NJ Appellate Division Speaks Out on Liability Waiver Enforceability

In Gayles v. Sky Zone Trampoline Park, the Appellate Division addressed what was an issue of first impression for New Jersey Courts. Specifically, the Court determined whether an adult can validly sign a liability waiver for children not their own. The Court answered this question in the negative, absent legitimate apparent authority.  

The facts of Gayles are relatively straightforward. A parent invited several of her son’s friends to an outing at Skyzone to celebrate his birthday. Gayles v. Sky Zone Trampoline Park, 2021 N.J. Super. LEXIS 61, at *1 (App. Div. May 12, 2021). For those unfamiliar with it, Skyzone is a recreation center where participants, often children, can use trampolines alone or with friends. Id. Upon arrival at Skyzone, the parent executed liability waivers on behalf of her own son and the other children accompanying her. Id. All of the children she signed for were minors. Id.

During their time at Skyzone, one of the children was injured while using a trampoline, giving rise to the lawsuit at issue. Id. at 4. On appeal, Skyzone argued that it was reasonable in its reliance on the parent’s apparent authority to sign its waivers on behalf of the children accompanying her. Id. at 5. In addition, Skyzone claimed that to hold otherwise would unreasonably burden its business in that it would be forced to obtain consent or powers of attorney from the parent or guardian of every child that uses its facilities, even in a party setting such as the one at issue. Id. at 5.

The Appellate Division rejected both of these arguments. Regarding Skyzone’s argument alleging the existence of apparent authority, the Court found that none existed, stating that, “[w]e can find no decision…in which someone who was not the child's parent…possessed the requisite actual or apparent authority to execute a waiver of rights regarding the minor's personal injury claims.” Id. at 10. Despite finding that there was a valid agency relationship between the parent and the minor children accompanying her, the Court’s rejected the existence of apparent authority as there was no evidence beyond Skyzone’s own intake procedures that the scope of the parent’s authority as agent extended to the execution of a liability waiver. Id. at 13. The Court noted the importance of such authority given the waiver’s execution would substantially limit the means by which any child could recover for injuries sustained at the facility. Id.  

With regard to Skyzone’s argument that the imposition of a requirement to assure consent on behalf of such minors would unreasonably burden its business, the Court stated that it was unpersuasive as such a mandate would not be unduly burdensome. While not addressing this argument at length, the Court suggested possible methods of implementation could include an online consent form to be completed by each parent, or a form which could be emailed to each parent and given to their child for submission on arrival. Id. at 14.

The main takeaway from this decision is that facilities desiring protection from liability waivers must assure that the signatory has proper authority to execute the document on behalf of any minors accompanying him/her.

Recent Decision on Florida's Negligence Based "Going and Coming" Rule

The Florida Second District Court of Appeal recently ruled on the “going and coming” rule in Peterson v. Cisco Sys., 2021 Fla.App.LEXIS 7652 (Fla. 2d DCA 2021).  This case involved a personal injury claim in which the Plaintiff sued Cisco Systems under the theory of respondeat superior for damages which were allegedly caused by the negligent acts of Cisco’s employee.  As we all know, “respondeat superior makes employers liable for the negligence of their employees for wrongful acts committed within the course and scope of their employment." Id.

Cisco Systems sent an employee from Virginia to Tampa, Florida, to do work for a customer located in Tampa.  The Cisco employee had to drive a rental car from the hotel he was staying at to an on-site location for the Tampa based customer.  The Cisco employee was driving to the work site from the hotel when the collision with Plaintiff occurred.  Cisco moved for summary judgment, claiming a person driving to or from work is not within the course and scope of his employment.  The trial court granted summary judgment in favor of Cisco.  An appeal was raised and heard by the Second DCA.

The “going and coming” rule is a limitation on the vicarious liability of an employer.  Under Florida law, it is well established that “an employee driving to and from work is not within the scope of employment so as to impose liability on the employer." Id. at 3.  The court distinguishes this rule based in negligence with the “travelling employee” rule developed under workers’ compensation law.  The “travelling employee” rule states "an employee whose work entails travel away from the employer's premises is within the course of his employment at all times during the trip other than when there is a distinct departure for a non-essential personal errand." Id. at 4.

This decision firmly establishes the “travelling employee” rule only applies in workers’ compensation cases.  Additionally, the “going and coming” rule is more limited in its application because it requires the employees conduct to occur substantially within authorized time and space limits and have a purpose that serves the master.

It is important to recognize these situations when developing Answers and Affirmative Defenses as well as responses to Requests for Admissions.  Ill-advised admissions or concessions that an employee was working in the course and scope of his employment will overrule the limitation afforded by the “going and coming” rule.  Generally, vicarious liability claims must be tied to the course and scope of employment.  That makes it important to understand this distinction as, though similar, one may be a viable exit strategy while the other is a failed argument. 

