                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-1062-12T3

JAMES F. WALTERS,

      Plaintiff-Appellant,                   APPROVED FOR PUBLICATION

                                                 August 18, 2014
v.
                                               APPELLATE DIVISION
YMCA,

      Defendant-Respondent.

______________________________________

           Argued January 29, 2014 – Decided August 18, 2014

           Before Judges Fuentes, Fasciale and Haas.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No. L-
           2830-12.

           John   J.  Pisano        argued     the   cause     for
           appellant.

           William T. Hilliard argued the cause for
           respondent (Sweet Pasquarelli, attorneys;
           Josephine M. DiCosmo, on the brief).

           The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Plaintiff James F. Walters appeals from the order of the

Law   Division   dismissing   his   personal     injury   cause      of   action

against defendant YMCA.       Applying the Supreme Court's holding in

Stelluti v. Casapenn Enters., Inc., 203 N.J. 286 (2010), the
trial    court     granted     defendant's         motion     for   summary       judgment

based    on   an    exculpatory          clause    in   the    membership       agreement

signed   by   plaintiff        as    a    condition     of    accessing     defendant's

facilities and using its physical exercise equipment.

    Plaintiff argues the trial court erred in construing the

exculpatory clause as a bar to his cause of action because his

accident was caused by a negligently maintained stair tread.

According to plaintiff, the basis of his cause of action is

predicated on the ordinary common law duty of care owed by all

business operators to its invitees, and thus it is completely

unrelated to the inherent risky nature of the activities offered

by health clubs.

         Defendant     argues       the    "hold    harmless"       provision      in    the

membership         agreement        plaintiff       voluntarily          signed     is     a

reasonable condition commonly imposed on all those who wish to

engage in sports and related physical activities.                          According to

defendant,     the    accident       and    resulting         injuries    are     entirely

foreseeable consequences given the nature of the activities and

facilities offered, including a swimming pool.                       Defendant argues

the trial court correctly concluded that the accident fell well

within the scope of the exculpatory clause.

    The motion judge concluded the Supreme Court's holding in

Stelluti was dispositive of the legal issues raised in this




                                             2                                    A-1062-12T3
case.       The judge found plaintiff was contractually barred from

seeking compensatory damages against defendant based on a claim

of ordinary negligence.         The judge rejected plaintiff's argument

seeking to limit the scope of the Court's holding in Stelluti to

apply only to claims based on engaging in the kind of risky

activities offered by health clubs.           Although plaintiff was not

engaged in any physical exercise when he slipped and fell on the

steps that led to the indoor pool, the judge found the pool area

was "just another type of equipment that is being offered by the

health club."

                                        I

       We disagree with the motion judge and reverse.                A close

reading of Justice LaVecchia's analysis in Stelluti reveals that

the Court's holding was grounded on the recognition that health

clubs, like defendant, are engaged in a business that offers its

members the use of physical fitness equipment and a place to

engage in strenuous physical activities that involve an inherent

risk    of    injury.     The   Court   upheld   the   defendant's   limited

exculpatory clause in Stelluti because the injury sustained was

foreseeable as an inherent aspect of the nature of the business

activity of health clubs.

       As    Justice    LaVecchia   clearly   explained   on   behalf   of    a

majority of the Court:




                                        3                            A-1062-12T3
           In sum, the standard we apply here places in
           fair and proper balance the respective
           public-policy    interests     in    permitting
           parties to freely contract in this context
           (i.e. private fitness center memberships)
           and   requires   private   gyms   and   fitness
           centers to adhere to a standard of conduct
           in respect of their business. Specifically,
           we hold such business owners to a standard
           of care congruent with the nature of their
           business, which is to make available the
           specialized equipment and facility to their
           invitees who are there to exercise, train,
           and to push their physical limits. That is,
           we impose a duty not to engage in reckless
           or   gross    negligence.    We   glean    such
           prohibition as a fair sharing of risk in
           this setting, which is also consistent with
           the analogous assumption-of-risk approach
           used by the Legislature to allocate risks in
           other recreational settings with limited
           retained-liability imposed on operators.

           [Stelluti,   supra,     203    N.J.     at   312-313
           (emphasis added).]

