Skateboard park waiver wipes out in top court Some see ruling harming sites for youth recreation Tuesday, July 18, 2006 • BY ROBERT SCHWANEBERG • Star-Ledger Staff Parents are asked to sign them all the time -- forms allowing their child to go on a class trip, play a sport or participate in an activity such as skateboarding. Some give up the child's right to sue for injuries. Yesterday, the New Jersey Supreme Court ruled 5-2 that commercial recreational facilities cannot use those forms to escape liability for their own carelessness. The ruling is expected to have ramifications far beyond the case of a 12-year-old skateboarder who broke his leg. His claim for compensation now goes to arbitration. The case centered on a form that Anastasia Hojnowski signed on Dec. 26, 2002, so her son, Andrew, could skateboard at Vans Skate Park in Moorestown. A week later, the 12-year-old broke his thighbone while skateboarding and had to undergo surgery three times. His parents blamed the skate park for failing to supervise "aggressive skateboarders," a claim that the park denies. But the lawsuit filed on Andrew's behalf ran into a roadblock, namely the form his mother had signed. It contained a provision allowing him to sue only if the skate park "intentionally failed" to correct a hazardous condition or unsafe equipment. Writing for the majority, Justice James Zazzali said that if the court upheld such waivers, "we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety." Zazzali said other state courts have upheld such waivers only when they involve nonprofit or volunteer organizations, not money-making operations. He added that New Jersey lawmakers have provided protection against lawsuits for volunteer coaches and charitable organizations, but not businesses. "The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility's proper operation, and regulate the types of activities permitted to occur," as well as buy insurance, Zazzali said. "Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks." Justices Jaynee LaVecchia and Roberto Rivera-Soto dissented, saying such a waiver would be enforceable against an adult and should be enforced against the youngster. The court unanimously upheld a different provision in the form requiring that any lawsuit Andrew filed be heard by an arbitrator rather than a jury. The ruling pleased Cherry Hill lawyer Robert A. Porter, who argued the case for the Hojnowskis. Had the high court upheld the waiver of liability, "we wouldn't have had a case," he said. New Providence lawyer Richard Wischusen, who argued the case for Vans Skate Park, was "disappointed." He predicted the ruling would have a "chilling effect" on a wide range of recreational opportunities. "This doesn't just affect Vans," Wischusen said. "This affects field trips and a whole host of sports activities." Timothy Sandefur, a staff attorney at the Pacific Legal Foundation, said the ruling is "certainly going to make it more expensive to provide recreational facilities for children such as skate parks." The foundation, a conservative legal advocacy group based in Sacramento, Calif., had entered the case as a friend of the court on the side of Vans Skate Park. "These skate parks are a lot safer than skating on the street," Sandefur said. "The more you raise the cost, the fewer kids are going to be able to participate." One appeals court judge who heard the case had warned that recreational facilities could be forced out of business unless they can shield themselves against lawsuits. Porter said such predictions are "pure speculation." Robert Schwaneberg covers legal issues. He may be reached at rschwaneberg@starledger.com or (609) 989-0324. © 2006 The Star-Ledger. Used by NJ.com with permission.