ROY STEINBERG, Ph.D v. SAHARA SAM'S OASIS LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROY STEINBERG, Ph.D. and

TAMI BOGUTZ STEINBERG, h/w,

Plaintiffs-Appellants,

v.

SAHARA SAM'S OASIS, LLC,

a/k/a SAHARA SAM'S, LLC,

Defendant-Respondent,

and

WAVE LOCH, INC., AQUATIC

DEVELOPMENT GROUP, INC.,

ITT WATER & WASTEWATER,

ITT CORPORATION, ITT FLYGT

CORPORATION, SAMBE CONSTRUCTION

COMPANY, INC., SAMBE

CONSTRUCTION CO., INC.,

AQUATIC BUILDERS, LTD., H20

ENTERTAINMENT GROUP, LLC, and

HYDROTECH SYSTEMS, LTD.,

Defendants.

_______________________________________________________________

Telephonically argued February 13, 2014 Decided October 31, 2014

Before Judges Sapp-Peterson, Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5271-10.

Barry J. Muller argued the cause for appellants (Fox Rothschild, LLP, attorneys; Mr. Mueller, of counsel and on the brief).

Laura M. Danks argued the cause for respondent (Capehart & Scatchard, P.A., attorneys; Christopher J. Hoare, of counsel and on the brief; Ms. Danks, on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

Plaintiff Roy Steinberg and his spouse, Tami Bogutz Steinberg,1 appeal from an order granting summary judgment in favor of defendant Sahara Sam's Oasis, LLC (Sahara Sam's), the owner and operator of the FlowRider from which he fell and sustained injuries. The motion judge found the waiver agreement plaintiff signed before riding the FlowRider was enforceable against plaintiff. The motion judge also found that none of Sahara Sam's alleged wrongful conduct rose to the level of gross negligence. Plaintiff argues that the waiver is unenforceable because Sahara Sam's operation of the FlowRider violated its statutory duty, and constituted gross negligence. We disagree and affirm.

I.

Because this case comes to us on a grant of summary judgment, we view the facts in a light most favorable to the non-moving party. R. 4:46-2. The relevant facts follow.

Sahara Sam's is a corporation that operates an indoor water park located in Berlin. One of the attractions in the water park is the FlowRider, a ride designed to simulate surfing or bodyboarding.2 As part of the development of the water park, Sahara Sam's purchased the FlowRider from ADG under a design-build purchase contract ("contract"). Under the contract, Wave Loch and ADG were responsible for obtaining all the required design permits, approvals for installation and operation of the FlowRider, as well as delivery of an operations manual for the ride and the recommended signage to be displayed in connection with the ride.

The Department of Community Affairs, Amusement Safety Ride Unit ("DCA") is responsible for implementation and enforcement of the Carnival-Amusement Rides Safety Act, N.J.S.A. 5:3-31 to -59 ("CARSA" or "Safety Act") and its regulations, N.J.A.C. 5:14A-1.1 to -14.7. As an amusement ride, the FlowRider is a ride subject to the Safety Act.

In March 2008, ADG applied to DCA for Type Certification3 and, pursuant to N.J.A.C. 5:14A-2.4(b), submitted the FlowRider design drawings, 2007 operations manual (or "2007 Manual"), and the proposed safety signage, N.J.A.C. 5:14A-12.6(o), for review and approval pursuant to the Safety Act.4 In June 2008, DCA notified ADG that additional design information and modifications to FlowRider's operations manual were necessary before it could complete its engineering review of the submissions. On July 21, 2008, DCA issued the Type Certification to ADG approving the 2007 Manual, plans, and drawings, including the safety signs. The certification was valid for three years.

Upon completion of construction of the FlowRider in February 2009, James Dunn, ADG Vice President, Design and Construction certified that he inspected and tested the ride and found it satisfactory and safe for operations. He filed the required Certification of Erection and Assembly at Site and a Certification of Ride Testing, both dated February 20, 2009, certifying installation of the attraction in accordance with the approved submissions, including the sign plan from the 2007 Manual.

In 2008, Wave Loch produced a revised operations manual for the FlowRider (the "2008 Manual"). The 2008 Manual modified the 2007 Manual and include, among other things, additional safety signage and additional instructions to be provided to users of the FlowRider.

On April 4, 2010, plaintiff and his children visited the Sahara Sam's Oasis Water Park. The events leading up to plaintiff's fall and injury were all captured on video. The video shows plaintiff lining up with his children to board the ride. Because he had not executed the waiver, initially neither he nor his children are permitted to board the ride. Plaintiff returns to the entrance area where he receives papers, looks down towards the papers, and then signs the papers. After executing the papers, he receives the wristbands and then returns to the line. He watches several others use the ride, including his son who falls while riding the FlowRider in a standing position. When it is plaintiff's turn, he briefly speaks to the person stationed at the top of the ride, then he walks to the lower portion and speaks to the person stationed at that location.

Next, as plaintiff attempts to balance himself on the board, he wraps a rope attached to the ride around his right hand and leans in towards the attendant, who speaks to him. Plaintiff then unwraps the rope from around his right wrist. Once the attendant releases the board, plaintiff rides the FlowRider for several seconds before falling. As he is falling he releases the rope.

When deposed, plaintiff, who holds a Ph.D., testified he received limited instruction on how to ride the FlowRider or how to protect himself if he fell. He stated he was only told to balance with his legs, and to hold the rope while on the board. He was not shown an orientation video. Although he knew there was a risk that he could lose his balance and fall, he did not believe he could be injured from falling from the FlowRider. Plaintiff testified that had Sahara Sam's posted the recommended signage in the 2008 Manual, which he first saw during discovery, "I would have, at the least, asked to talk to them about this more, or more likely, I would have gotten off, I don't think I would have followed up on this one." The recommended signs contained in the 2008 Manual included pictorial warning signs of riders falling. He reiterated he did not see the posted signs on display at the time of his accident.

