LORIANNEWEED and SCOTT TREFERO as parents and natural guardians of A.M., a minor v. SKY NJ, LLC a/k/a and/or d/b/a SKYZONE MOORESTOWN and/or a/k/a and/or d/b/a SKYZONE and DAVID R AGGER

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-4589-16T1

LORIANNE WEED and SCOTT
TREFERO as parents and
natural guardians of
A.M., a minor,

        Plaintiffs-Respondents,

v.

SKY NJ, LLC a/k/a and/or d/b/a
SKYZONE MOORESTOWN and/or a/k/a
and/or d/b/a SKYZONE and DAVID R.
AGGER,

     Defendants-Appellants.
__________________________________

              Argued January 18, 2018 – Decided February 22, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Docket No.
              L-2790-16.

              Marco P. DiFlorio argued the cause for
              appellants (Salmon, Ricchezza, Singer & Turchi
              LLP, attorneys; Joseph A. Ricchezza and Marco
              P. DiFlorio, on the briefs).

              Iddo Harel argued the cause for respondents
              (Ross Feller Casey, LLP, attorneys; Joel J.
              Feller and Iddo Harel, on the brief).
PER CURIAM

     Defendants Sky NJ, LLC a/k/a/ Sky Zone Moorestown and David

Agger (defendants) appeal from the May 19, 2017 order denying

their motion to compel arbitration in this personal injury suit

brought by plaintiffs after A.M.1 suffered severe injuries while

jumping on a trampoline at defendants' facility.             After a review

of the presented arguments in light of the record before us and

applicable principles of law, we affirm.

     Plaintiff    visited   the   trampoline   facility      in   July   2016.

Entrance to the park is conditioned on all participants signing a

"Conditional Access Agreement, Pre-Injury Waiver of Liability, and

Agreement    to   Indemnity,   Waiver    of   Trial,   and    Agreement     to

Arbitrate" (the Agreement).       Weed executed the agreement on behalf

of her son in July 2016.

      Plaintiff returned to the facility with a friend in November

2016, and was injured while using the trampolines during a "Glow"

event, which plaintiff submits used different and less lighting

than was present at his earlier visit.            Plaintiff entered the

facility in November with an agreement signed by his friend's




1
   Lorianne Weed is A.M.'s mother. Because A.M. is a minor, we
use initials in respect of his privacy and we refer to him
hereafter as plaintiff.


                                     2                               A-4589-16T1
mother on behalf of both her daughter and A.M.2        In an affidavit

submitted by Weed in opposition to the motion, she stated that she

was unaware that her son was going to the facility at the time of

the November visit.

     Both agreements required the submission of all claims to

binding     arbitration   and   contained   the   following   pertinent

language:

            I understand that this Agreement waives
            certain rights that I have in exchange for
            permission to gain access to the [l]ocation.
            I agree and acknowledge that the rights I am
            waiving in exchange for permission to gain
            access to the [l]ocation include but may not
            be limited to the following:

               a. the right to sue [defendants] in a court
                  of law;

               b. the right to a trial by judge or jury;

               c. the   right   to   claim   money    from
                  [defendants]   for  accidents    causing
                  injury within the scope of the risk
                  assumed by myself;

               d. the   right   to    claim   money    from
                  [defendants]   for   accidents    causing
                  injury unless [defendants] committed
                  acts of gross negligence or willful and
                  wanton misconduct; and


2
  The agreement required the adult to "certify that [she was] the
parent or legal guardian of the child(ren) listed [on the
agreement] or that [she had] been granted power of attorney to
sign [the] Agreement on behalf of the parent or legal guardian of
the child(ren) listed." There were no proofs presented that the
adult met any of these requirements.

                                    3                           A-4589-16T1
                e. the right to file a claim against
                   [defendants] if I wait more than one year
                   from . . . the date of this Agreement.

                                 . . . .

              Waiver of Trial, and Agreement to Arbitrate

              IF I AM INJURED AND WANT TO MAKE A CLAIM AND/OR
              IF THERE ARE ANY DISPUTES REGARDING THIS
              AGREEMENT, I HEREBY WAIVE ANY RIGHT I HAVE TO
              A TRIAL IN A COURT OF LAW BEFORE A JUDGE AND
              JURY.    I AGREE THAT SUCH DISPUTE SHALL BE
              BROUGHT WITHIN ONE YEAR OF THE DATE OF THIS
              AGREEMENT AND WILL BE DETERMINED BY BINDING
              ARBITRATION BEFORE ONE ARBITRATOR TO BE
              ADMINISTERED BY JAMS[3] PURSUANT TO ITS
              COMPREHENSIVE     ARBITRATION     RULES     AND
              PROCEDURES.     I further agree that the
              arbitration will take place solely in the
              state of New Jersey and that the substantive
              law of New Jersey shall apply. I acknowledge
              that if I want to make a claim against
              [defendants], I must file a demand before
              JAMS. . . . To the extent that any claim I
              have against [defendants] has not been
              released or waived by this Agreement, I
              acknowledge that I have agreed that my sole
              remedy is to arbitrat[e] such claim, and that
              such claim may only be brought against
              [defendants] in accordance with the above
              Waiver of Trial and Agreement to Arbitrate.

       After Weed filed suit on behalf of her son, defendants moved

to compel arbitration pursuant to the agreement. Defendants argued

that    the    agreements   contained   "straightforward,   clear,   and

unequivocal" language that a participant was waiving their right



3
    JAMS is an organization that provides alternative dispute
resolution services, including mediation and arbitration.

