NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2350-15T4
MICHAEL TORRES,
Plaintiff-Appellant,
v.
KRANK L.L.C., AND
RAMON OMAR ESCOBAR,
Defendants-Respondents,
and
KRANK SYSTEMS L.L.C., AND
KRANK SYSTEMS JERSEY CITY, INC.,
Defendants.
___________________________________
Telephonically argued April 19, 2017 –
Decided June 12, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-3613-
14.
Patrick H. Cahalane argued the cause for
appellant (Anglin, Rea & Cahalane, P.A.,
attorneys; Mr. Cahalane, on the briefs).
Christina T. Williamson argued the cause for
respondents (McCormick & Priore, P.C.,
attorneys; Ms. Williamson and Philip D.
Priore, on the briefs).
PER CURIAM
Plaintiff appeals from a January 22, 2016 order granting
summary judgment to defendant Krank L.L.C. (Krank), a private gym.
We affirm.
Plaintiff joined Krank in March 2011 at its Nutley location.
When plaintiff joined, he signed a membership commitment, waiver,
and release of liability form. The form's letterhead said Krank
Systems, but was also stamped with
Krank, L.L.C.
Pete Islip/Rob Morales
386 Franklin Ave., Rear
Nutley, NJ 07110
973-320-2600
www.kranksystems.com
The form included the following language:
I hereby release and covenant not-to-sue KRANK
SYSTEMS, [L.L.C.] and/or either entities, its
officers and/or owners, their members, staff,
volunteers, landlords, agents or assigns from
any and all present and future claims
resulting from ordinary negligence on the part
of KRANK SYSTEMS, [L.L.C.] or any other listed
above for property damage, personal injury,
or wrongful death, arising as a result of
engaging or receiving instruction in
gymnastics, tumbling, or any other activities
or any activities incidental thereto,
wherever, whenever, or however the same may
occur. I hereby voluntarily waive any and all
claims against KRANK SYSTEMS, [L.L.C.] and/or
any others listed above resulting from
ordinary negligence, both present and future,
2 A-2350-15T4
that may be made by me, my family, estate,
heirs, agents, representatives, or assigns.
I understand that Open Class activities
involve certain risks, including but not
limited to death, serious neck and spinal
injuries resulting in complete or partial
paralysis, brain damage, and serious injury
[to] bones, joints & muscles. Mats,
equipment, and other safety equipment, and
apparatus provided for protection, including
the active participation of a coach or teacher
who will spot or assist in the performance of
certain skills, may be inadequate to prevent
serious injury. I am voluntarily allowing my
child(ren) and/or myself to participate in
this activity with knowledge of the risks
involved and hereby agree to accept any and
all inherent risks of property damage,
personal injury, or death.
I understand that this waiver is intended to
be as broad and inclusive as permitted by the
laws of the state of New Jersey and agree that
if any portion here is held invalid, the
remainder of the waiver will continue in full
legal force and effect. I further agree that
the venue for any legal proceedings shall be
within the state of New Jersey.
The waiver provided, "I have read and understand the Waiver
and Release of Liability," which plaintiff initialed.
Plaintiff began working out at Krank's Jersey City location
in 2012. On June 30, 2012, plaintiff executed a second membership
commitment form, waiver and release form, which contained the same
language. On February 3, 2013, plaintiff injured his Achilles
tendon in a "run block" class while performing an exercise using
a resistance band. Defendant Ramon Omar Escobar was the class
3 A-2350-15T4
instructor. Escobar ran the class on Sundays when the gym was
closed, and advertised the class using flyers, word of mouth, and
social media. The class cost an additional fee not included with
gym membership, and several people were participating in the class
at the time of plaintiff's injury.
Plaintiff filed a complaint on November 20, 2013, in Middlesex
County and an amended complaint on January 16, 2014. The amended
complaint listed Krank L.L.C., Krank Systems L.L.C., Krank Systems
Jersey City, Inc., and Omar Escobar as defendants. Defendants
moved to change venue in April 2014, and the court transferred the
case to Essex County. Plaintiff filed a second amended complaint
in October 2014, to replace Omar Escobar with Ramon Omar Escobar.
Defendants, relying on the waivers, moved for summary
judgment. The motion was heard on January 22, 2016. The judge
determined the waiver released Krank L.L.C. from liability,
plaintiff had no separate claim against Krank Systems L.L.C., and
the waiver was fully applicable to the class where plaintiff was
injured. The judge granted defendants' motion for summary
judgment, and this appeal followed. On appeal, plaintiff
challenges the motion judge's conclusions.
When reviewing a grant of summary judgment, we adhere to the
same standard as the motion judge. Globe Motor Co. v. Igdalev,
225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22,
4 A-2350-15T4
38 (2014)); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.
Super. 162, 167 (App. Div.) (citing Antheunisse v. Tiffany & Co.,
Inc., 229 N.J. 399, 402 (App. Div. 1988), certif. denied, 115 N.J.
