DAVID JOHNSON VS. SKY ZONE INDOOR TRAMPOLINE PARK IN SPRINGFIELD (L-5446-20, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2489-20
DAVID JOHNSON, an infant
by his guardian ad litem,
SHALONDA JOHNSON, and
SHALONDA JOHNSON,
individually,
Plaintiffs-Appellants,
v.
SKY ZONE INDOOR
TRAMPOLINE PARK IN
SPRINGFIELD, SKY
ZONE, LLC, SKY ZONE
FRANCHISE GROUP, LLC,
and GO AHEAD AND JUMP
4, LLC,
Defendants-Respondents.
__________________________
Argued November 10, 2021 – Decided December 6, 2021
Before Judges Fuentes, Gilson, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5446-20.
Edward M. Colligan argued the cause for appellants
(Colligan & Colligan attorneys; Edward M. Colligan,
on the brief).
Kelly A. Waters argued the cause for respondents
(Wood Smith Henning & Berman, attorneys; Kelly A.
Waters, of counsel and on the brief; Jill A. Mucerino
and Sean P. Shoolbraid, on the brief).
PER CURIAM
David Johnson, a child under the age of eighteen, was injured while
visiting a trampoline park owned and operated by Sky Zone, LLC, Sky Zone
Franchise Group, LLC and Go Ahead and Jump 4, LLC (collectively, Park or
defendants). Shalonda Johnson, individually and as guardian ad litem of her
minor son (collectively, plaintiffs),1 filed a civil action against defendants in the
Superior Court, Law Division, in Union County, seeking compensatory
damages. In lieu of filing a responsive pleading, defendants moved before the
Law Division to enforce an arbitration clause contained in an electronic
document Johnson signed as a condition of being permitted to enter the Park.
After considering the arguments of counsel and the exhibits submitted, the Law
Division judge assigned to the case granted defendants' motion to enforce the
1
In the interest of clarity, we will occasionally also refer to plaintiffs by their
names; we will refer to the child by his first name and his mother by her last
name. No disrespect is intended.
A-2489-20
2
arbitration clause and dismissed the case with prejudice in an order entered on
March 24, 2021.
In this appeal, plaintiffs argue the arbitration clause contained in this
electronic general liability release contract is unenforceable. After reviewing
the record presented to the Law Division judge, we affirm the part of the order
enforcing the arbitration clause, vacate the dismissal of plaintiffs' complaint
with prejudice, and remand for the court to stay judicial proceedings related to
this case pending the outcome of the arbitration.2
I.
A.
On July 14, 2018, ten-year-old David and his mother visited the Park.
Before they were permitted entry, however, a Park employee apprised Johnson
she was required to sign a "Participation Agreement, Release and Assumption
of Risk" (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs
again visited the Park and, while jumping on a trampoline, David seriously
2
Although an order entered by the Law Division compelling or denying
arbitration is appealable to this court as of right, pursuant to Rule 2:2-3(a)(3),
the trial court must stay any judicial proceeding pending the outcome of the
arbitration. The court may also limit the stay to arbitrable claims if other claims
are severable. GMAC v. Pittella, 205 N.J. 572, 584 n.7 (2011) (citing N.J.S.A.
2A:23B-7(g)).
A-2489-20
3
injured his leg.3 The appellate record did not include evidence of whether
Johnson executed a second waiver.
The Agreement contains a general release provision "intended to release
and provide other benefits, legal protections and consideration" to defendants.
For example, it contains an "acknowledgement of potential injuries" provision,
which places patrons on notice that "participating in trampoline and other
activities is inherently and obviously dangerous." The Agreement also includes
a "voluntary assumption of risk acknowledgment" provision, which informs
patrons that they "are participating voluntarily at [their] own risk" and could
suffer "significant bodily injuries" or "die or become paralyzed, partially or
fully, through their use of the Sky Zone facility and participation in Sky Zone
activities."
