Summary Judgment Rulings in Recent New Jersey Waiver Cases when Gross Negligence is Alleged

By Doyice Cotten

Plaintiffs often allege both negligence and gross negligence when injured and seeking redress. New Jersey law generally holds that “contracting parties are afforded the liberty to bind themselves as they see fit.” Waivers of provider negligence, however, are disfavored in law and must be subjected to close judicial scrutiny. Such waivers must reflect the intent of the party giving up rights to do so voluntarily and with knowledge of the consequences. Further the signer of a contract, absent fraudulent conduct, is presumed to understand and consent to its terms.

The same is not true when the conduct of the provider constitutes gross negligence. Some definitions are necessary at this point.


Negligence is the failure to exercise reasonable care that leads to a natural and probable injury.

Gross negligence “falls on a continuum between ordinary negligence and recklessness, a continuum that extends onward to intentional conduct.” Gross negligence “is a higher degree of negligence, and undoubtedly denotes the upper reaches of negligent conduct.'” It is “commonly associated with egregious conduct.”

The New Jersey model jury instructions also convey that gross negligence “is an indifference to another by failing to exercise even scant care or by thoughtless disregard of the consequences that may follow from an act or omission.”

Effect of the Waiver

An effective waiver will protect the provider from liability for injuries resulting from provider negligence and result in a grant of summary judgment in favor of the provider. The question of interest is: will the court grant summary judgment when there is an allegation of gross negligence? We will look briefly at three cases.

Bartlett v. Push to Walk (2018)

A quadriplegic man was injured when working with a personal trainer at Push to Walk (a health club). The trainer was urging (pushing) performance of an activity. Actions of the trainer involved failure to use the safety features of the operator’s manual and failure to give sufficient safety instructions to the client. Injury resulted and suit followed. Based on the waiver, summary judgment was granted to the defendant on the negligence claim.

The court stated that summary judgment for a defendant can be appropriate when gross negligence is alleged when “there are no material disputes of fact and the conduct, even if negligent, was clearly not an egregious departure from the standard of reasonable care.” The court declared that evidence was such that a rational jury could find gross negligence; the court denied defendant’s motion for summary judgment.

Pulice v. Green Brook Sports 85 Fitness, LLC (2017)

It is not appropriate to grant summary judgment when there are disputes of material fact or it is not clear that the defendant’s conduct failed to rise to the level of gross negligence. Pulice was injured when a ten-pound dumbbell fell on her face as her trainer was handing it to her. Plaintiff’s negligence claim was barred by the waiver of liability.

Regarding the gross negligence claim, the appellate court observed that gross negligence requires “indifference to consequences,” and related it to recklessness and willful/wanton conduct (a definition not really consistent with most NJ courts). Subsequently, the court held that the facts did not support the gross negligence claim and granted summary judgment for the defendant health club.

Steinberg v. Sahara Sam’s Oasis, LLC (2016)

Steinberg, while a patron of defendant’s water park, suffered a catastrophic spinal cord injury on a surfboarding water ride. Sahara Sam’s 1) failed to post warning signs, 2) failed to instruct patrons on how to safely ride the simulated surfboard, 3) failed to properly train its employees regarding safety procedures, and 4) failed to comply with the mandates of the New Jersey Carnival-Amusement Rides Safety Act.

A pre-injury waiver effectively waived the plaintiff’s ordinary negligence claim.  The New Jersey Supreme Court ruled that a reasonable jury could find that the plaintiff’s injuries were proximately caused by the gross negligence of the water park.  The court did not grant summary judgement.


Several points to note:

  • New Jersey courts enforce liability waivers of provider negligence that follow court established standards.
  • New Jersey courts do not enforce waivers of liability for gross negligence.
  • New Jersey courts can grant summary judgment based on a waiver of liability for the claim of gross negligence when there are no material disputes of fact and the conduct, even if negligent, was clearly not an egregious departure from the standard of reasonable care.

Photo Credit: thanks to Jason Rosenberg via Flickr.