Application of the assumption of risk and disclaimer of liability clauses in the confirmed member agreement regarding slip and fall, and refusal of an oral attempt to modify the pleading to add a claim for confirmed gross negligence – Litigation, mediation and arbitration

United States: Application of the assumption of risk and disclaimer of liability clauses in the confirmed member agreement regarding slips and falls, and refusal of an oral attempt to modify the plea to add a confirmed gross negligence claim

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Skarbnik v. Life Time Fitness, Inc., File n ° A-3229-19, 2021 WL 3923270 (App. Div. Sept. 2, 2021)

The complainant alleged that upon leaving the class in a hot yoga studio, she slipped and fell sweaty on the floor. The trial court allowed the defendant fitness center’s motion for summary judgment to dismiss the plaintiff’s allegations of negligence, finding that the provisions relating to the assumption of risk and the exemption from liability of the Plaintiff’s Member Agreement applied to the Plaintiff because she was still “participating”. when she fell and the sweat on the floor was a natural consequence of hot yoga. At the oral argument hearing on the underlying motion, the plaintiff attempted to orally modify her argument to add a claim for gross negligence, presumably because gross negligence cannot be waived in New Jersey. On appeal, the court upheld the lower court rulings that the slip and fall was not in a “garden variety” location and that participating in risk is inherent in the sport. Importantly, although the Complainant’s Membership Agreement was signed approximately six years before her accident, it included specific provisions which included: an express waiver of liability which was found to have explicitly covered negligence claims. Although New Jersey is a state that requests an opinion, the plaintiff’s oral opposition was inappropriate as the request must be argued in writing to fairly inform the opposing party of the claims and issues to be raised at trial. Finally, on the merits, this also failed, as the accumulation of sweat on the floor and the dimming of the lights was not gross negligence.

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