Roy Steinberg v. Sahara Sam's Oasis, Llc(075294)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Roy Steinberg, Ph.D. v. Sahara Sam’s Oasis, LLC (A-41-14) (075294)
Argued February 29, 2016 -- Decided August 23, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal, the primary issue is whether, under the statutory and regulatory provisions of the Carnival-
Amusement Rides Safety Act (the Safety Act), N.J.S.A. 5:3-31 to -59, the evidence in the summary judgment record
supports an action for gross negligence.
On April 4, 2010, plaintiff was a patron at Sahara Sam’s Oasis Water Park. One of the indoor rides at the
water park, the FlowRider, simulates riding a surfboard. A participant can lie prone on a bodyboard or stand on a
“flowboard,” which resembles a small surfboard. When a rider is in a standing position, an attendant holds one end of a
rope and offers the other end to the rider to assist with balance as he simulates surfing. Plaintiff gained admission to the
ride after he signed a form acknowledging the risks associated with using the FlowRider and waiving liability for any
injury caused by the negligence or other actions of Sahara Sam’s or its employees. According to plaintiff, the attendants
did not tell him that, as a first-time rider, he should lie on his stomach on the bodyboard or, if standing on the
flowboard, he should not hold the rope with two hands. Plaintiff stepped onto the flowboard and, while standing, an
attendant handed him a rope, which plaintiff wrapped around one hand and held in the other. The flowboard was then
released into the water. Within seconds, plaintiff fell from the board head-first, striking his head on the bottom surface,
which caused a spinal cord injury. The injury rendered plaintiff an incomplete paraplegic.
Sahara Sam’s contracted with Aquatic Development Group (ADG) for the purchase and installation of the
FlowRider, which was manufactured by Wave Loch, Inc. and ADG. To comply with the Safety Act, ADG submitted
the ride’s blueprints and the manufacturer’s 2007 operator’s manual, which included recommended safety signage, for
review to the New Jersey Department of Community Affairs, Amusement Safety Ride Unit (DCA). Based on the
information received from ADG, the DCA granted type certification in July 2008. Before the FlowRider went into
operation, Sahara Sam’s received the updated 2008 manufacturer’s manual, which provided for new signage with
pictorial displays and more explicit safety-warning language. At the time of plaintiff’s accident in 2010, the signage
from the 2007 manual, not the 2008 manual, was on display. The differences between the signage in use and the
signage that should have been installed is an essential component of plaintiff’s case because he claims he was not
placed on notice of the gravity of the danger and the precautions he should have taken to avoid injury.
In February 2009, one month before the FlowRider opened to the public, Wave Loch’s corporate designee for
training, Robert Chalfant, instructed Sahara Sam’s employees on the safe operation of the ride using the 2008 manual.
Chalfant told those in attendance that a first-time rider should lie in a prone position. Nevertheless, according to Sahara
Sam’s Aquatic Director, operators of the FlowRider did not advise first-time riders to lie in the prone position. Chalfant
also instructed employees that a rider should not wrap the balance rope around his wrists or hold the rope with two
hands because doing so would expose the rider to a greater risk of injury. According to Chalfant, the 2008
recommended signage should have been in place at the time the ride opened to the public.
The trial court granted summary judgment in favor of Sahara Sam’s, dismissing plaintiff’s civil action. The
court held that, before his admission to the ride, plaintiff signed a general waiver of liability that extinguished his right
to file a negligence action and any action arising under the Safety Act. The court also held that the summary-judgment
record did not support an action for gross negligence. In an unpublished opinion, a three-judge Appellate Division
panel, in a split decision, affirmed the trial court’s grant of summary judgment. The panel determined that plaintiff
entered into a valid recreational exculpatory agreement in which he agreed to waive any liability claim arising from
injuries suffered while participating in the FlowRider. Although it acknowledged that the waiver agreement could not
exonerate gross negligence, the panel rejected plaintiff’s argument that a reasonable jury could find that Sahara Sam’s
actions constituted gross negligence. In his dissenting opinion, Judge Hoffman asserted that the panel majority erred by
not viewing the evidence in the light most favorable to plaintiff on the gross-negligence claim and detailed the facts in
the record, which, if believed by a reasonable factfinder, would constitute gross negligence.
Based on the dissent in the Appellate Division, plaintiff appealed as of right the issue of whether the summary-
judgment record presented a genuine issue of material fact on his claim of gross negligence. The Court also granted
plaintiff’s petition for certification on the issue of whether Sahara Sam’s alleged violation of the Safety Act, standing
alone, precludes enforcement of the waiver and constitutes an independent basis for reversal of the trial court’s grant of
summary judgment. 220 N.J. 575 (2015).