Although acknowledging his signature on the waiver forms and that he read Question 6, above the signature block: DO YOU AGREE TO ABIDE BY THE RULES OF SAFE CONDUCT" and checked the "Yes" line for that question, he indicated he did not read the waiver agreement. When asked whether he recalled signing waiver forms on ski trips he and his family had previously taken, he stated, "[t]hat may be what they're called, but again, I I don't read those as . . . I never have." When asked why, he responded, "Well, for the most part, since I've been married, my wife if anything, does the reading[.]"

The waiver agreement, which plaintiff admittedly signed, contained the following pertinent language

Please read this document. It affects your legal rights against Sahara Sam's if you are injured on the FlowRider. By signing this Waiver you acknowledge that it contains a complete release of any and all claims against Sahara Sam's and that you have read the agreement and agree to its terms.

1. INTRODUCTION TO THE FLOWRIDER, OUR DYNAMIC INDOOR SURFING MACHINE

The FlowRider is a dynamic and exciting water amusement ride which stimulates the experience of riding an ocean wave. The FlowRider is a body-active participatory sport where the rider "rides" a flowing sheet of water using a Bodyboard or a specially designed Flowboard. Riders should observe the ride and read all posted instructions and limitations to participate. Pregnant women and persons with a history of heart, back, neck, shoulder or joint problems should not ride the FlowRider.

2. RISKS ASSOCIATED WITH USING THE FLOWRIDER

The FlowRider was designed by the manufacturer with the safety of the rider as a primary concern, but as an interactive participatory sport, there are risks associated with its usage. Although many before you have ridden the FlowRider without any problem whatsoever, injuries are possible because of the nature of the ride.

a. You may unavoidably achieve body positions that result in personal injury during your participation and riding may result in the flow of water picking you up and pitching you head over heel into a subsurface that is covered by foam or matting. . . .

b. You may sustain injury as a result of slipping on or striking surrounding ride elements, including the ride bottom, flow fence divider, support structures, ride vehicles, containment walls, entering or exit riders, ride attendants or other ride components. Since the attraction and ride vehicles may contain fiberglass, plastic, wood, or other potentially hardened substances, your contact with them may also cause injury.

Other paragraphs inform the rider that he or she is giving up legal rights by using the FlowRider, including that the rider releases Sahara Sam's "from any and all claims . . . bodily injury [and] wrongful death . . . which may arise out of your participation in the FlowRider Ride." The waiver also explains the persons bound by the waiver and release; and asks the rider if he or she agrees to abide by the rules of safe conduct. The waiver language contains a signature block and also requires the rider to date the document.

The signs posted around the FlowRider on the day of plaintiff's accident included a bright red sign, warning patrons the FlowRider was an extreme water attraction. This sign stated in large capital letters "WARNING!" and "READ BELOW" followed by the message warning of the risk of injury from using the ride:"SAHARA SAM'S IS STRESSING THE POTENTIAL FOR INJURY ON THIS ATTRACTION IN ADVANCE OF YOUR PARTICIPATION. ONCE YOU STEP FOOT ONTO THIS ATTRACTION YOU ARE IN CONTROL OF ALL MOTIONS. YOU HAVE BEEN WARNED AND HAVE THE OPTION TO NOT PARTICIPATE AND BE A SPECTATOR." Another sign, described the ride and how to use it in nineteen points. It read, in part,

1. This is a very strenuous ride. The moving water is extremely turbulent.

2. Bodyboarding or Flowboarding on this sheet wave is a body-active, participatory sport. As with all sports, care must be taken to avoid a mishap.

. . . .

8. Avoid jumping into or entering the ride at high speed; avoid weight on front foot. YOU WILL WIPE OUT!

. . . .

10. If you wipe out, do not hold your board. Release board immediately, cover your head, and keep limbs close to body and try to brace for impact with feet first.

Both of the warning signs were posted near the entrance of the ride.

There was also a freestanding sign located at the entrance to the queue for the FlowRider. This sign stated, in prominent red and blue type, "WAIVER MUST BE SIGNED TO RIDE ADDITIONAL WRISTBAND NEEDED waivers located at fence entrance or admissions counter."

DCA inspected the FlowRider at Sahara Sam's on three separate occasions prior to plaintiff's accident, March 11, 2009, October 28, 2009, and December 16, 2009. It approved the ride and the posted signage as in compliance with the manufacturer's 2007 Manual on file with DCA. As required by the Safety Act, the 2007 Manual was on site at Sahara Sam's water park in accordance with N.J.A.C. 5:14A-9.8(a). The presence of the 2007 Manual was one of the items inspected by DCA in their ongoing inspections of the water park.

At his deposition, Dunn testified that in November 2008, his assistant emailed Ilya Girlya, owner and officer of H20 Entertainment Group, LLC, Sahara Sam's landlord, a copy of the application submitted to DCA, which included the 2007 Manual and that manual's recommended safety signage. According to the testimony of Robert Chalfant,5 a Wave Loch sales representative, on February 26, 2009, he and Kristen Barney, another Wave Loch employee, provided Sahara Sam's employees with on-site training regarding the safe use and operation of the FlowRider. Approximately, one week before this training, Barney contacted Sahara Sam's to inquire whether they had the signs posted, to which Brandon Moore, Sahara Sam's aquatic director, responded in the affirmative.

During the training session, Chalfant provided Moore with a copy of the 2008 Manual, but did not discuss the three additional signs included in the 2008 Manual that were not included in the 2007 Manual. Nor did Chalfant bring the new signs to Sahara Sam's, although he acknowledged that it was ADG's responsibility to provide the signs. The three new signs contained in the 2008 Manual address, as did the 2007 Manual, risks of injury, but unlike the 2007 Manual, through illustration, depicts the technique for riding and falling, using both words and diagrams. The record also reveals that two months later ADG inspected the FlowRider and signage posted and certified that the ride was in compliance with all requirements.

