On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2212-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
On July 15, 2006, plaintiff Stephanie Sevastakis*fn1 enrolled in a karate class operated by defendant Tiger Schulmann's Karate Center for the purpose of losing weight and becoming more fit. The paperwork plaintiff was required to sign in order to enroll in the class included what was entitled, "Model Release and Waiver of Liability," which stated in pertinent part:
Student understands that participation in martial arts and martial arts instruction involves physical exertion and contact.
Student acknowledges that participation in martial arts and martial arts instruction is dangerous and that there is a risk of injury involved in the activity. Student agrees to waive any claim, and to release TSK and its employees and agents from any claim for injuries sustained as a result of participation in martial arts and martial arts classes, including injuries claimed to have been caused by the negligence of TSK, its agents and employees. This release and waiver does not apply to any act of willful misconduct or gross negligence.
The instructor was advised plaintiff was taking the class in order to lose weight, and he was aware that plaintiff had not engaged in any physical fitness program for a long period of time. Just before her first class, plaintiff observed her daughter participate in the same type of karate class, which consisted of sit-ups, push-ups, punches, and kicks, including roundhouse kicks. Plaintiff recognized that some of these activities might be difficult for her, but she "was going to follow through with [her] commitment to try."
At the beginning of her class, plaintiff placed herself in the front of the room, but the instructor moved her to the last of three rows. The class began with stretching exercises and then moved to push-ups and sit-ups, which plaintiff struggled to complete.
After a light running exercise, the instructor gave a brief explanation of the roundhouse kick exercise. According to plaintiff, "[h]e said to place your foot on the ground, . . . and then kick the--the X-ray sheet that's being held by your partner and spin and continue that motion, kick and spin, kick and spin." Plaintiff held the x-ray paper for her partner to perform seven to ten kicks before attempting the exercise herself. She began by completing seven kicks with her left foot, her right foot supporting her, and she then did four or five kicks with her right foot, her left foot supporting her, when her supporting left foot collapsed and she fell. She was later diagnosed with a Lisfranc fracture of her left foot that required surgery.
Plaintiff subsequently brought this personal injury action against defendant, alleging that defendant's instructor had been negligent in his conduct of the karate class in which plaintiff fractured her foot. Plaintiff's claim was supported by an expert opinion of Shawn Arent, the Director of the Human Performance Laboratory at Rutgers, who concluded that defendant had been negligent in:
1. Lack of a comprehensive initial health screening, fitness evaluation, or skills assessment.
2. Lack of attention to proper form or instruction ...