HELD: The summary-judgment record, viewed in the light most favorable to plaintiff, would allow a reasonable finder
of fact to conclude that plaintiff’s injuries were caused by Sahara Sam’s gross negligence. Further, while a violation of
the Safety Act, standing alone, does not give rise to a private cause of action, particular violations of the Safety Act,
individually or in their aggregate, may be considered as evidence in determining whether Sahara Sam’s acted with gross
negligence.
1. Plaintiff concedes that the liability-waiver agreement he signed before participating in the FlowRider bars his
negligence claim. Instead, he argues that Sahara Sam’s is accountable for its statutory violations of the Safety Act and
its gross negligence, which were the proximate cause of the injuries. The Court addresses only those claims raised by
plaintiff that are not barred by the waiver agreement. The Court rejects plaintiff’s implied argument that a violation of
the Safety Act, standing alone, gives rise to a private right of action. The Safety Act and its accompanying regulations
set forth an administrative framework for ensuring the safety of those attending carnivals and amusement parks,
including water parks, in New Jersey. The DCA is charged with the responsibility of enforcing the Safety Act and its
regulations. The Safety Act provides for administrative sanctions against the operator of a carnival or amusement park
for violating the statutory or regulatory scheme. It does not give rise to a private cause of action or a tort-liability
scheme, but articulates legislative and regulatory standards of conduct intended to protect members of the public who
patronize amusement parks. Violations of those standards may be considered as evidence of negligence, or even gross
negligence, in a common-law cause of action. (pp. 18-21)
2. Certain regulations promulgated under the Safety Act are intended to inform and protect patrons using water park
rides. For example, a water-ride operator must post signs required or recommended by the ride manufacturer. The
owner must train operators of the ride based on manufacturer requirements covered by the operational manual. Here,
for example, the owner of Sahara Sam’s did not post the signs recommended in the manufacturer’s 2008 operator’s
manual. If Sahara Sam’s failed to post the signage as required by the Safety Act, then a jury may consider that failure
as evidence of negligence, provided that there is a showing that the violation is relevant to the accident. In sum, in
certain circumstances, the violation of a statutory duty of care may be admissible as evidence of negligence. In this case
such evidence is permissible because the aggregation of alleged negligent acts or omissions may be considered in
determining whether Sahara Sam’s conduct reached the level of gross negligence. (pp. 22-23)
3. The principal issue in this appeal is whether the record, when viewed in the light most favorable to plaintiff,
supported the trial court’s grant of summary judgment dismissing plaintiff’s claim of gross negligence. Gross
negligence falls on a continuum between ordinary negligence and recklessness. Negligence is defined generally as the
failure to exercise that degree of care for the safety of others, which a person of ordinary prudence would exercise under
similar circumstances. Gross negligence is a higher degree of negligence. While negligence is the failure to exercise
ordinary or reasonable care that leads to a natural and probable injury, gross negligence is the failure to exercise slight
care or diligence. Although gross negligence is something more than inattention or mistaken judgment, it does not
require willful or wanton misconduct or recklessness. The Court endorses the definition of gross negligence found in
the New Jersey Civil Model Jury Charge and rejects the trial court’s and appellate panel majority’s description of gross
negligence as the equivalent of willful conduct. Negligence, gross negligence, recklessness, and willful conduct fall on
a spectrum, and the difference between negligence and gross negligence is a matter of degree. (pp. 24-28)
4. On a motion for summary judgment, the strength of Sahara Sam’s case is not at issue. At this procedural stage, the
Court must simply view the record in the light most favorable to plaintiff and resolve whether, on that basis, a
reasonable factfinder could find that plaintiff’s injuries were proximately caused by the gross negligence of Sahara
Sam’s. Based on that standard, the Court agrees with the dissent in the Appellate Division that the trial court erred in
granting summary judgment. The FlowRider is an extreme sport and high-risk recreational activity that simulates
surfing. Nevertheless, at the time that plaintiff participated in the ride, Sahara Sam’s did not post the updated signage
recommended by the manufacturer. The factfinder is permitted to draw inferences from Sahara Sam’s failure to follow
the manufacturer’s recommendations and to consider as evidence of negligence the failure to comply with safety
regulations promulgated under the Safety Act. The issue is not whether Sahara Sam’s failed to exercise reasonable care
in any one instance. Rather, it is whether viewing the entire tableau in the light most favorable to plaintiff, a factfinder
could conclude that by not implementing the safety features in the 2008 operator’s manual and not giving plaintiff the
necessary safety instructions, Sahara Sam’s failed to exercise slight care or diligence or demonstrated an extreme
departure from the standard of reasonable care. Viewed in that light, a rational factfinder could conclude that the
proximate cause of plaintiff’s injuries was the gross negligence of Sahara Sam’s. (pp. 28-32)
The judgment of the Appellate Division, which affirmed the trial court’s grant of summary judgment, is
REVERSED. The gross-negligence claim is REINSTATED and the matter is REMANDED to the trial court for
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-41 September Term 2014
075294

ROY STEINBERG, Ph.D. and TAMI
BOGUTZ STEINBERG, h/w,

Plaintiffs-Appellants,

v.

SAHARA SAM’S OASIS, LLC,
a/k/a SAHARA SAM’S, LLC,

Defendant-Respondent,

and

WAVE LOCH, INC., AQUATIC
DEVELOPMENT GROUP, INC., ITT
WATER & WASTEWATER, ITT
CORPORATION, ITT FLYGT
CORPORATION, SAMBE
CONSTRUCTION COMPANY, INC.,
SAMBE CONSTRUCTION CO., INC.,
AQUATIC BUILDERS LTD., H20
ENTERTAINMENT GROUP, LLC, and
HYDROTECH SYSTEMS, LTD.,

Defendants.

Argued February 29, 2016 – Decided August 23, 2016

On appeal from and certification to the
Superior Court, Appellate Division.

Barry J. Muller argued the cause for
appellants (Fox Rothschild, attorneys; Mr.
Muller and Jonathan D. Weiner, of counsel,
and on the briefs).

Laura M. Danks argued the cause for
respondent (Capehart & Scatchard, attorneys;
Ms. Danks and Christopher J. Hoare, on the
briefs).

1
 Lary I. Zucker and Walter F. Kawalec, III,
submitted a brief on behalf of amici curiae
World Waterpark Association and New Jersey
Amusement Association (Marshall Dennehey
Warner Coleman & Goggin, attorneys).

E. Drew Britcher and Kristen B. Miller
submitted a brief on behalf of amicus curiae
New Jersey Association for Justice
(Britcher, Leone & Roth, attorneys).

JUSTICE ALBIN delivered the opinion of the Court.

While a patron at defendant Sahara Sam’s Oasis Water Park,

plaintiff Roy Steinberg suffered a catastrophic spinal cord

injury while participating in a water ride that simulated riding

a surfboard. Plaintiff filed a lawsuit against Sahara Sam’s

Oasis, LLC, alleging that his injuries were caused by its gross

negligence and violations of statutory and regulatory provisions

of the Carnival-Amusement Rides Safety Act (the Safety Act),

N.J.S.A. 5:3-31 to -59. Plaintiff claims that Sahara Sam’s

failed to post safety signage that warned of the ride’s dangers,

to instruct him on how to safely ride the simulated surfboard,

to properly train its employees on safety procedures concerning

the ride, and to comply with the mandates of the Safety Act.

The trial court granted summary judgment in favor of Sahara

Sam’s, dismissing plaintiff’s civil action. The court held

that, before his admission to the ride, plaintiff signed a

general waiver of liability that extinguished his right to file

a negligence action and any action arising under the Safety Act.

2
The court also held that the summary-judgment record did not

support an action for gross negligence. A three-judge panel of

the Appellate Division affirmed in a split decision. The

dissenting judge concluded that the evidence, when viewed in the

light most favorable to plaintiff, provided sufficient support

for a gross-negligence action.

We agree with the dissenting Appellate Division judge that

the summary-judgment record, viewed in the light most favorable

to plaintiff, would allow a reasonable finder of fact to

conclude that plaintiff’s injuries were caused by Sahara Sam’s

gross negligence. Stated differently, if a reasonable

factfinder believed that Sahara Sam’s acts and omissions

demonstrated its failure to exercise the slightest degree of

care or an extreme departure from the standard of reasonable

care, then a verdict of gross negligence could be returned.

