JUSTIN GAYLES VS. SKY ZONE TRAMPOLINE PARK (L-1530-18, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3519-19
JUSTIN GAYLES, an
infant by his G/A/L,
Gwendolyn Gayles, and
GWENDOLYN GAYLES, APPROVED FOR PUBLICATION
Individually, May 12, 2021
APPELLATE DIVISION
Plaintiff-Respondent,
v.
SKY ZONE TRAMPOLINE PARK,
Defendant-Appellant,
and
GO AHEAD AND JUMP 3, LLC,
D/B/A SKY ZONE MOUNT OLIVE
I/P/A SKY ZONE TRAMPOLINE
PARK,
Third-Party Plaintiff-Appellant,
v.
JOAN TONGOL,
Third-Party Defendant-Respondent.
__________________________________
Submitted March 15, 2021 – Decided May 12, 2021
Before Judges Messano, Suter and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-1530-18.
Wood Smith Henning & Berman, LLP, attorneys for
appellants (Kelly A. Waters, of counsel and on the
briefs; Carolynn A. Mulder, on the briefs).
Bendit Weinstock, PA, attorneys for respondent (Kay
A. Gonzalez, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Joan Tongol invited several friends of her minor son to celebrate his
birthday at Sky Zone Trampoline Park in Mount Olive, operated by defendant
Go Ahead and Jump 3, LLC. Tongol told the children's parents that she had
reserved time for a group of ten, and the parents could drop their children off
with Tongol, who would drive them to the trampoline park. On the day of the
party, plaintiff Gwendolyn Gayles drove her son Justin, also a minor, to the
Tongol home. Justin and Tongol's son had been classmates since grade school.
Tongol had booked the reservation online. On arrival at Sky Zone, after
she checked in and paid for the group, Tongol was directed to a "waiver
station," where she had to complete and sign an agreement (the Agreement)
displayed on a computer screen. In a section, "Included Minors," Tongol listed
every child with his or her birthdate, which she obtained by asking the
children. At her deposition, Tongol described the process as "quick," and she
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completed the Agreement without reading it fully and without any assistance
from defendant's staff.
The Agreement contained separate paragraphs with boxes next to each to
click on and check. The introductory paragraph stated: "I[,] on behalf of
myself, my spouse, my children, my parents, my heirs, my assigns, personal
representatives, estate, and insurers, agree as follows." The first paragraph
read in part: "I further certify that I am the parent or legal guardian of the
child(ren) listed above on this Agreement or that I have been granted power of
attorney to sign this Agreement on behalf of the parent or legal guardian of the
child(ren) listed in this Agreement."
The second paragraph read in part: "I have had sufficient opportunity to
read this entire document. I understand this Agreement and I voluntarily agree
to be bound by its terms. I understand that this Agreement waives certain
rights that I have in exchange for permission to gain access to the Location."
The paragraph then listed those rights that were waived, including: (a) "the
right to sue . . . in a court of law"; (b) "the right to a trial by judge or jury"; (c -
d) "the right to claim money . . . for accidents causing injury within the scope
of the risk assumed" or for any accident unless defendant "committed acts of
gross negligence or willful and wanton misconduct"; and (e) "the right to file a
claim . . . if I wait more than one year from the date of this Agreement."
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The fourth paragraph, entitled "Waiver of Trial, and Agreement to
Arbitrate," read in capitalized print:
IF I AM INJURED AND . . . MAKE A CLAIM
AND/OR IF THERE ARE ANY DISPUTES
REGARDING THIS AGREEMENT, I HEREBY
WAIVE ANY RIGHT I HAVE TO A TRIAL IN A
COURT OF LAW BEFORE A JUDGE AND JURY. I
AGREE THAT SUCH DISPUTE . . . WILL BE
DETERMINED BY BINDING ARBITRATION
BEFORE ONE ARBITRATOR TO BE
ADMINISTERED BY JAMS PURSUANT TO ITS
COMPREHENSIVE ARBITRATION RULES AND
PROCEDURES.
This section continued by stating that if despite her "express agreement to
arbitrate any claims of injury," Tongol initiated a lawsuit, she would pay
$5000 in liquidated damages within sixty days.
Additional paragraphs included an exhaustive waiver of the right to
bring suit by those eighteen-years of age or older, unless the injury was caused
"by [defendant's] greater than ordinary negligence," and it also included an
agreement to indemnify defendant for counsel fees. Tongol checked all the
boxes and electronically signed the Agreement.
