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Gross Negligence By Any Other Name Would Still Be ??? (NJ)

September 1, 2016

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In New Jersey, an adult can voluntarily agree to extinguish their right to pursue a negligence action by signing a wavier of liability.  The NJ Supreme Court effectively addressed this issue in a case that arose out of an injury in a spin class at a gym.  See <em>Stelluti v. Casapenn Enterprises, LLC.  </em>While upholding the validity of such a waiver, the Court limited its scope to ordinary negligence leaving open the potential for claims of gross negligence or statutory violations on public policy grounds.  Recently, the Supreme Court revisited the concept of a waiver of liability with a focus on what constitutes gross negligence.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/09/Steinberg-v.-Sahara-Sams-Oasis-LLC.pdf">Steinberg v. Sahara Sam's Oasis, LLC,</a> </em>the plaintiff signed a waiver of liability before riding on the FlowRider at the defendant water park. The FlowRider is a surfing simulator that the manufacturer has described as an "extreme sport and high risk activity."  The plaintiff and ride operator disputed whether he was given instruction before attempting to ride the flowboard.  Within seconds of being released into the water, he fell head first with a resulting spinal cord injury leaving him an incomplete paraplegic.
The Court accepted that the waiver was valid and enforceable.  At issue was whether the plaintiff had sufficient proofs of gross negligence to warrant submission to a jury.  The motion judge and a divided appellate panel did not believe there was a triable issue.  The Supreme Court did.
The term "gross negligence" had not been defined by the Supreme Court and has historically been inconsistently applied.  On a continuum from ordinary negligence to gross negligence to recklessness to willful conduct to intentional act, gross negligence is just a higher degree of negligence.  The Court recognized it as "the failure to exercise slight care or diligence."  In other words, "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."  However, it is a lesser standard than recklessness.
In reversing summary judgment granted to the waterpark, the Supreme Court found that when the facts were viewed most favorably to the plaintiff, a reasonable juror could find gross negligence based upon the "entire tableau" of allegations asserted by the plaintiff.  These included claims that the park failed to post updated manufacturer signage with more explicit warnings, failed to provide instruction as directed by the ride manufacturer, and failed to show the plaintiff a manufacturer produced video instruction.
While the Supreme Court has finally defined "gross negligence" - the definition provides little more guidance than the New Jersey Model Jury charge.  However, the Court has made clear that gross negligence does not involve the more extreme reckless standard and that it can be evaluated on the basis of cumulative factors.
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.

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