We also hold that a violation of the Safety Act, standing

alone, does not give rise to a private cause of action.

Particular violations of the Safety Act, individually or in

their aggregate, however, may be considered as evidence in

determining whether Sahara Sam’s acted with gross negligence.

We therefore vacate the trial court’s grant of summary

judgment, reinstate plaintiff’s gross-negligence action, and

remand to the trial court for proceedings consistent with this

opinion.

3
 I.

Plaintiff filed a civil action in the Superior Court, Law

Division, alleging that he suffered a catastrophic spinal cord

injury as a proximate result of the negligence, gross

negligence, and recklessness of Sahara Sam’s.1 Plaintiff’s wife,

Tami Bogutz-Steinberg,2 filed a consortium claim. Both are

seeking monetary damages.

Sahara Sam’s moved for summary judgment. The trial court

granted the motion and dismissed plaintiff’s complaint, and the

Appellate Division affirmed. “In reviewing a grant of summary

judgment, ‘we apply the same standard governing the trial court

-- we view the evidence in the light most favorable to the non-

moving party.’” Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35

(2015) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581,

584 (2012)). Because plaintiff is the non-moving party, we

present the evidence from the summary-judgment record in the

light most favorable to his case.

1 Plaintiff also named as defendants Wave Loch, Inc., Aquatic
Development Group, Inc., ITT Water & Wastewater, ITT Corp., ITT
Flygt Corp., Sambe Construction Co., Inc., Aquatic Builders
Ltd., H2O Entertainment Group, LLC, and Hydrotech Systems, Ltd.,
who are alleged to have caused plaintiff’s injuries based on a
variety of legal theories. Those defendants are not parties to
this appeal.

2 Although Roy Steinberg and his wife are both plaintiffs, for
the convenience of the reader, we refer to Mr. Steinberg as
plaintiff throughout this opinion.
4
 A.

On April 4, 2010, plaintiff and his two children were

patrons at Sahara Sam’s Oasis Water Park, which is located in

Berlin Township, Camden County. One of the indoor rides at the

water park is called the FlowRider, which simulates riding a

surfboard. A participant can either lie prone on a bodyboard or

stand on a “flowboard,” which resembles a small surfboard. The

flowboard, if chosen, is placed on a sheet of water, two-and-

one-half to three inches deep, flowing toward the rider like an

oncoming wave. When a rider is in a standing position, an

attendant holds one end of a rope and offers the other end to

the rider to assist with balance as he simulates surfing.

Plaintiff gained admission to the ride after he signed a

form both acknowledging the risks associated with using the

FlowRider and waiving liability for any injury caused by the

negligence or other actions of Sahara Sam’s or its employees.

According to plaintiff, the attendants did not tell him that, as

a first-time rider, he should lie on his stomach on the

bodyboard or, if standing on the flowboard, he should not hold

the rope with two hands. In short, plaintiff claims he was

given minimal instruction before undertaking the ride.

Plaintiff stepped onto the flowboard and, while standing,

an attendant handed him a rope, which plaintiff wrapped around

5
one hand and held in the other.3 The flowboard was then released

into the water. Within seconds, plaintiff fell from the board

head-first, striking his head on the bottom surface, which

caused a spinal cord injury. The injury rendered plaintiff an

“incomplete paraplegic.”4

B.

Sahara Sam’s contracted with Aquatic Development Group

(ADG) for the purchase and installation of the FlowRider, which

was manufactured by Wave Loch, Inc. and ADG. To comply with the

Safety Act, ADG submitted the ride’s blueprints and the

manufacturer’s 2007 operator’s manual, which included

recommended safety signage, for review to the New Jersey

Department of Community Affairs, Amusement Safety Ride Unit

(DCA). The purpose of the submissions was to secure type

certification, which is a precondition for the operation of the

ride and “all rides of essentially the same design.” N.J.S.A.

5:3-32(j). Based on the information received from ADG, the DCA

3 According to the lifeguard on duty, after plaintiff wrapped the
rope around his hand, he instructed plaintiff not to do so, and
plaintiff then unwrapped the rope.

4 We find that, based on a review of the videotape of the
accident, there is a genuine issue of material fact concerning
whether plaintiff held the rope with one or two hands. However,
viewing the videotape in the light most favorable to plaintiff,
as we must at this stage, we determine that a reasonable jury
could conclude that plaintiff held the rope with two hands.

6
granted type certification in July 2008.5 The FlowRider’s

installation was completed in February 2009.

Before the FlowRider went into operation, Sahara Sam’s

received the updated 2008 manufacturer’s manual, which provided

for new signage with pictorial displays and more explicit

safety-warning language.6 Nevertheless, at the time of

plaintiff’s accident in 2010, the signage from the 2007 manual,

not the 2008 manual, was on display. The differences between

the signage in use and the signage that should have been

installed is an essential component of plaintiff’s case because

plaintiff claims he was not placed on notice of the gravity of

the danger and the precautions he should have taken to avoid

injury.

The 2007 FlowRider signage provided: “PARTICIPATION ON

THIS RIDE AND CONSENT OF WAIVER INDICATES YOU UNDERSTAND THE

POTENTIAL TO GET INJURED SHOULD YOU FALL WHILE PARTICIPATING.”

(Emphasis added). The 2008 recommended signage provided:

“RIDING THE FLOWRIDER IS AN EXTREME SPORT AND HIGH RISK

RECREATIONAL ACTIVITY. YOU WILL FALL.” (Emphasis added).

The 2007 signage provided: “Pregnant women and persons

with or having a history of heart, back, neck, shoulder or joint

5 The type certification was good for three years.

6 Neither ADG nor Wave Loch submitted the 2008 manufacturer’s
operator’s manual to the DCA for Sahara Sam’s FlowRider.
7
problems should not ride.” (Emphasis added). The 2008

recommended signage provided: “If you suspect that your health

or safety could be at risk, or you could aggravate a pre-

existing condition of any kind, DO NOT RIDE!” (Emphasis added).

The 2007 signage provided: “THIS IS AN EXTREME WATER

ATTRACTION . . . . BODY MUSCLES AND BONES COULD SUSTAIN INJURY.

