On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-662-06.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and C.L. Miniman.*fn1
In this appeal, we conclude that an exculpatory agreement executed by a police trainee is valid and enforceable in that it serves a valid public concern, does not negate a statutory duty, and is not unconscionable. We also hold that plaintiff's claim for damages based upon personal injuries sustained during the training program fell within the agreement's scope, and, as a result, we affirm the summary judgment entered in favor of defendants.
Plaintiff Raymond Marcinczyk (plaintiff), and his wife, filed this action seeking damages resulting from injuries plaintiff sustained during the course of police training at the Somerset County Police Academy.
Plaintiff had been employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) in another position when he became a UMDNJ security officer at or about the beginning of 2003. In November 2003, plaintiff was promoted to the position of police intern with UMDNJ with the understanding that he would be sent to a police academy for training. UMDNJ selected Somerset County Police Academy for plaintiff's training.
The record indicates that the Academy is operated by the Somerset County Prosecutor's Office at Raritan Valley Community College. Dr. Richard Celeste, who has been named as a defendant, is the Academy Director. The other individual defendants were supervisors of police training at the time of the incident in question; these supervisors were provided by the Somerset County Sheriff's Office.
Plaintiff alleged he was designated as one of two "lunch recruits," which meant that he and another trainee were required to carry a seventy-pound cooler containing the lunches of all recruits from location to location during the course of the training program. Plaintiff claims that on February 2, 2004, while he and the other lunch recruit were rapidly proceeding up a staircase with the cooler, he slipped and fell, causing back injuries.
To attend the Academy, plaintiff was required to execute what was labeled a "Save Harmless Agreement," which contained provisions representing that plaintiff was covered by medical benefits, expressing plaintiff's understanding that he could "stop and leave the training" program at any time, and confirming plaintiff's willingness and ability to participate in "all aspects of training." This exculpatory agreement also included the following provisions:
I understand that certain aspects of the training at the Somerset County Police Academy present a risk of possible physical or psychological injury. Nevertheless, I choose voluntarily to participate in these programs.
In consideration of all of the above, I agree for myself, my heirs, dependents or personal representatives not to assert any claim or suit for money damages against the County of Somerset, Office of the County Prosecutor, the Somerset County Police Academy or it's [sic] personnel, for pain or suffering, medical expenses, loss of wages, injuries, permanent disabilities or pecuniary losses by reason of any injuries or losses I or my heirs or dependents may sustain during or as a result of my training or participation in activities conducted by the Somerset County Police Academy.
Defendants moved for summary judgment, arguing that this exculpatory agreement required dismissal of the complaint. Defendants also asserted their immunity from this suit based on the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and that the facts as alleged by plaintiff do not support a viable claim of negligence. The motion judge agreed with all those arguments and granted summary judgment dismissing the complaint.
Plaintiff has appealed, arguing that: the exculpatory agreement is unenforceable or, even if enforceable, does not encompass his claim; N.J.S.A. 59:2-3 does not immunize defendants from suit; and whether defendants were negligent was a question for the jury and not amenable to summary judgment. Because we conclude that the exculpatory agreement is enforceable and encompasses plaintiff's claim, we affirm without finding it necessary to reach plaintiff's other arguments.*fn2
Plaintiff's position on the exculpatory agreement is twofold. He argues that the agreement is unenforceable as a matter of law but that, even if enforceable, the agreement does not encompass the claim of negligence asserted here. We reject both these contentions.
We start with an understanding that exculpatory agreements "have long been disfavored in the law because they encourage a lack of care." Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2006). That does not suggest, however, a blanket prohibition on their enforcement. "It is fundamental that parties to a contract may allocate risk of loss by agreeing to limit their liability as long as the limitation does not violate public policy" or does not "adversely impact the public interest." Chemical Bank v. Bailey, 296 N.J. Super. 515, 526-27 (App. Div.), certif. denied, 150 N.J. 28 (1997).
