September 2010, No. 1

Is A Member Of A Gym Precluded From Filing A Lawsuit For Injuries Sustained Because Of The Gym's Negligence When She Signs a Waiver?

According to the Supremes, YES. In Stelluti v. Casapenn Enterprises, 2010 N.J. Lexis 750 (2010), upon entering into the membership agreement with the gym, the plaintiff signed a waiver and release form stating that she assumed all the risks of the gym's negligence, including malfunctioning equipment.

That day, the plaintiff participated in a spinning class and was injured when the bicycle's handlebars dislodged. Justice LaVechia authored the opinion for the majority of the Supremes, and found that it is not contrary to public interest to enforce the waiver of liability. Oddly, the Supremes found the contract to be one of adhesion, but that the plaintiff was not in an unequal bargaining position because she could have gone to another fitness club, sought another form of exercise, or sought advice before signing the waiver.

Ultimately, the Supremes concluded that for a gym or fitness center to be liable to a patron, it must have acted recklessly or grossly negligent. The Supremes then concluded that if the gym had known of the defective equipment and failed to remedy the condition or warn the patron, it could not exculpate itself from liability.

HUH?! Sounds like ordinary negligence to me. The Supremes' opinion have raised the bar to sue fitness centers from ordinary negligence to gross negligence where waivers are signed, which will significantly decrease the numbers of claims against fitness centers.

As an aside, a recent unpublished opinion concluded that a claim against a martial arts school was prohibited because of a waiver. Justices Long and Albin dissented finding that the waiver should have been void against public policy because the waiver unfairly shifts the risks from the commercial operator that is in the best position to remove dangerous conditions to innocent patrons.

Can A Defendant In An LAD Case Compel Plaintiff To Attend Psychological Examinations?

For those of you who said yes, you are wrong. Recently, in McGhee v and Johnson v. Pathmark Stores, Inc., the trial court held that R. 4:19, which allows an adverse party to require a party whose physical or mental condition is in controversy to submit to an examination, does not apply to LAD cases because emotional distress is a known by-product of discrimination. The defendant argued unsuccessfully that the plaintiffs' criminal records and past mental issues required the examination so that it could rebut plaintiffs' arguments that they sustained emotional distress.

The trial court rejected defendant's argument because the past issues were clearly independent from the claims in the case and the past issues would only confuse the jury and have the jury view the plaintiffs based on their moral turpitude, which has no bearing on the issues in the case.

The trial court relied on Tarr v. Ciasulli, 181 N.J. 70 (2004), which held that plaintiffs do not need an expert to prove emotional distress in LAD claims. This opinion is the proper extension of Tarr - if an expert is not required to prove the damages in the first instance, then why would defendant be entitled to the examination? This case may be appealed. We shall see.

Voir Dire Tip: Now that courts have wireless internet capabilities, trial attorneys have the internet at their fingertips. Yes, the laptop is useful to read e-mails during breaks, play a game of solitaire during a lull in the action, and do some work if a quiet moment presents itself. Well, now you can use it to get more information on prospective jurors. Often, the voir dire process does not provide insight into a prospective juror or can provide misleading information, thereby leaving the attorneys selecting a jury in a guessing game.

In Carino v. Muenzen, A-5491-08, the Appellate Division concluded that the plaintiff's attorney's use of the internet during the voir dire to gain additional information was not improper. Bottom line is bring those laptops and have a second attorney investigate the prospective panel before peremptory challenges begin.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil related story, please contact me at (201) 918-3560 or email me at mjepstein@theepsteinlawfirm.com.

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