                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0805-15T3

MARIA PULICE and FRANK PULICE,

        Plaintiffs-Appellants,

v.

GREEN BROOK SPORTS & FITNESS, L.L.C.,
d/b/a ECLIPSE SPORTS AND WELLNESS,
CHRISTIAN PACIFICO, and OSCAR CORTES,

     Defendants-Respondents.
___________________________________

              Argued telephonically         February      1,   2017   –
              Decided July 17, 2017

              Before Judges Koblitz and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No. L-
              1424-14.

              Eli L. Eytan argued the cause for appellants.

              Paul J. Soderman           argued    the    cause    for
              respondents.


PER CURIAM

        The issue presented is whether the Law Division erred in

granting summary judgment to defendants Green Brook Sports &

Fitness,      LLC,    d/b/a   Eclipse     Sports    and   Wellness,       Christian
Pacifico, and Oscar Cortes, dismissing plaintiffs Maria Pulice's

and Frank Pulice's negligence complaint as a result of a waiver

Maria signed releasing the health club from liability for injuries

she incurred at the club.1    After reviewing the record in light

of the contentions advanced on appeal, we affirm.

     We view the facts from the record in the light favorable to

plaintiff, the non-moving party.    Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995). When plaintiff joined the health

club, she signed a waiver and release stating,

          Members and member's guests shall hold the
          club harmless from any cost, claim, injury,
          damage, or liability incurred at the club.
          The club urges members and guests to obtain a
          physical examination from a doctor before
          using any exercise equipment or participating
          in any exercise classes. . . Members shall be
          responsible for any property damage or
          personal injury caused them, their family or
          their guests.

          [Emphasis added.]

Less than three months later, plaintiff was injured at the club

when a ten-pound dumbbell fell on her face as her trainer, Oscar

Cortes, whom she hired through the club, was handing it to her to



1
  Since Frank's claim is wholly derivative of his wife Maria's
claim, we use the singular "plaintiff" throughout the balance of
this opinion. Our use of their first names is for ease of reference
and we mean no disrespect.



                                2                           A-0805-15T3
perform an exercise.2    Plaintiff subsequently filed a negligence

lawsuit against defendants.

     Defendants,    relying   on   the   waiver,   moved   for   summary

judgment.     The motion was unopposed and was granted on July 24,

2015.   Plaintiff filed a motion for reconsideration contending

that she did not oppose the summary judgment motion because she

was under the impression that it had been adjourned, and wanted

the court to consider her opposition to summary judgment.

     At argument on September 18, Judge Thomas C. Miller stated

he would reconsider the defense motion for summary judgment taking

into account plaintiff's opposition.       Plaintiff claimed that she

never received a full and accurate copy of the health club's waiver

and release through discovery.         She argued that the waiver and

release was ambiguous, and therefore defendants were not shielded

from liability pursuant to Stelluti v. Casapenn Enters., 203 N.J.

286 (2010).

     After argument, Judge Miller entered an order and issued a

detailed written decision rejecting plaintiff's contentions and

reaffirming the grant of summary judgment.         Enforcing the waiver

and release clause, he relied upon our Supreme Court's reasoning

in Stelluti:


2
  Cortes' explanation of the accident was never disclosed because
he could not be located to be deposed.

                                   3                             A-0805-15T3
          Although there is public interest in holding
          a health club to its general common law duty
          to business invitees--to maintain its premises
          in a condition safe from defects that the
          business   is   charged    with   knowing   or
          discovering--it need not ensure the safety of
          its patrons who voluntarily assume the risk
          by engaging in strenuous physical activities
          that have a potential to result in injuries.
          Any requirement to so guarantee a patron's
          safety from all risk in using equipment, which
          understandably is passed from patron to
          patron, could chill the establishment of
          health clubs. . . . There has been recognized
          a "positive social value" in allowing gyms to
          limit their liability in respect of patrons
          who wish to assume the risk of participation
          in activities that could cause an injury.

          [Id. at 311.]

Thus, the judge ruled that the waiver in question "is not ambiguous

and unequivocally expresses that members agree to waive and release

liability and hold the club harmless."   The judge determined that

health club members were clearly responsible for personal injury

they incurred at the club based on the waiver's language: "Members

shall be responsible for any property damage or personal injury

caused them, their family or their guests."      Lastly, the judge

found that plaintiff's argument, that she was not provided with a

clear or complete copy of the membership contract containing the

waiver and release during the discovery period, was not a reason

to deny defendants immunity.   Plaintiff admitted at her deposition

to signing the contract with the waiver and release, and a full


                                 4                          A-0805-15T3
and complete copy with her signature was provided to her at

argument.     This appeal followed.

