OLMO et al v. ATLANTIC CITY PARASAIL, LLC et al

Filing 59

OPINION. Signed by Magistrate Judge Ann Marie Donio on 4/28/2016. (TH, )

[D.I. 49]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DINA OLMO and GENE OLMO, her
husband,

Civil No. 13-4923 (AMD)

Plaintiffs,
v.
ATLANTIC CITY PARASAIL, LLC,
et al.,
Defendants.

OPINION
APPEARANCES:
Thomas J. Vesper, Esq.
Kathleen F. Beers, Esq.
Westmoreland, Vesper Quattrone & Beers, PA
Bayport One – Suite 500
8025 Black Horse Pike
West Atlantic City, NJ 08232
Attorney for Plaintiffs Dina Olmo and Gene Olmo

David M. Kupfer, Esq.
Carroll McNulty Kull LLC
120 Mountain View Boulevard
P.O. Box 650
Basking Ridge, NJ 07920
Attorney for Defendant Atlantic City Parasail, LLC
DONIO, Magistrate Judge

1

In this action, Plaintiffs Dina Olmo and Gene Olmo assert
claims against Defendant Atlantic City Parasail, LLC (hereinafter,
“AC Parasail”) as a result of injuries Dina Olmo sustained while
riding in a boat operated by AC Parasail. Presently before the
Court

is

AC

Parasail’s

motion

for

summary

judgment

against

Plaintiffs Dina Olmo and Gene Olmo. Plaintiffs oppose the motion.
(See Motion for Summary Judgment (hereinafter, “Def.’s Mot.”)
[D.I. 49]; see also Plaintiffs’ Brief in Opposition (hereinafter,
Pls.’ Opp’n) [D.I.

52].) The Court has considered the parties

submissions and decides this matter pursuant to Federal Rule of
Civil

Procedure

78(b).

For

the

reasons

set

forth

herein,

AC

Parasail’s motion is granted.
Plaintiffs filed the initial complaint in this matter in
the Superior Court of New Jersey. (See Notice of Removal [D.I.
1].) On August 15, 2013, the matter was removed to this Court (see
id.) and Plainitffs’ subsequent motion to remand was denied. (See
Order [D.I. 16], Jan. 24, 2014.) In the complaint, Plaintiffs
assert claims for (1) negligent entrustment of the subject
vessel

(Count

I);

(2)

Defendant

Captain

Doe’s

motor

negligent

maintenance and/or supervision of passengers (Count III); (3)
violation of common carrier higher duty of care (Count IV); and
(4)

unseaworthiness

(Count

V).

(See

Exhibit

A

(hereinafter,

“Complaint”) to Notice of Removal [D.I. 1], at 21-33 on the

2

docket.) 1 In addition, Plaintiff Gene Olmo, Dina Olmo’s husband,
has asserted a claim for loss of consortium (Count VI) against AC
Parasail.

(Id.

counterclaim

at

32

against

on
Dina

the

docket.)

Olmo

for

AC

Parasail

asserts

indemnification.

a

(Second

Amended Answer, Separate Defenses, and Counterclaim [D.I. 36],
13.) AC Parasail contends that Dina Olmo, “[p]rior to purchasing
the subject parasailing trip, . . . signed a liability waiver which
stated, in pertinent part”:
Release of Liability, Waiver of Claims and
Indemnity Agreement
By executing this document, I agree to hold
the releases harmless and indemnify them in
conjunction with any injury or loss of life
that may occur as a result of engaging in the
above activities.