. . . SAHARA SAM’S IS STRESSING THE POTENTIAL FOR INJURY ON

THIS ATTRACTION IN ADVANCE OF YOUR PARTICIPATION.” (Emphasis

added). In addition, the waiver form signed by plaintiff stated

that “[a]lthough many before you have ridden the FlowRider

without any problem whatsoever, injuries are possible because of

the nature of the ride.” (Emphasis added). The 2008

recommended signage provided: “FAILURE TO COMPLY WITH SIGNS OR

INSTRUCTIONS MAY INCREASE THE RISK OF SEVERE PERMANENT INJURIES

OR EVEN DEATH.” (Emphasis added).

The 2008 recommended signage also displayed warnings for

which there were no equivalent warnings in the 2007 signage.

For example, the 2008 recommended signage instructed

participants that “FALLING MAY RESULT IN THE BOARD STRIKING YOUR

BODY; OR YOUR BODY STRIKING THE SURFACE OF THE FLOWRIDER WITH

GREAT FORCE” and that “BEFORE ATTEMPTING TO RIDE, WATCH THE

SAFETY VIDEO AND UNDERSTAND THE RISKS OF THIS ACTIVITY.”

(Emphasis added).

8
 Unlike the 2007 signage, the 2008 recommended signage

contains drawings that illustrate the dangers of riding a

flowboard and safety techniques for the rider. One picture

shows a rider falling from a flowboard, another a rider striking

his head on the board and a hard surface, and yet another a

rider curling in a ball and covering his head with his arms to

protect against injury. Other pictures show the proper manner

to ride a flowboard.

In February 2009, one month before the FlowRider opened to

the public, Wave Loch’s corporate designee for training, Robert

Chalfant, instructed Sahara Sam’s employees on the safe

operation of the ride using the 2008 manual. Chalfant told

those in attendance that a first-time rider should lie in a

prone position -- flat on his stomach.7 As part of learning to

ride the FlowRider, Sahara Sam’s Aquatic Director, Brandon

Moore, rode for the first time in the prone position.

Nevertheless, according to Moore, operators of the FlowRider did

not advise first-time riders to lie in the prone position.

Chalfant also instructed employees that a rider should not wrap

the balance rope around his wrists or hold the rope with two

hands because doing so would expose the rider to a greater risk

7 At his deposition, Chalfant identified the 2008 manual as the
one he used while instructing Sahara Sam’s employees. Sahara
Sam’s takes the position that it never received the 2008 manual.

9
of injury. According to Chalfant, the 2008 recommended signage

should have been in place at the time the ride opened to the

public.

Sahara Sam’s received a safety video referenced in the 2008

manual. Lifeguards who were not present at the February 2009

training, however, were not shown this video, and the video

referenced in the 2008 recommended signage was not made

available to users of the FlowRider. Sahara Sam’s owner, Ilya

Girlya, admitted during his deposition that the water park did

not have written safety training protocols and that his staff

was not required to read the operator’s manual or any equivalent

materials.8

According to plaintiff’s deposition testimony, he received

very little instruction on how to ride the flowboard and did not

receive the new-rider orientation suggested by the 2007 and 2008

manuals. Plaintiff admittedly signed the waiver form without

reading it and did not pay attention to the warnings on the

signs. According to the attendant, the instructions given to

plaintiff about the FlowRider lasted less than a minute. The

attendant, moreover, did not specifically warn plaintiff about

the risks associated with the ride or, in keeping with the 2008

8 Four months before plaintiff’s accident, the DCA inspected the
FlowRider -- based on the 2007 operator’s manual -- and did not
find any violations.

10
manual, caution him that severe permanent injuries or even death

could result from the failure to follow instructions. Plaintiff

indicated that the attendant did not assess plaintiff’s level of

experience with the FlowRider or tell him that a first-time

rider should lie in the prone position.9 Plaintiff also stated

that the attendant did not tell him how to use the rope or warn

against holding the rope with two hands. Had the updated

signage been in place or had he been told that he could be

severely injured while riding the flowboard, plaintiff

maintained he would not have participated in the FlowRider.

Sahara Sam’s Aquatic Director reported the accident to the DCA

the same day that it occurred. According to Sahara Sam’s owner,

the next day a DCA inspector checked the FlowRider and gave

approval for the ride to remain open.

C.

The trial court granted defendant’s summary-judgment motion

and dismissed plaintiff’s action against Sahara Sam’s.10 The

court found that, as a precondition to his participation in the

FlowRider, plaintiff agreed in writing to waive his right to

9 The lifeguard on duty testified that he asked plaintiff whether
it was plaintiff’s first time riding, and that plaintiff told
him he was choosing to ride in a standing position because he
was an experienced snowboarder.

10The trial court denied the summary-judgment motions of
defendants H20 Entertainment Group, LLC and Sambe Construction
Co., Inc.
11
seek damages from Sahara Sam’s in the event he suffered injuries

during the ride. The court determined that under Stelluti v.

Casapenn Enterprises, LLC, 203 N.J. 286, 304 (2010), plaintiff

entered into a valid waiver and therefore his negligence and

statutory-violation claims were barred. The court recognized

that, under Stelluti, the waiver did not extinguish a potential

gross-negligence claim. The court, nevertheless, determined

that, even if Sahara Sam’s committed negligent acts, those acts

did not rise “to the level of the willful conduct that is

defined by our courts as gross negligence.”

Plaintiff appealed.

D.

In an unpublished opinion, a three-judge Appellate Division

panel, in a split decision, affirmed the trial court’s grant of

summary judgment. The panel determined that plaintiff entered

into a valid “recreational exculpatory agreement” in which he

agreed to waive any liability claim arising from injuries

suffered while participating in the FlowRider. The panel,

evidently, found that the waiver agreement barred plaintiff’s

negligence claim.

Without regard to the waiver agreement, the panel concluded

that plaintiff did not present sufficient evidence that Sahara

Sam’s violated any statutory provision of the Safety Act or any

of the accompanying regulations. The panel reasoned that the

12
DCA approved the 2007 manual and safety signage by granting type

certification for the FlowRider for a period of three years and

therefore “Sahara Sam’s was in full compliance with the DCA

certification.” The panel noted that neither ADG nor Wave Loch

submitted the updated 2008 manual and signage to the DCA to

amend the type certification, as required by regulation. On

that basis, the panel declined to impose on Sahara Sam’s the

obligation to comply with the manufacturer’s 2008 operator’s

manual and the recommended 2008 safety signs.

