STEPHANIE SEVASTAKIS v. TIGER SCHULMANN'S KARATE CENTER

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-6145-08T3


STEPHANIE SEVASTAKIS and
JOHN SEVASTAKIS, married,

     Plaintiffs-Appellants,

v.

TIGER SCHULMANN'S KARATE
CENTER,

     Defendant-Respondent.

____________________________________________________


         Argued March 9, 2010 - Decided   August 26, 2010

         Before Judges Skillman, Gilroy and
         Simonelli.

         On appeal from Superior Court of New Jersey,
         Law Division, Atlantic County, Docket
         No. L-2212-07.

         Kevin M. Stankowitz argued the cause for
         appellants (Rosenberg, Kirby, Cahill and
         Stankowitz, attorneys; Mr. Stankowitz, of
         counsel and on the brief).

         Andrew Siegeltuch argued the cause for
         respondent (Sweeney & Sheehan, attorneys;
         Mr. Siegeltuch, of counsel; Neal A. Thakkar,
         on the brief).

PER CURIAM

    On July 15, 2006, plaintiff Stephanie Sevastakis1 enrolled

in a karate class operated by defendant Tiger Schulmann's Karate

Center for the purpose of losing weight and becoming more fit.

The paperwork plaintiff was required to sign in order to enroll

in the class included what was entitled, "Model Release and

Waiver of Liability," which stated in pertinent part:

          Student understands that participation in
          martial arts and martial arts instruction
          involves physical exertion and contact.
          Student acknowledges that participation in
          martial arts and martial arts instruction is
          dangerous and that there is a risk of injury
          involved in the activity. Student agrees to
          waive any claim, and to release TSK and its
          employees and agents from any claim for
          injuries sustained as a result of
          participation in martial arts and martial
          arts classes, including injuries claimed to
          have been caused by the negligence of TSK,
          its agents and employees. This release and
          waiver does not apply to any act of willful
          misconduct or gross negligence.

    The instructor was advised plaintiff was taking the class

in order to lose weight, and he was aware that plaintiff had not

engaged in any physical fitness program for a long period of

        Just before her first class, plaintiff observed her
time.

daughter participate in the same type of karate class, which


1
  Plaintiff's husband John Sevastakis joined in her complaint
asserting a per quod claim. The references to plaintiff in this
opinion are solely to Stephanie Sevastakis.



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consisted of sit-ups, push-ups, punches, and kicks, including

roundhouse kicks.    Plaintiff recognized that some of these

activities might be difficult for her, but she "was going to

follow through with [her] commitment to try."

    At the beginning of her class, plaintiff placed herself in

the front of the room, but the instructor moved her to the last

of three rows.    The class began with stretching exercises and

then moved to push-ups and sit-ups, which plaintiff struggled to

complete.

    After a light running exercise, the instructor gave a brief

explanation of the roundhouse kick exercise.    According to

plaintiff, "[h]e said to place your foot on the ground, . . .

and then kick the--the X-ray sheet that's being held by your

partner and spin and continue that motion, kick and spin, kick

and spin."    Plaintiff held the x-ray paper for her partner to

perform seven to ten kicks before attempting the exercise

herself.    She began by completing seven kicks with her left

foot, her right foot supporting her, and she then did four or

five kicks with her right foot, her left foot supporting her,

when her supporting left foot collapsed and she fell.    She was

later diagnosed with a Lisfranc fracture of her left foot that

required surgery.




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                                 3

    Plaintiff subsequently brought this personal injury action

against defendant, alleging that defendant's instructor had been

negligent in his conduct of the karate class in which plaintiff

fractured her foot.    Plaintiff's claim was supported by an

expert opinion of Shawn Arent, the Director of the Human

Performance Laboratory at Rutgers, who concluded that defendant

had been negligent in:

         1.   Lack of a comprehensive initial health
              screening, fitness evaluation, or
              skills assessment.

         2.   Lack of attention to proper form or
              instruction on technique.

         3.   A "one-size fits all" approach to
              workload assignment.

         4.   Inappropriate skill progression for a
              beginner, compounded by inattention to
              fatigue status.

Arent characterized defendant's alleged negligence as "gross."