The staff training included instructing staff how to greet each rider and how to assess each rider's experience before allowing them to ride the FlowRider. They were instructed to show first-time riders how to ride a bodyboard lying down in the prone position because it is safer. Moore, when deposed, described the session as an "informal training" conducted at the FlowRider primarily demonstrating how to get on and off the ride.

After the training, ADG submitted a "Certification re: Operator Trainer" to DCA identifying Girlya and Moore as trained "operators." Thereafter, Moore conducted a three-day training program for the lifeguards, followed by additional shadow training, as well as a minimum of four hours per month of continuing refresher training. Sometime later, Wave Loch provided Sahara Sam's a "New Rider Orientation" video. Both the 2007 and 2008 Manuals provide that the rider orientation may be done verbally by staff or by video. Moore testified they did not utilize the video to explain the ride to its guests.

Kristin Fennel, referred to as the "waiver girl" during her deposition, testified and explained that she was the person who provided plaintiff with the waiver forms and wristbands on April 4, 2010, the day of his accident. When deposed nearly two years later, she did not remember the rules and regulations guests had to know before riding the FlowRider. She was, however, able to describe her responsibilities

I had to make sure that the guest understood why they were signing the waiver, what the waiver explained, what rules and regulations of the FlowRider were, and to make sure if they want to ride this ride, they have to sign that paper. And if they [do not] I [cannot] allow them on the FlowRider.

She also told guests to listen to the lifeguards.

ADG submitted a 2008 Manual to DCA on May 25, 2010, but did so in connection with an application for a different park. On the cover of that copy DCA noted, "5/25/10 Copy of Manual Supplied to Ride Owner. Differs Slightly from 2007 ver. submitted to Dept." ADG never submitted the 2008 Manual to DCA in connection with Sahara Sam's FlowRider; nor did ADG apply for an amended Type Certification for Sahara Sam's FlowRider, in light of the additional signage contained in the 2008 Manual.

Moore reported plaintiff's accident to DCA on the day it occurred and was permitted to re-start the ride later that day. A DCA inspector inspected the FlowRider the following day, April 5, 2010. The inspector found no operational or signage violations and authorized continued operation of the FlowRider.

Plaintiff filed a complaint against Sahara Sam's and others in October 2010.6 The single count asserted against Sahara Sam's alleged negligence. Sahara Sam's denied the allegations contained in the complaint and upon completion of discovery moved for summary judgment, contending it breached no duty owed to plaintiff and also asserting that the waiver agreement plaintiff executed was enforceable. Plaintiff opposed the motion, essentially arguing that because of defendant's violations of the Safety Act and gross misconduct the waiver was unenforceable.

Following oral argument, the motion judge granted Sahara Sam's motion. Relying upon Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), the motion judge found the waiver agreement signed by plaintiff insulated Sahara Sam's from liability. In addition, the judge found while there "may be negligent acts assignable to Sahara Sam's" none of that conduct rose to the level of willful conduct that is defined as gross negligence. The judge dismissed the claims against Sahara Sam's, and later denied plaintiff's motion for reconsideration. This appeal followed.

Plaintiff raises the following points for our consideration

I. The trial court erred in granting summary judgment because the waiver does not immunize Sahara Sam's from liability for its violation of the safety act.

A. Sahara Sam's Violated The Safety Act By Failing To Post Signs Required By Wave Loch To Warn The Public Regarding The Dangers Of The FlowRider.

B. Sahara Sam's Violated The Safety Act By Failing To Comply With Wave Loch's Safety Instructions To Assess Steinberg's Experience And Require Him, As A First-Time Rider, To Ride The FlowRider Lying Down.

C. Sahara Sam's Violated The Safety Act By Failing To Provide Steinberg With Critical Riding And Safety Instructions Required By Wave Loch.

D. Sahara Sam's Violated The Safety Act By Failing To Abide By Wave Loch's Directive To Release The Rope When Steinberg Fell And By Permitting Steinberg To Wrap His Hand Around And Hold The Rope With Both Hands.

E. The Trial Court Failed To Properly Consider Sahara Sam's Violations Of The Safety Act And Steinberg's Expert Opinions.

II. The trial court erred in granting summary judgment because the waiver does not immunize Sahara Sam's from liability for its gross negligence.

III. The release does not immunize Sahara Sam's from liability for the wrongful conduct at issue.

We have carefully examined the proofs in the record and conclude that the evidence presented by plaintiff, viewed in the light most favorable to him, does not favor him. We find that a fair-minded jury could not return a verdict for plaintiff because no evidence presented would permit a rational fact finder to resolve the "alleged disputed issues" in favor of plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986).

II.

We review a motion seeking summary judgment using the same standard used by the trial judge. Bhagat v. Bharat A. Bhagat & Cranbury Hotels, LLC, 217 N.J. 22, 38 (2014). We must determine, based on the competent evidential materials submitted by the parties, whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Based on our review of the record, we are satisfied there are no material issues of fact in dispute, and the case is ripe for summary judgment as a matter of law.

Here, plaintiff's accident and resulting injuries occurred when plaintiff fell while using an inherently risky amusement ride, the FlowRider. In order to ride the FlowRider, plaintiff was required to sign a waiver agreement.

The waiver agreement at issue here is known as a recreational exculpatory agreement. Such an agreement "seeks from one party the relinquishment of a legal right, thereby relieving the other party of its common law duty of care[.]" Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 247 (2004).

Our courts have long recognized that "contracting parties are afforded the liberty to bind themselves as they see fit." Stelluti, supra, 203 N.J. at 302 (citing Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S. Ct. 476, 477, 75 L. Ed. 1112, 1116 (1931) (holding "[t]he general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts")); see also 11 Williston on Contracts 30:9 at 131 (Lord ed., 4th ed. 2012). Consequently, "courts are hesitant to interfere with purely private agreements." Ibid. (citing Mayfair Fabrics v. Henley, 48 N.J. 483, 487 (1967)). Moreover, when a party enters into a signed, written contract, that party is presumed to have understood the terms of the agreement, unless fraudulent conduct is suspected. Id. at 305.