    Indeed, the legal question presented by this case, 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.            We again quote

directly   Justice   LaVecchia's       emphatic,    cautionary    language

addressing this issue:

           In the instant matter, like the Appellate
           Division, we feel no obligation to reach and
           discuss the validity of other aspects of the
           agreement not squarely presented by the
           facts of Stelluti's case. Thus, we need not
           address the validity of the agreement's



                                   4                              A-1062-12T3
              disclaimer of liability for injuries that
              occur on the club's sidewalks or parking lot
              that are common to any commercial enterprise
              that has business invitees. With respect to
              its   agreement   and   its   limitation  of
              liability to the persons who use its
              facility and exercise equipment for the
              unique purpose of the business, we hold that
              it is not contrary to the public interest,
              or to a legal duty owed, to enforce [the
              defendant]'s    agreement     limiting   its
              liability for injuries sustained as a matter
              of negligence that result from a patron's
              voluntary use of equipment and participation
              in instructed activity.     As a result, we
              find the exculpatory agreement between [the
              defendant] and Stelluti enforceable as to
              the injury Stelluti sustained when riding
              the spin bike.

              [Id. at 313 (emphasis added).]

      Here, defendant submitted to the trial court a "Statement

of    Material     Facts"    in    support      of   its      motion     for    summary

judgment.      Paragraph three alleges plaintiff was injured when

"he slipped on the steps leading from the pool."                               (Emphasis

added).     In response, plaintiff stipulated to this allegation,

but   added    a   reference       to   a   photograph        that,    in     his    view,

depicted      "that    the     stair        treads      on     defendant's          stairs

incorporated slip resistant rubber on all stairs, but for the

bottom    stair    where    same    evidently     was    cut    off     due    to    wear,

thereby    creating    a     non-slip       resistant    tread      surface."          The

"stairs"    referred    to    by    plaintiff    led     to    an     indoor    pool   in

defendant's facility in Newark.




                                            5                                   A-1062-12T3
       At the time the accident occurred, plaintiff had been a

member of this YMCA for over three years.                 The continuous health

membership      agreement      he    signed     contains        the     following

exculpatory or "hold harmless" provision, which we recite as

written in the agreement, using all capital letters:

              I   AGREE  THAT   THE  YMWCA  WILL  NOT   BE
              RESPONSIBLE FOR ANY PERSONAL INJURIES OR
              LOSSES SUSTAINED BY ME WHILE ON ANY YMWCA
              PREMISES OR AS A RESULT OF A YMWCA SPONSORED
              ACTIVITIES [SIC].      I FURTHER AGREE TO
              INDEMNIFY AND SAVE HARMLESS THE YMWCA FROM
              ANY CLAIMS OR DEMANDS ARISING OUT OF ANY
              SUCH INJURIES OR LOSSES.

                                      II

       We review a motion seeking summary judgment using the same

standard used by the trial judge.             Bhagat v. Bharat A. Bhagat &

Cranbury      Hotels,   LLC,   217   N.J.     22,    38    (2014).       We   must

determine, based on the competent evidential materials submitted

by the parties, whether there are genuine issues of material

fact   and,    if   not,   whether   the    moving   party     is     entitled   to

summary judgment as a matter of law.                 Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).                      Based

on our review of the record, we are satisfied there are no




                                       6                                  A-1062-12T3
material issues of fact in dispute, and the case is ripe for

disposition as a matter of law.1

       The   plaintiff    in   Stelluti,     supra,   was    injured      when   the

handlebars of her stationary bike dislodged and caused her to

fall during a spinning class at a private fitness center.                        203

N.J.   at    291.   The    inherently       risky   nature   of    this   type    of

physical activity was the key consideration the Court found to

justify enforcing the exculpatory clause at issue.                     Id. at 312-

313.

       Here, plaintiff's accident and resulting injuries occurred

when plaintiff slipped on a step and fell, as he walked to

defendant's indoor pool.         Plaintiff did not injure himself while

swimming in the pool or using any physical fitness equipment.

The type of accident involved here could have occurred in any

business     setting.    The   inherently     risky   nature      of   defendant's

activities as a physical fitness club was immaterial to this

accident.     Stated in the vernacular of the personal injury bar,

this is a "garden variety slip and fall case."


1
  At this point, we must note that plaintiff's appellate brief
failed to present the salient facts of this case in compliance
with the rules of appellate practice. We were thus compelled to
conduct our own independent review of the record to ascertain
the facts that established the basis of plaintiff's claim.   We
will address counsel's deficiency in more detail after we
complete our analysis of the issues raised by the parties in
this appeal.