None of the children's parents had executed a power of attorney in favor
of Tongol, but she believed they had authorized her to sign the Agreement on
behalf of the children. While playing on the trampolines, Justin fract ured his
leg.
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Plaintiff filed her complaint individually and as Justin's guardian ad
litem alleging defendant was negligent. The judge denied defendant's motion
to dismiss and compel arbitration, as well as its motion for reconsideration;
defendant filed an answer and third-party complaint naming Tongol as third-
party defendant.
After completion of some discovery, Tongol moved for summary
judgment, and defendant cross-moved for summary judgment to dismiss
plaintiff's complaint and compel arbitration. Judge Noah Franzblau denied
both motions. Defendant sought reconsideration, which the judge also denied,
and this appeal followed. 1
Before us, defendant argues the judge erred in denying summary
judgment and not compelling arbitration because Tongol "had apparent
authority to execute the Agreement on [plaintiff's] behalf." It also contends
that Tongol's apparent authority meant the Agreement was not void and
unenforceable, as the judge found. Lastly, defendant argues that "the
implications" of the order denying arbitration "places an unreasonable, if not
impossible, burden on . . . defendant to verify and validate the certifications
made by all adult patrons who accompany minors" to its facility.
1
Defendant's appeal is limited solely to the order denying its motion for
summary judgment and to compel arbitration. Tongol has not sought leave to
appeal from the denial of her summary judgment motion.
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We have considered these arguments in light of the record and
applicable legal standards. We affirm.
I.
We review the decision on a motion for summary judgment de novo,
applying the same standard used by the trial court, which
mandates that summary judgment be granted "if the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact challenged and that the moving party is entitled to
a judgment or order as a matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).]
A dispute of material fact is "genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the non-moving
party, would require submission of the issue to the trier of fact." Grande v.
Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217
N.J. 22, 38 (2014)). We owe no deference to the trial court's legal analysis,
The Palisades at Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230 N.J.
427, 442 (2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)), and
we limit our review to the motion record. Ji v. Palmer, 333 N.J. Super. 451,
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463–64 (App. Div. 2000) (citing Bilotti v. Accurate Forming Corp., 39 N.J.
184, 188 (1963)).
Usually, an order denying summary judgment is not appealable as of
right, because the denial of summary judgment "decides nothing and merely
reserves issues for future disposition." Gonzalez v. Ideal Tile Importing Co.,
371 N.J. Super. 349, 356 (App. Div. 2004). However, an order compelling or
denying arbitration is appealable as of right. R. 2:2-3(a). Our summary
judgment standard of review remains the same. See Moore v. Woman to
Woman Obstetrics & Gynecology, LLC, 416 N.J. Super. 30, 40 (App. Div.
2010) (recognizing standard applies to review of summary judgment
compelling enforcement of arbitration agreement).
"De novo review applies when appellate courts review determinations
about the enforceability of contracts, including arbitration agreements."
Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019)
(citing Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013)).
"Whether a contractual arbitration provision is enforceable is a question of
law, and we need not defer to the interpretative analysis of the trial . . . court[]
unless we find it persuasive." Ibid. (citing Morgan v. Sanford Brown Inst.,
225 N.J. 289, 302–03 (2016)).
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Although "arbitration [is] a favored method for resolving disputes . . .
[t]hat favored status . . . is not without limits." Garfinkel v. Morristown
Obstetrics & Gynecology Assocs., PA, 168 N.J. 124, 131–32 (2001). "A court
must first apply 'state contract-law principles . . . [to determine] whether a
valid agreement to arbitrate exists.'" Hirsch, 215 N.J. at 187 (alteration in
original) (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006)).
"This preliminary question, commonly referred to as arbitrability, underscores
the fundamental principle that a party must agree to submit to arbitration."
Ibid. (citing Garfinkel, 168 N.J. at 132); see also Kernahan, 236 N.J. at 319
("[A] court's initial inquiry must be — just as it is for any other contract —
whether the agreement to arbitrate . . . is 'the product of mutual assent, as
determined under customary principles of contract law.'" (quoting Atalese v.
U.S. Legal Servs. Grp., LP, 219 N.J. 430, 442 (2014))). "[T]he arbitrability
analysis is expressly included in the Arbitration Act." Hirsch, 215 N.J. at 187–
88 (citing N.J.S.A. 2A:23B-6(b)).