Nonetheless, despite the freedom to contract, exculpatory agreements have been disfavored because "they encourage a lack of care." Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2006) (citations omitted). "For that reason, courts closely scrutinize liability releases and invalidate them if they violate public policy" or are unconscionable. Ibid. (citations omitted). Thus, an exculpatory agreement "must, on its face, reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences. Gershon, supra, 368 N.J. Super. at 247. Stated otherwise, an exculpatory agreement will be enforced 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. Ibid.

In the present matter, it is undisputed that Sahara Sam's was under no legal duty to permit plaintiff to ride the FlowRider. Nor is the FlowRider a public utility or common carrier. Finally, because plaintiff was not compelled to ride the FlowRider, there was no unequal bargaining power. See Stelluti, supra, 203 N.J. at 286 (noting that the plaintiff, who was injured during spinning class at her gym, was under no obligation to belong to the defendant's fitness club, could have taken her business elsewhere and there was no time limit imposed upon her ability to review and consider whether to sign the waiver agreement). Consequently, only the first of the four-part test we enunciated in Gershon, and which the Court cited approvingly in Stelluti, supra, 203 N.J. at 298, is of significance to our discussion.

Exculpatory agreements that contract away statutorily-mandated duties or contain pre-injury clauses releasing a party from liability for committing intentional or reckless conduct have been held to be "plainly inconsistent with public policy." Id. at 304. In this instance, plaintiff urges Sahara Sam's violated numerous provisions of the Safety Act. In addition, plaintiff points to these violations as raising genuinely disputed issues of fact as to whether Sahara Sam's conduct rose to the level of gross negligence. We reject each of these contentions and address each in turn.

Sahara Sam's Type Certification, issued pursuant to N.J.A.C. 5:14A-2.4, approved the 2007 Manual and safety signage submitted by ADG. There is no factual dispute that the 2007 signs were posted or that Sahara Sam's was in full compliance with the DCA certification. Our dissenting colleague, nevertheless, agrees with plaintiff that this court should impose upon Sahara Sam's the obligation to comply with the 2 008 Manual and the 2008 safety signs. We disagree.

The Type Certification was valid for three years from July 2008 through 2011, beyond the date of plaintiff's accident. To the extent either Wave Loch or ADG viewed the 2008 Manual as a modification requiring Sahara Sam's to post the additional safety signs and the revised rider instructions provided in the 2008 Manual, Sahara Sam's received no such direction from ADG or Wave Loch. Nor did ADG or Wave Loch submit the new manual or modifications to the FlowRider signage and rider instructions to DCA, as part of an application to amend its Type Certification. N.J.A.C. 5:14A-4.5, entitled "Compliance with manufacturer's recommendations for modifications," reads

(a) An owner shall comply with any manufacturer's recommendation or requirement including, but not limited to, the replacement or modification of a component of the ride, a change or addition to the maintenance schedule for a ride or the performance of a test on a ride.

1. A copy of all manufacturer's bulletins or recommendations received by the owner shall be forwarded to the Department within 14 days of receipt by the owner unless the ride has a current type certification, in which case the manufacturer shall be responsible for sending such information to the Department.

2. The Department may waive the requirement to implement a manufacturer's recommendation, at the owner's request, if failure to implement the recommendation does not jeopardize public safety.

[(emphasis added)]

ADG never submitted the 2008 Manual with an application to amend or modify the Type Certificate to update the signage. Moreover, as noted earlier, neither ADG nor Wave Loch ever delivered to Sahara Sam's the actual safety signs contained in the 2008 Manual, as they had done with regard to the signs contained in the 2007 Manual, notwithstanding Chalfant's testimony that it was either Wave Loch or ADG's responsibility to do so.

As we have already stated, it is undisputed Sahara Sam's was never advised that the 2008 Manual superseded the 2007 Manual. Nor were the "significant" modifications, about which Chalfant testified, specifically brought to any Sahara Sam's employees attention or to the attention of DCA with regard to Sahara Sam's FlowRider. Yet, plaintiff contends that Sahara Sam's must comply with the 2008 Manual and the supplemental oral rider safety instructions and recommendations provided to staff by Chalfant and Barney during the on-site training, in February 2009. We disagree.

Plaintiff contends the oral instructions given during the on-site training supplemented the safety and operational instructions contained in the 2007 Manual. Plaintiff argues these are safety alerts7 that must be complied with in accordance with N.J.A.C. 5:14A-4.8(b) (requiring the owner to "ensure that operators are trained to operate the ride based on manufacturer requirements covered by the operational manual and any supplemental safety bulletins, safety alerts or other notices related to operational requirements"). Manufacturers, however, are obligated to provide DCA and all owners "all bulletins, and notifications on type certified rides". N.J.A.C. 5:14A-5.7. Any changes to the bulletins or subsequent notifications must also be submitted to DCA. To reiterate, it is undisputed that ADG never submitted the "supplemental safety and operational requirement" in writing to DCA for approval to modify its Type Certification as required by N.J.A.C. 5:14A-4.5 or N.J.A.C. 5:4A-5.7.

Turning to the instructions given to plaintiff, we note in particular, neither the 2007 nor 2008 Manuals required riders to use the bodyboard on their first ride, nor did the manuals require that "New Rider Orientation" be conducted by showing a video. Sahara Sam's did not show the orientation video, but rather, had the lifeguard speak to plaintiff to prepare him for the ride. On this point, our dissenting colleague notes that both the 2007 and 2008 Manuals recommend that the "Wave Processor" or Waiver desk staff provide the necessary New Rider Orientation but overlooks the prefatory language in bold print, which precedes the job descriptions for the various personnel involved with the FlowRider

4. FLOWRIDER OPERATOR POSITION DESCRIPTIONS

There are several position descriptions used to describe the operational function of personnel on the FlowRider. These positions can be performed by different people or by the same person at differing times. Here follows a job description for each functional position.

