Anyone who has young children knows how popular the “bounce places” are for birthday parties, and has also needed to sign a waiver/release in order to allow their kid to participate. Typically, the waivers include the participant’s acknowledgment and acceptance of the risks involved in the activity, and a release of liability in the event of injury.  These waivers are generally enforceable, but in Defina v. Go Ahead and Jump 1, a New Jersey court ruled on whether a party can also require the releasee to attend binding arbitration.

The plaintiff’s father signed a waiver allowing the plaintiff to use the trampoline facility, and the waiver included an acknowledgment that the participant was giving up the right to a trial and agreeing to resolve any dispute allegedly arising out of the facility’s gross negligence at arbitration.

Plaintiff was injured and (through his parents) filed a lawsuit in the Superior Court, which was met by the defendant’s successful motion to compel arbitration pursuant to the waiver.  On appeal of the order compelling arbitration, the plaintiff argued that the arbitration provision was unenforceable because it did not clearly and unambiguously inform the consumer that they were giving up the right to file a lawsuit and have their claims resolved by a jury. The Appellate Division agreed.

Importantly, the Court found that mere reference to a “trial” did not adequately explain to the plaintiff that he was waiving his right to pursue the remedies available in a court of law.
Not surprisingly, now the defendant’s release includes specific reference to waiver of the right to a “trial in a court of law before a judge and jury.”

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.