Here, Judge Franzblau properly focused not on the question of
arbitrability, but rather whether on the motion record presented, defendant
demonstrated as a matter of law that Tongol possessed apparent authority to
act on plaintiff's behalf, enter into the Agreement as her agent, and bind
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plaintiff to its terms, which included the arbitration provision and other
waivers.
II.
The judge relied extensively on our decision in Mercer v. Weyerhaeuser
Co., in which future Justice Virginia Long, outlined the contours of the
doctrine of apparent authority. 324 N.J. Super. 290 (App. Div. 1999). We
explained, "Apparent authority imposes liability on the principal not as a result
of an actual contractual relationship, but because the principal's actions have
misled a third-party into believing that a relationship of authority in fact
exists." Id. at 317–18 (citing Blaisdell Lumber Co. v. Horton, 242 N.J. Super.
98, 102–03 (App. Div. 1990)). The party seeking to rely on the apparent
authority of a putative agent bears the burden of proof. Id. at 318. That party
must establish, (1) that the appearance of authority has
been created by the conduct of the alleged principal
and it cannot be established "alone and solely by proof
of [conduct by] the supposed agent," (2) that a third
party has relied on the agent's apparent authority to act
for a principal, and (3) that the reliance was
reasonable under the circumstances.
[Ibid. (emphasis added) (citations omitted) (first
quoting Blaisdell Lumber, 242 N.J. Super. at 103; and
then quoting Hoddeson v. Koos Bros., 47 N.J. Super.
224, 232 (App. Div. 1957)).]
Judge Franzblau rejected defendant's arguments that plaintiff's actions
— leaving Jason at Tongol's home and in her custody and care and allowing
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her to take him to the party knowing he would participate in activities at Sky
Zone — created an appearance of Tongol's authority to execute the Agreement
on plaintiff's behalf. He noted there was nothing in the record indicating
plaintiff knew a waiver needed to be executed to permit Jason's entry to the
trampoline park, and defendant was unaware of the circumstances by which
Jason came to be in Tongol's custody and care when Tongol executed the
Agreement.
To the extent defendant relied upon Tongol's execution of the
Agreement and her representation that she was the parent, guardian, or
possessed a power of attorney for the children, the judge noted defendant's
employees never questioned Tongol about her representations, nor did it take
note that she signed the Agreement on behalf of ten children with eight
different surnames. Judge Franzblau concluded that certainly without
questioning Tongol or otherwise verifying her statement on the Agreement,
defendant's reliance on Tongol's representations of authority was unreasonable.
We agree completely with his analysis.
Compare these facts with those presented in AMB Property, LP v. Penn
America Insurance Company, 418 N.J. Super. 441 (App. Div. 2011). There,
relying on Mercer and the Restatement (Third) of Agency (Am. Law Inst.
2006), we concluded that an insurance company and its agent were entitled to
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summary judgment based on the apparent authority of the tenant's lender to act
on the tenant's behalf when they cancelled a tenant's liability policy for
nonpayment. AMB, 418 N.J. Super. at 454. We noted that the tenant had
permitted the lender to procure the policy on its behalf, renewed the policy
under the terms of the lender's financial agreement with the tenant, and "had
acted on behalf of [the tenant] for years without issue." Id. at 454–55.
We can find no decision, and defendant fails to bring any to our
attention, in which someone who was not the child's parent, guardian, or
attorney-in-fact possessed the requisite actual or apparent authority to execute
a waiver of rights regarding the minor's personal injury claims. See, e.g.,
Moore, 416 N.J. Super. at 45 (holding there is no legal theory that would
permit one spouse to bind another to an agreement waiving the right to trial
without securing consent to the agreement).
Under somewhat similar facts, in Munoz v. II Jaz, Inc., the Texas Court
of Appeals reversed the grant of summary judgment to an amusement park
operator based upon the execution of a waiver of liability by the minor child's
adult sister, who accompanied the child to the park. 863 S.W.2d 207, 208
(Tex. App. Ct. 1993). The court rejected the defendant's reliance on the
doctrine of apparent authority, noting "[w]hen considering a question of
apparent authority, one must look only to the acts of the principal; the acts of
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the agent are irrelevant." Id. at 209 (citing Moody v. EMC Servs. Inc., 828
S.W.2d 237, 241 (Tex. App. Ct. 1992)). Based on the motion record, the court
concluded the defendant amusement park "fail[ed] to resolve the issues
concerning the adult daughter's authority to waive both [the child's] and the
parents' causes of action." Ibid.In Mercer, we cited the Restatement (Second) of Agency § 267 (Am.