[(Emphasis added)].

Fennel testified that the orientation was conducted by the lifeguards. More importantly, whether it should have been conducted by Fennel or lifeguards, assuming it was inadequate, implicates negligent conduct for which the waiver agreement would be enforceable. Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 439 (App. Div. 2009).

The instructions provided to plaintiff by Sahara Sam's employees were consistent with both the 2 007 Manual and 2008 Manual. Once plaintiff decided to ride in a standing position, the video shows the lifeguard talking to him and showing him how to balance on the board. There is no requirement that riders avoid using two hands on the rope in either the 2 007 Manual or 2008 Manual. The 2008 Manual stated that "The Wave Operator/Lifeguard and the Rider must not wrap the rope around their hands, wrists or other parts of their bodies. They must be able to immediately let go of the rope if the rider falls." The 2007 Manual did not specifically address the use of the rope. Notwithstanding plaintiff's contention to the contrary, the video shows plaintiff wraps a rope around his right wrist and leans in towards the attendant, who speaks to him. Plaintiff then unwraps the rope from around his right wrist and holds the rope in his hands. When the ride begins both the lifeguard and plaintiff are seen holding their ends of the rope, but upon falling from the board, plaintiff releases the rope and the lifeguard can be seen pulling in the rope. Consequently, even assuming the lifeguard failed to instruct plaintiff not to wrap the rope around his wrists, the video, without question, shows that plaintiff had unwrapped the rope from around his right wrist before the ride started. As such, his resulting accident was not causally related to any failure on the part of the lifeguard to properly instruct him on the use of the rope.

While plaintiff claims no one told him not to wrap the rope around his wrists, his self-serving testimony is belied by the physical evidence showing him unwrapping the rope from around his wrist immediately after leaning in towards the lifeguard and engaging in some discussion. In Alfano v. Schaud, 429 N.J. Super. 469 (App. Div.) certif. denied, 214, N.J. 119 (2013), we held that "[w]hen opposing parties tell different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Here, plaintiff's testimony is contradicted by the video recording that makes clear that plaintiff was not ill-advised with respect to the rope. Therefore, a violation of the Safety Act cannot be reasonably inferred from this evidence.

Further, plaintiff argues the trial court was required to accept its experts' reports as true and as further evidence of Sahara Sam's alleged violations of the Safety Act. In the posture of this case, we must review the evidence in the light most favorable to plaintiff. This does not mean, however, we have to accept bare conclusions that are unsupported by the record. Peterson v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2010).

We are convinced from our own review of the voluminous record provided by the parties, that plaintiff did not present sufficient evidence to raise a genuinely disputed issue of material fact as to whether Sahara Sam's violated any statutory or regulatory obligations. Even if we were to accept the experts' reports, they merely reiterate the same alleged wrongful conduct that we have already rejected.

III.

Next, plaintiffs contend the violations of the Safety Act raise genuinely disputed issues of fact as to whether Sahara Sam's actions constitute gross negligence for which the release from liability contained in the waiver agreement would no longer apply. We disagree.

Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div. 2003) (citing Clarke v. Twp of Mount Laurel, 357 N.J. Super. 362 (App. Div. 2003)). Gross negligence requires "indifference to consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987), and may be equated with willful or wanton conduct. See Stelluti, supra, 408 N.J. Super. at 457 n.6. Thus, at the outset, the motion judge did not err in characterizing gross negligence as the equivalent of willful conduct. Ibid.

Turning to the record, there is nothing to suggest that any of Sahara Sam's employees were indifferent, reckless, or engaged in wanton or willful misconduct in the performance of their duties from the time plaintiff lined-up to ride the FlowRider up to and including the point where he sustained injuries. See Id. at 439 (holding that an exculpatory agreement did not, and could not, shield a premise from reckless, willful or wanton, or palpably unreasonable acts or omissions).

Assuming, as plaintiffs allege, plaintiff was not properly warned of the dangers of the FlowRider, his experience level was not assessed, he was not, as a first-time rider, instructed to ride lying down, was given limited safety instructions, and was improperly permitted to hold the rope attached to the FlowRider with both hands, this conduct, at best, merely establishes negligent conduct, for which the exculpatory agreement insulated plaintiff from liability. Viewing the record in a light most favorable to plaintiff, we concur with Sahara Sam's that there is no genuinely disputed issue of material fact indicating that its actions in operating the FlowRider, if any, went beyond simple negligence.

Plaintiffs do not allege that plaintiff was fraudulently induced to sign the waiver agreement. Stelluti, supra, 203 N.J. at 305. Nor does the fact that plaintiff chose to sign the document without reading it establish a basis to declare the waiver agreement unenforceable. "[I]in the absence of fraud, one who does not choose to read a contract before signing it cannot later relieve himself of its burdens." Moreira Constr. Co. v. Moretrench Corp., 97 N.J. Super. 391, 394, (App. Div. 1967), aff'd 51 N.J. 405 (1968). Further, because plaintiff admittedly failed to read the agreement, the fact, as he alleges, that the warnings contained in the waiver agreement were inadequate, is of no consequence.

To summarize, the serious injuries for which plaintiff seeks to impose liability and recover damages against Sahara Sam's were subject to the waiver agreement, which plaintiff knowingly and voluntarily entered, therefore shielding Sahara Sam's from liability based upon common law remedies. Stelluti, supra, 408 N.J. Super. at 439. Moreover, the record, viewed most favorably towards plaintiff, establishes no genuinely disputed issue of fact as to any statutory or regulatory violations or gross negligence which would render the waiver agreement unenforceable.