Florida Liability Claims Conference Addresses a Wave of Emerging Topics in Florida Defense Litigation

The Florida Defense Lawyers Association held their annual Florida Liability Claims Conference between June 17-18 at Disney’s Yacht Club Resort on the Walt Disney World property in Orlando. The event was attended by insurance attorneys and professionals alike, including adjusters, corporate representatives from a number of institutional carriers and a host of medical and engineering experts.

Current topics coloring civil litigation throughout Florida were discussed, with panel discussion and seminar sessions held on Thursday and Friday. Callahan Fusco had the privilege of contributing to panel conversations regarding effective approaches to expert discovery in high medical damages cases, as well as attending discussions about the disparate treatment of defendants in Boecher expert discovery, the importance- and lost art- of professionalism in ongoing litigation and settlement discussions, and the strategic value and importance of independent medical examinations in insurance defense litigation. Other topics addressed at length in panel discussions or conference seminars included spoilation of evidence issues, both presuit and post-suit, evaluating the reasonableness of hospital billing, the effective use of courtroom visualizations at trial, the use of biomechanical and biomedical experts in premises liability litigation, emerging issues in Florida medical malpractice law and Florida’s recent shift back to the Daubert standard and the way that both increases the importance of foundational deposition discovery and opens the door for increased defense challenges to Plaintiff expert witnesses.

Individual sessions involved discussions as detailed as how to evaluate seat belt marks and what they tell litigators about occupant-belt relationships to broader discussions about defense-friendly or defense-averse trends in Florida case law. Ultimately, each seminar and panel discussion was aimed at better equipping practitioners with the procedural, substantive and ethical tools to refine and strengthen their motion, discovery and trial practice.

The FDLA Young Lawyers also proudly partnered with the Second Harvest Food Bank of Central Florida to help provide hunger relief to families battling food need in the wake of the global pandemic that affected so many across the United States. This terrific partnership gave a philanthropic feel to an event that annually helps produce better lawyering and counsel across the state of Florida.

A Foreign Corporation Registered And Authorized In Georgia Is A Resident Defendant Corporation For Personal Jurisdiction Purposes

Personal Jurisdiction “is the power of a court to render a personal judgement, or to subject the parties in a particular case to the decisions and rulings made by it in such a case.” YP, LLC v. Ristich, 341 Ga. App. 381 (1) (801 SE2d 80) (2017). Georgia residents are, without question, subject to personal jurisdiction in this state. See Watts v. Allstate Ins. Co., 214 Ga. App. 462, 463.

The Georgia Court of Appeals confronted this issue of consent to general jurisdiction in McCall v. Cooper Tire & Rubber Co., Case No. A20A0933 (decided June 1, 2020). In that case, the Georgia Court of Appeals, relying upon a 1992 decision of the Georgia Supreme Court, held that under Georgia’s Long Arm Statute, a business that has registered to do business in Georgia must be treated as a resident for purposes of personal jurisdiction. Therefore, a corporation that registers to do business in Georgia is subject to the general jurisdiction of Georgia courts.

McCall involved a claim of negligence, strict product liability, and punitive damages, against Cooper Tires. McCall’s complaint alleges that he was a passenger in a vehicle that was equipped with a rear tire designed, manufactured, and sold by Cooper Tire. As the vehicle was traveling on a Florida roadway, the tire tread “suddenly failed and separated from the remainder of the tire. The driver lost control of the vehicle, which left the roadway and rolled over until it came to rest in a nearby wooded area. McCall sustained severe injuries from the crash. Cooper Tire answered the compliant and amongst other defenses raised the defense of lack of personal jurisdiction. Id. Cooper argued that “as a non-resident corporate defendant with only minimal contacts in Georgia, it is not subject to personal jurisdiction in the state.” Cooper Tire is incorporated in Delaware and maintains its principal place of business in Ohio. McCall argued that such circumstances do not make it a Georgia resident for jurisdictional purposes. The trial court agreed and granted Cooper Tire’s motion to dismiss.

O.C.G.A § 90-10-91 defines the grounds for exercising personal jurisdiction over non-residents. In certain circumstances, Georgia courts may exercise personal jurisdiction over non-residents pursuant to Georgia’s Long Arm Statue. In this case the long arm statute was not considered due to binding precedent that establishes that Cooper Tire was in fact a resident corporation subject to suit in Georgia. Allstate Ins. Co. v Klein, 262 Ga. 599,601 (422 SE2d 863) (1992), determined that “a foreign corporation authorized to do or transact business in Georgia at the time a claim arises is a resident for purposes of personal jurisdiction over that corporation in an action filed in the courts of the state.” Klein, explicitly holds that a foreign corporation authorized to do business in this state is a Georgia resident for jurisdictional purposes. Due to the fact that Cooper Tire is a resident corporation subject to personal jurisdiction in this state, the trial court erred in granting the motion to dismiss.

The defense of lack of Personal Jurisdiction will always fail for non-resident corporations who are authorized, and do transact business, in the state of Georgia.