    After the completion of discovery, defendant moved for

summary judgment.     The trial court concluded that a personal

injury claim against an exercise facility such as defendant

could be maintained only if plaintiff could show recklessness on

the part of defendant and that plaintiff's proofs were

insufficient to support a finding of recklessness.     Accordingly,

the court granted defendant's motion for summary judgment




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                                  4

without considering the question of the effectiveness of the

previously quoted waiver of liability to bar plaintiff's claim.

    Plaintiff filed a motion for reconsideration, which the

trial court denied.

    Plaintiff filed a notice of appeal.    Defendant filed a

motion to dismiss the appeal as untimely, which we denied.

    On appeal, plaintiff argues that the trial court erred in

concluding that her personal injury claim was maintainable only

if she could show that defendant's conduct of the karate class

in which she was injured was reckless.    In the alternative, she

argues that her proofs would be sufficient to support a finding

of recklessness.

    In its answering brief, defendant argues that only the

order denying reconsideration is properly before us, because

plaintiff's notice of appeal did not identify the order granting

summary judgment as a subject of her appeal and the notice was

filed beyond the time allowed for challenging the summary

judgment dismissing plaintiff's complaint.   In the alternative,

defendant argues that the trial court correctly ruled that

recklessness was the applicable standard of care and that

plaintiff's proofs would not support a finding of recklessness.

Defendant also argues that if the applicable standard of care is




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                               5

negligence, plaintiff's claim is barred by the waiver of

liability she signed in enrolling in defendant's karate class.

    We deferred issuance of our opinion until the Supreme Court

decided Stelluti v. Casapenn Enterprises, LLC, ___ N.J. ___

(2010), which involved the same issue as this appeal regarding

the effectiveness of a waiver of liability for negligence by a

participant in an exercise class.     The Court has now decided

Stelluti, and we affirm the dismissal of plaintiff's complaint

based on her waiver of liability upon enrollment in the karate

class under the authority of Stelluti.    We first discuss the

other issues raised by the parties.

    Although plaintiff's notice of appeal stated she was

appealing from the order denying reconsideration entered on June

26, 2009, her case information statement indicated that she was

appealing from both the order denying reconsideration and the

order granting summary judgment dismissing her complaint:

         The current appeal involves two Orders both
         entered by the Honorable Steven P. Perskie,
         J.S.C. The first was a motion for Summary
         Judgement granted on May 15, 2009. The
         second was a denial of the motion for
         reconsideration of this Order which was
         signed on June 26, 2009 and received in my
         office on July 2, 2009. Both Orders are
         attached.

    "[I]t is clear that . . . only the judgments or orders or

parts thereof designated in the notice of appeal are subject to




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                               6

the appeal process and review."       Pressler, Current N.J. Court

Rules, comment 6.1 on R. 2:5-1 (2010).       However, a notice of

appeal must be read in conjunction with the attached case

information statement, and an appeal will be deemed in

appropriate circumstances to include not only orders

specifically referenced in the notice of appeal but also

additional orders referenced in the case information statement.

See Ahammed v. Logandro, 
394 N.J. Super. 179, 187-88 (App. Div.

2007); Tara Enters., Inc. v. Daribar Mgmt. Corp., 
369 N.J.

Super. 45, 60 (App. Div. 2004).       Our courts follow this approach

because a case information statement may serve the same

essential purpose as a notice of appeal, which is to put the

respondent on notice of the intended scope of the appeal.

    This is an appropriate case in which to read the notice of

appeal in light of the attached case information statement.

That statement clearly indicated that plaintiff was appealing

from the order granting summary judgment and that one of the

issues to be raised on appeal was that "[t]he Trial Court

applied an incorrect legal standard" in granting defendant's

motion for summary judgment.   Therefore, defendant had to have

understood upon reviewing plaintiff's case information statement

that the order granting summary judgment was being appealed.




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                                  7

    We recognize that plaintiff's notice of appeal, as it

relates to the order granting summary judgment, was filed

nineteen days beyond the forty-five day period allowed by Rules

2:4-1(a) and 2:4-3(e) for filing an appeal.    However, this court

has authority under Rule 2:4-4(a), upon "a showing of good cause

and the absence of prejudice," to extend the time for the filing

of a notice of appeal for up to thirty days.    Moreover, this

court may exercise that authority on its own motion.