59 (1989)), certif. denied, 154 N.J. 608 (1998). We review to
determine "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law." R. 4:46-2(c). If no
genuine issue of fact exists, we then decide whether the trial
court's ruling on the law was correct. Walker v. Alt. Chrysler
Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).
The motion judge herein found no material facts in dispute
and considered two legal issues: 1) whether or not Krank L.L.C.
and Krank Systems L.L.C. were different companies, therefore not
protected by the waiver plaintiff signed; and 2) whether the waiver
applied to Escobar's class. Upon reviewing the parties'
submissions, the judge rejected the argument Krank L.L.C. and
Krank Systems L.L.C. were different entities. The judge also
rejected the suggestion the waiver did not apply to Escobar's
class because the waiver expressly included "open classes," which
included Escobar's class. Applying the Supreme Court's analysis
in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), the
5 A-2350-15T4
motion judge determined plaintiff waived his right to sue when he
signed the waiver, or exculpatory agreement. We agree.
"[T]o be enforceable an exculpatory agreement must 'reflect
the unequivocal expression of the party giving up his or her legal
rights that this decision was made voluntarily, intelligently and
with the full knowledge of its legal consequences.'" Id. at 304-
05 (quoting Gershon, Adm'x Ad Prosequndum for Estate of
Pietroluongo v. Regency Diving Ctr., 386 N.J. Super. 237, 247
(App. Div. 2004)). The Supreme Court found four factors to
consider when enforcing an exculpatory agreement. Id. at 304
(quoting Gershon, supra, 386 N.J. Super. at 248). Such an
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.
[Ibid.]
In Stelluti, the New Jersey Supreme Court determined an
exculpatory agreement limiting a private gym from liability did
not adversely affect public interest, nor was it contrary to a
legal duty owed. Id. at 306-13. Private gyms cannot waive away
the "duty of reasonable or due care to provide a safe environment
for doing that which is in the scope of the invitation" owed to
6 A-2350-15T4
business invitees, Walters v. YMCA, 437 N.J. Super. 111, 117 (App.
Div. 2014) (quoting Stelluti v. Casapenn Enters., LLC, 408 N.J.
Super. 435, 975 (App. Div. 2009), aff’d, Stelutti, supra, 203 N.J.
at 461), and always maintain a "duty not to engage in reckless or
gross negligence." Stelutti, supra, 203 N.J. at 313.
Plaintiff argues the scope of the waiver did not cover
Escobar's class, asserting the run block class was not an "open
class" under the agreement. Plaintiff claims the term "open class"
was ambiguous, and therefore, the judge should not have granted
summary judgment.
We disagree. While the agreement did not define "open class,"
the motion judge found "open class" meant "open to members of the
gym," and based on the language in the waiver, "is exactly the
type of activity that the Stelutti case intended to protect these
gyms from." The judge supported the finding with evidence in the
record the run block class was not a private one-on-one training
session, and any member could have paid an additional fee and
taken the class.
We also reject the argument the waiver only applied to Krank
Systems L.L.C., not defendant Krank L.L.C. Krank Systems L.L.C.
was not in existence as a legal entity in 2011 when plaintiff
originally signed the waiver. Plaintiff could not have been
waiving his rights to sue a non-existent entity. The waiver also
7 A-2350-15T4
included a stamp with "Krank L.L.C." at the top, and testimony
from Mr. Morales, an owner of the Krank gyms, explained Krank used
the name "Krank Systems L.L.C." the same way as "Krank L.L.C."
before Krank Systems L.L.C. incorporated. We also reject
plaintiff's argument the waiver does not cover Escobar because he
was an employee of Krank L.L.C. and not Krank Systems L.L.C.
We likewise reject the contention the waiver only applied to
injuries sustained incidental to gymnastics or tumbling, and does
not release defendant from liability for injuries. The agreement
applies to injuries "as a result of engaging in or receiving
instruction in gymnastics, tumbling, or any other activities or
any activities incidental thereto." Plaintiff argues "thereto"
only modifies "gymnastics" and tumbling"; however, "thereto" also
modifies "or any other activities." "Any other activities"
includes the open classes discussed above, and here, the run block
class.
Moreover, the waiver states if "any portion herein is held
invalid, the remainder of the waiver will continue in full force
and legal effect." Even removing the "open class" provision,
plaintiff still agreed to waive his right to sue.
Plaintiff also argues the issue of gross negligence should
have gone to a jury. We disagree. Gross negligence is "more than
ordinary negligence, but less than willful or intentional
8 A-2350-15T4
misconduct" and constitutes "a higher degree of negligence."
Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 364 (2016).
"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." Id. at
364-65.
Here, the record does not support a finding that defendant’s
actions constituted gross negligence. Plaintiff did not complain
of pain or discomfort while performing the exercise until his
injury occurred. He completed several repetitions of the exercise
prior to the injury and never informed the instructor he needed
to stop performing the exercise. We do not consider plaintiff’s
injury any more foreseeable than any other types of injury commonly
associated with athletic endeavors. The record does not support
defendants' actions rising to this "higher degree of negligence."
Affirmed.
9 A-2350-15T4