Although it acknowledged that the waiver agreement could

not exonerate gross negligence, the panel nevertheless rejected

plaintiff’s argument that a reasonable jury could find that

Sahara Sam’s actions constituted gross negligence. The panel

stated that “the motion judge did not err in characterizing

gross negligence as the equivalent of willful conduct.” The

panel maintained that, viewing the record in the light most

favorable to plaintiff, the evidence did not raise a genuinely

disputed issue of material fact that Sahara Sam’s operation of

the FlowRider constituted anything more than simple negligence.

In his dissenting opinion, Judge Hoffman asserted that the

panel majority erred by not viewing the evidence in the light

most favorable to plaintiff on the gross-negligence claim.

Judge Hoffman detailed the facts in the record, which, if

believed by a reasonable factfinder, would constitute gross

13
negligence. Judge Hoffman also disagreed with the trial court

and the panel majority that gross negligence requires willful

conduct, citing to the Model Civil Jury Charge for gross

negligence, which states that “[g]ross negligence . . . is more

than ordinary negligence, but less than willful or intentional

misconduct,” Model Jury Charge (Civil) § 5.12 “Gross Negligence”

(2009) (emphasis added).

Unlike the panel majority, Judge Hoffman concluded that

Sahara Sam’s had a duty to comply with the signage requirements

of the 2008 manual and that ADG’s failure to forward a copy of

the updated manual to the DCA did not absolve Sahara Sam’s of

its obligation, under both the Safety Act’s regulations and the

common law. According to the dissent, “Sahara Sam’s common law

tort liability establishes a distinct duty of care owed to its

patrons, and the Safety Act does not supersede that duty of

care.” Last, Judge Hoffman concluded that “Sahara Sam’s

violation of numerous safety and operation instructions of the

manufacturer, which in turn constituted regulatory violations,

provided sufficient evidence to present a jury question” on

gross negligence.

E.

Based on the dissent in the Appellate Division, plaintiff

appealed as of right the issue of whether the summary-judgment

record presented a genuine issue of material fact on his claim

14
of gross negligence. See R. 2:2-1(a)(2). We also granted

plaintiff’s petition for certification on the issue of whether

Sahara Sam’s alleged violation of the Safety Act, standing

alone, “precludes enforcement of the Waiver and constitutes an

independent basis for reversal of the trial court’s grant of

summary judgment.” See Steinberg v. Sahara Sam’s Oasis, LLC,

220 N.J. 575 (2015).

Additionally, we granted the motions of the New Jersey

Association of Justice (NJAJ) and World Waterpark Association

and New Jersey Amusement Association (collectively World

Waterpark and Amusement Associations) to appear as amici curiae.

II.

The parties agree that the waiver signed by plaintiff

before participating in the FlowRider bars him from pursuing a

negligence claim against Sahara Sam’s. They also apparently

agree that the waiver is unenforceable against a claim alleging

gross negligence or a claim alleging the breach of a duty

imposed by statute. See Stelluti, supra, 203 N.J. at 303, 313.

With those stipulations in mind, we now turn to the

arguments of the parties.

A.

Plaintiff contends that the record contains sufficient

evidence, when viewed in the light most favorable to him, to

support a claim of gross negligence against Sahara Sam’s. To

15
buttress this contention, he points to (1) Sahara Sam’s failure

to post the signs with graphics recommended in the 2008

operator’s manual, warning of the potential risk of severe

permanent injury or death from a mishap on the FlowRider; (2)

the failure of staff to recommend that he lie in the prone

position for his first ride; and (3) the failure of the

attendant to instruct him to release the rope when he fell from

the flowboard.

Plaintiff also argues that the trial court mistakenly

defined gross negligence as the equivalent of willful conduct.

He asserts that the proper standard was whether Sahara Sam’s

failed to exercise the slightest degree of care or diligence in

its operation of the FlowRider.

Plaintiff maintains that, because of the high degree of

risk posed by the FlowRider, Sahara Sam’s failure to abide by

the Safety Act’s requirements and the manufacturer’s

recommendations presents a genuine issue of material fact that

Sahara Sam’s conduct constituted gross negligence. Plaintiff,

moreover, implicitly suggests that violations of the Safety Act

give rise to an independent cause of action.

Amicus NJAJ submits that the liability waiver form signed

by plaintiff is an unenforceable exculpatory agreement because

it is contrary to public policy. But, as earlier explained, the

waiver is not at issue in this case.

16
 B.

Sahara Sam’s argues that the record is devoid of evidence

of gross negligence or a Safety Act violation concerning the

operation of the FlowRider and therefore the Appellate Division

properly affirmed the grant of summary judgment. Sahara Sam’s

insists that the differences in signage recommended in the 2007

and 2008 manuals were slight. It also notes that the

manufacturer of the FlowRider inspected and approved of the 2007

signage in place at the time of the accident and that the DCA

did not find any violations of the Safety Act after receiving a

report of the accident. It further contends that the record

does not establish proximate cause between an act or omission by

Sahara Sam’s and the injuries suffered by plaintiff.

Sahara Sam’s states that plaintiff was aware that the

FlowRider was a high-risk recreational activity, having

witnessed participants fall before he set foot on the flowboard,

and that plaintiff’s admission that he did not read the warnings

on the waiver form or on the posted 2007 signs establishes that

the 2008 signs would not have stopped him from going on the

ride. It also stresses that neither the 2007 nor the 2008

manual required that first-time riders lie in a prone position

or required the use of an orientation video. Sahara Sam’s,

moreover, maintains that a review of the video of the accident

belies plaintiff’s claim that he rode the flowboard with the

17
rope wrapped around his wrist and that, even if an attendant did

not adequately instruct him on the proper use of the rope, such

a singular mistake would not evidence gross negligence because

plaintiff released the rope before he fell. Finally, Sahara

Sam’s states that the trial court and appellate panel properly

equated gross negligence with willful conduct.

Amici World Waterpark and Amusement Associations

essentially argue that the Legislature intended the DCA, through

its enforcement of the Safety Act, to have the principal

responsibility in ensuring the safety of water-amusement rides

and that the present lawsuit represents an encroachment into an

exclusive executive-branch function. According to amici, the

DCA exercised its responsibility by issuing type certification

to Sahara Sam’s, and, if permitted to proceed, the present

lawsuit would “upend the statutory scheme in place.”

III.