Finally, the Agreement contains a "release of liability" section, which
requires patrons to "forever, irrevocably and unconditionally release, waive,
relinquish, discharge from liability and covenant not to sue [Sky Zone]" for
any and all claims . . . of whatever kind or nature, in
law, equity or otherwise, . . . related to or arising,
directly or indirectly, from [their] access to and/or use
of the Sky Zone [f]acility, . . . including, without
3
In a certification submitted to the motion judge, Johnson averred the injury
damaged "the growth plate in my son’s leg . . . and his leg did not continue to
grow properly. He has undergone surgery to shorten the opposite leg and may
need additional treatment in the future."
A-2489-20
4
limitation, any claim for negligence, failure to warn or
other omission, . . . personal injury, . . . [or] bodily
harm . . . .
The enforceability of these exculpatory provisions are not part of this
appeal. We express no opinion as to whether these exculpatory provisions are
enforceable under our State's common law, as expressed by our Supreme Court
in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), and Hojnowski v. Vans
Skate Park, 187 N.J. 323 (2006).
The dispositive issue in this appeal concerns the enforceability of t he
section in the Agreement entitled, in part, "arbitration of disputes." The
Agreement is presented to the patrons at a kiosk in the form of an electronic
document. The patrons are expected to read it and acknowledge their consent
to be bound by the terms contained therein by placing an electronic "checkmark"
and entering certain personally identifying information. Defendants argue
David's mother placed an electronic checkmark where indicated, and thus
acknowledged she understood and agreed "to arbitrate any dispute as set forth
in this section" and waived "[her] right, and the right(s) of [her] minor child(ren)
. . . to maintain a lawsuit against [defendants] . . . for any and all claims covered
by this Agreement."
A-2489-20
5
This section also provides the following recitation of the rights plaintiffs
agreed to waive as a precondition to enter the Park and participate in the
activities available therein:
By agreeing to arbitrate, I understand that I will NOT
have the right to have my claim determined by a jury,
and the minor child(ren) above will NOT have the right
to have claim(s) determined by a jury. Reciprocally,
[the Sky Zone defendants] waive their right to maintain
a lawsuit against [plaintiff] . . . for any and all claims
covered by this [a]greement, and they will not have the
right to have their claim(s) determined by a jury. ANY
DISPUTE, CLAIM OR CONTROVERSY ARISING
OUT OF OR RELATING TO MY OR THE
CHILD'S ACCESS TO AND/OR USE OF THE SKY
ZONE PREMISES AND/OR ITS EQUIPMENT,
INCLUDING THE DETERMINATION OF THE
SCOPE OR APPLICABILITY OF THIS
AGREEMENT TO ARBITRATE, SHALL BE
BROUGHT WITHIN ONE YEAR OF ITS
ACCRUAL (i.e., the date of the alleged injury) FOR
AN ADULT AND WITHIN THE APPLICABLE
STATUTE OF LIMITATIONS FOR A MINOR
AND BE DETERMINED BY ARBITRATION IN
THE COUNTY OF THE SKY ZONE
FACILITY . . . BEFORE ONE ARBITRATOR.
THE ARBITRATION SHALL BE
ADMINISTERED BY [JUDICIAL ARBITRATION
AND MEDIATION SERVICES (JAMS)]
PURSUANT TO ITS RULE 16.1 EXPEDITED
ARBITRATION RULES AND PROCEDURES.
JUDGMENT ON THE AWARD MAY BE
ENTERED IN ANY COURT HAVING
JURISDICTION. THIS CLAUSE SHALL NOT
PRECLUDE PARTIES FROM SEEKING
PROVISIONAL REMEDIES IN AID OF
ARBITRATION FROM A COURT OF
A-2489-20
6
APPROPRIATE JURISDICTION. This [a]greement
shall be governed by, construed and interpreted in
accordance with the laws of the State of New Jersey,
without regard to choice of law principles.
Notwithstanding the provision with respect to the
applicable substantive law, any arbitration conducted
pursuant to the terms of this [a]greement shall be
governed by the Federal Arbitration Act (9 U.S.C., Sec.
1-16). I understand and acknowledge that the JAMS
Arbitration Rules to which I agree are available online
for my review at jamsadr.com, and include JAMS
Comprehensive Arbitration Rules & Procedures; Rule
16.1 Expedited Procedures; and, Policy On Consumer
Minimum Standards Of Procedural Fairness.
