NOT FOR PUBLICATION WITHOUT THE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-0805-15T3
MARIA PULICE and FRANK PULICE,
Plaintiffs-Appellants,
v.
GREEN BROOK SPORTS & FITNESS, L.L.C.,
d/b/a ECLIPSE SPORTS AND WELLNESS,
CHRISTIAN PACIFICO, and OSCAR CORTES,
Defendants-Respondents.
___________________________________
Argued telephonically February 1, 2017 –
Decided July 17, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No. L-
1424-14.
Eli L. Eytan argued the cause for appellants.
Paul J. Soderman argued the cause for
respondents.
PER CURIAM
The issue presented is whether the Law Division erred in
granting summary judgment to defendants Green Brook Sports &
Fitness, LLC, d/b/a Eclipse Sports and Wellness, Christian
Pacifico, and Oscar Cortes, dismissing plaintiffs Maria Pulice's
and Frank Pulice's negligence complaint as a result of a waiver
Maria signed releasing the health club from liability for injuries
she incurred at the club.1 After reviewing the record in light
of the contentions advanced on appeal, we affirm.
We view the facts from the record in the light favorable to
plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995). When plaintiff joined the health
club, she signed a waiver and release stating,
Members and member's guests shall hold the
club harmless from any cost, claim, injury,
damage, or liability incurred at the club.
The club urges members and guests to obtain a
physical examination from a doctor before
using any exercise equipment or participating
in any exercise classes. . . Members shall be
responsible for any property damage or
personal injury caused them, their family or
their guests.
[Emphasis added.]
Less than three months later, plaintiff was injured at the club
when a ten-pound dumbbell fell on her face as her trainer, Oscar
Cortes, whom she hired through the club, was handing it to her to
1
Since Frank's claim is wholly derivative of his wife Maria's
claim, we use the singular "plaintiff" throughout the balance of
this opinion. Our use of their first names is for ease of reference
and we mean no disrespect.
2 A-0805-15T3
perform an exercise.2 Plaintiff subsequently filed a negligence
lawsuit against defendants.
Defendants, relying on the waiver, moved for summary
judgment. The motion was unopposed and was granted on July 24,
2015. Plaintiff filed a motion for reconsideration contending
that she did not oppose the summary judgment motion because she
was under the impression that it had been adjourned, and wanted
the court to consider her opposition to summary judgment.
At argument on September 18, Judge Thomas C. Miller stated
he would reconsider the defense motion for summary judgment taking
into account plaintiff's opposition. Plaintiff claimed that she
never received a full and accurate copy of the health club's waiver
and release through discovery. She argued that the waiver and
release was ambiguous, and therefore defendants were not shielded
from liability pursuant to Stelluti v. Casapenn Enters., 203 N.J.
286 (2010).
After argument, Judge Miller entered an order and issued a
detailed written decision rejecting plaintiff's contentions and
reaffirming the grant of summary judgment. Enforcing the waiver
and release clause, he relied upon our Supreme Court's reasoning
in Stelluti:
2
Cortes' explanation of the accident was never disclosed because
he could not be located to be deposed.
3 A-0805-15T3
Although there is public interest in holding
a health club to its general common law duty
to business invitees--to maintain its premises
in a condition safe from defects that the
business is charged with knowing or
discovering--it need not ensure the safety of
its patrons who voluntarily assume the risk
by engaging in strenuous physical activities
that have a potential to result in injuries.
Any requirement to so guarantee a patron's
safety from all risk in using equipment, which
understandably is passed from patron to
patron, could chill the establishment of
health clubs. . . . There has been recognized
a "positive social value" in allowing gyms to
limit their liability in respect of patrons
who wish to assume the risk of participation
in activities that could cause an injury.
[Id. at 311.]
Thus, the judge ruled that the waiver in question "is not ambiguous
and unequivocally expresses that members agree to waive and release
liability and hold the club harmless." The judge determined that
health club members were clearly responsible for personal injury
they incurred at the club based on the waiver's language: "Members
shall be responsible for any property damage or personal injury
caused them, their family or their guests." Lastly, the judge
found that plaintiff's argument, that she was not provided with a
clear or complete copy of the membership contract containing the
waiver and release during the discovery period, was not a reason
to deny defendants immunity. Plaintiff admitted at her deposition
to signing the contract with the waiver and release, and a full
4 A-0805-15T3
and complete copy with her signature was provided to her at
argument. This appeal followed.