Plaintiff concedes that the liability-waiver agreement he

signed before participating in the FlowRider bars his negligence

claim. See Stelluti, supra, 203 N.J. at 305, 313. Instead, he

argues that Sahara Sam’s is accountable for its statutory

violations of the Safety Act and its gross negligence, which

were the proximate cause of the injuries that rendered him an

incomplete paraplegic.

18
 A liability waiver -- a pre-injury release -- in a consumer

agreement that exculpates a business owner from liability for

tortious conduct resulting from the violation of a duty imposed

by statute or from gross negligence is contrary to public policy

and unenforceable. Id. at 303, 313 (noting that business owner

cannot, through waiver-of-liability agreement, contract away

duty imposed by statute or exculpate itself for acts that

constitute recklessness or gross negligence). Therefore, we now

turn to those claims raised by plaintiff that are not barred by

the waiver agreement.

A.

We reject plaintiff’s implied argument that a violation of

the Carnival-Amusement Rides Safety Act (the Safety Act),

N.J.S.A. 5:3-31 to -59, standing alone, gives rise to a private

right of action.11 The Safety Act and its accompanying

regulations set forth an administrative framework for ensuring

the safety of those attending carnivals and amusement parks,

including water parks, in New Jersey. The DCA is charged with

the responsibility of enforcing the Safety Act and the

regulations promulgated pursuant to the Act. N.J.S.A. 5:3-38.

11N.J.S.A. 5:3-57(a) states that, “[a]s a precondition to
bringing any suit in connection with an injury against an
amusement park operator, a rider shall report in writing to the
amusement park operator all the details of any accident within
90 days from the time of the incident giving rise to the suit,”
but does not itself create a right of action.
19
The Safety Act provides for administrative sanctions against the

operator of a carnival or amusement park for violating the

statutory or regulatory scheme. For example, in a suit brought

by the DCA, an operator who “fails to comply with the provisions

of [the Safety Act] shall be liable to a fine of not more than

$5,000 per day for each violation.” N.J.S.A. 5:3-54. The DCA

is also empowered “to bring injunctive proceedings in any court

. . . to compel compliance with any lawful order made by [it]

pursuant to [the Safety Act].” N.J.S.A. 5:3-53.

The Act implements an administrative and regulatory scheme

enforced by the executive branch; it does not give rise to a

private cause of action or a tort-liability scheme. In that

respect, the Safety Act is unlike the Consumer Fraud Act,

N.J.S.A. 56:8-1 to -195, which “provides a private cause of

action to consumers who are victimized by fraudulent practices

in the marketplace.” Gonzalez v. Wilshire Credit Corp., 207

N.J. 557, 576 (2011) (citing Lee v. Carter-Reed Co., 203 N.J.

496, 521 (2010)). Indeed, under the Consumer Fraud Act,

citizens are empowered to act as “private attorneys general” in

bringing civil actions to enforce the Act. Lemelledo v.

Beneficial Mgmt. Corp., 150 N.J. 255, 268-69 (1997).

The Safety Act is also unlike the Ski Act, N.J.S.A. 5:13-1

to -12; the Roller Skating Rink Safety and Fair Liability Act,

N.J.S.A. 5:14-1 to -7; and the Equine Activities Liability Act,

20
N.J.S.A. 5:15-1 to -12. Those statutes set forth tort-liability

schemes in which the duties of operators and patrons are

enumerated and the conditions for filing a lawsuit are precisely

defined. See N.J.S.A. 5:13-3 to -10; N.J.S.A. 5:14-4 to -7;

N.J.S.A. 5:15-3 to -12.

Although the Safety Act does not give rise to a private

cause of action or set forth a tort-liability scheme, it does

articulate legislative and regulatory standards of conduct

intended to protect members of the public who patronize

amusement parks, and, as such, violations of those standards may

be considered as evidence of negligence, or even gross

negligence, in a common-law cause of action. See Alloway v.

Bradlees, Inc., 157 N.J. 221, 236 (1999) (finding applicable in

workplace injury case “the well-established principle that the

violation of a legislated standard of conduct may be regarded as

evidence of negligence if the plaintiff was a member of the

class for whose benefit the standard was established”); J.S. v.

R.T.H., 155 N.J. 330, 349 (1998) (stating that violation of

child-abuse reporting statute, N.J.S.A. 9:6-8.10, “may

constitute evidence of negligence in [appropriate]

circumstances”); Fortugno Realty Co. v. Schiavone-Bonomo Corp.,

39 N.J. 382, 391-92 (1963) (noting that violation of “statute

would be applicable as evidence of negligence” provided

plaintiff is member of “class for whose benefit the statute was

21
enacted”). In addition, violations of “regulations are

pertinent in determining the nature and extent of any duty of

care.” Alloway, supra, 157 N.J. at 236; see also id. at 240-41

(“Facts that demonstrate [a regulatory] violation constitute

evidence of negligence that is sufficient to overcome a motion

for summary judgment.”).

The Safety Act provides that an operator of a carnival-

amusement ride must post “in a conspicuous public place on or

near the ride . . . . [a]ll applicable written warnings and

directions regarding . . . the proper use of the ride and the

potential injuries in connection with improper use of the ride.”

N.J.S.A. 5:3-36.2(b). Certain regulations promulgated under the

Safety Act are intended to inform and protect patrons using

water park rides. For example, a water-ride operator must post

“[s]igns required or recommended by the ride manufacturer.”

N.J.A.C. 5:14A-12.6(o)(1).12 N.J.A.C. 5:14A-4.12(b) also

provides that an amusement-ride owner shall post “in a

conspicuous location” “clearly legible” warnings “for each ride

which comply with manufacturer’s requirements . . . and [the

Safety Act].” In addition, the owner of an amusement ride must

12N.J.A.C. 5:14A-12.6(o)(1) does not state that an amended type
certification is a precondition for updating safety signage
recommended by the manufacturer. Here, according to plaintiff,
the manufacturer did not submit the 2008 updated manual to the
DCA before the accident in 2010.
22
“comply with any manufacturer’s recommendation or requirement,”

N.J.A.C. 5:14A-4.5(a), and “with the manufacturer’s operating

manual,” N.J.A.C. 5:14A-9.8(a). Significantly, the owner must

train operators of the ride “based on manufacturer requirements

covered by the operational manual.” N.J.A.C. 5:14A-4.8(b).