Affirmed.

HOFFMAN, J.A.D., dissenting.

To accept the majority's decision is to conclude the facts are so one-sided that Sahara Sam's was entitled to judgment as a matter of law. Brill, supra, 142 N.J. at 533. Their decision, however, fails to consider the facts in the light most favorable to plaintiffs, as required by the appropriate standard for granting summary judgment. Id. at 523. Viewing the evidence in the light most favorable to the nonmoving party, together with all reasonable inferences in favor of that party, id. at 536, I conclude the evidential materials could support a finding of gross negligence.

Such a finding would render the waiver plaintiff signed unenforceable. See Stelluti, supra, 203 N.J. at 313. I therefore respectfully dissent.

These are the material facts viewed most favorably toward plaintiffs. Ibid. Plaintiff sustained a severe spinal cord injury while riding the FlowRider at Sahara Sam's water park on April 4, 2010. The FlowRider is designed to simulate surfing or bodyboarding. Plaintiff fell while riding the Flowboard in an upright position, i.e. surfing. Prior to using the FlowRider, plaintiff signed a waiver releasing Sahara Sam's from liability, but received no meaningful training or instruction in the safe use of the ride. Instead, a ride instructor only provided brief instructions on how to step into the FlowRider, and how to mount and balance on the Flowboard.

When plaintiff fell, he was still holding onto a rope utilized to tow riders out into the wave. Instead of releasing the rope as instructed by the manufacturer, the attendant continued to hold the rope as plaintiff fell. According to the report of plaintiff's bioengineering expert, Joseph McGowan, the rope remained taut, pulling plaintiff's body away toward the attendant as the wave swept the board backwards. McGowan further opined that, as a result, plaintiff flipped forward and his head struck the hard surface a few inches below the water. The diving impact caused a spinal cord injury rendering plaintiff an incomplete paraplegic.

Amusement parks, like defendants' facility, are strictly regulated in New Jersey under the terms of the Safety Act. N.J.S.A. 5:3-31 to -59. Water parks, which feature "water-based recreational amusement," are expressly covered by the Safety Act. N.J.S.A. 5:3-55. The Safety Act authorizes the Commissioner of the DCA to promulgate regulations governing the safe operation of these facilities. N.J.S.A. 5:3-36.

The DCA's regulations governing water parks are set forth at N.J.A.C. 5:14A-12.1 to -12.9. The regulations establish: standards for the owner's responsibility for park attractions, N.J.A.C. 5:14A-12.3; minimum criteria for the design, manufacture and construction of aquatic activity areas, N.J.A.C. 5:14A-12.5; and operation and staffing requirements, N.J.A.C. 5:14A-12.6.

Plaintiffs contend Sahara Sam's committed multiple regulatory violations that, collectively, constitute gross negligence and render the liability waiver plaintiff signed unenforceable. Despite acknowledging there "may be negligent acts assignable to Sahara Sam's," the motion judge concluded the conduct did not rise to the level of gross negligence, as a matter of law, and therefore found the waiver enforceable.

Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill, supra, 362 N.J. Super. at 425 (citing Clarke, supra, 357 N.J. Super. at 362. Gross negligence requires "indifference to consequences." Banks, supra, 218 N.J. Super. at 373.

Plaintiff argues Sahara Sam's violated N.J.A.C. 5:14A-9.8(a), which mandates that "[t]he owner of an amusement ride shall operate the ride in accordance with the manufacturer's operating manual."

The record includes both the 2007 FlowRider Operations & Procedures Manual (2007 Manual) and an updated manual issued the following year (2008 Manual); both manuals were issued by the manufacturer, Wave Loch. Plaintiff asserts Sahara Sam's violated the regulation by failing to provide "New Rider Orientation" described in both the 2007 and 2008 Operations Manual, to be "[c]onducted by trained staff or shown in a Wave Loch [a]pproved [o]rientation [v]ideo."

Plaintiff further argues Sahara Sam's violated regulations by not posting the signs included in the 2008 Manual (2008 Signs). A regulation requires the posting of "[s]igns required or recommended by the ride manufacturer." N.J.A.C. 5:14A-12.6(o)(1). The 2008 Signs significantly revised the safety warning signs provided in the 2 007 Manual. The 2008 Signs graphically illustrate the risks of injury, the proper technique for riding, and the proper technique for falling, using both words and illustrations. One of the signs Sahara Sam's failed to post included explicit warnings that patrons will fall, and that they may consequently sustain serious, even fatal injuries

RIDING THE FLOWRIDER IS AN EXTREME SPORT AND HIGH RISK RECREATIONAL ACTIVITY, YOU WILL FALL.

BEFORE ATTEMPTING TO RIDE, WATCH THE SAFETY VIDEO AND UNDERSTAND THE RISKS OF THIS ACTIVITY.

. . . .

FAILURE TO COMPLY WITH SIGNS OR INSTRUCTIONS MAY INCREASE THE RISK OF SEVERE PERMANENT INJURIES OR EVEN DEATH.

[2008 Manual, p.41 (emphasis added).]

Sahara Sam's neither posted this sign nor provided its patrons with the orientation video or the instructions for safe operation recommended by the 2008 Manual. Additionally, the information Sahara Sam's provided plaintiff in the waiver significantly downplayed the above-stated risks. While the missing sign informs that the FlowRider is an "extreme," "high risk" activity and riders "will fall" and can sustain "severe permanent injuries or death," the waiver signed by plaintiff arguably gives the contrary impression that the FlowRider is not dangerous

2. RISKS ASSOCIATE WITH USING THE FLOWRIDER

The FlowRider was designed by the manufacture with the safety of the rider as a primary concern, but as an interactive participatory sport, there are risks associated with its usage. Although many before you have ridden the FlowRider without any problem whatsoever, injuries are possible because of the nature of the ride.