                                    4                           A-4589-16T1
to present claims before a jury in exchange for conditional access

to the facility.      They asserted that the first agreement signed

by Weed remained in effect at the time of plaintiff's subsequent

visit in November as there was no indication that it was only

valid for the one day of entry in July.               Finally, defendants

contended that any dispute as to a term of the agreement should

be resolved in arbitration.

       Plaintiff opposed the motion, asserting that nothing in the

first agreement alerted Weed that it would remain in effect for

either a certain or an indefinite period of time. To the contrary,

defendants' policy of requiring a new agreement to be signed each

time a participant entered the park belied its argument that a

prior agreement remained valid for a period of time.

       On May 19, 2017, Judge Joseph L. Marczyk conducted oral

argument and denied the motion in an oral decision issued the same

day.   The judge determined that the first agreement did not apply

to the November visit because it did not contain any language that

it   would   remain   valid   and   applicable   to   all   future   visits.

Therefore, there was no notice to the signor of the agreement that

it would be in effect beyond that specific day of entry, and no

"meeting of the minds" that the waiver and agreement to arbitrate

pertained to all claims for any future injury.



                                      5                              A-4589-16T1
     As for the second agreement, the judge found that there was

no precedent to support defendants' contention that an unrelated

person could bind plaintiff to an arbitration clause.      This appeal

followed.

     "[O]rders compelling or denying arbitration are deemed final

and appealable as of right as of the date entered."           GMAC v.

Pittella, 
205 N.J. 572, 587 (2011). We review the judge's decision

to compel arbitration de novo.    Frumer v. Nat'l Home Ins. Co., 
420 N.J. Super. 7, 13 (App. Div. 2011).        The question of whether an

arbitration clause is enforceable is an issue of law, which we

also review de novo.    Atalese v. U.S. Legal Servs. Group, L.P.,


219 N.J. 430, 445-46 (2014).      We owe no deference to the trial

court's "interpretation of the law and the legal consequences that

flow from established facts."    Manalapan Realty v. Twp. Comm., 
140 N.J. 366, 378 (1995).

     Defendants argue that the trial court erred when it determined

that the first arbitration agreement signed by Weed four months

before plaintiff's injury was no longer binding on the parties at

the time of plaintiff's injury.       We disagree.

     While we are mindful that arbitration is a favored means of

dispute resolution in New Jersey, the threshold issue before us

is whether Weed's signature on the July agreement would be binding

on plaintiff for all subsequent visits.      We apply well-established

                                  6                            A-4589-16T1
contract principles, and ascertain the parties' intent from a

consideration of all of the surrounding circumstances.                        James

Talcott, Inc. v. H. Corenzwit & Co., 
76 N.J. 305, 312 (1978).                    "An

agreement must be construed in the context of the circumstances

under which it was entered into and it must be accorded a rational

meaning in keeping with the express general purpose."                    Tessmar v.

Grosner, 
23 N.J. 193, 201 (1957).

     It     is    undisputed      that    neither    agreement     contains      any

reference to a term of validity. The parties submitted conflicting

affidavits in support of their respective positions.                    Weed stated

there   was      nothing    in   the   agreement    she   signed   to    apprise    a

participant that the agreement was in effect for longer than the

day of entry.        Defendants contend that plaintiff did not need a

second agreement signed for the November visit as the initial

agreement remained in effect.

     There is no evidence in the record before us to support

defendants' argument as the agreements are silent as to any period

of validity.       Defendants drafted these agreements and required a

signature     from    all    participants     waiving      certain      claims   and

requiring submission to arbitration prior to permitting access to

the facility.        Any ambiguity in the contract must be construed

against defendants.          See Moscowitz v. Middlesex Borough Bldg. &

Luan Ass'n, 
14 N.J. Super. 515, 522 (App. Div. 1951) (holding that

                                          7                                 A-4589-16T1
where a contract is ambiguous, it will be construed against the

drafting party).          We are satisfied that Judge Marczyk's ruling

declining enforcement of the July agreement was supported by the

credible evidence in the record.

     We    further    find      that   defendants'   argument   regarding     the

November agreement lacks merit.            The signor of that agreement was

neither a parent, a legal guardian, nor the holder of a power of

attorney needed to bind the minor plaintiff to the arbitration

agreement.       Defendants' reliance on Hojnowski v. Vans Skate Park,


187 N.J. 323, 346 (2006) is misplaced.             While the Court found that

a parent had the authority to waive their own child's rights under

an arbitration agreement in Hojnowski, there is no suggestion that

such authority would extend to a non-legal guardian.                    Not only

would such a holding bind the minor to an arbitration agreement,

it would also serve to bind the minor's parents, waiving their

rights to bring a claim on behalf of their child.               We decline to

so hold.   See Moore v. Woman to Woman Obstetrics & Gynecology,LLC,


416 N.J. Super. 30, 45 (App. Div. 2010) (holding there is no legal

theory that would permit one spouse to bind another to an agreement

waiving    the    right    to   trial    without   securing   consent    to   the

agreement).

     As we have concluded the threshold issue that neither the

July nor the November agreement is enforceable as to the minor

                                          8                              A-4589-16T1
plaintiff, we do not reach the issue of whether the arbitration

provision contained within the agreement accords with our legal

standards and case law.   Judge Marczyk's denial of defendants'

motion to compel arbitration was supported by the evidence in the

record.

     Affirmed.




                                9                         A-4589-16T1