Castellucci v. Bd. of Review, 
168 N.J. Super. 301, 303 (App.

Div. 1979).

    Defendant does not claim it will suffer any "prejudice" as

a result of our granting of an extension of time for plaintiff

to appeal the order granting summary judgment.    Although

plaintiff did not file a certification so indicating, it appears

that the reason for her delay in appealing from the order

granting summary judgment was confusion over the effect of the

motion for reconsideration upon the time for appeal.   We have

concluded that such confusion should be viewed as "good cause"

in the interest of deciding this appeal upon its merits.

    We turn next to the question whether the trial court

correctly concluded that recklessness rather than negligence was

                                   In Fantini v. Alexander, 172
the applicable standard of care.

N.J. Super. 105, 107-08 (App. Div. 1980), we squarely held that




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                               8

the standard of care applicable to a personal injury claim by a

karate student against the instructor was negligence.      In

Rosania v. Carmona, 
308 N.J. Super. 365 (App. Div.), certif.

denied, 
154 N.J. 609 (1998), we also held that negligence was

the applicable standard of care applicable in a personal injury

action against a karate facility, at least in some

circumstances:   "[I]n this commercial setting, the jury should

have been charged that defendants owed a duty to patrons of the

dojo not to increase the risks inherent in the sport of karate

under the rules a reasonable student would have expected to be

                           Id. at 368.
in effect at that dojo."

    In Dare v. Freefall Adventures, Inc., 
349 N.J. Super. 205

(App. Div.), certif. denied, 
174 N.J. 43 (2002), we applied a

recklessness standard to a skydiver's claim against a fellow

skydiver, id. at 214-15, but rejected application of that

standard to the skydiver's claim against the operator of the

skydiving facility, id. at 216.       Instead, regarding the

operator, the question "was whether, under the ordinary duty

owed to business invitees, considering the nature of the risks

associated with skydiving and the foreseeability of injury,

plaintiff's risk of injury was materially increased beyond those

reasonably anticipated by skydiving participants as a result of




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the manner by which [defendant] operated its facility."    Id. at

218.

       In Derricotte v. United Skates of America, 
350 N.J. Super.
 227, 234 (App. Div. 2002), we held that the Roller Skating Rink

Safety and Fair Liability Act "does not immunize a rink operator

from liability for negligently instructing a person how to

roller skate."    We further determined that in the absence of any

statutory standards, "a rink operator's liability [relating to

skating lessons] is governed by ordinary negligence principles."

Id. at 235.    In reaching this conclusion, we noted "that the

operator of a sports or recreational facility such as a roller

skating rink 'is subject to a standard of care based on

negligence rather than the recklessness standard applicable to

                                                       Id. at 235
participants in recreational sporting activities.'"

n.3 (quoting Schneider v. Am. Hockey & Ice Skating Ctr., Inc.,


342 N.J. Super. 527, 535 (App. Div.), certif. denied, 
170 N.J.
 387 (2001)).

       It is clear from Fantini, Rosania, Dare, and Derricotte

that the standard of care applicable to commercial recreational

facilities such as defendant's karate facility is that of

ordinary negligence.    Indeed, the implicit premise of our

Supreme Court's opinion in Stelluti, upholding the validity of a

waiver of liability by a customer of a commercial exercise




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facility, is that the applicable standard of care is negligence

because such a waiver does not bar a claim based on recklessness

                            ___ N.J. at ___ (slip op. at 32).
or even gross negligence.

Therefore, the trial court erred in granting defendant's motion

for summary judgment on the ground that plaintiff's personal

injury claim was maintainable only if she could show that

defendant's conduct in the operation of her karate class was

reckless and that plaintiff's proofs would be insufficient to

support that finding.