In this case, for instance, the owner of Sahara Sam’s did

not post the signs recommended in the manufacturer’s 2008

operator’s manual, which would have warned patrons that the

failure to follow instructions could lead to severe permanent

injuries or even death. Illustrations on the unposted signs

would have instructed riders on the proper way to fall to avoid

injury. If Sahara Sam’s failed to post the signage as required

by the Safety Act, then a jury may consider that failure as

evidence of negligence, provided that there is a showing that

the violation is relevant to the accident. See Alloway, supra,

157 N.J. at 236.

In sum, in given circumstances, “the violation of a

statutory duty of care” may be admissible as evidence of

negligence. Waterson v. Gen. Motors Corp., 111 N.J. 238, 263

(1988). In this case such evidence is permissible because the

aggregation of alleged negligent acts or omissions may be

considered in determining whether Sahara Sam’s conduct reached

the level of gross negligence.

B.

23
 The principal issue in this appeal is whether the record,

when viewed in the light most favorable to plaintiff, supported

the trial court’s grant of summary judgment dismissing

plaintiff’s claim of gross negligence. To address this issue,

we must first define gross negligence.

The tort of gross negligence falls on a continuum between

ordinary negligence and recklessness, a continuum that extends

onward to intentional conduct. See Introductory Notes, Model

Jury Charge (Civil) § 5.12 “Gross Negligence” (2009); see also

Saba v. Compagnie Nationale Air Fr., 78 F.3d 664, 668 (D.C. Cir.

1996) (“There is a continuum that runs from simple negligence

through gross negligence to intentional misconduct.

Recklessness, or reckless disregard, lies between gross

negligence and intentional harm.”).

A business owner owes a duty of care to patrons invited

onto the business’s premises -- a duty “to take reasonable

precautions to prevent the occurrence of foreseeable harm” to

those patrons. Weinberg v. Dinger, 106 N.J. 469, 484 (1987);

accord Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)

(stating that property owner owes higher degree of care to

business patron than social guest because of furtherance of

commercial interests). Stated differently, a business owner has

a duty “[t]o act non-negligently” toward the business’s patrons.

Weinberg, supra, 106 N.J. at 484; accord Hopkins, supra, 132

24
N.J. at 433. Negligence is defined generally as the failure to

exercise “that degree of care for the safety of others, which a

person of ordinary prudence would exercise under similar

circumstances.” Model Jury Charge (Civil) § 5.10A “Negligence

and Ordinary Care – General” (2009); see also Aiello v.

Muhlenberg Reg’l Med. Ctr., 159 N.J. 618, 632 (1999) (defining

negligence as “the failure to exercise reasonable care”). The

duty of care owed to a business patron must take into

consideration the magnitude and likelihood of harm to which the

patron is exposed by activities on the premises. McLaughlin v.

Rova Farms, Inc., 56 N.J. 288, 303 (1970).

As is evident by its descriptive name, gross negligence is

a higher degree of negligence, see Monaghan v. Holy Trinity

Church, 275 N.J. Super. 594, 599 (App. Div. 1994), and

undoubtedly denotes “the upper reaches of negligent conduct,”

Parks v. Pep Boys, 282 N.J. Super. 1, 17 n.6 (App. Div. 1995).

See also Kain v. Gloucester City, 436 N.J. Super. 466, 482 (App.

Div.) (noting that gross negligence “is commonly associated with

egregious conduct”), certif. denied, 220 N.J. 207 (2014).

Whereas negligence is “the failure to exercise ordinary or

reasonable care” that leads to a natural and probable injury,

gross negligence is “the failure to exercise slight care or

diligence.” Introductory Notes, Model Jury Charge (Civil) §

5.12 “Gross Negligence” (2009). Although gross negligence is

25
something more than “inattention” or “mistaken judgment,” it

does not require willful or wanton misconduct or recklessness.

Model Jury Charge (Civil) § 5.12 “Gross Negligence” (2009).

The New Jersey Civil Model Jury Charge defines gross

negligence as

an act or omission, which is more than
ordinary negligence, but less than willful or
intentional misconduct. Gross negligence
refers to a person’s conduct where an act or
failure to act creates an unreasonable risk of
harm to another because of the person’s
failure to exercise slight care or diligence.

[Ibid.]

The model jury charge also conveys that gross negligence is an

indifference to another by failing to exercise even scant care

or by thoughtless disregard of the consequences that may follow

from an act or omission. See id. n.1.

Similar definitions of gross negligence have been adopted

by other jurisdictions. See, e.g., City of Santa Barbara v.

Super. Ct., 161 P.3d 1095, 1099 (Cal. 2007) (defining gross

negligence “as either a ‘want of even scant care’ or ‘an extreme

departure from the ordinary standard of conduct’” (quoting

Eastburn v. Reg’l Fire Prot. Auth., 80 P.3d 656, 662 (Cal.

2003))); Thompson v. Bohlken, 312 N.W.2d 501, 504 (Iowa 1981)

(defining gross negligence as more “than ordinary inadvertence

or [i]nattention” and as “differ[ing] from ordinary negligence

only in degree, not kind”); Ambrose v. New Orleans Police Dep’t

26
Ambulance Serv., 639 So. 2d 216, 219-20 (La. 1994) (“[G]ross

negligence has been described as an ‘extreme departure from

ordinary care or the want of even scant care.’” (quoting W. Page

Keeton, et al., Prosser & Keeton on the Law of Torts, § 34, at

211 (5th ed. 1984); 65 C.J.S. Negligence § 8(4)(a) at 539-40

(1966 & Supp. 1993))); Cowan v. Hospice Support Care, Inc., 603

S.E.2d 916, 918 (Va. 2004) (defining gross negligence as

“showing indifference to another and an utter disregard of

prudence that amounts to a complete neglect of the safety of

such other person,” but which “demonstrat[es] something less

than willful recklessness” (citing Koffman v. Garnett, 574

S.E.2d 258, 260 (Va. 2003); Griffin v. Shively, 315 S.E.2d 210,

213 (Va. 1984); Ferguson v. Ferguson, 181 S.E.2d 648, 653 (Va.

1971))).

We endorse the definition of gross negligence found in our

Civil Model Jury Charge and reject the trial court’s and

appellate panel majority’s description of gross negligence as

the equivalent of willful conduct. We recognize that gross

negligence has been subject to varying definitions and find

understandable the error of the trial and appellate courts.13 To

13Unlike New Jersey, a number of jurisdictions make no
distinction between gross negligence and recklessness. See
Restatement (Second) of Torts § 282 (1965) (“[G]ross negligence
. . . is sometimes construed as equivalent to reckless
disregard.”); see also, e.g., W. Cash & Carry Bldg. Materials,

27
be clear, reckless and willful conduct are degrees of civil

culpability greater than gross negligence. Reckless conduct is

“the conscious disregard . . . to a known or obvious risk of

harm to another” whereas “[w]illful misconduct implies an

intentional deviation from a clear duty” owed to another.