[(Emphasis in original).]
The Agreement also contained a merger and a severability clause, in
which Johnson acknowledged: "I have had sufficient opportunity to read this
entire document. I have read and understood and voluntarily agree to be bound
by its terms." The clause further provided:
This [a]greement constitutes and contains the entire
agreement between [Sky Zone] and [plaintiffs] relating
to the . . . use of the Sky Zone Facility. There are no
other agreements, oral, written, or implied, with respect
to such matters. . . . If any term or provision of this
[agreement] shall be held illegal, unenforceable, or in
conflict with any law governing this [agreement] the
validity of the remaining portions shall not be affected
thereby.
A-2489-20
7
B.
Plaintiffs filed their personal injury complaint against defendants on
August 13, 2020. The Law Division entered default against defendants on
December 28, 2020, for failure to file a timely responsive pleading. On
January 8, 2021, defendants' counsel notified plaintiffs' counsel he intended to
file a motion to dismiss the complaint in lieu of an answer pursuant to
Rule 4:6-2(e), based on plaintiffs' failure to state a claim upon which relief may
be granted. The attorneys thereafter entered into a Consent Agreement, stating
in relevant part:
This matter having come before the [c]ourt upon the
Consent of the parties, whereby the parties consent,
stipulate, and agree that the default entered against
Defendants, SKY ZONE FRANCHISE GROUP, LLC
and GO AHEAD AND JUMP 4, LLC, be vacated and
the time for Defendant to Answer or Otherwise Plead
be extended until January 30, 2021 . . . .
[(Strikethrough in original).]
Plaintiff's counsel unilaterally struck "or Otherwise Plead" from the
Consent Order. On February 2, 2021, the Law Division accepted the Consent
Agreement and vacated the default. Defendants moved to dismiss the complaint
and compel arbitration on January 30, 2021. Defendants' motion came for oral
argument before the Law Division on March 24, 2021. Plaintiffs' counsel argued
the arbitration clause presented to Johnson was unenforceable based on both the
A-2489-20
8
obscure, technical language used in the document, and by presenting it as part
of an electronic document in a kiosk located outside the Park's entrance.
Plaintiff's counsel also emphasized the circumstances under which Johnson
allegedly waived her son's constitutional right to a jury trial: "[M]y client went
in July [2018] to be a guest at a birthday party. The . . . defense . . . alleges that
she signed this Agreement at that time and at that time, they’re saying that she
signed an agreement that was good forever."
In response, defense counsel argued Johnson did a great deal more than
merely place a checkmark on a section of an electronic document. "We don’t
just have the electronic signatures. We have her name, her address, her phone
number, her date of birth . . . it’s not merely that you have [Janay's] certification.
You have identifiers that Skyzone would not have gotten without the plaintiff."
The reference made by defense counsel to "Janay's certification" relates to
Michael Janay, the Managing Member of defendant Go Ahead and Jump 4,
LLC., who averred:
As a matter of business practice, all patrons who enter
the Park for the first time are required to electronically
sign a Participant Agreement, Release and Assumption
of Risk . . . at a kiosk, or online, as a pre-condition to
entry. Patrons are not permitted entry into the Park
unless a Participation Agreement has been executed on
their behalf and there are signs throughout the Park
indicating the same.
A-2489-20
9
. . . [A]ll patrons who enter the Park are required to
provide a valid email address when electronically
signing the Participation Agreement.
. . . [O]nce the Participation Agreement is
electronically signed, a copy of the executed
Participation Agreement is sent to the email address
provided by the patron.
....
Based on the information provided, a copy of this
Participation Agreement was sent to Shalonda
Johnson's email following Shalonda Johnson's
execution of the Participation Agreement at the Park on
July 14, 2018. As indicated, Shalonda Johnson listed
her son David Johnson[,] who is the Minor[-]Plaintiff,
and another minor Kevin Johnson. On that basis,
Shalonda Johnson, David Johnson, and Kevin Johnson
were permitted entry into the Park on July 14, 2018.