The record indicates Wave Loch recommended Sahara Sam's post the 2008 Signs next to the FlowRider. Sahara Sam's admitted the signs were in the 2008 Manual, and available to them from Wave Loch, but did not install them. Ilya Girlya, owner of Sahara Sam's, testified that the signs were recommended, but not mandatory, and that Sahara Sam's "would have only put up signage specifically mandatory." Moreover, Sahara Sam's did not post any other signs illustrating people falling down on the FlowRider.

Sahara Sam' failure to post the 2008 Signs signage that was provided to warn, educate and protect riders deviated from the manufacture's safety recommendations and thus violated the regulatory requirements for amusement park ride operators. N.J.A.C. 5:14A-12.6(o) (requiring signs "required or recommended by the manufacturer") (emphasis added). Plaintiff testified that, had he seen the 2008 Signs, he most likely would not have gotten on the ride.

The record also shows Wave Loch provided Sahara Sam's with supplemental on-site training and instructions regarding the safe use and operation of the FlowRider. Wave Loch's corporate trainer, Robert Chalfant, instructed Sahara Sam's staff to assess each person's experience before allowing them on the FlowRider. Chalfant further instructed attendants to recommend first time riders, like plaintiff, to ride the FlowRider on a body board lying down prone before attempting a standing position, as it is much safer, and gives riders a sense of what they will experience standing up. When Sahara Sam's Aquatics Director, Brandon Moore, received his initial training from Wave Loch, his first ride on the FlowRider was in the prone position.

Moore admitted that he received the orientation video after Sahara Sam's opened,8 and before plaintiff's injury. Nevertheless, Moore, who was responsible to train all FlowRider life-guards and attendants, did not show the orientation video to the staff, or inform them it was available. Nor did he use the video to orient new riders.

As noted, the operating procedures, set forth by Wave Loch in the 2007 and 2008 Manual, also called for new rider orientation. The orientation consisted of operating and safety instructions, including how to avoid injury during a fall. According to both manuals, new rider orientation could either be conducted by trained staff reading a script, or by showing the Wave Loch orientation video. Sahara Sam's provided neither to Plaintiff.

The 2007 and the 2008 Manuals both delegated the responsibility of providing new rider orientation to the "Wave Processor," the same individual responsible for obtaining the waiver. Casey Fennell was Sahara Sam's Wave Processor on the day of the accident. According to the report of plaintiff's aquatic safety expert, Maria Bella, Fennell testified Sahara Sam's told her the FlowRider was not dangerous, and failed to give her either the manual, the Orientation Video, or a script to educate new riders; Fennell also indicated, contrary to both manuals, that it was not her responsibility to provide the New Rider Orientation, and admitted she did not provide any safety or operating information to plaintiff.

The failure to conduct new rider orientation or to utilize the orientation video was magnified by evidence indicating Sahara Sam's staff may not have been adequately trained. Sahara Sam's did not require its FlowRider attendants to read either the 2 007 Manual or the 2008 Manual, to watch the orientation video, or to review the 2008 Signs.

The record clearly indicates Sahara Sam's never provided plaintiff with new rider orientation or the opportunity to watch the orientation video. The ride attendants similarly failed to instruct him, as a first-time rider, to use the body board in the prone position.

The Model Civil Jury Charge for gross negligence provides

Gross negligence is an act or omission, which is more than ordinary negligence, but less than willful or intentional misconduct. Gross negligence refers to a person's conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person's failure to exercise slight care or diligence.

[NJ Civil Model Charge 5.12.]

While gross negligence clearly does not require willful or intentional misconduct, it appears the motion judge believed plaintiff needed to prove such misconduct to get to a jury

I find constrained to make the determination that I don t' find that it is necessary for a jury to make the determination as to whether it's gross negligence versus negligence. There arguably are negligent act assignable to Sahara Sam's in this action but I can't find that it [rises] to the level of the willful conduct that is defined by our courts as gross negligence.

Regardless, even if intentional or willful misconduct were required, plaintiff's proofs contain sufficient evidence to create a jury question on that issue.

The majority found the procedures and signage contained in the 2008 Manual are not controlling, concluding that compliance with the new manual was not required.9 I disagree. N.J.A.C. 5:14A-9.8(b) provides: "The owner shall ensure compliance with the requirements of N.J.A.C. 5:14A-4.8 for ride operators." N.J.A.C. 5:14A-4.8(b), in turn, requires the owner to "ensure that operators are trained to operate the ride based on manufacturer requirements covered by the operational manual and any supplemental safety bulletins, safety alerts or other notices related to operational requirements." I conclude the 2008 Manual, including the 2008 signs, fall within the scope of N.J.A.C. 5:14A-4.8(b).

Even if Sahara Sam's could be found to have complied with the 2007 Manual and the applicable regulations, compliance with the Safety Act does not imbue tort immunity. First, aside from N.J.S.A. 5:3-56 & -57, which are not relevant here, the Safety Act does not place any restrictions on common law negligence actions. Second, given the evident purpose of the Safety Act to protect the public from unsafe amusement rides, I perceive no basis to read the Safety Act to narrow the public's right to recourse except where explicitly stated. Sahara Sam's common law tort liability establishes a distinct duty of care owed to its patrons, and the Safety Act does not supersede that duty of care.

Here, the record demonstrates Sahara Sam's received a copy of the 2008 Manual, including the 2008 Signs, before plaintiff's injury.10 The very strong warnings incorporated in the 2008 Signs demonstrate a previously unappreciated risk of injury. Rather than posting the new signs, Sahara Sam's continued operating under the old procedures. As the Court recognized in Stelluti, supra, "it would be unreasonable, and contrary to the public interest, to condone willful blindness to problems that arise." 203 N.J. at 311.