Anderson v. Massillon, 983 N.E.2d 266, 273 (Ohio 2012). In sum,

negligence, gross negligence, recklessness, and willful conduct

fall on a spectrum, and the difference between negligence and

gross negligence is a matter of degree.

IV.

We now apply those principles to determine whether the

trial court properly granted summary judgment. On a motion for

summary judgment, if the evidence of record -- the pleadings,

depositions, answers to interrogatories, and affidavits --

“together with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the issue to the

trier of fact,” then the trial court must deny the motion. R.

Inc. v. Palumbo, 371 So. 2d 873, 877 (Miss. 1979) (equating
gross negligence with “reckless indifference to consequences”
(quoting Teche Lines, Inc. v. Pope, 166 So. 539, 540 (Miss.
1936))); Colnaghi, U.S.A. v. Jewelers Protection Servs., 611
N.E.2d 282, 284 (N.Y. 1993) (equating gross negligence with
“reckless disregard” and “intentional wrongdoing” (citing Sommer
v. Fed. Signal Corp., 593 N.E.2d 1365, 1371 (N.Y. 1992)));
Sheets v. Pendergrast, 106 N.W.2d 1, 5 (N.D. 1960) (describing
gross negligence as “practically willful” (citing Rettler v.
Ebreck, 71 N.W.2d 759 (N.D. 1955); Norgart v. Hoselton, 39
N.W.2d 427 (N.D. 1949); Farmers’ Mercantile Co. v. N. Pac. Ry.
Co., 146 N.W. 550 (N.D. 1914))).
28
4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995). On the other hand, when no genuine issue of

material fact is at issue and the moving party is entitled to a

judgment as a matter of law, summary judgment must be granted.

R. 4:46-2(c); see Brill, supra, 142 N.J. at 540.

Our task is not to weigh the evidence, not to decide who

has the better case or who is more likely to succeed before the

jury. The strength of Sahara Sam’s case is not at issue.

Although the facts are hotly disputed between the parties, at

this procedural stage, our role is simply to view the record in

the light most favorable to plaintiff and resolve whether, on

that basis, a reasonable factfinder could find that plaintiff’s

injuries were proximately caused by the gross negligence of

Sahara Sam’s.

Based on that standard, we agree with the dissent in the

Appellate Division that the trial court erred in granting

summary judgment. A brief review of the relevant evidence,

presented in the light most favorable to plaintiff, demonstrates

that a rational factfinder could conclude that Sahara Sam’s

conduct constituted gross negligence.

The FlowRider is an extreme sport and high-risk

recreational activity that simulates surfing. Nevertheless, at

the time that plaintiff participated in the ride, Sahara Sam’s

did not post the updated signage recommended by the

29
manufacturer. Had Sahara Sam’s done so, and presuming that

plaintiff would have read and been drawn to the illustrations on

the new signage, plaintiff would have better known of the

greater potential for severe permanent injury by riding the

flowboard. Because Sahara Sam’s did not post the manufacturer’s

2008 signage, plaintiff was not told: (1) “YOU WILL FALL”; (2)

“DO NOT RIDE!” the flowboard if you could aggravate a

preexisting condition; (3) “FAILURE TO COMPLY WITH SIGNS OR

INSTRUCTIONS MAY INCREASE THE RISK OF SEVERE PERMANENT INJURIES

OR EVEN DEATH”; (4) “FALLING MAY RESULT IN . . . YOUR BODY

STRIKING THE SURFACE OF THE FLOWRIDER WITH GREAT FORCE”; and (5)

“BEFORE ATTEMPTING TO RIDE, WATCH THE SAFETY VIDEO AND

UNDERSTAND THE RISKS OF THIS ACTIVITY.” The updated signage --

unlike the signage in use on the day of the accident -- also

provided drawings that illustrated the danger of striking one’s

head on either the surface of the FlowRider or the flowboard and

the safety measures to take to avoid a head injury.

The factfinder is permitted to draw inferences from Sahara

Sam’s failure to follow the manufacturer’s recommendations and

to consider as evidence of negligence the failure to comply with

safety regulations promulgated under the Safety Act. See

N.J.A.C. 5:14A-9.8(a) (“The owner of an amusement ride shall

operate the ride in accordance with the manufacturer’s operating

manual.”); N.J.A.C. 5:14A-12.6(o)(1) (stating that “[s]igns

30
required or recommended by the ride manufacturer” must be

posted).

In addition, Sahara Sam’s staff did not properly instruct

plaintiff on the proper use of the FlowRider. The attendants

did not suggest to plaintiff that, as a first-time rider, he

ride on a bodyboard lying in the prone position or instruct him

that he not wrap the rope around his wrist and not hold the rope

with both hands if riding on a flowboard. Plaintiff’s expert

concluded that plaintiff’s failure to let go of the rope as he

was falling propelled him forward and proximately caused the

severe and permanent injuries that he suffered. Plaintiff also

was not given the option of watching the safety video that is

mentioned in the signage but was never posted -- a video that

apparently was unavailable to the lifeguards in charge of the

FlowRider. Additionally, Sahara Sam’s did not give lifeguards

written training protocols to review or require them to read the

operator’s manual.

The issue is not whether Sahara Sam’s failed to exercise

reasonable care in any one instance. Rather, it is whether

viewing the entire tableau in the light most favorable to

plaintiff, a factfinder could conclude that by not implementing

the safety features in the 2008 operator’s manual and not giving

plaintiff the necessary safety instructions, Sahara Sam’s failed

to exercise slight care or diligence or demonstrated an extreme

31
departure from the standard of reasonable care. Viewed in that

light, we hold that a rational factfinder could conclude that

the proximate cause of plaintiff’s injuries was the gross

negligence of Sahara Sam’s.

V.

For the reasons expressed, we reverse the judgment of the

Appellate Division affirming the trial court’s grant of summary

judgment, which dismissed plaintiff’s claim of gross negligence.

We therefore reinstate the gross-negligence claim and remand to

the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE ALBIN’s opinion.

32