Plaintiffs also assert a claim of negligent entrustment of the
subject motor vessel (Count II) against Defendant Captain John
Doe. (See Complaint [D.I. 1], 27-28 on the docket.) However, after
discovery is complete, and the plaintiff has failed to identify a
“fictitious defendant, the court may dismiss the fictitious
defendant.” Martin v. Comunale, No. 03-06793, 2006 WL 208645, at
*13 (E.D. Pa. Jan. 18, 2006). Accordingly, as discovery is complete
and Plaintiffs have yet to name the fictitious defendant in Count
II, summary judgment is granted as to Count II. See Yahaya v. Maxim
Health Care Servs. Inc., No. 10-5557, 2012 WL 6203785, at *15
(D.N.J. Dec. 12, 2012) (dismissing a count where a fictitious
defendant was not named). Moreover, as Plaintiffs have yet to
replace “XYZ, owner of A.C. Parasail” or “Captain John Doe” with
named Defendants, these fictitious defendants are dismissed. The
Court notes that based on the parties’ submissions, Captain Eric
Redner appears to be “Captain John Doe.” (See Defendant’s Statement
of Undisputed Material Facts [D.I. 49-6], ¶ 14; see also
Plaintiffs’ Response to Defendant’s Statement of Material Facts
[D.I. 52-1], ¶ 14; see also Eric Redner Deposition [D.I. 52-8].)
If Plaintiffs request to substitute Captain Eric Redner for Captain
John Doe, Plaintiffs must address why, in light of this Opinion,
any of the claims asserted against Captain Redner are viable.
1

3

(Id. at 14, ¶ 4.) Further, AC Parasail avers that Dina Olmo had
contractual

obligations

toward

it

and

thus

“is

entitled

to

reimbursement from [] Dina Olmo for costs related to any injury
that

occurred

as

a

result

of

her

engaging

in

the

subject

parasailing activity.” (Id. at 14 ¶¶ 7–8.)
This Court maintains subject matter jurisdiction over
this matter based upon its admiralty jurisdiction under 28 U.S.C.
§ 1333. For the reasons set forth below, the Court 2 grants AC
Parasail’s motion for summary judgment.
The following facts are not in dispute. 3 In July of 2011,
Plaintiffs were vacationing with their teenage sons in Atlantic
City, New Jersey. (Defendant’s Statement of Undisputed Material

2

The parties have consented to this Court's jurisdiction on March
10, 2014 pursuant to 28 U.S.C. § 636(c)(1), Federal Rule of Civil
Procedure 73(b), and Rule 73.1 of the Local Civil Rules for the
United States District Court, District of New Jersey. (See Notice,
Consent, and Reference of a Civil Action to a Magistrate Judge
[D.I. 21].)
3 Pursuant to Local Civil Rule 56.1(a), a party moving for summary
judgment must provide a statement setting forth “material facts as
to which there does not exist a genuine issue[.]” L. Civ. R.
56.1(a). “The opponent of summary judgment shall furnish, with its
opposition papers, a responsive statement of material facts,
addressing each paragraph of the movant's statement, indicating
agreement or disagreement and, if not agreed, stating each material
fact in dispute and citing to the affidavits and other documents
submitted in connection with the motion[.]” Id. “[A]ny material
fact not disputed shall be deemed undisputed for purposes of the
summary judgment motion.” Id. “[T]he opponent may also furnish a
supplemental statement of disputed material facts . . . if
necessary to substantiate the factual basis for opposition.” Id.
4

Facts (hereinafter, “Def.’s Facts”) [D.I. 49-6], ¶ 2; see also
Plaintiffs’ Response to Defendant’s Statement of Material Facts
(hereinafter, “Pls.’ Resp.”) [D.I. 52-1], ¶ 2.) On July 11, 2011,
Dina and Gene Olmo visited AC Parasail’s kiosk, and after speaking
with AC Parasail’s employee for fifteen minutes, decided to reserve
spots for parasailing the next morning. (Exhibit B (hereinafter,
“Dina

Olmo

Dep.”)

to

the

Declaration

of

David

M.

Kupfer

(hereinafter, “Kupfer Dec.”) [D.I. 49-3], 122:14 to 123:22, 33-34
on the docket.) On July 12, 2011, the Olmo family (Dina, Gene, and
their two sons), boarded AC Parasail’s boat, the “Fly By,” which
was captained by Eric Redner. (Def.’s Facts, ¶ 2; see also Pls.’
Resp. [D.I. 52-1], ¶ 2.) Along with the Olmo family, there were
five other passengers on the boat. (Def.’s Facts, ¶ 2; see also
Pls.’ Resp. [D.I. 52-1], ¶ 2.)
Prior to boarding the boat, Dina Olmo signed a waiver
form entitled “Parasailing Release of Liability, Waiver of Claims,
Express Assumption of Risk and Indemnity Agreement.” (Def.’s Facts
[D.I. 49-6], ¶ 4; see also Pls.’ Resp. [D.I. 52-1], ¶ 4.) The
relevant portions of the liability waiver provide:
I, Dina Olmo, do hereby affirm and acknowledge
that I have been fully informed of the
inherent hazards and risks associated with
Parasailing, water transportation to and from
the parasail vessel and other such related
water sport activities to which I am about to
engage, including but not limited to:

5

1) changing water flow, tides, currents, wave
action and ship’s wakes;
2) collision with any of the following: a)
other participants, b) the watercraft, c)
other watercraft, d) man made or natural
objects, e) shuttle boat;
. . .
Release of Liability, Waiver of Claims and
Indemnity Agreement
In
consideration
of
being
allowed
to
participate
in
the
above
described
Watersports, transportation, and parasailing
activities, as well as the use of the
facilities,
specifically
including
water
transportation (shuttle boat) to and from the
parasail vessel and sue [sic] of the equipment
of the below [named – illegible] 4 releasees,
I hereby agree as follows:
1) To waive and release any and all claims
based upon negligence, active or passive, with
the exception of intentional, wanton, or
willful misconduct that I may have in the
future against . . . the following named
persons or entities herein referred to as
releasees: Capt. Eric Redner [and] Atlantic
City Parasail
2) To release the releasees, their officers,
directors,
employees,
representatives,
agents, and volunteers, and vessels from
liability and responsibility whatsoever and
for any claims or causes of action that I, my
estate, heirs, executors, or assigns may have
for personal injury, property damage, or
wrongful
death
arising
from
the
above
4

The copy of the liability waiver document submitted to the Court
is difficult to read in certain areas due to black spots on the
document. However, the Plaintiffs do not contest the document. The
Court was able to decipher the document language in almost its
entirety and the portions of the document that were difficult to
decipher do not affect the Court’s analysis.
6

activities whether caused by active or passive
negligence of the releasees or otherwise, with
the
exception
of
gross
negligence.
By
executing this document I agree to hold the
releasees harmless and indemnify them in
conjunction with any injury or loss of life
that may occur as a result of engaging in the
above activities.
3) By entering into this Agreement, I am not
relying on any oral or written representation
or statements made by the releasees, other
than what is set forth in this Agreement.
. . .5
(See Exhibit C to Kupfer Dec. [D.I 49-3], 56-57 on the docket.)
The incident that gave rise to this action occurred while
the

Olmos

were

in

the

boat

traveling

out

of

the

inlet.

Specifically, Dina Olmo asserts that she was sitting next to her
husband on a bench closest to the bow of the boat, and that she
had positioned herself to be slightly facing her husband with her
right leg tucked under her left leg. Sitting across from her were
her two sons. (Def.’s Facts [D.I. 49-6] ¶¶ 10-11; see also Pls.’
Resp. [D.I. 52-1], ¶¶ 10-11.) Dina Olmo testified that as the boat
was heading out of the inlet, she decided to straighten her body
to face her children, and that as she was straightening her body
and untucking her right leg from under her left, the boat hit a

5

In addition, at the bottom of the liability waiver, Dina Olmo
signed the waiver, printed her name, and printed the date — 7/12/11
— signifying that “I have read this Agreement, understand it, and
I agree to be bound by it.” (See Exhibit C to Kupfer Dec. [D.I.
49-3], 56-57 on the docket.)
7

wave and lifted her up in the air, and when she landed she felt “a
stabbing pain at the bottom of [her] back.” 6 (Dina Olmo Dep. [D.I.
49-3], 193-196:23, 44-47 on the docket.) The boat “returned to the
dock within minutes of [Dina] Olmo’s injury.” (Def.’s Facts [D.I.
49-6], ¶ 20; see also Pls.’ Resp. [D.I. 52-1], ¶ 20.) Once the
boat returned to the dock, Dina and Gene Olmo decided that they
would go to the hospital and their two sons could stay on the boat
with Captain Redner and take the very next parasailing trip.
(Def.’s Facts [D.I. 49-6], ¶ 21; see also Pls.’ Resp. [D.I. 591], ¶ 21.)
In support of its motion, AC Parasail contends that as
a matter of law, Dina Olmo waived and released AC Parasail from
the negligence claims asserted in the complaint as “[it is] a
matter of undisputed fact, [Dina Olmo] executed an enforceable
liability waiver . . . .” (See Brief [D.I. 49-1], 3-4.) In
addition, AC Parasail argues that the loss of consortium claim
fails as a matter of law because maritime law does not recognize
such a claim. (Id. at 4.)
AC Parasail further argues that the liability waiver was
clear and unambiguous as it provided notice of the “‘inherent

