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another exculpatory clause bites the dust in NJ
July 27,  2017
Another Exculpatory Clause Bites the Dust in NJ
    NJ appellate court reversed an order that granted summary judgment dismissing the case.  The injured gym patron will be able to pursue her negligence claim against the gym despite the "exculpatory" clause in the gym contract.  
    Don't worry, to much at least, this isn't an alarm case.  However, it is a contract case where the court bought the public policy argument and refused to enforce the poorly written exculpatory clause.  If you use 
the Standard From Agreement in NJ you don't have to worry because

  • the contract provisions are clearly written and more persuasive
  • there should be no public policy issues
  • there are many other protective provisions you will be able to rely on
    Having stated that, don't leave your tools around for the subscriber to trip on during installation or service.
    In the gym case the appellate court focused on the fact that the patron wasn't injured using the equipment or while exercising, but when she tripped over a weight belt that had been left on the floor by a trainer, something that was against gym policy.  
     This court stated that:
"It is a longstanding principle of law that business owners in New Jersey have well-established duties of care to patrons that enter their premises.  An owner has a duty to guard against any dangerous conditions that the owner knows about or should have discovered; and to conduct reasonable inspections to discover latent dangerous conditions.  Any attempt to limit these duties by directing patrons to sign exculpatory agreements requires careful attention by our courts. Indeed, our Supreme Court has stated that exculpatory agreements “have historically been disfavored in law and thus have been subjected to close judicial scrutiny.” 
An exculpatory agreement is enforceable 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."
    The court held
"Applying the Gershon factors here, we also conclude the exculpatory agreement is unenforceable. It adversely affects the public interest by transferring the redress of civil wrongs from the responsible tortfeasor to either an innocent injured party or society-at-large. It eviscerates the common law duty of care that the fitness center owes to its invitees. And it is unconscionable, as the fitness center has attempted to shield itself from all liability based on a one-sided agreement that offered no countervailing or redeeming societal value"
     The case is 2017 WL 2953388  Superior Court of New Jersey, Appellate Division.
     One thing is for sure, expect any court to carefully scrutinize your contract language, particularly the Exculpatory Clause.  If you're not using the Standard Form Agreement with the Kirschenbaum TM, ask yourself, why?  Why take a chance.  If you don't use the Standard Form Agreement then you're adding risk to your business and you are depreciating the value of your contracts; your business is worth less.  That's a bold claim on my part, but I am comfortable making it.  You think you or your lawyer or some Internet guru, lawyer or not, has better terminology?  Well,  we'd all like to see it and the statutory or case law relied on the support the terminology.  Don't have the support, then proceed at your own risk.  Maybe there is a book with alarm contract clauses called Alarm Contracts for Dummies [or Dopes].  Get that one.


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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
516 747 6700