Is an Arbitration Clause in a Waiver a Possible Answer to Liability in Connecticut?

By Doyice Cotten

The plaintiff, Rita Lorentz, voluntarily signed a waiver of liability (containing an arbitration clause) when she took her children to a Sky Zone trampoline park. While there, she went to the restroom, slipped in a puddle, fell suffering injury, and subsequently sued the company, HJ & Edward Enterprises, LLC d/b/a Sky Zone (Lorentz v. HJ & Edwards Enterprises, LLC., 2020.

The agreement called for binding arbitration before an arbitrator; Sky Zone moved to compel arbitration. The role of this court was to determine if the waiver mandating arbitration was enforceable. The plaintiff ultimately filed a motion to stay the proceedings to compel arbitration.

[It is worthy of note that under Connecticut Supreme Court rulings (Hanks v. Powder Ridge Restaurant Corporation, 2005; Reardon v. Windswept Farms, LLC, 2006), courts in Connecticut are very reluctant to enforce liability waivers for provider negligence in sport and recreation cases. So it is likely that the only way Sky Zone would avoid liability in this case would be through an arbitrator’s decision.

Further, courts in a number of states have ruled that waivers of liability for recreational activities cover only incidents involving the recreational activity; these courts have held that the place of business still owes the patron a duty of ordinary care regarding incidents that are not related to the recreational activity (e.g., slip & falls, tripping on worn steps). Some of the  states that have ruled this way include New Jersey, California, Illinois, Arkansas, and New York. For more discussion of this concept, read Stelluti v. Casapenn Enterprises; Walters v. YMCA).]

Arbitration Language in Waiver

Pertinent language in the agreement signed by Lorentz follows:

I understand that by agreeing to arbitrate any dispute as set forth in this section, I am waiving my right … to maintain a lawsuit against SZ and the other Releasees for any and all claims covered by this Agreement. By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury … Reciprocally, SZ and the other Releasees waive their right to maintain a lawsuit against me … for any and all claims covered by this Agreement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY … ACCESS TO AND/OR USE OF THE SKY ZONE PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE … DETERMINED BY ARBITRATION … THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of Connecticut, without regard to choice of law principles.

Defendant’s Position

Sky Zone argued that “Connecticut has adopted a clear public policy in favor of arbitrating disputes.”  They cited other courts that have stated that there is a strong commitment to arbitration of disputes when “the parties have voluntarily agreed to arbitration …”  Sky zone claims that the courts have a 3 prong test and:

must stay any action as to which the applicant for a stay can establish the following facts: (1) that both the applicant and the plaintiff are parties to a written arbitration agreement; (2) that one or more issues referable to arbitration under that agreement are involved in the action sought to be stayed; and (3) that the applicant is ready and willing to proceed to arbitration on such arbitrable issues.

Plaintiff’s Position

Plaintiff’s major argument was that the waiver did not apply to slip and falls in a restroom; rather to trampolining and other recreational activities. She cited the section in the waiver entitled “Release of Potential Injuries” which expressly limits the injuries covered to injuries caused by “use of trampolines and other equipment at the Sky Zone Facility.” In addition, the waiver states “I understand that this release and waiver applies not only to the use of the trampolines, but also all other equipment, and all activities and games at the Sky Zone Facility.” [Bold emphasis added.]

Lorentz pointed out that she was not injured as a result of use of a trampoline, nor due to her participation in any game or activity, but due to a slip and fall caused by defendant’s negligence – which was not covered under the agreement. Thus, she argues that the incident is not covered by the arbitration clause.

Analysis of the Court

The court stated that in Connecticut, “Arbitration is a favored method to prevent litigation, promote tranquility and expedite the equitable settlement of disputes …” It added that such agreements should be construed “as broadly as possible” and that “Any doubt concerning the scope of arbitrable issues is to be resolved in favor of arbitration. The existence of a broad agreement to arbitrate creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”

The court went on to point out that Lorentz

…clearly misinterprets the language in the other part of the agreement, which clearly and unambiguously states, in pertinent and applicable parts, that “any dispute, claim or controversy arising out of or relating to my … access to and/or use of the sky zone premises and/or its equipment, including the determination of the scope or applicability of this agreement to arbitrate, shall be … determined by arbitration … this clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The words “any dispute, claim or controversy” and “use of the sky zone premises” unquestionably encompass the slip and fall in use of a bathroom as an area covered in the arbitration clause. [Bold emphasis added.] Had this language only been use of “trampolines and other equipment” at the Sky Zone Facility as claimed by the plaintiff, and not the “use of the sky zone premises,” the result may have been different. That is clearly not the case here. The court is convinced that the claims presented by the plaintiff clearly fall within the scope of the arbitration clause in the agreement.

The court proceeded to add that “The use of the word ‘premises’ in the agreement, and in the plaintiff’s complaint, is fatal to the plaintiff’s argument. The plaintiff, in … her complaint, states “… Rita Lorentz was on the premises … As she was walking near the sink, she slipped on water and fell to the ground …” It explained that the agreement’s arbitration covers any dispute, claim or controversy on the “premises,” and plaintiff admits in her complaint, that the injury occurred on the “premises.”

The incident in question was unquestionably covered in the arbitration language of the agreement; thus, the court ruled that Sky Zone clearly met its burden of proof as to the motion to stay proceedings and compel arbitration.

So…

From the results of this case, arbitration agreements do not appear to be covered by the earlier rulings about waivers by the Connecticut Supreme Court (Hanks and Reardon).  Consequently, since liability waivers are not likely to be enforced in the courts, sport, recreation, and fitness providers might be advised to include an arbitration agreement in their waiver. Of course, we do not know what the ruling of the arbitrator will be in this case. It is possible that the arbitrator will follow the law and reject the waiver, but it may be equally possible that the arbitrator would rule for the defendant and enforce the waiver. [The reader is advised to read The ABCs Of Arbitration Agreements In Waivers Of Liability  For Sport, Recreation, & Fitness Providers to learn more about the advantages and disadvantages of such agreements.]

Photo Credit: Thanks to Ralph Bean via Flickr.