                                Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                                   NEWS RELEASE #057


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 19th day of October, 2016, are as follows:



BY JOHNSON, C.J.:


2016-CC-0708        ROGER ALICEA,   ET   AL.   v.   ACTIVELAF,   LLC,   ET    AL.   (Parish   of
                    Lafayette)

                    Accordingly, we find the lower courts correctly overruled Sky
                    Zone’s exception of prematurity. Therefore, the rulings of the
                    lower courts are affirmed.
                    AFFIRMED AND REMANDED TO THE DISTRICT COURT.

                    WEIMER, J., dissents and assigns reasons.
                    GUIDRY, J., dissents and assigns reasons.
                    CLARK, J., concurs with reasons.
                    HUGHES, J., concurs with reasons.
                    CRICHTON, J., additionally concurs with reasons.
10/19/2016

                      SUPREME COURT OF LOUISIANA

                                 No. 2016-CC-0708

                             ROGER ALICEA, ET AL.

                                      VERSUS

                            ACTIVELAF, LLC, ET AL.

        ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL
         DISTRICT COURT FOR THE PARISH OF LAFAYETTE


JOHNSON, CHIEF JUSTICE

      Patrons of Sky Zone Lafayette, an indoor trampoline park, are required to

complete a “Participant Agreement, Release and Assumption of Risk” document

(“Agreement”) prior to entering the facility and participating in Sky Zone’s activities.

The Agreement contains a clause waiving the participant’s right to trial and compelling

arbitration. Plaintiff, Theresa Alicea, executed the Agreement prior to her husband,

Roger Alicea, taking their minor sons to Sky Zone. The Aliceas’ son, Logan Alicea,

was injured while jumping on a trampoline. The Aliceas filed suit against Sky Zone,

individually and on behalf of Logan, and Sky Zone responded with an exception of

prematurity seeking to compel arbitration pursuant to the Agreement. The district court

overruled Sky Zone’s exception and the court of appeal denied Sky Zone’s writ

application.

      For the following reasons, we affirm the rulings of the lower courts, and hold

the arbitration clause in the Sky Zone agreement is adhesionary and therefore

unenforceable.

                    FACTS AND PROCEDURAL HISTORY

      Roger Alicea planned to take his two minor sons to Sky Zone on February 8,



                                           1
2015. On that morning, his wife, Theresa Alicea, electronically executed1 a “Participant

Agreement, Release and Assumption of Risk” document (“Agreement”), which was

required for all patrons before they could enter the park and participate in activities.

The Agreement requested names and dates of birth for all participants, required

participants to check three boxes next to certain terms of the Agreement, and required

participants to digitally sign the Agreement.

       The Agreement provided that in consideration for gaining access to Sky Zone

Lafayette and engaging in the services, patrons agreed:

       G       I acknowledge that my participation in [Sky Zone] trampoline
               games or activities entails known and unanticipated risks that
               could result in physical or emotional injury including, but not
               limited to broken bones, sprained or torn ligaments, paralysis,
               death, or other bodily injury or property damage to myself my
               children, or to third parties. I understand that such risks simply
               cannot be eliminated without jeopardizing the essential qualities of
               the activity. I expressly agree and promise to accept and assume all
               of the risks existing in this activity. My and/or my children’s
               participation in this activity is purely voluntary and I elect to
               participate, or allow my children to participate in spite of the risks.
               If I and/or my children are injured, I acknowledge that I or my
               children may require medical assistance, which I acknowledge will
               be at my own expense or the expense of my personal insurers. I
               hereby represent and affirm that I have adequate and appropriate
               insurance to provide coverage for such medical expense.

       G       In consideration for allowing me and the minor child(ren)
               identified herein to participate in the [Sky Zone] activities and use
               the [Sky Zone] facility, I expressly and voluntarily agree to forever
               release, acquit, indemnify and discharge [Sky Zone] and agree to
               hold [Sky Zone] harmless on behalf of myself, my spouse, my
               children, my parents, my guardians, and my heirs, assigns,
               personal representative and estate, and any and all other persons
               and entities who could in any way represent me, or the minor
               children identified herein or act on our respective halves, from any
               and all actions or omissions, cause and causes of action, suits,
               debts, damages, judgments, costs, including, but not limited to
               attorney’s fees, and claims and demands whatsoever, in law or in
               equity, for any personal injury, death, or property damages that I

       1
         There is no evidence in the record regarding the exact method of execution, or location where
Ms. Alicea executed the Agreement. The Aliceas’ counsel suggested at oral argument before this court
that the Agreement could be executed online or by phone. Regardless, it is undisputed she executed
the agreement outside of the Sky Zone facility and several hours prior to Mr. Alicea and their sons
arriving at Sky Zone.