As a result, courts have refused to enforce such agreements "if the party benefiting from exculpation is subject to a positive duty imposed by law or is imbued with a public trust, or if exculpation of the party would adversely affect the public interest." Id. at 527. See also Mayfair Fabrics v. Henley, 48 N.J. 483, 487 (1967); McCarthy v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967); Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J. Super. 112, 116 (App. Div. 1975), certif. denied, 70 N.J. 518 (1976); Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 580 (App. Div. 1955). And our courts will not enforce an exculpatory agreement that would "release tort liability resulting from intentional or reckless conduct." Hojnowski, supra, 187 N.J. at 333 (citing Kuzmiak, supra, 33 N.J. Super. at 580). But, it does not follow, as plaintiff seems to suggest, that agreements that release liability arising from negligent conduct are unenforceable.
Although such agreements are disfavored and, when ambiguous, strictly construed against the party relying on them, our courts will nevertheless enforce exculpatory agreements that "do not adversely affect the public interest." Mayfair Fabrics, supra, 48 N.J. at 487. Applying this approach, it is understood that the "public interest" is not implicated by enforcement of an exculpatory agreement against a party who has executed the agreement in order to engage in a recreational activity. See, e.g., McBride v. Minstar, Inc., 283 N.J. Super. 471, 490 (Law Div. 1994), aff'd sub nom., McBride v. Raichle Molitor, U.S.A., 283 N.J. Super. 422 (App. Div.), certif. denied, 143 N.J. 319 (1995). In Hojnowski, the Court impliedly reached the same conclusion.*fn3
Instead, the "public interest" is implicated where the exculpatory agreement is obtained in exchange for a necessary service or commodity of great import. For example, courts will not enforce an exculpatory agreement when it is demanded by a hospital prior to treating a patient, Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 447 (Cal. 1963), or when included in a residential apartment lease during a housing shortage, Kuzmiak, supra, 33 N.J. Super. at 587-88.
In Gershon v. Regency Diving Center, 368 N.J. Super. 237, 248 (App. Div. 2004), another panel of this court held that four criteria must be met before an exculpatory agreement will excuse a party's negligence. The panel referred to the three circumstances, which we have already mentioned -- "(1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; [and] (3) it does not involve a public utility or common carrier" -- as well as a fourth, "the contract does not grow out of unequal bargaining power or is otherwise unconscionable." Ibid.
As for the fourth circumstance mentioned in Gershon, it is well understood that an unconscionable exculpatory clause will not be enforced, see Hojnowski, supra, 187 N.J. at 333 (which observed, in quoting Lucier v. Williams, 366 N.J. Super. 485, 491 (App. Div. 2004), that "courts have not hesitated to strike limited liability clauses that are unconscionable . . ."), but it does not follow, as may be suggested by Gershon's fourth factor, that disparate bargaining power alone will require the striking of exculpatory agreements. Because it would be the rare case in which the exculpated party was in a weaker bargaining position, broad application of that factor would literally swallow the rule and every exculpatory agreement would necessarily be rendered unenforceable. To the extent that this is what Gershon intended, we disagree. Certainly, the relative bargaining strength of the parties plays a role in determining whether a contract is unconscionable, see, e.g., Delta Funding Corp. v. Harris, 189 N.J. 28, 40 (2006); Muhammad v. County Bank of Rehoboth Beach, Del., 189 N.J. 1, 15-16 (2006), cert. denied, 549 U.S. 1338, 127 S.Ct. 2032, 167 L.Ed. 2d 763 (2007); Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-65 (Ch. Div. 2002), but it does not follow that all contracts between parties of unequal bargaining power are unconscionable. We thus reject plaintiff's argument that Gershon requires that courts should strike down all exculpatory agreements between parties of disparate bargaining power.
Based upon this understanding of our jurisprudence, we examine the exculpatory agreement in question here to determine whether its enforcement: (1) negatively impacts the public interest; (2) would absolve the ...