JANET POLECHEK v. DOMINIC SCHINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5875-08T35875-08T3

JANET POLECHEK,

Plaintiff-Appellant,

v.

DOMINIC SCHINA, ANNA

SCHINA, and DMS FARMS, LLC,

Defendants-Respondents.

________________________________________________________________

 

Argued March 17, 2010 - Decided

Before Judges Axelrad and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-619-07.

Neil I. Sternstein argued the cause for appellant.

Patrick J. Grimes argued the cause for respondents (Grimes & Grimes, L.L.C., attorneys; Mr. Grimes, on the brief).

PER CURIAM

Plaintiff Janet Polechek appeals from an order granting summary judgment, dismissing her complaint with prejudice. We affirm.

Defendants Dominic and Anna Schina own DMS Farms, LLC, which they operate as a facility for boarding and training horses. Plaintiff, a licensed thoroughbred horse trainer, contracted with DMS Farms to store four or five of her horses.

On April 13, 2005, Eddie Persaud, an exercise rider employed by plaintiff, was riding one of her horses, "Jan's Brother," at the DMS Farms track. Plaintiff was mucking out one of the stalls in the barn when she heard Eddie scream, "Yo" and left the barn in response. Eddie was walking and Jan's Brother was running in the wrong direction around the turn of the track, away from Eddie and toward her. Plaintiff was concerned that the horse would run through a gap in the outside rail of the track. She ran to the gap in the fence and attempted to stop Jan's Brother by shouting, "Whoa!" The horse did not stop but rather, ran over plaintiff, causing her to suffer substantial injuries.

Approximately one year earlier, plaintiff executed a release and hold harmless agreement (the release), which we set forth in its entirety here:

DMS FARM LLC

Release and Hold Harmless Agreement

1. I understand the potential danger that I could incur in mounting, riding, walking, boarding, feeding, training, grooming, swimming said horses, including but not limited to, any interactions with other horses. Understanding those risks I hereby release DMS FARM, its officers, directors, shareholders, employees and anyone else directly or indirectly connected with DMD FARM from any liability whatsoever in the event of injury or damage of any nature (or perhaps even death) to me.

2. I understand and warrant that this Release and [H]old Harmless Agreement, is being voluntarily and intentionally signed and agreed to, and that in signing this Release and Hold Harmless Agreement I know and understand that this Release and Hold Harmless Agreement may further limit the liability of DMS FARM to include any activity, whatsoever, involving an equine, including death, personal injury and/or damage to property.

3. I further voluntarily agree and warrant to Release and Hold Harmless DMS FARM from any liability whatsoever, including, but not limited to, injuries, death or property damages from: mounting, riding, dismounting, walking, grooming, feeding, use of horse barn, paddocks, and farm property, and horse track in any capacity, including falling off whether the horse is bucking, flipping, [or] spooked.

I Janet Polachek the undersigned have read and understand, and freely and voluntarily en[t]er into this Release and Hold Harmless Agreement with DMS FARM understanding that this Release and Hold Harmless Agreement is a waiver of any and all liability(ies).

DMS FARM 6-1-04

DATE

PERSON VOLUNTARILY ENTERING INTO THIS RELEASE AND HOLD HARMLESS AGREEMENT.

/s/ Janet Polachek

Janet Polachek

TRAINER

Plaintiff filed a complaint against defendants, alleging that she was a business invitee on their premises and that they were negligent in that they:

a. did not keep the premises in a safe condition;

b. did not exercise proper care;

c. caused a dangerous hazardous condition to exist;

d. allowed a nuisance to exist;

e. failed to provide proper safeguards and/or warnings on the property;

f. failed to provide proper, safe and clear access for persons allowed and invited to use the property;

g. and was otherwise negligent in the premises.

Plaintiff's allegation of negligence focused upon an alleged failure to maintain the outside rail of the track in working order so that her horse could not have escaped. Her reliance upon Hubner v. Spring Valley Equestrian Center, 408 N.J. Super. 626 (App. Div.), certif. granted, 200 N.J. 505 (2009) and Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207 (App. Div. 2006) is misplaced. The plaintiffs in Hubner and Stoffels presented expert testimony that raised debatable issues of negligence and the existence of circumstances falling within the exceptions to the equestrian centers' statutory immunity. In contrast, no expert testimony was produced here to establish that the gap in the outside rail was the result of negligent maintenance by defendants.

Defendants filed a motion for summary judgment, seeking the dismissal of the complaint and indemnification from plaintiff for counsel fees and costs, based upon the contract between plaintiff and defendants. The trial court entered an order that granted summary judgment, dismissing the complaint with prejudice, based upon the release, and denied defendants' claim for indemnification.

On appeal, plaintiff argues that summary judgment was improperly granted. After carefully considering the record and briefs, we are satisfied that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), except for the following brief comments.

On appeal, a motion for summary judgment is reviewed de novo under the same legal standard applied by the trial court, that is, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue[s] in favor of the non-moving party." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 473 (App. Div. 2008) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. denied, 197 N.J. 476 (2009). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We accord no deference to the motion judge's conclusions on issues of law, Zabilowicz v. Kelsey, 200 N.J. 507, 512-513 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). To defeat summary judgment, the opposing party must present affirmative evidence that is competent, credible and shows that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202, 217 (1986).

Plaintiff argues that the release should not be enforced against her because the agreement does not unequivocally release defendants from their own negligence. However, the language addressing the scope of the release is broad, describing the release as "a waiver of any and all liability(ies)" and releasing defendants "from any liability whatsoever[.]" While the release might not be legally enforceable if defendants sought to release tort liability resulting from intentional or reckless conduct, see Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2006); Restatement (Second) of Contracts 195 (1981), the allegation here is mere negligence. The public policy reasons for voiding disclaimers of more culpable conduct do not apply. A disclaimer of liability for ordinary negligence in the maintenance of the facility is both reasonable and not offensive to public policy. To the contrary, the release of liability based upon negligence is consistent with the Legislature's policy in enacting N.J.S.A. 5:15-1 to -12, which recognized the importance of equine animal activities and the inherent risks associated with such activities, N.J.S.A. 5:15-3, and affords limited immunity to the operators of equestrian facilities. N.J.S.A. 5:15-5, -9. Cf. Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 456 (App. Div.) (noting strong public policy promoting physical fitness, the court recognized "that health clubs need the protection of exculpatory agreements because of the potentially large financial exposures associated with injuries that inevitably will occur on their premises, even in the best-maintained and safest clubs."), certif. granted, 200 N.J. 502 (2009).

We are satisfied that the release was enforceable as to the allegations of negligence made by plaintiff here. Moreover, even giving plaintiff the benefit of all legitimate inferences, the evidence fails to establish a genuine issue of fact regarding the breach of a duty by defendant.

 
Affirmed.

Plaintiff's name is spelled "Polachek" on the release and "Polechek" on all documents filed with the court.

Plaintiff alleges for the first time on appeal that liability can be imposed upon defendant because the facts here fall within an exception to the limited immunity afforded equestrian facility operators by N.J.S.A. 5:15-1 to -11. This allegation was not included in the complaint or presented to the motion judge, and therefore is not properly before us. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v Royal Indem. Ins. Co., 62 N.J. 229 (1973). Moreover, we note that plaintiff has not identified evidence in the record that would support a claim that liability could be imposed pursuant to any of the exceptions in the statute.

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A-5875-08T3

March 30, 2010