                                              2
      and/or the minor children’s use of [Sky Zone] activities, [Sky
      Zone] premises or at offsite and camp activities related to [Sky
      Zone]. This waiver is intended to be a complete release of any and
      all responsibility or duties owed by [Sky Zone] as indemnitees for
      personal injuries, death and/or property loss/damage sustained by
      myself or any minor children identified herein while on the [Sky
      Zone] premises, or with respect to [Sky Zone] activities, whether
      using [Sky Zone] equipment or not, even if such injury or damage
      results from [Sky Zone] negligence, [Sky Zone] employee
      negligence, improper supervision, improper maintenance of [Sky
      Zone] equipment or premises or negligence by other [Sky Zone]
      guests.

G     I certify that I and/or my child(ren) are physically able to
      participate in all activities at the Location without aid or assistance.
      I further certify that I am willing to assume the risk of any medical
      or physical condition that I and/or my child(ren) may have. I
      acknowledge that I have read the rules, (the “Sky Zone Rules”)
      governing my and/or my child(ren)’s participation in any activities
      at the Location. I certify that I have explained the [Sky Zone]
      Rules to the child(ren) identified herein. I understand that the [Sky
      Zone] Rules have been implemented for the safety of all guests at
      the Location. I agree that if any portion of this Agreement is found
      to be void and unenforceable, the remaining portions shall remain
      in full force and effect. If there are any disputes regarding this
      agreement, I on behalf of myself and/or my child(ren) hereby
      waive any right I and/or my child(ren) may have to a trial and
      agree that such dispute shall be brought within one year of the date
      of this Agreement and will be determined by binding arbitration
      before one arbitrator to be administered by JAMS pursuant to its
      Comprehensive Arbitration Rules and Procedures. I further agree
      that the arbitration will take place solely in the state of Louisiana
      and that the substantive law of Louisiana shall apply. If, despite
      the representations made in this agreement, I or anyone on behalf
      of myself and/or my child(ren) file or otherwise initiate a lawsuit
      against [Sky Zone], in addition to my agreement to defend and
      indemnify [Sky Zone], I agree to pay within 60 days liquidated
      damages in the amount of $5,000 to [Sky Zone]. Should I fail to
      pay this liquidated damages amount within the 60 day time period
      provided by this Agreement, I further agree to pay interest on the
      $5,000 amount calculated at 12% per annum.

I further grant [Sky Zone] the right, without reservation or limitation, to
videotape, and/or record me and/or my children on closed circuit
television.

I further grant [Sky Zone] the right, without reservation or limitation, to
photograph, videotape, and/or record me and/or my children and to use
my or my children’s name, face, likeness, voice and appearance in
connection with exhibitions, publicity, advertising and promotional
materials.

                                  3
      I would like to receive free email promotions and discounts to the email
      address provided below. I may unsubscribe from emails from Sky Zone
      at any time.

      By signing this document, I acknowledge that if anyone is hurt or
      property is damaged during my participation in this activity, I may be
      found by a court of law to have waived my right to maintain a lawsuit
      against [Sky Zone] on the basis of any claim from which I have released
      them herein. I have had sufficient opportunity to read this entire
      document. I understand this Agreement and I voluntarily agree to be
      bound by its terms.

      I further certify that I am the parent or legal guardian of the children
      listed above on this Agreement or that I have been granted power of
      attorney to sign this Agreement on behalf of the parent or legal guardian
      of the children listed above.

Ms. Alicea electronically completed the Agreement on behalf of her husband by

checking the three boxes provided in the agreement, furnishing the relevant personal

identifying information for Mr. Alicea and their minor sons, and clicking on an

“accept” button. Later that afternoon, Mr. Alicea brought his sons to Sky Zone where

Logan Alicea sustained a spiral fracture of his femur while jumping on a trampoline.

      On August 21, 2015, the Aliceas, individually and on behalf of Logan, filed suit

against Activelaf, L.L.C., d/b/a Sky Zone Lafayette and its insurer (“Sky Zone”)

asserting Logan was injured due to Sky Zone’s negligence. In response, Sky Zone filed

several exceptions, including an exception of prematurity. Sky Zone alleged that the

Agreement contained a mandatory arbitration clause, thereby rendering the Aliceas’

suit premature. The Aliceas asserted they did not knowingly consent to arbitration, and

argued the Agreement was adhesionary and ambiguous.

