Gayles v. Sky Zone Trampoline Park, ___ N.J. Super. ___ (App. Div. 2021). Here is how Judge Messano began his opinion for the Appellate Division today:
“Joan Tongol invited several friends of her minor son to celebrate his birthday at Sky Zone Trampoline Park in Mount Olive, operated by defendant Go Ahead and Jump 3, LLC. Tongol told the children’s parents that she had reserved time for a group of ten, and the parents could drop their children off with Tongol, who would drive them to the trampoline park. On the day of the party, plaintiff Gwendolyn Gayles drove her son Justin, also a minor, to the Tongol home. Justin and Tongol’s son had been classmates since grade school.
“Tongol had booked the reservation online. On arrival at Sky Zone, after she checked in and paid for the group, Tongol was directed to a ‘waiver station,’ where she had to complete and sign an agreement (the Agreement) displayed on a computer screen. In a section, ‘Included Minors,’ Tongol listed every child with his or her birthdate, which she obtained by asking the children. At her deposition, Tongol described the process as quick,’ and she completed the Agreement without reading it fully and without any assistance from defendant’s staff.”
The Agreement contained waivers of liability and a waiver of the right to a jury trial. Instead, any complaints had to be handled in arbitration. The Agreement also said: “I[,] on behalf of myself, my spouse, my children, my parents, my heirs, my assigns, personal representatives, estate, and insurers, agree as follows.” There followed this statement: “I further certify that I am the parent or legal guardian of the child(ren) listed above on this Agreement or that I have been granted power of attorney to sign this Agreement on behalf of the parent or legal guardian of the child(ren) listed in this Agreement.” No one gave Tongol a power of attorney, and she was not the parent or legal guardian of any of the children besides her own son.
While playing on a trampoline, Justin Gayles fractured his leg. His mother sued on his behalf. Defendant moved to dismiss and to compel arbitration, but the Law Division denied that motion. Thereafter, defendant sought summary judgment and again demanded arbitration. That motion too was denied. Defendant appealed as of right, since decisions compelling or denying arbitration are immediately appealable.
Today, the Appellate Division affirmed the ruling below, applying de novo review. The appeal resolved around the issue of whether Tongol had apparent authority to enter into the Agreement on behalf of Justin.
Judge Messano cited several cases and the Restatement (Third) of Agency for the proposition that apparent authority derives from “the conduct of the alleged principal and it cannot be established alone and solely by proof of [conduct by] the supposed agent” (emphasis by Judge Messano). Agreeing with the Law Division judge, the Appellate Division rejected the argument that “plaintiff’s actions —leaving Jason at Tongol’s home and in her custody and care and allowing her to take him to the party knowing he would participate in activities at Sky Zone —created an appearance of Tongol’s authority to execute the Agreement on plaintiff’s behalf…. [T]here was nothing in the record indicating plaintiff knew a waiver needed to be executed to permit Jason’s entry to the trampoline park ….”
There was no authority that supported defendant’s argument that “someone who was not the child’s parent, guardian, or attorney-in-fact possessed the requisite actual or apparent authority to execute a waiver of rights regarding the minor’s personal injury claims.” On the contrary, a “somewhat similar” case from Texas supported the Law Division’s ruling here, Judge Messano said.
Justin’s mother “agreed that Tongol would take plaintiff to Sky Zone, and, for that limited purpose, Tongol was the agent and plaintiff the principal.” But there was no “manifestation” by Justin’s mother that Tongol had authority to waive Justin’s rights. “[P]laintiff engaged in no ‘expressive conduct,’ and no direct or ‘indirect . . . communication’ with defendant. There was no relevant ‘practice’ or pattern of conduct between plaintiff and defendant. Defendant cannot rely solely on its own general admission procedure to support the reasonableness of its belief that Tongol had authority to act for plaintiff and execute the Agreement waiving her and her son’s significant rights.”
Defendant claimed that “its business model would be untenable if it were required to secure consent or powers-of-attorney from the parents of each juvenile participant at its facility.” Judge Messano concluded his opinion by dispatching that argument. “Defendant could include a document on its website or as an attachment to its confirmation email for parents to sign and upload or bring to the facility, similar to the procedure utilized all the time for school trips and the like.”