After considering the arguments of counsel, the motion judge granted
defendants' motion on March 24, 2021. The judge explained the basis of his
decision in a Statement of Reasons attached to the order.
II.
Against this factual backdrop, plaintiffs argue the arbitration agreement is
ambiguous and unenforceable as a matter of law. We reject these arguments and
affirm the part of the Law Division's Order upholding the enforceability of the
arbitration clause. Because the Law Division's decision to enforce this
arbitration provision is purely a question of law, our standard of review is de
A-2489-20
10
novo. Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020); see also
Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019)
("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.").
As a matter of public policy, our Supreme Court has upheld arbitration as
a "favored means of dispute resolution." Hojnowski, 187 N.J. at 342. The Court
has consistently endorsed a "strong preference to enforce arbitration agreements,
both at the state and federal level." Hirsch v. Amper Fin. Servs., LLC, 215 N.J.
174, 186 (2013). In determining whether a valid agreement to arbitrate exists,
we will apply "state contract-law principles." Hojnowski, 187 N.J. at 342.
Guided by these principles, "[a]n arbitration agreement is valid only if the
parties intended to arbitrate because parties are not required 'to arbitrate when
they have not agreed to do so.'" Kernahan, 236 N.J. at 317 (quoting Volt Info.
Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478
(1989)).
Mutuality of assent is the hallmark of an enforceable contract. Thus, the
initial inquiry is whether the parties actually and knowingly agreed to arbitrate
their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration
provision must be "sufficiently clear to place a consumer on notice that he or
A-2489-20
11
she is waiving a constitutional or statutory right . . . ." Atalese v. U.S. Legal
Servs. Grp., L.P., 219 N.J. 430, 443 (2014). "No particular form of words is
necessary to accomplish a clear and unambiguous waiver of rights." Id. at 444.
If, "at least in some general and sufficiently broad way," the language of the
clause conveys arbitration is a waiver of the right to bring suit in a judicial
forum, the clause will be enforced. Id. at 447. "The key . . . is clarity." Barr v.
Bishop Rosen & Co., 442 N.J. Super. 599, 607 (App. Div. 2015).
Here, plaintiffs claim the arbitration clause is ambiguous and therefore
unenforceable because it contains "void, inaccurate, misleading and ambiguous
language . . . ." and "confusing lower[-]case passages and all upper[-]case bold
passages." Plaintiffs argue Hojnowski, 187 N.J. at 327, "prohibits a parent of a
minor child from releasing the child's potential tort claims arising out of the use
of a commercial recreational facility." According to plaintiffs, JAMS, the
named forum in the arbitration provision, is "not permitted to conduct arbitration
in New Jersey" and thus the agreement should fail. We disagree.
The language in the arbitration clause states plaintiffs were "agreeing to
arbitrate any dispute as set forth in this section" and were "waiving [their]
right . . . to maintain a lawsuit." It sets forth, "[b]y agreeing to arbitrate,
[plaintiffs] understand that [they] will NOT have the right to have [their]
claim[s] determined by a jury." This language clearly and unambiguously puts
A-2489-20
12
plaintiffs on notice that they are waiving the right to a jury trial and the right to
pursue their claims in a court of law. This part of the Agreement is therefore
enforceable. See Flanzman, 244 N.J. at 137-38 (citing Atalese, 219 N.J. at 444-
45).
Plaintiffs' reliance on Hojnowski is misplaced. Writing for a unanimous
Court, then Justice Zazzali4 made clear "permitting arbitration of a minor's
claims is consistent with New Jersey case law discussing the enforceability of
arbitration agreements that affect the rights of children." 187 N.J. at 343. Here,
plaintiff's mother signed the Agreement that included an arbitration clause.
