How Long does a Waiver Last?

  By Doyice Cotten

In a 2018 New Jersey waiver case (Weed v Sky N.J., LLC, 2018 N.J. Super. Unpub. LEXIS 410), the primary issue revolved around the enforceability of an arbitration agreement included in the liability waiver. There were two important questions addressed. First, what is the duration of a waiver (and the arbitration agreement)? And second, who can sign a waiver on behalf of a minor.

Under New Jersey law, it is well established that parental waivers (a waiver signed on behalf of a minor by a parent or a legal guardian) are unenforceable. It was also established in Hojnowski v. Vans Skate Park (2006) that a parent or guardian can agree to arbitration in the event of a dispute.

In Weed, A.M (the minor) entered the amusement park (Sky N.J.) and his mother signed a waiver which included an arbitration agreement. Four months later, A.M. returned to the park with a friend and the mother of the friend. The waiver was signed on this visit by the mother of the friend. A.M. suffered an injury on this visit.

This proceeding was an effort of the plaintiff to circumvent arbitration. The arbitration language follows:

Waiver of Trial, and Agreement to Arbitrate

IF I AM INJURED AND WANT TO MAKE A CLAIM AND/OR IF THERE ARE ANY DISPUTES REGARDING THIS AGREEMENT, I HEREBY WAIVE ANY RIGHT I HAVE TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE AND JURY. I AGREE THAT SUCH DISPUTE SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF THIS AGREEMENT AND WILL BE DETERMINED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR TO BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. I further agree that the arbitration will take place solely in the state of New Jersey and that the substantive law of New Jersey shall apply. I acknowledge that if I want to make a claim against [defendants], I must file a demand before JAMS. . . . To the extent that any claim I have against [defendants] has not been released or waived by this Agreement, I acknowledge that I have agreed that my sole remedy is to arbitrat[e] such claim, and that such claim may only be brought against [defendants]  in accordance with the above Waiver of Trial and Agreement to Arbitrate.

 Regarding the waiver signed by the mother of the friend, the court stated that the signer was neither a parent, legal guardian, or the holder of a power of attorney to bind the minor to the arbitration agreement.  It stated that the Hojnowski ruling allowed only the parent or legal guardian the authority to waive the child’s rights in favor of an arbitration agreement.

Regarding the original waiver signed by the mother, the plaintiff claimed that that waiver was no longer in effect – that the waiver applied only to the visit at which it was signed. Plaintiff argued that the policy of requiring a new agreement to be signed each time a participant entered the park belied the Sky N.J. argument that a prior agreement remained valid for a period of time. The important fact was that the waiver agreement contained no statement pertaining to the duration of the agreement!

The trial judge ruled that the first agreement did not apply to the second visit because it did not contain any language indicating that it would remain valid and applicable to all future visits – thus there was no “meeting of the minds.” The appellate court agreed with the trial judge. In applying well-established contract principles, the court quoted the rule “An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose.” It added that any ambiguity in a contract must be construed against defendants or the drafting party.

Ruling

The court concluded that neither agreement is enforceable as to the minor plaintiff. It did not rule on whether the arbitration agreement meets with the legal standard and case law. It agreed with the trial judge’s ruling that denied the Sky N.J. motion to compel arbitration.

Risk Management Take-Away

  1. Always be certain the duration of the agreement is unambiguously included in the agreement.
  2. Be certain the party signing an agreement on behalf of a minor is a parent or legal guardian.

 Photo Credit: Thanks to House of Air – Matrix Trampoline Park  on Flickr.