                                        7                                  A-1062-12T3
    Under these circumstances, plaintiff argues here, as he did

at the trial level, that defendant should be held liable to

compensate him for his injuries pursuant to the common law duty

all business owners owe to its invitees.     Our colleague Judge

Sabatino aptly described that duty of care in the Appellate

Division's decision in Stelluti v. Casapenn Enters., 408 N.J.

Super. 435, 446 (App. Div. 2009), aff'd, 203 N.J. 286 (2010):

         In   general,  "[b]usiness   owners   owe   to
         invitees a duty of reasonable or due care to
         provide a safe environment for doing that
         which is in the scope of the invitation."
         Nisivoccia v. Glass Gardens, Inc., 175 N.J.
         559, 563, (2003).   This duty of care flows
         from the notion that "business owners 'are
         in the best position to control the risk of
         harm.'"   Hojnowski v. Vans Skate Park, 187
         N.J. 323, 335 (2006) (quoting Kuzmicz v. Ivy
         Hill Park Apts., Inc., 147 N.J. 510, 517
         (1997)   (citations   omitted));    see   also
         Hopkins v. Fox & Lazo Realtors, 132 N.J.
         426, 447 (1993).

    We are thus compelled to address and answer the question

the Supreme Court intentionally left unanswered in Stelluti, to

wit: whether an exculpatory clause that insulates a physical

fitness club, like defendant, from liability "for any personal

injuries or losses sustained by [a member] while on any [of the

club's] premises" is enforceable when the accident and resulting

injuries sustained by the member/invitee was not caused by or

related to an inherently risky physical fitness activity.        In




                               8                          A-1062-12T3
answering this question, we will apply the same standards the

Supreme Court applied in Stelluti.

       An exculpatory agreement:

            "is enforceable only if: (1) it does not
            adversely affect the public interest; (2)
            the exculpated party is not under a legal
            duty to perform; (3) it does not involve a
            public utility or common carrier; or (4) the
            contract does not grow out of unequal
            bargaining    power    or    is    otherwise
            unconscionable."

            [Stelluti, supra, 203 N.J. at 298 (quoting
            Gershon v. Regency Diving Ctr., Inc., 368
            N.J. Super. 237, 248 (App. Div. 2004)).]

Applying    the   Gershon      factors,      we    emphasize   "that    business

establishments     in    New   Jersey   have      well-established     duties   of

care   to   patrons     that   come   upon    their    premises."      Stelluti,

supra, 408 N.J. Super. at 455 (citing Cardona v. Eden Realty

Co., 118 N.J. Super. 381 (App. Div.), certif. denied, 60 N.J.

354 (1972) (finding an exculpatory clause, which attempted to

immunize    a   residential     landlord     from     negligence    contrary     to

public policy); Kuzmiak v. Brookchester, Inc., 33 N.J. Super.

575, 580-88 (App. Div. 1955) (nullifying a similar exculpatory

provision in an apartment lease)).

       We will examine the provisions of this exculpatory clause

in defendant's agreement giving due deference to the freedom to

contract and the right of competent adults to bind themselves as

they see fit.      Stelluti, supra, 203 N.J. at 302-303.                However,



                                        9                                A-1062-12T3
we are mindful that exculpatory agreements "have historically

been disfavored in law and thus have been subjected to close

judicial scrutiny."              Id. at 303.           Any ambiguities in language

about    the     scope      of    an     exculpatory     agreement's      coverage,      or

doubts about its enforceability, should be resolved in favor of

holding     a    tortfeasor        accountable.          "The     law   does    not   favor

exculpatory agreements because they encourage a lack of care."

Gershon, supra, 368 N.J. Super. at 247; see also Hojnowski,

supra, 187 N.J. at 333.

      Judge Sabatino noted in the Appellate Division version of

Stelluti, supra, that an exculpatory clause construed

                to its outermost limits of protection . . .
                [would preclude] literally any and all
                claims or causes of action[.]       [Such a
                prospect] threatens an adverse impact upon
                the public interest.    As we have already
                noted, business establishments in New Jersey
                have well-established duties of care to
                patrons that come upon their premises. An
                unbounded waiver of liability unjustifiably
                eviscerates those protections for business
                invitees.

                [408 N.J. Super. at 455 (internal quotations
                omitted).]

