KYUNG PAK v. NJ FITNESS FACTORY, INC

NOT FOR PUBLICATION WITHOUT THE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-5084-16T2

KYUNG PAK,

        Plaintiff-Appellant,

v.

NJ FITNESS FACTORY, INC.,

        Defendant/Third-Party
        Plaintiff-Respondent,
v.

FITNESS MOTION, LLC,

     Third-Party Defendant.
_________________________________

              Submitted April 10, 2018 – Decided April 19, 2018

              Before Judges Fisher and Fasciale.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-4384-
              16.

              Goidel & Siegel, LLP, attorneys for appellant
              (Bryan M. Goldstein, on the briefs).

              Law Offices of Daniel J. McCarey, LLC,
              attorneys for respondent (Daniel J. McCarey
              and Jennifer N. Plant, on the brief).

PER CURIAM
     In this personal injury case, plaintiff appeals from an April

28, 2017 order granting summary judgment to defendant NJ Fitness

Factory, Inc. (the fitness club).         In entering the order and

dismissing the case, the judge relied on Stelluti v. Casapenn

Enterprises, LLC, 
203 N.J. 286 (2010).        We conclude Stelluti is

distinguishable and reverse.

     Plaintiff participated in an exercise class at the fitness

club.       The   fitness   club   required   plaintiff   to   sign    an

acknowledgment of liability waiver form (the waiver form), which

states in part that

            I . . . waive any and all claims I may have
            . . . against [the fitness club] in connection
            with or arising out of my participation with
            [the fitness program] . . . .     I understand
            that any exercise program carries with it some
            risk and acknowledge that risk. Further, in
            consideration of my participation in the
            [fitness] program, I agree . . . to release,
            indemnify, and hold harmless . . . [the
            fitness club] . . . from all liability for any
            personal injury . . . I might sustain during
            this [fitness] program.

Unlike the exculpatory clause in Stelluti, the waiver form did not

address plaintiff exercising at her own risk or exculpating the

fitness center for injuries sustained while engaging in strenuous

activity.

     The fitness club maintained a policy of keeping treadmills

running after use. The treadmill also contained no visual markings


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on   the   belt   to   alert   users   that   the    machine   was   running.

Plaintiff's accident, which caused a substantial injury requiring

spinal surgery for a fractured neck, was unrelated to using

physical fitness equipment while engaging in strenuous exercises

involving an inherent risk of injury.               Rather, a fitness club

employee directed plaintiff to step onto a running treadmill.

Plaintiff, without knowing the tread was running, stepped onto the

machine, which threw her off the spinning belt.            The fitness club

changed its policy after plaintiff's accident.

      On   appeal,     plaintiff   argues     primarily   that   the     judge

misapplied the Stelluti decision.           She contends that the waiver

form here is different than the exculpatory clause in Stelluti.

She maintains that the waiver form is unenforceable because it did

not contain language that she agreed to engage in activities at

her own risk, and that the waiver form did not attempt to exculpate

the fitness center for injuries caused from the use of fitness

equipment.

      When reviewing an order granting summary judgment, we apply

"the same standard governing the trial court."            Oyola v. Liu, 
431 N.J. Super. 493, 497 (App. Div. 2013).         We owe no deference to the

motion judge's conclusions on issues of law.              Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995).             Applying

these standards, we respectfully conclude the judge erred.

                                       3                               A-5084-16T2
     It is a longstanding principle of law that business owners

in New Jersey have well-established duties of care to patrons that

enter their premises.     Stelluti v. Casapenn Enters., LLC, 
408 N.J.

Super. 435, 446 (App. Div. 2009), aff'd, 
203 N.J. 286 (2010).              An

owner has a duty to guard against any dangerous conditions that

the owner knows about or should have discovered; and to conduct

reasonable inspections to discover latent dangerous conditions.

See Hopkins v. Fox & Lazo Realtors, 
132 N.J. 426, 434 (1993).            Any

attempt   to   limit   these   duties   by   directing   patrons   to   sign

exculpatory agreements requires careful attention by our courts.

Indeed, our Supreme Court has stated that exculpatory agreements

"have historically been disfavored in law and thus have been

subjected to close judicial scrutiny."        Stelluti, 
203 N.J. at 303.

     An exculpatory agreement, and we submit the waiver form, is

enforceable if

           (1) it does not adversely affect the public
           interest; (2) the exculpated party is not
           under a legal duty to perform; (3) it does not
           involve a public utility or common carrier;
           or (4) the contract does not grow out of
           unequal bargaining power or is otherwise
           unconscionable.

           [Gershon v. Regency Diving Ctr., Inc., 368
           N.J. Super. 237, 248 (App. Div. 2004); see
           also Stelluti, 
203 N.J. at 304.]

     Applying these principles, we concluded in Walters v. YMCA,


437 N.J. Super. 111, 120 (App. Div. 2014), that the exculpatory

                                    4                               A-5084-16T2
agreement with the YMCA was unenforceable.                 Pursuant to that

agreement, Walters released the YMCA for injuries he sustained

while he was on the YMCA premises or from YMCA-sponsored activity.

Id. at 116.    Walters slipped on a step leading to an indoor pool

at the YMCA.       Id. at 116-17.     Like plaintiff, Walters was not

engaged in strenuous exercises involving an inherent risk of

injury.

     Plaintiff is correct that the exculpatory clause in Stelluti

is different than the waiver form.             Nevertheless, applying the

Gershon factors, we also conclude the waiver form is unenforceable.

It adversely affects the public interest by transferring the

redress of civil wrongs from the responsible tortfeasor to either

an innocent injured party or society-at-large.             It eviscerates the

common law duty of care that the fitness center owes to its

invitees.     And it is unconscionable, as the fitness center has

attempted to shield itself from all liability based on a one-sided

agreement that offered no countervailing or redeeming societal

value.

     Like     in   Walters,   we    conclude     Stelluti      is     factually

distinguishable.     The Court's holding in Stelluti is grounded on

the recognition that health clubs are engaged in a business that

offer their members a place to use physical fitness equipment by

performing    strenuous   exercises       involving   an   inherent    risk    of

                                      5                                 A-5084-16T2
injury.   Stelluti, 
203 N.J. at 311.   Plaintiff did not engage in

any activity involving an inherent risk of injury.    She followed

the instructor's direction and unknowingly stepped onto a running

treadmill.   Unlike the plaintiff in Stelluti, who was involved in

strenuous activity and injured herself while riding a spin bike,

id. at 313, plaintiff injured herself while engaged in non-

strenuous activity.

    Reversed.




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