Law Inst. 1958), for support in discussing the doctrine of apparent authority.
324 N.J. Super. at 317. The Court has since recognized and adopted the
updated Restatement (Third) of Agency. See Bridgewater-Raritan Educ. Ass'n
v. Bd. of Educ., 221 N.J. 349, 363–64 (2015); N.J. Laws.' Fund for Client Prot.
v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010). We review some of the
relevant sections and comments from the Restatement (Third) of Agency,
which only lend further support to our conclusion.
"An agency relationship is created 'when one person (a principal)
manifests assent to another person (an agent) that the agent shall act on the
principal's behalf and subject to the principal's control, and the agent manifests
assent or otherwise consents so to act.'" Stewart Title Guar. Co., 203 N.J. at
220 (quoting Restatement (Third) of Agency, § 1.01 (internal quotation marks
omitted)). Plaintiff agreed that Tongol would take plaintiff to Sky Zone, and,
for that limited purpose, Tongol was the agent and plaintiff the principal.
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However, "[g]enerally, an agent may only bind his principal for such acts that
'are within his actual or apparent authority.'" Ibid. (quoting Carlson v.
Hannah, 6 N.J. 202, 212 (1951)).
Defendant does not contend Tongol had actual authority to execute the
Agreement on plaintiff's behalf; rather, it asserts it held a reasonable belief in
Tongol's apparent authority. "Apparent authority arises 'when a third party
reasonably believes the actor has authority to act on behalf of the principal and
that belief is traceable to the principal's manifestations.'" Ibid. (emphasis
added) (quoting Restatement (Third) of Agency, § 2.03). Critically, "an
agent's apparent authority originates with expressive conduct by the principal
toward a third party through which the principal manifests assent to action by
the agent with legal consequences for the principal." Restatement (Third) of
Agency, § 3.03 cmt. b (emphasis added).
Generally, a trier of fact will determine "whether a reasonable person in
the position of a third party would believe that an agent had the authority or
the right to do a particular act. It is a separate but related question o f fact
whether such a belief is traceable to a manifestation of the principal." Id. at §
2.03 cmt. d. "In some settings, the principal's acts speak so loudly that explicit
verbal communication is unnecessary. Similarly, an indirect route of
communication between a principal and third party may suffice, especially
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when it is consistent with practice in the relevant industry." Id. at § 3.03 cmt.
b. Defendant is correct that "[t]he customs or practices of a particular industry
shape" the context in which the third party observes the agent and has a
"bearing upon the reasonableness of any belief that a particular agent has been
authorized by the principal to do any particular act." Id. at § 2.03 cmt. d.
Here, however, plaintiff engaged in no "expressive conduct," and no
direct or "indirect . . . communication" with defendant. There was no relevant
"practice" or pattern of conduct between plaintiff and defendant. Defendant
cannot rely solely on its own general admission procedure to support the
reasonableness of its belief that Tongol had authority to act for plaintiff and
execute the Agreement waiving her and her son's significant rights. 2
Lastly, defendant argues that the dismissal of its summary judgment
motion places an unreasonable burden upon it and similar recreational
2
The Court's holding in Hojnowski demonstrates a further legal flaw in
defendant's position. There, the Court held that the plaintiff-parent's execution
of a pre-injury release of her minor child's future tort claims as a condition of
admission to the skate park was unenforceable, although the Court upheld the
arbitration provisions of the release. 187 N.J. at 338, 346. In other words, the
parent lacked the legal capacity to execute a release of her own child's tort
claims. We need not decide under the facts presented whether the Agreement
plaintiff executed on her son's behalf in this case would be enforceable in all
respects as a matter of law. We note, however, that pursuant to the
Restatement (Third) of Agency, § 3.04(1), a principal has the capacity to act
through an agent only if, at the time of the agent's actions, the principal herself
"would have the capacity if acting in person."
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businesses. In essence, defendant contends its business model would be
untenable if it were required to secure consent or powers-of-attorney from the
parents of each juvenile participant at its facility. The argument lacks
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant could include a document on its website or as an attachment to its
confirmation email for parents to sign and upload or bring to the facility,
similar to the procedure utilized all the time for school trips and the like.
Affirmed.
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