      Given the expansive scope of the exculpatory clause here,

we   hold   that      if    applied       literally,      it    would    eviscerate     the

common    law     duty     of    care     owed    by   defendant    to    its   invitees,

regardless       of   the       nature    of     the   business    activity     involved.

Such a prospect would be inimical to the public interest because



                                                 10                               A-1062-12T3
it   would     transfer         the   redress        of     civil        wrongs   from    the

responsible tortfeasor to either the innocent injured party or

to   society       at     large,      in     the     form     of     taxpayer-supported

institutions.        This directly addresses and responds to factors

one and two under Gershon, supra, 368 N.J. Super. at 248.2

     The "Waiver and Release Form" in Stelluti, supra, included

a relatively lengthy narrative explanation of the inherent risk

of being seriously injured while engaging in strenuous physical

exercise.      203       N.J.    at   293.         Here,    the    exculpatory       clause,

although     far    more    brief      in     language,       is     considerably        more

legally expansive in the scope of activity defendant sought to

insulate     from       civil    liability.           By    signing        the    membership

agreement,     plaintiff          purportedly         agreed        to     hold    defendant

harmless "for any personal injuries or losses sustained by me

while on any YMCA premises or as a result of a YMCA sponsored

activities."        The key word here is the disjunction "or," which

expands the scope of the exculpatory clause to include injuries

2
  In the interest of clarity, our analysis and ultimate legal
conclusion are predicated on the facts of this case.      Echoing
the cautionary message sent by Justice LaVecchia in Stelluti,
we do not hold here that all business operators are precluded
from contractually bargaining away their common law duty owed to
invitees to provide a reasonably safe environment for doing that
which is in the scope of the invitation.     Every case in which
one   party   seeks  to   enforce   contractually   bargained-for
exculpatory protection from a certain kind of liability must be
examined and decided based on the particular circumstances of
the case.



                                             11                                     A-1062-12T3
resulting       "while    on     the     premises"           or     as       a    result     of

participating in defendant's "sponsored                  activities."

    We      reasonably         assume     the        agreement,          especially         the

exculpatory      clause,       signed    by     plaintiff          is    a       contract    of

adhesion, thus meeting the final relevant factor under Gershon,

supra, 368 N.J. Super. at 248.                  As the Court did in Stelluti,

supra, we recognize that "[w]hen a party enters into a signed,

written    contract,      that    party       is     presumed      to    understand         and

assent to its terms, unless fraudulent conduct is suspected."

203 N.J. at 305.         However, all contracts are subject to judicial

scrutiny    to   determine       their    enforceability.                Here,      defendant

seeks to shield itself from all civil liability, based on a one-

sided contractual arrangement that offers no countervailing or

redeeming societal value.                Such a contract must be declared

unenforceable as against public policy.

    Finally, defendant also argues that swimming in the pool is

a "sponsored activity," and therefore an accident resulting from

slipping on the steps leading into the pool is also covered

under     the    "activities"       part        of     the        clause.           Such     an

interpretation ignores the cause of this accident.                                  Plaintiff

was not injured using the pool.                       Thus, based on the record

before us, we conclude the language in defendant's exculpatory




                                          12                                         A-1062-12T3
clause is void and unenforceable as against public policy for

the reasons expressed here.

                                         III

      Unfortunately,      we    cannot    complete    our        task   as   appellate

judges without noting appellant's counsel's complete disregard

of   Rule     2:6-2(a)(4),       which    describes         in     detail     how    an

appellant's brief must present the facts of the case.                         A brief

must include

             A concise statement of the facts material to
             the issues on appeal supported by references
             to   the   appendix   and   transcript.   The
             statement shall be in the form of a
             narrative        chronological        summary
             incorporating all pertinent evidence and
             shall not be a summary of all of the
             evidence   adduced  at   trial,  witness   by
             witness.

             [Ibid.   (Emphasis added).]

