JENNIFER and CHRISTOPHER WAYWARD, individually and on behalf of their minor daughter, TH, Plaintiffs
GET AIR PORTLAND ME, LLC, Defendant.
Plaintiffs-Kenneth Pierce, Esq.
Defendant-Leonard Langer, Esq.
ORDER ON DEFENDANT'S MOTION TO DISMISS
E. Walker, Justice Maine Superior Court.
the Court is Defendant's motion to dismiss. Defendant
moves to dismiss pursuant to Maine Rule of Civil Procedure
12(b)(6), arguing that Plaintiffs' claim is barred by a
Waiver, Release, Assumption of Risk, and Indemnity Agreement
("Waiver") signed by Plaintiff Christopher Hayward
on his behalf and on behalf of his minor daughter, Plaintiff
TH. Alternatively, Defendant moves to dismiss and to compel
mediation pursuant to the Waiver. A hearing was held on
September 6, 2017. For the following reasons, Defendant's
motion is granted.
facts as alleged in Plaintiffs' complaint are as follows.
On November 1, 2014, TH was celebrating her twelfth birthday
at Defendant's Portland location. TH bounced off a
trampoline and landed on an area of matting that concealed a
steel beam or pipe. As a result of her fall, TH suffered a
broken ankle. On May 15, 2017, Plaintiffs filed this lawsuit
for damages incurred in connection with TH's injury.
concede that guests of Defendant must sign a waiver absolving
Defendant of any damages related to the inherent risk of
jumping on a trampoline; however, Plaintiffs argue the danger
that caused TH's injury does not fall within the scope of
the waiver. Attached to Defendant's motion is a copy of
the Waiver signed by Plaintiff Chris Hayward on October 28,
2014. (Def.'s Exhibit A.) Defendant argues that under the
Waiver, Participants release Defendant from liability for
claims arising out of the use of the Trampoline Park, assume
the risk of injury arising out of such use, and covenant not
to sue Defendant as the result of any claims or causes of
action that arise out of such use. Further, Defendants
contend the Waiver requires that any claim that may arise
must be submitted to mediation and, if mediation is
unsuccessful, to binding arbitration. Per its terms, the
Waiver is governed by the laws of California, and any
mediation and arbitration must occur in California.
Court finds the Mediation and Arbitration clause is
dispositive of this motion. Even if Plaintiffs have stated a
claim upon which relief may be granted, they have failed to
demonstrate why the covenant not to sue, combined with the
Mediation and Arbitration clause, does not require the Court
to dismiss this claim and refer the parties to mediation and,
if necessary, arbitration as described by the Waiver.
Plaintiffs' only argument to this point is that, because
a parent may not release a minor child's cause of action
under Doyle v. Bowdoin Coll., 403 A.2d 1206 (Me.
1979), then the Mediation and Arbitration clause is likewise
invalid. Doyle does not stand for that proposition,
and Defendants' citation to cases from other
jurisdictions - most particularly Global Travel Mktg.,
Inc. v. Shea, 908 So.2d 392 (Fla. 2005) - is persuasive.
The Shea Court reasoned that an agreement to
arbitrate or mediate does not extinguish a minor's
substantive claim, but rather merely selects the forum for
resolution of the claim. See id. at 403. Absent any
meaningful argument from Plaintiffs as to why this clause is
invalid, the Court finds the Mediation and Arbitration clause
is valid and enforceable. Thus, this claim must be dismissed.
Per the Waiver, Plaintiffs may exclusively attempt to resolve
their claim in mediation and, if necessary, arbitration.
one aspect of the Mediation and Arbitration clause gives the
Court pause. The Court finds the clause is unconscionable to
the extent it requires mediation and arbitration to take
place in California "Substantive unconscionability or
unfairness focuses on the terms of the agreement and whether
those terms are so one-sided as to shock the conscience"
Barrett v McDonald Invs., Inc., 2005 ME 43, ¶
36, 870 A.2d 146 (Alexander, J, concurring) (internal quotes
and citations omitted). The Court finds it would be entirely
unfair to require a family of Maine residents to travel to
California to mediate and arbitrate a claim for an injury
that occurred in Maine at Defendant's Portland. Maine
location. The travel expense alone would likely be
prohibitive of Plaintiffs' pursuit of their claim. Thus,
while upholding the enforceability of the remainder of the
Mediation and Arbitration clause, the Court finds the
provision requiring mediation and arbitration to take place
in California to be invalid and unenforceable. See
Restatement (Second) of Contracts § 208 (1981) ("If
a contract or term thereof is unconscionable at the time the
contract is made a court may .., enforce the remainder of the
contract without the unconscionable term,, ,, ").
to the aforementioned finding of unconscionability and
invalidity in the Mediation and Arbitration Clause of the
Waiver, for the foregoing reasons. Defendant's Motion to
Dismiss is GRANTED. The Clerk is directed to incorporate this