The unavailability of JAMS does not render the arbitration clause
unenforceable. Although the parties agree JAMS is not available to arbitrate
this case, the Agreement contains a severability clause that states: "If any term
or provision of this [agreement] shall be held illegal, unenforceable, or in
conflict with any law governing this [agreement] the validity of the remaining
portions shall not be affected thereby." Severability clauses "are indicative of
the parties' intent that the agreement as a whole survives the excision of an
4
In October 2006, Governor Jon Corzine appointed Justice Zazzali to succeed
Deborah T. Poritz as Chief Justice. Chief Justice Zazzali served in this capacity
until June 17, 2007, when he reached the mandatory retirement age for all
members of the New Jersey Judiciary.
A-2489-20
13
unenforceable provision." Arafa v. Health Express Corp., 243 N.J. 147, 169 n.2
(2020). As the Supreme Court explained in Flanzman:
No New Jersey statutory provision or prior decision has
elevated the selection of an "arbitral institution" or the
designation of a "general process for selecting an
arbitration mechanism or setting" to the status of
essential contract terms, without which an arbitration
agreement must fail.
To the contrary, the [New Jersey Arbitration Act
(NJAA)] makes clear that its default provision for the
selection of an arbitrator may operate in the absence of
contractual terms prescribing such procedures. See
N.J.S.A. 2A:23B-11(a). The NJAA reflects the
Legislature's intent that the parties' omission of an
arbitrator or arbitral organization, or their failure to set
forth the method by which they will choose an
arbitrator in the event of a dispute, will not preclude the
enforcement of their agreement. Ibid.[244 N.J. at 139.]
The arbitration clause at issue here must be interpreted in accordance with
New Jersey law and the Federal Arbitration Act (FAA). The FAA and the NJAA
provide for a court-appointed arbitrator if the designated arbitrator is
unavailable. Id. at 141. The arbitration clause enables the parties to seek from
a court "provisional remedies in aid of arbitration." The language in the
Agreement does not show the parties intended to forego arbitration if JAMS is
unavailable. The designation of JAMS was not integral to the enforcement of
A-2489-20
14
the arbitration clause. Thus, the unavailability of JAMS does not invalidate the
arbitration clause.
We next address plaintiffs' arguments attacking the enforcement of the
arbitration clause based on the doctrines of procedural and substantive
unconscionability. In essence, plaintiffs argue requiring Johnson to read and
sign an ambiguous contract of adhesion immediately before a birthday party left
her with no other choice but to assent. Our Supreme Court has described the
factors that constitute the doctrines of procedural and substantive
unconscionability:
The defense of unconscionability, specifically, calls for
a fact-sensitive analysis in each case, even when a
contract of adhesion is involved. [The] Court has
recognized that contracts of adhesion necessarily
involve indicia of procedural unconscionability. [The
Court has] identified, therefore, four factors as
deserving of attention when a court is asked to declare
a contract of adhesion unenforceable.
[I]n determining whether to enforce the
terms of a contract of adhesion, [a court]
look[s] not only to the take-it-or-leave-it
nature or the standardized form of the
document but also to [(1)] the subject
matter of the contract, [(2)] the parties'
relative bargaining positions, [(3)] the
degree of economic compulsion motivating
the "adhering" party, and [(4)] the public
interests affected by the contract.
A-2489-20
15
[Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40
(2006) (internal citations omitted) (quoting Rudbart v.
N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344,
356 (1992)).]
Here, plaintiffs merely recycle their arguments relying on the Agreement's
alleged ambiguity without applying or analyzing the factors established by the
Court in Delta Funding. We discern no basis, in fact or in law, to conclude this
arbitration provision is substantively unconscionable. Finally, plaintiffs'
allegations that defendants acted intentionally and recklessly have no basis in
fact and are not worthy of further comment by this court. Plaintiffs' remaining
argument lack sufficient merit to warrant discussion in a written decision. R.
2:11-3(e)(1)(E).
The order of the Law Division upholding the enforceability of defendants'
arbitration clause is affirmed. However, we vacate the part of the order that
dismisses plaintiffs' complaint with prejudice and remand the matter to the Law
Division to stay any judicial proceedings related to this case pending the
outcome of the arbitration. GMAC, 205 N.J. at 584 n.7; N.J.S.A. 2A:23B-7(g).
Affirmed in part, reversed in part, and remanded consistent with this
opinion. We do not retain jurisdiction.
A-2489-20
16