Sky Zone Can’t Force Arbitration Without Mom’s Signature

• Date: 2022
• Attorney: Ken Elwood
• Lawsuit Progress: Summary judgment motion won by Ken Elwood in the trial court and again in the NJ App. Div.
• Practice Areas: Premises Liability, Personal Injury

By Joyce Hanson ·  Listen to article

Law360 (February 15, 2022, 6:35 PM EST) — A Sky Zone trampoline park can’t enforce an arbitration agreement signed by the mother of a girl whose friend was injured while using the facilities, a New Jersey state appeals court has ruled, rejecting the company’s argument that the woman had the authority to sign.

An appellate panel said in a published opinion Tuesday that Sky Zone South Plainfield wasn’t persuasive in arguing that the friend’s mother, Gina Valenti, had apparent authority to sign the document since the child’s own mother, Lisa Kump-Checchio, had previously signed similar agreements on behalf of her daughter Olivia when she brought her to the indoor trampoline park.

The panel disagreed with the assertion of Evermore Fitness LLC, doing business as Sky Zone South Plainfield, that Kump-Checchio’s execution of the five agreements in 2016 demonstrated “a pattern of conduct sufficient to find Valenti had actual and apparent authority” to sign a 2018 agreement when Valenti brought Olivia to Sky Zone.

“The evidence in the record does not sustain a finding of any manifestation made by Lisa to Valenti to expressly imbue Valenti with the power to waive any rights regarding any claims Olivia was entitled to pursue against Sky Zone,” the panel ruled.

Olivia Checchio was 14 years old in August 2018 when she went to the Sky Zone in South Plainfield, New Jersey, with four friends and Valenti, who was the mother of one of the children, according to the panel.

When they arrived at Sky Zone, Valenti signed a “participant agreement, release and assumption of risk” document that included an arbitration provision saying the adult who signed on behalf of the minor child waived a jury trial and agreed to arbitrate any dispute arising out of the child’s use of the premises, the panel said.

Olivia was injured while using the park’s facilities, after which Kump-Checchio filed a suit on her daughter’s behalf and for her own individual claims, according to the panel.

Sky Zone then moved to enforce the arbitration agreement, the panel said. But the trial court denied the motion, saying that because Valenti had signed the arbitration agreement, Olivia’s own parents had never agreed to the arbitration provision.

On April 25, Sky Zone moved for reconsideration and won its motion, which included the five agreements signed by Kump-Checchio in 2016. According to the appellate panel, the trial court found based on those agreements that Valenti had “actual and apparent authority” to sign the arbitration agreement in 2018.

However, the panel noted, the appeals court issued a decision two weeks later in Gayles v. Sky Zone Trampoline Park, finding that a non-parent lacked apparent authority to sign Sky Zone’s waiver agreement on behalf of a minor child.

Following the Gayles decision, Kump-Checchio asked the trial court to reconsider its April 25 order, and the judge granted the motion on June 17, vacating the order.

Sky Zone appealed, and the panel on Tuesday decided that the 2016 agreements did not vest Valenti with the authority to enter into the 2018 agreement.

“Lisa [Kump-Checchio] did not sign an agreement waiving Olivia’s rights to a jury trial on the day Olivia was injured,” the panel said Tuesday. “Valenti never testified that Lisa gave her the specific authority to waive Olivia’s rights regarding any personal injury claim that might arise from Olivia’s time at the park.”

The Checchios’ attorney, Kenneth W. Elwood of Blume Forte PC, told Law360 in an email late Tuesday that the Sky Zone defendants “sought to do indirectly what they could not do directly” and force arbitration.

“They knew that the law required a parent, guardian or one with power of attorney to waive a child’s right to a jury and bind them to arbitration,” Elwood wrote. “Since they did not have that proof, they argued through the use of apparent authority that it was sufficient that a neighbor signed the agreement, despite the lack of any authority for her to waive this minor’s constitutional right to a jury trial.”

Elwood continues, “unfortunately, the use of arbitration clauses has become increasingly commonplace in the last 3 decades. To the unsuspecting consumer, they may appear innocuous and even beneficial. The truth is they are not. Their goal is to cut off access to the courts. They set up a separate privatized system with their own procedural rules designed to favor the party who drafted them and deprive the consumer of a jury trial and due process. There are no judge, jury, or rules of evidence to apply. Their rules often change the statute of limitations, burdens of proof and impose costs and attorney’s fees up on the losing side. You may have noticed that Congress just passed legislation to end the forced arbitration of sexual assault and harassment claims.”

What was surprising, Elwood added, was that “this very same defendant lost the same exact argument a few months earlier in Gayles v. Sky Zone Trampoline Park.”

An attorney for Sky Zone declined to comment Tuesday.

Sitting on the state appellate panel were Judges Heidi Willis Currier, Patrick DeAlmeida, and Morris G. Smith.

The Checchios are represented by Kenneth W. Elwood of Blume Forte PC.

Sky Zone is represented by Jill A. Mucerino, Kelly A. Waters, Carolynn A. Mudler, and Sean P. Shoolbraid of Wood Smith Henning & Berman LLP.

The case is Olivia Checchio et al. v. Evermore Fitness LLC, d/b/a Sky Zone South Plainfield, et al., docket number A-3461-20, in the Superior Court Of New Jersey Appellate Division.

–Editing by Alex Hubbard.
For a reprint of this article, please contact reprints@law360.com.

DISCLAIMER: This article was altered on https://www.njatty.com/ on February 24th, 2022 to include additional comments from attorney Kenneth Elwood, the Checchios’ counsel.