The New Jersey Supreme Court recently agreed to hear the case of Hojnowksi v. Vans Skate Park in which it will decide whether a parent, by signing a release, can waive a child’s right to sue for tort liability. In Hojnowski, a twelve-year old fractured his femur while skateboarding at a skateboard facility owned by Vans Skate Park. Shortly thereafter, the boy underwent two surgeries to repair his injured femur. The boy’s parents, Anastasia and Jerry Hojnowki, filed a Complaint asserting a cause of action for negligence contending that, Vans Skate Park had failed to supervise activities at its facility, control the activities of aggressive skateboarders, warn that the activities of aggressive skateboarders would not be monitored, and provide a safe place to skateboard. Prior to the boy’s use of the facility and the subject accident, Anastasia signed a “Release and Waiver of Liability and Jury Trial.” According to the release’s terms, the signor waived any right to sue in the event of injury to a minor child. In addition, the release provided that any claims must be heard by an arbitrator. After the trial court granted Vans Skate Park’s Motion for Summary Judgment, plaintiffs appealed. The Appellate Division upheld the arbitration clause, but voided the remaining portion of the release. The Court upheld the arbitration clause reasoning that it did not extinguish the child’s claim, but rather, provided another forum. As for the release, the Court found that a parent cannot waive a child’s right to sue for bodily injuries. The Appellate Division stated that it is well-settled in New Jersey that without statutory authority or judicial decisions, a parent cannot release a claim properly belonging to a child. In other words, the Court stated that no New Jersey rule or decision authorized Andrew’s mother to sign the release limiting the liability of Vans Skate Park to exclude a claim for negligent conduct filed on behalf of the minor child. The Court reasoned that a facility’s economic concerns are trumped by childrens’ safety and right to recover for tort-related injuries. In addition, the Court stated that to allow a parent or guardian to execute a release for pre-tort liability on a child’s behalf would render meaningless the special protections historically afforded to minors. In short, the court placed the interests of children above the economic interests of a skate park. While the costs to maintain skate parks may increase, thereby hurting the industry, without the use of this particular kind of waiver, the Court emphasized that the welfare of children must come first. Finally, the Court pointed to the longstanding principle that a wrongdoer has a legal duty to provide compensation for injuries caused by its negligence. The New Jersey Supreme Court is expected to hear arguments on this case later this year. The Court’s ruling will undoubtedly impact the economic viability of skate parks throughout New Jersey. It is also expected to have far broader effects upon all industries involving children. Stayed tuned for the Court’s decision.

H. Benjamin Sharlin, Esq.