NOT FOR PUBLICATION WITHOUT THE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-3908-15T3
JANET CROSSING-LYONS,
Plaintiff-Appellant,
v.
TOWNS SPORTS INTERNATIONAL,
INC., d/b/a NEW YORK SPORTS
CLUB,
Defendant-Respondent.
______________________________
Argued June 19, 2017 – Decided July 11, 2017
Before Judges Fisher and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-2024-
14.
Daniel R. Danzi argued the cause for
appellant.
Eric Evans argued the cause for respondent
(Gordon & Rees, L.L.P., attorneys; Donald G.
Derrico and Allyson Avila, of counsel and on
the brief; Mr. Evans, on the brief).
PER CURIAM
Plaintiff Janet Crossing-Lyons appeals from an April 1, 2016
order granting summary judgment to defendant TSI Livingston,
L.L.C. d/b/a New York Sports Clubs (the fitness club).1 In
dismissing the case, the judge relied on Stelluti v. Casapenn
Enterprises, L.L.C., 203 N.J. 286 (2010). We conclude Stelluti
is distinguishable and reverse.
Plaintiff is a member of the fitness club. As part of her
gym membership, the fitness club required plaintiff to sign a
waiver and release (the exculpatory clause), which states in part
that
[y]ou . . . agree that if you engage in any
physical exercise or activity, or use any club
amenity on the premises or off premises,
including any sponsored club event, you do so
entirely at your own risk[.] You agree that
you are voluntarily participating in these
activities and use of these facilities and
premises and assume all risks of injury,
illness or death[.]
This waiver and release of liability includes,
without limitation, all injuries which may
occur as a result of . . . (a) your use of all
amenities and equipment in the facility[;] (b)
your participation in any activity, including,
but not limited to, classes, programs,
personal training sessions or instruction[;]
and (c) the sudden and unforeseen
malfunctioning of any equipment.
[(Emphasis added).]
Plaintiff's accident, which caused a substantial injury
requiring hip surgery, was unrelated to using physical fitness
1
Improperly pleaded as Town Sports International, Inc. d/b/a
New York Sports Club.
2 A-3908-15T3
equipment or engaging in strenuous exercises involving an inherent
risk of injury. Rather, she tripped over a weight belt on her way
to meet a trainer, which another member had left on the floor for
an unknown amount of time. The trainer had known of the existence
of the weight belt on the floor, but did not remove it despite the
fitness center's policy to keep the place "hospital clean" by
picking up items that members leave on the fitness club's floor.
On appeal, plaintiff argues primarily that the judge
misapplied the Stelluti decision. Relying on our opinion in
Walters v. YMCA, 437 N.J. Super. 111 (App. Div. 2014), plaintiff
contends that the exculpatory clause is unenforceable. Plaintiff
urges us to reverse the order granting summary judgment to the
fitness center, and allow a jury to decide the ordinary issues
associated with negligence cases.
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Liu, 431
N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J. 86
(2013). We owe no deference to the motion judge's conclusions on
issues of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995). Applying these standards, we
respectfully conclude the judge erred.
It is a longstanding principle of law that business owners
in New Jersey have well-established duties of care to patrons that
3 A-3908-15T3
enter their premises. Stelluti v. Casapenn Enters., 408 N.J.
Super. 435, 446 (App. Div. 2009), aff'd, 203 N.J. 286 (2010). 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.
See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). 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." Stelluti, supra, 203 N.J.
at 303.
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.
[Id. at 298 (quoting Stelluti, supra, 408 N.J.
Super. at 454); See also Gershon v. Regency
Diving Ctr., Inc., 368 N.J. Super. 237, 248
(App. Div. 2004).]
Applying these principles, we concluded in Walters that his
exculpatory agreement with the YMCA was unenforceable. Walters,
supra, 437 N.J. Super. at 120. Pursuant to that agreement, Walters
4 A-3908-15T3
released the YMCA for injuries he sustained while he was on the
YMCA premises or from YMCA-sponsored activity. Id. at 116.
Walters slipped on a step leading to an indoor pool at the YMCA.
Id. at 116-17. Like plaintiff, Walters was not using physical
fitness equipment or engaging in strenuous exercises involving an
inherent risk of injury.
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.
Like in Walters, we conclude Stelluti is factually
distinguishable. The Court's holding in Stelluti is grounded on
the recognition that health clubs are engaged in a business that
offer their members a place to use physical fitness equipment by
performing strenuous exercises involving an inherent risk of
injury. Stelluti, supra, 203 N.J. at 311. Plaintiff did not use
the weight belt, or engage in any activity involving an inherent
risk of injury. She simply walked to meet a personal trainer who
5 A-3908-15T3
was waiting for her. Unlike the plaintiff in Stelluti, who injured
herself while riding a spin bike, Walters had injured himself by
slipping on a step and plaintiff injured herself while tripping
over an item left on the floor, incidents that could have occurred
in any business setting. Id. at 291. Whether plaintiff ultimately
prevails will depend on the evidence produced at trial.
Reversed.
6 A-3908-15T3