      Following a hearing, the district court overruled the exception of prematurity

without reasons. The court of appeal denied Sky Zone’s writ application, finding no

error in the district court’s ruling. Judge Gremillion dissented, stating he would grant

the writ. Alicea v. ActiveLaf, LLC, 16-00073 (La. App. 3 Cir. 3/18/16) (unpublished).

      On Sky Zone’s application, we granted supervisory review and consolidated this


                                           4
case for argument with Duhon v. ActiveLaf, LLC, 16-0818 (La. 6/17/16), 192 So. 3d

762, decided in a separate opinion issued contemporaneously with this matter. Alicea

v. ActiveLaf, LLC, 16-0708 (La. 6/17/16), 192 So. 3d 762.

                                  DISCUSSION

      For the reasons assigned this day in Duhon v. ActiveLaf, LLC, 16-0818 (La.

10/19/16), – So. 3d. –, we find the arbitration clause in the Sky Zone Agreement is

adhesionary and unenforceable. Accordingly, we find the lower courts correctly

overruled Sky Zone’s exception of prematurity. Therefore, the rulings of the lower

courts are affirmed.

                                    DECREE

      AFFIRMED AND REMANDED TO THE DISTRICT COURT.




                                         5
10/19/16

                   SUPREME COURT OF LOUISIANA


                                 NO. 2016-CC-0708

                            ROGER ALICEA, ET AL.

                                      VERSUS

                           ACTIVELAF, LLC, ET AL.


      ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT
                      FOR THE PARISH OF LAFAYETTE


WEIMER, J., dissenting.

      For the reasons assigned in my dissent in Duhon v. ActiveLaf, LLC, 16-0818,

___ So.3d __ (La. 10/__/16), I respectfully disagree with the majority’s conclusion

that analysis of the Sky Zone Agreement using Aguillard’s four factor “framework”

supports a finding that the arbitration clause is adhesionary and not enforceable.

Finding that the arbitration clause in the Sky Zone Agreement is valid and

enforceable, I would reverse the rulings of the lower courts in this matter.
10/19/2016



                      SUPREME COURT OF LOUISIANA

                                 NO. 2016-CC-0708

                             ROGER ALICEA, ET AL.

                                      VERSUS

                            ACTIVELAF, LLC, ET AL.

       ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT
                       FOR THE PARISH OF LAFAYETTE

GUIDRY, J., dissenting.

       For the reasons assigned in my dissent in Duhon v. ActiveLaf, LLC, 2016-0818

(La. 10/__/16), __ So.3d __, I respectfully dissent from the majority’s finding that the

arbitration clause in the Sky Zone Agreement is adhesionary and, as such,

unenforceable. Accordingly, I would reverse the rulings of the lower courts.
10/19/16



                       SUPREME COURT OF LOUISIANA

                                 No. 2016-CC-0708

                             ROGER ALICEA, ET AL.

                                      VERSUS

                            ACTIVELAF, LLC, ET AL.

           ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL
            DISTRICT COURT FOR THE PARISH OF LAFAYETTE

CLARK, J., concurring.

      I find that the contract at issue lacks mutuality to such an extent that the

contract is adhesionary.      Not only does the contract bind only patrons to

arbitration, the contract stipulates that if a patron files a lawsuit against Sky Zone,

the patron is liable for $5,000 in liquidated damages. At the same time, Sky Zone

is free to file a lawsuit against the patron without any penalty.
10/19/16



                      SUPREME COURT OF LOUISIANA

                                 No. 2016-CC-0708

                            ROGER ALICEA, ET AL.

                                      VERSUS

                            ACTIVELAF, LLC, ET AL.

       ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL
        DISTRICT COURT FOR THE PARISH OF LAFAYETTE

Hughes, J., concurring.
      Although I do not agree that the arbitration language was hidden, I concur

that it lacked mutuality, and thus with the result.




                                           1
10/19/16

                      SUPREME COURT OF LOUISIANA

                                 No. 2016-CC-0708

                             ROGER ALICEA, ET AL.

                                       VERSUS

                            ACTIVELAF, LLC, ET AL.

       ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL
        DISTRICT COURT FOR THE PARISH OF LAFAYETTE

CRICHTON, J., additionally concurs and assigns reasons.


      For my reasons stated in Duhon v. ActiveLaf, LLC, 16-0818 (La. __/__/16), -

So. 3d. - (Crichton, J., concurring), I concur in this decision.
