Application of assumption-of-risk and waiver-of-liability clauses in member agreement upheld regarding slip and fall, and denial of oral attempt to amend pleading to add claim for gross negligence affirmed.

The plaintiff alleged that as she was leaving class at a hot yoga studio, she slipped and fell on sweat on the floor. The trial court granted the defendant fitness facility’s motion for summary judgment to dismiss the plaintiff’s negligence claims, finding that the assumption-of-risk and waiver-of-liability provisions in the plaintiff’s member agreement applied to the plaintiff because she was still “participating” when she fell and that 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 amend her pleading to add a gross negligence claim, presumably because gross negligence cannot be waived in New Jersey. On appeal, the court affirmed the trial court’s rulings that the slip and fall was not in “a garden variety” location and that  participating in the risk is inherent in the sport. Importantly, although the plaintiff’s membership agreement was signed about six years before her accident, it included specific provisions that included: the specific risk of any “accidental” or “slip and fall” injuries, that injuries may result during supervised or unsupervised activities, and an express waiver of liability that was found to have explicitly covered negligence claims. While New Jersey is a notice-pleading state, the plaintiff’s oral opposition was improper because the claim must be plead in writing to fairly apprise the adverse party of the claims and issues to be raised at trial. Finally, substantively it failed, too, because the accumulation of some sweat on the floor and dimming the lights did not constitute gross negligence.

^{Case Law Alerts, 1st Quarter, January 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}