Florida Supreme Court Adopts New COVID-19 Protocols Aimed at Getting State Courts Back to “Business as Usual”

New protocols for the operation of Florida’s Appellate and Trial Courts will be implemented on June 21, 2021, according to Fla. Admin. Order No. AOSC 21-17 (the “Order”), issued recently by the Florida Supreme Court. 

As Floridians continue to get vaccinated, the Florida Supreme Court has responded in turn, noting in the Order that “fully vaccinated persons do not need to wear masks or physically distance in most indoor and outdoor settings”, with the exception of locations that are preempted by federal regulations.

This Order establishes new health and safety protocols and emergency operational measures consistent with the present state of the COVID-19 pandemic in the State of Florida and extends and modifies previously enacted temporary emergency operational measures for purposes of mitigating the effects of the public health emergency on the judicial branch and its participants during and after the emergency. It is important to note that, unless the Chief Justice authorizes an extension of time, courts will have until August 2, 2021, to fully comply to the new protocols in Fla. Admin. Order No. AOSC 21-17. The idea behind the new protocols, per a letter authored by the Chief Justice of the Florida Supreme Court, is to continue to move courts away from remote trials in all jurisdictions, including remote civil trials, authorized in June 2020 in AOSC 20-23.

To that end, Fla. Admin. Order No. AOSC 21-17 established guidelines for the operational measures that Florida Appellate and Trial Courts are required to follow, including the use of technology in court Proceedings. The Order gives the Chief Justice broad discretion in determining when and how technology may be used, and under what circumstances it can be used for trial court proceedings that must be conducted in person.  It also delegates discretion to individual circuits to continue to allow certain proceedings, including motion hearings, to be conducted virtually, as the efficacy of virtual litigation has been battle-tested by the rigors of the pandemic. Detailed provisions for the administration of oaths, law school practice programs, Appellate and Trial Court proceedings including time frames for case management and a list of factors based, on priority, that the Chief Justice should considered when determining how to utilize the ever-expanding list of available and in-person court resources, can be found here. The protocols and measures took effect on June 21, 2021 and shall remain in effect until amended or terminated by subsequent order.

The bottom-line impact of the new administrative order? As the state emerges from the COVID-19 epidemic, courts are increasingly return to “business as usual”, with the liberty to use technology in court proceedings from lessons learned the hard and fast way during the pandemic.

Think Twice Before Asking Employees to Drive One Another – It Could Cost You

In the Matter of the Salvation Army Buffalo ADU, 2021 NY Wrk Comp G2611715, it was determined that a slip and fall accident in an icy parking lot on the claimant’s way into work had occurred within the claimant’s scope of employment when she had been asked by her employer to transport one of her co-workers to work on the date of the accident. 

The claimant testified that the day prior to the accident, her manager asked her to drive the assistant manager to work the next day, who was without a ride and was in possession of a store key to open the store. On the date of accident, while walking into the store after picking up the assistant manager, the claimant slipped and fell in the snowy parking lot.

The carrier argued that the claim should be disallowed as the claimant was not in the course and scope of her employment at the time of the accident and it did not occur on the employer’s premises. The claimant argued that the claim was compensable because she was engaged in a special errand at the time of her accident. The Law Judge determined that the parking lot "was a risk shared by the general public” which “does not constitute an accident related to her employment,” and the claim was disallowed.

The claimant appealed and the Board Panel majority reversed the disallowance of the claim, finding that the claimant’s accident arose out of her employment. In the Mandatory Full Board Panel Decision, it was noted that generally, “an injury sustained during travel to and from work is not compensable under the Workers' Compensation Law as it does not arise out of and in the course of the injured worker's employment (see Matter of Slack v Livingston-Wyoming ARC, 294 AD2d 716 [2002], lv dismissed 98 NY2d 727 [2002]) . . . [A]n exception to this rule lies where the employee is engaged in a 'special errand' for the employer. To trigger such exception, it must be demonstrated that the employer both encouraged the errand and obtained a benefit from the employee's performance thereof (see Matter of Neacosia v New York Power Auth., 85 NY2d 471 [1995]; Matter of Dziedzic v Orchard Park Cent. School Dist., 283 AD2d 878 [2001])" (Matter of Carney v Regal Dry Cleaners, 302 AD2d 702 [2003]). "Coverage for employees on special errands is portal-to-portal" (Matter of Gray v Lyons Transp., 179 AD2d 985 [1992][internal citations and quotation marks omitted]).

The Mandatory Full Board Panel Decision found that the record supported that the claimant was on a special errand at the time of her accident since she had been asked by the manager to bring the assistant manager to work on the date of the accident, which was a benefit to the employer since the claimant did not have a key to the store and the assistant manager did. Therefore, it was determined that the claimant’s accident arose out of the course and scope of her employment as she was on a special errand, which would allow her "portal-to-portal" coverage.

Based on this decision, it can be presumed that but for the fact that the claimant had been asked by her manager to drive the assistant manager to work on the date of the accident, this claim would not be compensable since generally, a slip and fall in a public parking lot on one’s way into work would not be found to be compensable.