In   utter    disregard    of    these    precisely     worded          instructions,

plaintiff's appellate brief contained the following information

under the heading "STATEMENT OF FACTS":

             As indicated in plaintiff's answers to
             interrogatories     (Pa10-12),    on    3/21/12
             plaintiff   slipped    and  fell   due   to   a
             defective    stair    riser    at   defendant's
             premise.      Attached please find medical
             records documenting plaintiff's injuries as
             follows:

             1.   03/23/12   UMDNJ         left      knee        surgical
             records   (Pa47-48)

             2.   Left knee Scar photograph (Pa49)



                                         13                                   A-1062-12T3
    We take the time to note these deficiencies not out of some

eccentric compulsion or fastidious need to enforce procedural

formalities.      Failure by an attorney to clearly and accurately

narrate    the   salient     facts   of    a    case,    followed    by    a   precise

citation    to   the   page    number     in    the     appendix    or    transcript,

needlessly increases the amount of time and effort required to

familiarize      ourselves    with   the       appellate    record.        This     also

shows a lack of professional respect, not only to the court, but

to the legal profession itself.                  Some may say this kind of

professional      shoddiness    is    an       unfortunate    byproduct        of    our

times.     This not the case.             As our colleagues aptly observed

thirty-seven years ago:

            [Rule] 2:6-2, prescribing the contents of an
            appellant's brief, is not without purpose. A
            conforming brief will give this court the
            full benefit of counsel's knowledge of the
            case. Material deficiencies, such as those
            encountered in appellant's brief, require
            this court to consume time in an effort to
            guess at the essential nature of the
            controversy from the testimony which gave
            rise   to   it,   instead  of   devoting  its
            necessarily limited time to determining how
            the   issues    properly  raised   should  be
            resolved. Besides being an imposition on
            this court, such deficiencies are patently
            unfair to other litigants whose equally
            legitimate demands on the court's time are
            presented in a manner conforming in all
            respects to the requirements of the rules.

            [Miraph Enters., Inc. v. Bd. of Alco. Bev.,
            Paterson, 150 N.J. Super. 504, 508 (App.
            Div. 1977) (emphasis added.)]



                                          14                                   A-1062-12T3
      Our colleagues also noted that "[l]ack of familiarity with

appellate court procedures is no excuse. R[ule] 2:6-2 is clear

and   unambiguous    in   its   requirements.          Attorneys     who    rarely

appear in this court need only consult this rule to determine

what is required. The brief herein shows a flagrant disregard of

the minimum rule requirement."          Ibid.      Our sentiment in Miraph

Enters.,   was   approvingly    cited     and   the    indignation    expressed

therein adopted by our Supreme Court in In re Haft, 98 N.J. 1, 8

(1984).

      The attorney in Miraph Enters., supra, was sanctioned under

Rule 2:9-9 in the form of a $100 fine "to be paid personally and

not   billed   to   his   client."      150     N.J.   Super.   at    508.        In

determining the severity of this monetary sanction, we emphasize

this opinion was published in 1977.             Our colleagues nevertheless

noted:

           We recognize that the modest fine imposed
           provides an inadequate response to the
           serious violation of rule requirements; its
           imposition and payment will, we earnestly
           hope, be viewed as evidence of the refusal
           of   this    court  to   tolerate   similar
           infractions of the rule which, in the
           future, may not be disposed of with such
           financial leniency.

           [Ibid.    (Emphasis added).]

      Adjusting for inflation for the past thirty-seven years, we

estimate the comparable value in 2014 would be approximately



                                     15                                    A-1062-12T3
$400.      We seriously considered imposing such a sanction here for

the same policy reason of deterrence our colleagues expressed in

Miraph Enters.             We nevertheless opt to forgo this option, hoping

the strongly worded message we deliver here will produce the

same deterrent effect.

         All    judges      were        lawyers       for    at    least    ten       years    before

accepting this great responsibility.                              N.J. Const. art. VI, § 6,

¶   2.         No    matter       how   long     we     have      held    this       Constitutional

office,        none    of     us    ever       forget       how    hard    we    worked       when   we

practiced           law,    the    emotional          toll     our   career       exacted       on   us

personally and on our loved ones, and the economic pressure

involved        in     managing          the    business          side     of    a    law     office.

However, both lawyers and judges have a common obligation to

discharge the respective responsibilities of our office, ever

mindful        of    our    ethical        duty    to       uphold    the       highest     possible

standards of the legal profession.                                The kind of shoddy work

presented by appellant's counsel here diminishes our profession

and must be condemned as unacceptable in the strongest possible

terms.

                                                  IV

         The order of the Law Division granting defendant's motion

for summary judgment and dismissing plaintiff's personal injury

cause of action is reversed.                          The matter is remanded for such




                                                  16                                          A-1062-12T3
further   proceedings   as   may   be    required.   We   do   not    retain

jurisdiction.

    Reversed and remanded.




                                    17                               A-1062-12T3
