Will this waiver of liability protect us from a claim by the person who signed it?
For ordinary negligence, often yes. In Stelluti the Court held it was not contrary to the public interest, or to a legal duty owed, to enforce a fitness club's agreement limiting its liability for injuries sustained as a matter of negligence resulting from a patron's voluntary use of equipment and participation in instructed activity, and held that the agreement, although a fairly typical adhesion contract in its procedural aspects, was not void based on any notion of procedural unconscionability. Powerhouse won: summary judgment for the club was affirmed. Exculpation stops at reckless or gross negligence: had the club known of defective equipment and failed to remedy or warn, or dangerously or improperly maintained equipment, it could not exculpate itself from such reckless or gross negligence: put affirmatively, the Court imposed on such operators "a duty not to engage in reckless or gross negligence".
The trap
The New Jersey question is never whether the clause is conspicuous: it is whether the exculpating party owed a legal duty it cannot shed. Stelluti turned on a private fitness club with no statutory or regulatory duty of care running to the plaintiff; where a duty is imposed by statute or regulation, or the party is a public utility or common carrier, or the subject matter affects the public interest, the same words are at risk; those are Gershon factors in a weighing, not per-se bars. And the carve-out is substantive, not a drafting matter: a clause purporting to waive recklessness or gross negligence does not merely fail as to those claims. It invites the argument that the whole release overreaches. New Jersey also refuses pre-injury releases in some relationships the drafter would not predict (Stelluti itself cites Hojnowski (2006), which held a parent's release signed on behalf of a child unenforceable), so a consumer-facing release should not be assumed to travel outside the recreational context.
10 authorities
The words that state the rule
With respect to its agreement and its limitation of liability to the persons who use its facility and exercise equipment for the unique purpose of the business, we hold that it is not contrary to the public interest, or to a legal duty owed, to enforce Powerhouse's agreement limiting its liability for injuries sustained as a matter of negligence that result from a patron's voluntary use of equipment and participation in instructed activity. As a result, we find the exculpatory agreement between Powerhouse and Stelluti enforceable as to the injury Stelluti sustained when riding the spin bike. V. For the foregoing reasons, we affirm the judgment of the Appellate Division that sustained the award of summary judgment to defendant.
The words that state the rule
In sum, although the terms of the agreement were presented "as is" to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.
The words that state the rule
Thus, had Powerhouse's management or employees been aware of a piece of defective exercise equipment and failed to remedy the condition or to warn adequately of the dangerous condition, or if it had dangerously or improperly maintained equipment, Powerhouse could not exculpate itself from such reckless or gross negligence. That showing was not made on this record.
The words that state the rule
The Appellate Division identified four considerations, pertinent to the enforcement of an exculpatory agreement, when rendering its decision in Gershon . The Gershon court said that 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. [ Gershon, supra, 368 N.J.Super. at 248 , 845 A. 2d 720 (citations omitted).]
The words that state the rule
The Gershon test, used by the panel below, captures the essential features to be explored when considering whether enforcement of an exculpatory agreement would be contrary to public policy.
The words that state the rule
An agreement containing a pre-injury release from liability for intentional or reckless conduct also is plainly inconsistent with public policy. See Hojnowski, supra, 187 N.J. at 333 , 901 A. 2d 381 .
The words that state the rule
Our Court previously expressed a similar disfavor for such *689 agreements and applied careful scrutiny to the interests involved. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 , 901 A. 2d 381 (2006) (holding unenforceable parent's execution of exculpatory agreement on behalf of child).
The words that state the rule
The issue of general public importance in this appeal, see R. 2:12-4, concerns the enforceability of an exculpatory agreement executed in a commercial setting involving membership in an exercise facility, where the exculpation brought about by the agreement does not implicate the violation of any statutory or regulatory legal duty owed by the facility.
The words that state the rule
Exculpatory agreements that attempt to release liability for statutorily imposed duties have been held invalid. See, e.g., McCarthy, supra, 48 N.J. at 543, 226 A. 2d 713 (holding exculpatory clause limiting liability arising out of car racing unenforceable due to statute regulating field and its expressed public policy in protecting participants and spectators). When the subject of an exculpatory agreement is not governed by statute, we also have considered common law duties in weighing relevant public policy considerations. See Hojnowski, supra, 187 N.J. at 335 , 901 A. 2d 381 .
The words that state the rule
Specifically, we hold such business owners to a standard of care congruent with the nature of their business, which is to make available the specialized equipment and facility to their invitees who are there to exercise, train, and to push their physical limits. That is, we impose a duty not to engage in reckless or gross negligence.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.