Two Concise Opinions, by Judges Fisher and Currier

In the last two days, Judges Fisher and Currier, respectively, authored published opinions that consumed fewer than ten pages. Here they are:

State v. M.K.P., ___ N.J. Super. ___ (App. Div. 2022). This was Judge Fisher’s decision. The issue was whether defendant’s alleged assault of her elderly mother constituted a violation of N.J.S.A. 2C:24-8(a). As Judge Fisher summarized it, that statute “imposes criminal liability on those who have ‘assumed continuing responsibility for the care of a person 60 years of age or older,’ making it a crime of the third-degree to ‘abandon[] the elderly person . . . or unreasonably neglect[] to do or fail[] to permit to be done any act necessary for the physical or mental health of the elderly person.'”

A jury convicted defendant of simple assault, N.J.S.A. 2C:12-1(a)(1), and neglect of an elder, N.J.S.A. 2C:24-8(a). The jury acquitted defendant on an aggravated assault charge under N.J.S.A. 2C:12-1(b)(12). Defendant appealed both convictions.

On the elder neglect charge, the State contended that “striking an elderly person by itself by its very nature is neglect.” The Appellate Division did not agree. “The words describing the criminalized conduct – ‘abandon,’ ‘neglect,’ and ‘fail’ – all connote an act of omission rather than an act of commission.” Thus, “[t]o accept the State’s theory that a caretaker’s assault of a protected person constitutes neglect, abandonment, desertion, or a failure to act, we would have to twist the Legislature’s words beyond their plain meaning.” That the panel declined to do. “[A]n assault –
criminalized elsewhere in the criminal code – cannot constitute the neglect required by N.J.S.A. 2C:24-8(a).”

The Appellate Division also reversed the simple assault conviction, a result with which the State agreed. Defendant had claimed self-defense, and “the trial judge failed to clarify for the jury that defendant’s claim of self-defense applied not only to the aggravated assault charge but also the lesser-included simple assault charge.” The court reversed the neglect conviction and remanded the simple assault charge for a new trial.

Checchio v. Evermore Fitness, LLC, ___ N.J. Super. ___ (App. Div. 2022). Judge Currier authored this opinion, which applied the ruling in Gayles v. Sky Zone Trampoline Park, 468 N.J. Super. 17 (App. Div. 2021). Both cases involved the question of whether signature by a non-parent on a liability waiver form presented by a trampoline park as a condition of a child’s entry was effective, focusing on the idea of apparent authority.

Gayles held that apparent authority existed only when evidenced by a communication from the principal, not an agent. There, the result went against the trampoline park, because the only assertion of apparent authority was that the plaintiff’s mother left him at another parent’s home knowing that the other parent would take the plaintiff to the trampoline park with other children for a birthday celebration. That did not suffice for apparent authority.

In Checchio, the issue was an arbitration agreement included in the waiver form. The trampoline park argued that the facts were different because plaintiff’s mother had herself taken plaintiff to the trampoline park on five previous occasions, in 2016, and had signed the waiver each time. That meant, defendant contended, that when the non-parent signed the waiver on the 2018 visit in question, when plaintiff was injured, the non-parent had apparent authority.

Applying de novo review to the arbitration agreement, Judge Currier did not agree. “The 2016 agreements did not vest [the non-parent] with the authority to enter into the 2018 agreement or any future agreement on [the plaintiff child’s] behalf. Nor do the 2016 agreements manifest any understanding on [plaintiff’s mother’s] part that [the non-parent] or any other adult could sign a future waiver agreement in the place of [the mother] or on [the child plaintiff’s] behalf.”

Moreover, a key provision that appeared in the 2018 wavier agreement was not present in the 2016 version. “[U]nlike the 2018 agreement, the 2016 agreements did not include the clause stating the agreement ‘extends forever into the future and will have full force and legal effect each and every time I or my child(ren)/ward(s) visit Sky Zone, whether at the current location or any other location or facility.’ The 2016 agreements contained different language than the 2018 agreement. There is no evidence [plaintiff’s mother] would have signed the 2018 agreement.” And, as in Gayles, without a manifestation from the principal, the child’s parent, there could be no finding of apparent authority.

The Law Division had denied defendant’s motion to compel arbitration, finding that because plaintiff’s parents had not signed the waiver with the arbitration agreement in it, “mutual consent [was] lacking.” The Appellate Division’s decision affirmed that ruling.