      When reviewing a grant of summary judgment, we adhere to the

same standard as the motion judge.           Davis v. Brickman Landscaping,

Ltd., 219 N.J. 395, 405 (2014).           Thus, we consider, as the motion

judge did, "whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party,

are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party."                Id. at

406 (quoting Brill, supra, 142 N.J. at 540).                 "If there is no

genuine issue of material fact," an appellate court must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).                      We

accord   no   deference    to     the   trial   judge's   legal   conclusions.

Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citing Zabilowicz

v. Kelsey, 200 N.J. 507, 512-13 (2009)).

     With these principles in mind, we conclude that there is no

reason   to   disturb     Judge    Miller's     grant   of   summary   judgment

dismissing plaintiff's complaint.            We also conclude that the judge

properly granted defendants' summary judgment after considering

plaintiff's opposition.



                                         5                              A-0805-15T3
     Plaintiff contends that Judge Miller misapplied Stelluti.

Plaintiff relies upon Walters v. YMCA, 437 N.J. Super. 111, 113

117-19 (App. Div. 2014), where we determined that Stelluti did not

apply to a liability waiver clause in a YMCA membership agreement

when the personal injury claim was based upon a "negligently

maintained stair tread" at a health club.                  Such reliance is

misplaced, because in Walters, supra, we held that "whether a

fitness center or health club can insulate itself through an

exculpatory clause from the ordinary common law duty of care owed

by all businesses to its invitees, was specifically not addressed

or decided by the Court in Stelluti."              437 N.J. Super. at 115.

Thus, the waiver and release clause in Stelluti pertaining to "the

inherent     risk   of    being   seriously    injured    while    engaging    in

strenuous physical exercise[,]" at a health club was distinct from

the waiver addressed in our ruling in Walter.             Id. at 119.     Given

that plaintiff's injury was the result of exercising with weights,

we   agree    with       Judge    Miller's    detailed    and     well-reasoned

application of Stelluti to grant summary judgment to defendants.

     Plaintiff also argues that if the waiver she signed insulates

defendants from negligence, it does not insulate them from gross

negligence     under      Stelluti.     Although    she    acknowledges       her

complaint only alleges negligence, she requests that this court

allow an amendment of the complaint to include a charge of gross

                                        6                               A-0805-15T3
negligence.     In support, plaintiff cites to Coastal Corp. Inc. v.

Dryvit Systems Inc., 274 N.J. Super. 171 (App. Div. 1994) and

Tomaszewski v. McKeon Ford, 240 N.J. Super. 404 (App. Div. 1990).

We are not persuaded.

     In both Coastal Corp. Inc. and Tomaszewski, the plaintiff's

trial court motions to amend their complaints were denied and

reversed on appeal.           See Coastal Corp., Inc., supra, 274 N.J.

Super. at 182; Tomaszewski, supra, 240 N.J. Super. at 412.                 Here,

plaintiff     never   moved    before   the   motion    judge    to   amend   her

complaint to allege gross negligence.          Because plaintiff's request

to amend her complaint was not raised before the Judge Miller, we

do not consider it on appeal because it does not "go to the

jurisdiction of the trial court or concern matters of great public

interest."     Zaman v. Felton, 219 N.J. 199, 227 (2014) (quoting

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

     Moreover, we conclude the argument that her injury was the

result   of   defendants'      gross    negligence     lacks    merit.     Gross

negligence is defined as "conduct that comes somewhere between

'simple' negligence and the intentional infliction of harm, or,

'willful misconduct.'"         Ivy Hill Park Section III v. Smirnova, 362

N.J. Super. 421, 425 (Law Div. 2003) (citing Clarke v. Twp. of

Mount Laurel, 357 N.J. Super. 362, 369-70 (App. Div. 2003)).                    It

requires "indifference to consequences," Banks v. Korman Assocs.,

                                        7                                A-0805-15T3
218 N.J. Super. 370, 373 (App. Div. 1987), and may be equated with

willful or wanton conduct.   See Stelluti v. Casapenn Enters., LLC,

408 N.J. Super. 435, 457 n.6, (App. Div. 2009), aff'd 203 N.J. 286

(2010).   Gross negligence has also been defined as "reckless

disregard of the safety of others."   In re Kerlin, 151 N.J. Super.

179, 185 (App. Div. 1977) (citing State v. Linarducci, 122 N.J.L.

137 (Sup. Ct. 1939)).   Plaintiff does not point to any fact in the

record that suggests that her injury was the result of gross

negligence by defendants.

     To the extent we have not addressed any        of plaintiff's

remaining issues, it is because they are without sufficient legal

basis to merit further discussion in this opinion.        R. 2:11-

3(e)(1)(E).

      Affirmed.




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