When reviewing a grant of summary judgment, we adhere to the
same standard as the motion judge. Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 405 (2014). Thus, we consider, as the motion
judge did, "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Id. at
406 (quoting Brill, supra, 142 N.J. at 540). "If there is no
genuine issue of material fact," an appellate court must then
"decide whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We
accord no deference to the trial judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citing Zabilowicz
v. Kelsey, 200 N.J. 507, 512-13 (2009)).
With these principles in mind, we conclude that there is no
reason to disturb Judge Miller's grant of summary judgment
dismissing plaintiff's complaint. We also conclude that the judge
properly granted defendants' summary judgment after considering
plaintiff's opposition.
5 A-0805-15T3
Plaintiff contends that Judge Miller misapplied Stelluti.
Plaintiff relies upon Walters v. YMCA, 437 N.J. Super. 111, 113
117-19 (App. Div. 2014), where we determined that Stelluti did not
apply to a liability waiver clause in a YMCA membership agreement
when the personal injury claim was based upon a "negligently
maintained stair tread" at a health club. Such reliance is
misplaced, because in Walters, supra, we held that "whether a
fitness center or health club can insulate itself through an
exculpatory clause from the ordinary common law duty of care owed
by all businesses to its invitees, was specifically not addressed
or decided by the Court in Stelluti." 437 N.J. Super. at 115.
Thus, the waiver and release clause in Stelluti pertaining to "the
inherent risk of being seriously injured while engaging in
strenuous physical exercise[,]" at a health club was distinct from
the waiver addressed in our ruling in Walter. Id. at 119. Given
that plaintiff's injury was the result of exercising with weights,
we agree with Judge Miller's detailed and well-reasoned
application of Stelluti to grant summary judgment to defendants.
Plaintiff also argues that if the waiver she signed insulates
defendants from negligence, it does not insulate them from gross
negligence under Stelluti. Although she acknowledges her
complaint only alleges negligence, she requests that this court
allow an amendment of the complaint to include a charge of gross
6 A-0805-15T3
negligence. In support, plaintiff cites to Coastal Corp. Inc. v.
Dryvit Systems Inc., 274 N.J. Super. 171 (App. Div. 1994) and
Tomaszewski v. McKeon Ford, 240 N.J. Super. 404 (App. Div. 1990).
We are not persuaded.
In both Coastal Corp. Inc. and Tomaszewski, the plaintiff's
trial court motions to amend their complaints were denied and
reversed on appeal. See Coastal Corp., Inc., supra, 274 N.J.
Super. at 182; Tomaszewski, supra, 240 N.J. Super. at 412. Here,
plaintiff never moved before the motion judge to amend her
complaint to allege gross negligence. Because plaintiff's request
to amend her complaint was not raised before the Judge Miller, we
do not consider it on appeal because it does not "go to the
jurisdiction of the trial court or concern matters of great public
interest." Zaman v. Felton, 219 N.J. 199, 227 (2014) (quoting
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Moreover, we conclude the argument that her injury was the
result of defendants' gross negligence lacks merit. Gross
negligence is defined as "conduct that comes somewhere between
'simple' negligence and the intentional infliction of harm, or,
'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362
N.J. Super. 421, 425 (Law Div. 2003) (citing Clarke v. Twp. of
Mount Laurel, 357 N.J. Super. 362, 369-70 (App. Div. 2003)). It
requires "indifference to consequences," Banks v. Korman Assocs.,
7 A-0805-15T3
218 N.J. Super. 370, 373 (App. Div. 1987), and may be equated with
willful or wanton conduct. See Stelluti v. Casapenn Enters., LLC,
408 N.J. Super. 435, 457 n.6, (App. Div. 2009), aff'd 203 N.J. 286
(2010). Gross negligence has also been defined as "reckless
disregard of the safety of others." In re Kerlin, 151 N.J. Super.
179, 185 (App. Div. 1977) (citing State v. Linarducci, 122 N.J.L.
137 (Sup. Ct. 1939)). Plaintiff does not point to any fact in the
record that suggests that her injury was the result of gross
negligence by defendants.
To the extent we have not addressed any of plaintiff's
remaining issues, it is because they are without sufficient legal
basis to merit further discussion in this opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
8 A-0805-15T3