    Because the applicable standard of care is negligence, the

waiver of liability plaintiff signed when she enrolled in

defendant's karate class would apply.   Stelluti resolved

whatever doubts may have previously existed regarding the

validity of such a waiver by a person enrolling in a

recreational activity such as karate.   The facts in Stelluti

were virtually identical to this case except that Stelluti

involved enrollment in a "spinning" class at a fitness center

rather than a karate class at a karate facility.   Id. at ___

(slip op. at 2).   The plaintiff in Stelluti signed a "Waiver and

Release Form," which was similar to the "Model Release and

Waiver of Liability" form plaintiff signed in enrolling in

                            See id. at ___ (slip op. at 3-5).     In
defendant's karate class.

pursuing her claim for personal injuries suffered during the




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exercise class, plaintiff argued that the waiver of liability

provision was invalid as "contrary to public policy."     Id. at

___ (slip op. at 15).   In rejecting this argument, the Court

stated:

               By its nature, exercising entails
          vigorous physical exertion. Injuries from
          exercise are common; indeed minor injuries
          can be expected -- for example, sore muscles
          following completion of a tough exercise or
          workout may be indicative of building or
          toning muscles. Those injuries and others
          may result from faulty equipment, improper
          use of equipment, inadequate instruction,
          inexperience or poor physical condition of
          the user, or excessive exertion. . . .

               . . . There has been recognized a
          "positive social value" in allowing gyms
          to limit their liability in respect of
          patrons who wish to assume the risk of
          participation in activities that could
          cause an injury. . . . And, further, it is
          not unreasonable to encourage patrons of a
          fitness center to take proper steps to
          prepare, such as identifying their own
          physical limitations and learning about the
          activity, before engaging in a foreign
          activity for the first time.

          [Id. at ___ (slip op. at 30-31 (footnote and
          citation omitted).]

    The validity of the "Release and Waiver of Liability" form

that plaintiff signed when she enrolled in defendant's karate

class is directly controlled by Stelluti.   There is no

meaningful distinction between the spinning class in which the

plaintiff in Stelluti enrolled and the karate class in which




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plaintiff enrolled or in the waiver of liability forms signed by

the plaintiff in Stelluti and the plaintiff in this case.

Therefore, we conclude that the waiver of liability provision

plaintiff signed was valid and that it bars her negligence

claims.

    Furthermore, the evidence plaintiff presented in opposition

to defendant's motion for summary judgment is not sufficient to

support a claim of recklessness or gross negligence, which would

                                              Id. at ___ (slip op.
not be barred by her waiver of liability.

at 32).   Recklessness consists of "intentionally commit[ting] an

act of an unreasonable character in disregard of a known or

obvious risk that was so great as to make it highly probable

that harm would follow, and which thus is usually accompanied by

a conscious indifference to the consequences."     Schick v.

Ferolito, 
167 N.J. 7, 19 (2001).     Gross negligence consists of

"a high level of incompetence, inattention, or indifference that

involves more than simple negligence."     Pizzullo v. N.J. Mfrs.

Ins. Co., 
391 N.J. Super. 113, 127 (App. Div. 2007), rev'd on

unrelated grounds, 
196 N.J. 251 (2008).     Even viewing the

evidence in a light most favorable to plaintiff, as we are

required to do on a motion for summary judgment, Brill v.

Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995), this is

only a garden-variety negligence action.     Plaintiff simply




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alleged that defendant did not conduct an adequate evaluation of

her fitness before allowing her to undertake a roundhouse kick,

failed to adequately instruct her regarding the technique of

such a kick, and failed to adequately monitor her performance of

this kick.   Plaintiff's accident was not caused by any defect in

the equipment used in the defendant's facility or physical

contact with another participant.    It was caused simply by her

repetition of the roundhouse kick, after she successfully

performed this activity eleven or twelve times.   Although Dr.

Arent's opinions could support a finding that defendant was

negligent in its evaluation and supervision of plaintiff,

defendant's alleged lack of due care for plaintiff could not be

found by a reasonable trier of fact to rise to the level of a

"disregard of a known or obvious risk that was so great as to

make it highly probable that harm would follow," Schick, supra,


167 N.J. at 19, or "a high level of incompetence, inattention,

or indifference that involves more than simple negligence[,]"

Pizzullo, supra, 
391 N.J. Super. at 127.

    Accordingly, we affirm the summary judgment dismissing

plaintiffs' complaint.




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