This omission supports plaintiff's claim of a grossly negligent breach of Sahara Sam's duty of care to plaintiff. Sahara Sam's failure to post the signs recommended in the 2008 Manual, and thus required under the Safety Act, implicates "the Legislature's own sense of operator risk that cannot be shirked." Stelluti, supra, 203 N.J. at 312, n.15. While the Court in Stelluti enforced the waiver in that case because the record lacked evidence rising to the level of gross negligence, the Court noted a limit to the protections that a business "reasonably may exact from its patrons through the mechanism of an exculpatory agreement." Id. at 311. The limit set by the Court was to "impose a duty not to engage in reckless or gross negligence." Id. at 313. Here, a rational factfinder could find Sahara Sam's non-compliance with the manufacturer's manuals, including not posting the 2008 Signs, "as equivalent to the gross negligence that has been historically beyond the reach of exculpatory agreements." Id. at 312.

Lastly, the majority holds that Sahara Sam's complied with the 2007 Manual by providing the new rider orientation verbally, rather than via the orientation video. The record, viewed in the light most favorable to plaintiff, does not support this finding. Fennell, the Wave Processor, was neither aware of her responsibility to provide the new rider orientation, nor did she provide any verbal warnings to plaintiff. The brief instructions plaintiff described receiving fell far short of providing the information he should have received, as set forth in the script included in the 2007 Manual11

[T]he surface should be viewed as similar to a skateboard ramp. In other words . . . you cannot dive like you are going to penetrate water . . . . Rather, when you fall, react as if you are falling on a hard surface and carefully brace your landing.

The instructions received by plaintiff omitted any description of the hardness of the surface below the wave, or instructions on how to control a fall. Therefore, even under the 2007 Manual, Sahara Sam's violated the applicable regulation by failing to "operate the ride in accordance with the manufacturer's operating manual." N.J.A.C. 5:14A-9.8(a).

The difference between negligence and gross negligence is a matter of degree, Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 599 (App. Div. 1994). Here, there was a genuine issue of material fact as to whether Sahara Sam's conduct rose to the level of gross negligence. I conclude Sahara Sam's violation of numerous safety and operating instructions of the manufacturer, which in turn constituted regulatory violations, provided sufficient evidence to present a jury question as to the issue of gross negligence.

As Justice Albin noted in his dissenting opinion in Stelluti, supra, "Tort law is not just about compensating victims, but also about preventing accidents." 203 N.J. at 325. By allowing Sahara Sam's to enforce its waiver in the face of the compelling evidence of its willful indifference to the consequences of its conduct, the majority decreases the incentive for the water park to provide a reasonably safe environment for its patrons. In light of the fact that the FlowRider has the capacity to cripple or even kill its users, many of whom are children, I fail to see how Sahara Sam's violations of applicable regulations and manufacturer instructions does not create a genuine issue of material fact as to whether such conduct constituted gross negligence.

In summary, I simply do not see how the majority's decision in this case represents the "fair sharing of risk" recognized by Justice LaVecchia in Stelluti. Id. at 313. A business owner's standard of care congruent with the nature of its business required, in this case, that it comply with the ride manufacturer's 2008 Manual, as mandated by controlling regulations. Sahara Sam's failed to do so. Such a failure, concerning a ride that presents the risk of crippling or killing its riders, presents compelling evidence of gross negligence. Conversely, I fail to understand how a business invitee can be found to have assumed the risk of a ride when he never received the manufacturer's warning that he should, "before attempting to ride, watch the safety video and understand the risks of this activity," which include "severe permanent injuries or even death."

Viewing all the facts in the light most favorable to plaintiff, a reasonable factfinder could conclude that Sahara Sam's conduct constituted gross negligence. Concluding the judgment in Sahara Sam's favor requires reversal, and remand for trial, I respectfully dissent.

1 Tami Bogutz Steinberg has asserted a per quod claim against defendant. Therefore, reference to plaintiff throughout this opinion is limited to Roy Steinberg.

2 The FlowRider was invented by Thomas Lochtefeld, who is also the owner of defendant manufacturer, Wave Loch, LLC. In 2007, Wave Loch entered into a license agreement with defendant Aquatic Development Group, Inc. ("ADG") authorizing ADG to market, manufacture, and sell FlowRiders.

3 "Type certification" means a certification that is granted to a manufacturer by DCA after review of a new ride application and that is applicable to all rides of essentially the same design and manufacture with regard to structural, mechanical, electrical, hydraulic drive and control features, and restraint and other protective features. N.J.A.C. 5:14A-1.2 (2014).

4

On March 17, 2008, DCA proposed revisions to the Safety Act to expand the general rules for amusement rides to address "the features and hazards associated with water rides." See N.J.A.C. 5:14A-12.1 to -12.9. The rules were adopted on June 16, 2008.

5 The record also reflects his name as Robert Chalfont.

6 Plaintiff settled or dismissed his claims against the other defendants.

7 "Safety Bulletin" under N.J.A.C. 5:14A-1.2, "a supplemental notification delivered by the manufacturer or the holder of a supplemental modification certification to the owner that contains new information or new recommendations for inspections, testing, repair, operation or training. For the purposes of ASTM F 853, this term includes, but is not limited to, Safety Alerts, Service Bulletins, and Notifications." N.J.A.C. 5:14A-1.2. (Emphasis added).

8 Sahara Sam's opened in March of 2009.

9 Unlike the majority, I attach no relevance to the fact that ADG failed to forward a copy of the 2008 Manual to the DCA within fourteen days of providing it to Sahara Sam's. I discern no basis for relieving a ride owner from its obligation to comply with a ride manufacturer's recommendations because of such an omission. The critical fact is that Sahara Sam's received the 2008 Manual and failed to follow it.

10 Sahara Sam's alleges plaintiff failed to demonstrate Sahara Sam's received the 2008 Manual prior to the accident. However, Moore admitted to receiving a manual containing a reference to rope usage before plaintiff's accident. Rope usage was addressed in the 2008 Manual, but not the 2007 Manual.

11 The identical script appears in the 2008 Manual.