August 26, 2010
STEPHANIE SEVASTAKIS AND JOHN SEVASTAKIS, MARRIED, PLAINTIFFS-APPELLANTS,
TIGER SCHULMANN'S KARATE CENTER, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2010
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 on technique.
3. A "one-size fits all" approach to workload assignment.
4. Inappropriate skill progression for a beginner, compounded by inattention to fatigue status.
Arent characterized defendant's alleged negligence as "gross."
After the completion of discovery, defendant moved for summary judgment. The trial court concluded that a personal injury claim against an exercise facility such as defendant could be maintained only if plaintiff could show recklessness on the part of defendant and that plaintiff's proofs were insufficient to support a finding of recklessness. Accordingly, the court granted defendant's motion for summary judgment without considering the question of the effectiveness of the previously quoted waiver of liability to bar plaintiff's claim.
Plaintiff filed a motion for reconsideration, which the trial court denied.
Plaintiff filed a notice of appeal. Defendant filed a motion to dismiss the appeal as untimely, which we denied.
On appeal, plaintiff argues that the trial court erred in concluding that her personal injury claim was maintainable only if she could show that defendant's conduct of the karate class in which she was injured was reckless. In the alternative, she argues that her proofs would be sufficient to support a finding of recklessness.
In its answering brief, defendant argues that only the order denying reconsideration is properly before us, because plaintiff's notice of appeal did not identify the order granting summary judgment as a subject of her appeal and the notice was filed beyond the time allowed for challenging the summary judgment dismissing plaintiff's complaint. In the alternative, defendant argues that the trial court correctly ruled that recklessness was the applicable standard of care and that plaintiff's proofs would not support a finding of recklessness. Defendant also argues that if the applicable standard of care is negligence, plaintiff's claim is barred by the waiver of liability she signed in enrolling in defendant's karate class.
We deferred issuance of our opinion until the Supreme Court decided Stelluti v. Casapenn Enterprises, LLC, ___ N.J. ___ (2010), which involved the same issue as this appeal regarding the effectiveness of a waiver of liability for negligence by a participant in an exercise class. The Court has now decided Stelluti, and we affirm the dismissal of plaintiff's complaint based on her waiver of liability upon enrollment in the karate class under the authority of Stelluti. We first discuss the other issues raised by the parties.
Although plaintiff's notice of appeal stated she was appealing from the order denying reconsideration entered on June 26, 2009, her case information statement indicated that she was appealing from both the order denying reconsideration and the order granting summary judgment dismissing her complaint:
The current appeal involves two Orders both entered by the Honorable Steven P. Perskie, J.S.C. The first was a motion for Summary Judgment granted on May 15, 2009. The second was a denial of the motion for reconsideration of this Order which was signed on June 26, 2009 and received in my office on July 2, 2009. Both Orders are attached.
"[I]t is clear that . . . only the judgments or orders or parts thereof designated in the notice of appeal are subject to the appeal process and review." Pressler, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2010). However, a notice of appeal must be read in conjunction with the attached case information statement, and an appeal will be deemed in appropriate circumstances to include not only orders specifically referenced in the notice of appeal but also additional orders referenced in the case information statement. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007); Tara Enters., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App. Div. 2004). Our courts follow this approach because a case information statement may serve the same essential purpose as a notice of appeal, which is to put the respondent on notice of the intended scope of the appeal.
This is an appropriate case in which to read the notice of appeal in light of the attached case information statement. That statement clearly indicated that plaintiff was appealing from the order granting summary judgment and that one of the issues to be raised on appeal was that "[t]he Trial Court applied an incorrect legal standard" in granting defendant's motion for summary judgment. Therefore, defendant had to have understood upon reviewing plaintiff's case information statement that the order granting summary judgment was being appealed.
We recognize that plaintiff's notice of appeal, as it relates to the order granting summary judgment, was filed nineteen days beyond the forty-five day period allowed by Rules 2:4-1(a) and 2:4-3(e) for filing an appeal. However, this court has authority under Rule 2:4-4(a), upon "a showing of good cause and the absence of prejudice," to extend the time for the filing of a notice of appeal for up to thirty days. Moreover, this court may exercise that authority on its own motion. Castellucci v. Bd. of Review, 168 N.J. Super. 301, 303 (App. Div. 1979).
Defendant does not claim it will suffer any "prejudice" as a result of our granting of an extension of time for plaintiff to appeal the order granting summary judgment. Although plaintiff did not file a certification so indicating, it appears that the reason for her delay in appealing from the order granting summary judgment was confusion over the effect of the motion for reconsideration upon the time for appeal. We have concluded that such confusion should be viewed as "good cause" in the interest of deciding this appeal upon its merits.
We turn next to the question whether the trial court correctly concluded that recklessness rather than negligence was the applicable standard of care. In Fantini v. Alexander, 172 N.J. Super. 105, 107-08 (App. Div. 1980), we squarely held that the standard of care applicable to a personal injury claim by a karate student against the instructor was negligence. In Rosania v. Carmona, 308 N.J. Super. 365 (App. Div.), certif. denied, 154 N.J. 609 (1998), we also held that negligence was the applicable standard of care applicable in a personal injury action against a karate facility, at least in some circumstances: "[I]n this commercial setting, the jury should have been charged that defendants owed a duty to patrons of the dojo not to increase the risks inherent in the sport of karate under the rules a reasonable student would have expected to be in effect at that dojo." Id. at 368.
In Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205 (App. Div.), certif. denied, 174 N.J. 43 (2002), we applied a recklessness standard to a skydiver's claim against a fellow skydiver, id. at 214-15, but rejected application of that standard to the skydiver's claim against the operator of the skydiving facility, id. at 216. Instead, regarding the operator, the question "was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, plaintiff's risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which [defendant] operated its facility." Id. at 218.
In Derricotte v. United Skates of America, 350 N.J. Super. 227, 234 (App. Div. 2002), we held that the Roller Skating Rink Safety and Fair Liability Act "does not immunize a rink operator from liability for negligently instructing a person how to roller skate." We further determined that in the absence of any statutory standards, "a rink operator's liability [relating to skating lessons] is governed by ordinary negligence principles." Id. at 235. In reaching this conclusion, we noted "that the operator of a sports or recreational facility such as a roller skating rink 'is subject to a standard of care based on negligence rather than the recklessness standard applicable to participants in recreational sporting activities.'" Id. at 235 n.3 (quoting Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J. Super. 527, 535 (App. Div.), certif. denied, 170 N.J. 387 (2001)).
It is clear from Fantini, Rosania, Dare, and Derricotte that the standard of care applicable to commercial recreational facilities such as defendant's karate facility is that of ordinary negligence. Indeed, the implicit premise of our Supreme Court's opinion in Stelluti, upholding the validity of a waiver of liability by a customer of a commercial exercise facility, is that the applicable standard of care is negligence because such a waiver does not bar a claim based on recklessness or even gross negligence. ___ N.J. at ___ (slip op. at 32). Therefore, the trial court erred in granting defendant's motion for summary judgment on the ground that plaintiff's personal injury claim was maintainable only if she could show that defendant's conduct in the operation of her karate class was reckless and that plaintiff's proofs would be insufficient to support that finding.
Because the applicable standard of care is negligence, the waiver of liability plaintiff signed when she enrolled in defendant's karate class would apply. Stelluti resolved whatever doubts may have previously existed regarding the validity of such a waiver by a person enrolling in a recreational activity such as karate. The facts in Stelluti were virtually identical to this case except that Stelluti involved enrollment in a "spinning" class at a fitness center rather than a karate class at a karate facility. Id. at ___ (slip op. at 2). The plaintiff in Stelluti signed a "Waiver and Release Form," which was similar to the "Model Release and Waiver of Liability" form plaintiff signed in enrolling in defendant's karate class. See id. at ___ (slip op. at 3-5). In pursuing her claim for personal injuries suffered during the exercise class, plaintiff argued that the waiver of liability provision was invalid as "contrary to public policy." Id. at ___ (slip op. at 15). In rejecting this argument, the Court stated:
By its nature, exercising entails vigorous physical exertion. Injuries from exercise are common; indeed minor injuries can be expected -- for example, sore muscles following completion of a tough exercise or workout may be indicative of building or toning muscles. Those injuries and others may result from faulty equipment, improper use of equipment, inadequate instruction, inexperience or poor physical condition of the user, or excessive exertion. . . .
. . . 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. . . . And, further, it is not unreasonable to encourage patrons of a fitness center to take proper steps to prepare, such as identifying their own physical limitations and learning about the activity, before engaging in a foreign activity for the first time. [Id. at ___ (slip op. at 30-31 (footnote and citation omitted).]
The validity of the "Release and Waiver of Liability" form that plaintiff signed when she enrolled in defendant's karate class is directly controlled by Stelluti. There is no meaningful distinction between the spinning class in which the plaintiff in Stelluti enrolled and the karate class in which plaintiff enrolled or in the waiver of liability forms signed by the plaintiff in Stelluti and the plaintiff in this case. Therefore, we conclude that the waiver of liability provision plaintiff signed was valid and that it bars her negligence claims.
Furthermore, the evidence plaintiff presented in opposition to defendant's motion for summary judgment is not sufficient to support a claim of recklessness or gross negligence, which would not be barred by her waiver of liability. Id. at ___ (slip op. at 32). Recklessness consists of "intentionally commit[ting] an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." Schick v. Ferolito, 167 N.J. 7, 19 (2001). Gross negligence consists of "a high level of incompetence, inattention, or indifference that involves more than simple negligence." Pizzullo v. N.J. Mfrs. Ins. Co., 391 N.J. Super. 113, 127 (App. Div. 2007), rev'd on unrelated grounds, 196 N.J. 251 (2008). Even viewing the evidence in a light most favorable to plaintiff, as we are required to do on a motion for summary judgment, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), this is only a garden-variety negligence action. Plaintiff simply alleged that defendant did not conduct an adequate evaluation of her fitness before allowing her to undertake a roundhouse kick, failed to adequately instruct her regarding the technique of such a kick, and failed to adequately monitor her performance of this kick. Plaintiff's accident was not caused by any defect in the equipment used in the defendant's facility or physical contact with another participant. It was caused simply by her repetition of the roundhouse kick, after she successfully performed this activity eleven or twelve times. Although Dr. Arent's opinions could support a finding that defendant was negligent in its evaluation and supervision of plaintiff, defendant's alleged lack of due care for plaintiff could not be found by a reasonable trier of fact to rise to the level of a "disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow," Schick, supra, 167 N.J. at 19, or "a high level of incompetence, inattention, or indifference that involves more than simple negligence[,]" Pizzullo, supra, 391 N.J. Super. at 127.
Accordingly, we affirm the summary judgment dismissing plaintiffs' complaint.