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A divided New Jersey appeals court has delivered a blow to commercial skateboard parks viewed by many as safer venues for the sport than city streets, ruling that parents cannot waive in advance their children’s right to sue for injuries at such establishments. The 2-1 majority in Hojnowski v. Vans Skate Park, A-2028-03T5, invalidated a waiver signed by the mother of a boy who was then hurt at the park, finding that the rights of children to seek legal remedies trumps parental rights to choose a child’s activities. The waiver signed by Anastasia Hojnowski of West Deptford before her son Andrew, 12, fractured his leg at Vans Skate Park in Moorestown on Jan. 3, 2003, was “void from its inception,” the court ruled on March 10. “We do not, as a matter of principle, reject the proposition that a parent should be empowered to permit a child to engage in activities that are accompanied by a degree of inherent risk,” wrote Judge Edith Payne, joined by Judge Robert Fall. “What we hold here is that the parent should not, at the same time, be able to waive the child’s claim based on negligence.” The dissenter, Judge Clarkson Fisher Jr., would have upheld the waiver as a legitimate exercise of parental rights to make decisions about upbringing. There was a bright spot for the defense, though. The court upheld the portion of the waiver that requires arbitration of the injury claim. Barring reversal by the state Supreme Court, the case will go to arbitration in which the plaintiffs will be free to pursue all claims. Had the waiver been upheld in total, the only issue left for the arbitrator would have been whether the park intentionally failed to maintain equipment, says plaintiff’s lawyer Robert Porter of Cherry Hill, N.J.’s Bafundo, Porter, Borbi & Clancy. JUDICIARY AS GUARDIAN Vans Skate Park is one of several supervised parks around the country owned by Vans Inc., a publicly traded company that sponsors skateboard events and sells clothing and equipment. Anastasia took her son to the park in Moorestown, N.J., Fisher inferred, because she wanted Andrew to hone his skills and enjoy the sport in a safer environment than the streets, sidewalks and driveways of his community. For Andrew to use the park, though, Anastasia was required to sign away his rights to sue Vans in court, seek punitive damages and claim money for injuries unless Vans intentionally failed to prevent or correct a hazard. Any claims filed were to be put before the American Arbitration Association, the waiver said. But when Andrew fractured his femur, requiring two surgeries, Anastasia and her husband Jerry sued the facility for negligent supervision, failure to provide a safe place to skateboard, failure to control aggressive skateboarders and failure to warn the parents. Burlington County Superior Court Judge Cynthia Covie-Leese upheld the arbitration provision and said it was up to the arbitrator to decide whether the waiver barred any claims. But the appeals court found the waiver to be invalid as a matter of law, calling the bedrock of its decision “the principle that the judiciary must stand as the guardians of the state’s children in the context of this case.” Quoting another decision that invalidated a waiver of a child’s rights, Cooper v. Aspen Skiing Co., 48 P.3d 1229 (2002), Payne wrote, “To allow a parent or guardian to execute exculpatory provisions on his minor child’s behalf would render meaningless for all practical purposes the special protections historically accorded minors.” Just as minors are protected from their own improvident decisions, they should be protected from unwise decisions made on their behalf by parents routinely asked to release their child’s claims, Payne wrote. The court noted that school sports programs and businesses that offer facilities for hazardous sports such as skiing, sledding, roller skating and equestrian activities are protected by statutes, while skateboarding is not. If the Legislature wants to include skateboarding as a sport with inherent risks, it can, the court said. Until then, though, “no New Jersey statute rule or decision authorized Andrew’s mother to sign a pre-tort agreement limiting the liability of a tortfeasor to exclude negligent conduct in the circumstances of the case,” the majority found. The court also brushed aside the importance of protecting businesses like skate parks. “We view children to trump economic concerns such as these,” the court concluded, and it also said nothing in the record suggested limits on places like Vans would drive children into more dangerous, ad hoc venues. DISSENT: PARENTS ARE IN CHARGE In his dissent, Fisher rejected the majority’s view that parents’ constitutional rights to make appropriate choices for their children extended only to fundamental concerns such as establishment of a home, upbringing, education, religion and medical care. Fisher said it is wrong for the state to interfere in all the lesser choices, too, from playing football to collecting seashells. “The majority may not view these matters as important, but important or not, they and countless others ought to be resolved solely within the sphere of the family and, absent the parents’ unfitness, it should be beyond our courts’ power to say otherwise,” Fisher wrote. “My view is that absent proof of unfitness, the guardians of the State’s children ought to remain their parents.” Plaintiffs lawyer Porter says the decision makes sense because parents are already required to get judicial approval to settle a claim after an injury. “Why should we allow the parent to waive any right to an injury before it occurs,” he says. At the same time, he’s disappointed he can’t try his case before a jury, he says. Defense counsel Alex Raybould of Reilly, Supple & Wischusen in New Providence, N.J., says Vans has a policy of not commenting on pending litigation. Raybould says, however, that the company will exercise its automatic right to ask the state Supreme Court to review split decisions in the Appellate Division. Raybould says, somewhat wryly, that the decision seems to say, “The parents can contract on behalf of the minor as long as it’s a good deal.” He says he would like to see statutory protections for skateboard parks that are given to other sports venues. “You could even do it with a minor revision to the Roller Skating Rink Safety Act in the definitional section by saying skateboard parks are roller skating rinks.” One of the problems with skateboarding cases, he says, is the lack of official safety standards for skateboard parks. He says ASTM International, the global organization whose experts establish industrial product standards, has yet to decide on a set of standards for skateboard parks, mostly because there are so many types of parks.

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