light most favorable to plaintiff, demonstrates
that a rational factfinder could conclude that Sahara Sam’s
conduct constituted gross negligence.
The FlowRider is an extreme sport and high-risk
recreational activity that simulates surfing. Nevertheless, at
the time that plaintiff participated in the ride, Sahara Sam’s
did not post the updated signage recommended by the
29
manufacturer. Had Sahara Sam’s done so, and presuming that
plaintiff would have read and been drawn to the illustrations on
the new signage, plaintiff would have better known of the
greater potential for severe permanent injury by riding the
flowboard. Because Sahara Sam’s did not post the manufacturer’s
2008 signage, plaintiff was not told: (1) “YOU WILL FALL”; (2)
“DO NOT RIDE!” the flowboard if you could aggravate a
preexisting condition; (3) “FAILURE TO COMPLY WITH SIGNS OR
INSTRUCTIONS MAY INCREASE THE RISK OF SEVERE PERMANENT INJURIES
OR EVEN DEATH”; (4) “FALLING MAY RESULT IN . . . YOUR BODY
STRIKING THE SURFACE OF THE FLOWRIDER WITH GREAT FORCE”; and (5)
“BEFORE ATTEMPTING TO RIDE, WATCH THE SAFETY VIDEO AND
UNDERSTAND THE RISKS OF THIS ACTIVITY.” The updated signage --
unlike the signage in use on the day of the accident -- also
provided drawings that illustrated the danger of striking one’s
head on either the surface of the FlowRider or the flowboard and
the safety measures to take to avoid a head injury.
The factfinder is permitted to draw inferences from Sahara
Sam’s failure to follow the manufacturer’s recommendations and
to consider as evidence of negligence the failure to comply with
safety regulations promulgated under the Safety Act. See
N.J.A.C. 5:14A-9.8(a) (“The owner of an amusement ride shall
operate the ride in accordance with the manufacturer’s operating
manual.”); N.J.A.C. 5:14A-12.6(o)(1) (stating that “[s]igns
30
required or recommended by the ride manufacturer” must be
posted).
In addition, Sahara Sam’s staff did not properly instruct
plaintiff on the proper use of the FlowRider. The attendants
did not suggest to plaintiff that, as a first-time rider, he
ride on a bodyboard lying in the prone position or instruct him
that he not wrap the rope around his wrist and not hold the rope
with both hands if riding on a flowboard. Plaintiff’s expert
concluded that plaintiff’s failure to let go of the rope as he
was falling propelled him forward and proximately caused the
severe and permanent injuries that he suffered. Plaintiff also
was not given the option of watching the safety video that is
mentioned in the signage but was never posted -- a video that
apparently was unavailable to the lifeguards in charge of the
FlowRider. Additionally, Sahara Sam’s did not give lifeguards
written training protocols to review or require them to read the
operator’s manual.
The issue is not whether Sahara Sam’s failed to exercise
reasonable care in any one instance. Rather, it is whether
viewing the entire tableau in the light most favorable to
plaintiff, a factfinder could conclude that by not implementing
the safety features in the 2008 operator’s manual and not giving
plaintiff the necessary safety instructions, Sahara Sam’s failed
to exercise slight care or diligence or demonstrated an extreme
31
departure from the standard of reasonable care. Viewed in that
light, we hold that a rational factfinder could conclude that
the proximate cause of plaintiff’s injuries was the gross
negligence of Sahara Sam’s.
V.
For the reasons expressed, we reverse the judgment of the
Appellate Division affirming the trial court’s grant of summary
judgment, which dismissed plaintiff’s claim of gross negligence.
We therefore reinstate the gross-negligence claim and remand to
the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE ALBIN’s opinion.
32