6

Plaintiffs allege Dina Olmo suffered “serious, severe permanent,
disabling injuries including but not limited to L2 compression
fracture, was required to obtain medical treatment and was caused
and will be prevented from engaging in her usual activities and
was otherwise damaged.” (Complaint [D.I. 1], 25 on the docket.)
8

hazards and risks associated with . . . water sport activities’ —
including the very risk by which [she] claims she was injured:
‘changing water flow, tides, currents, wave action and ship’s
wakes, [and] equipment failure or operator error.’” (Id. at 5.)
Moreover, AC Parasail contends that Dina Olmo failed to plead a
claim for recklessness against Defendants; instead her pleadings
amount to negligence, which she has waived through the liability
waiver. (Id. at 13–16.) In particular, AC Parasail notes that none
of the counts asserted by Dina Olmo allege that AC Parasail had
knowledge that the harm to Dina Olmo was substantially certain to
occur or that Captain Redner acted with an intentional disregard
of a known or obvious risk that was so great to make it highly
probable that harm would follow. (Id.) AC Parasail also argues
that there are no allegations that the captain acted with a
conscious indifference to the consequences. (See id.)
Furthermore, AC Parasail argues that even if Dina Olmo
has pled a claim of recklessness, the undisputed facts do not
support such a claim. (Id. at 16.) AC Parasail contends that no
evidence was presented that tends to prove that the captain of the
boat was incompetent, careless, dangerous, or in an impaired
condition

that

made

him

an

unsafe

operator.

(Id.

at

16–17.)

Instead, Dina Olmo asserts that the captain “was going too fast
for the conditions” which AC Parasail argues is “nothing more than
negligence.” (Id. at 17.) AC Parasail also avers that Dina Olmo’s
9

assertion of recklessness is further undermined by the testimony
of Rick Kocienski, who was also a passenger on the boat when Dina
Olmo was injured. (Id. at 17–19.) Kocienski, 7 testified that the
weather that morning was clear, sunny, with a light wind, and he
described the boat ride as smooth. (Def.’s Facts [D.I. 49-6], ¶
17.) Moreover, Mr. Kocienski stated that he was not concerned with
the way the captain was operating the boat that morning and did
not observe any other passengers express concerns or object to the
way he was operating the boat. (Id. at ¶ 19.) Additionally, AC
Parasail argues that the Olmos allowed their teenage sons to go on
the next parasail trip with Captain Redner while they went to the
hospital. (Def’s. Brief [D.I.

49-1], 19–21.) AC Parasail contends

that if Captain Redner had acted recklessly, then Dina and Gene
Olmo would not have allowed their unaccompanied teenage sons to go
out on the next trip. (See id. at 21.)
In opposition, Plaintiffs contend that Dina Olmo did not
understand the scope of the legal rights she was waiving when she
signed the liability waiver. (See Pls.’ Opp’n [D.I. 52], 5.) While
Dina Olmo admitted at her deposition that by signing the waiver of
liability she understood that she was giving up legal rights she

7

According to Plaintiffs, Kocienski is a fact witness who
testified to what he perceived as a passenger on the boat when
Dina Olmo was injured. Kocienski is not being offered as an expert
on boat rides and admittedly has never captained a boat nor has
any experience with boats. (Pls.’ Resp. [D.I. 52-1], ¶ 17.)
10

possessed, the parties dispute the scope of the legal rights
waived. (See Pls.’ Resp. [D.I. 52-1] ¶¶ 4–5; see also Dina Olmo
Dep. [D.I. 49-3], 147:12-20, 35 on the docket.) In particular,
Plaintiffs contend that Dina Olmo believed she was only waiving
her legal rights in “regard to the parasailing event and not the
boat ride to and from the event.” (Pls.’ Opp’n [D.I. 52], 5.)
According to Plaintiffs, Dina Olmo “denies that she was fully
informed

of

the

inherent

risks

associated

with

parasailing,

specifically the boat ride to and from the actual parasailing
event.” (Pls.’ Resp. [D.I. 52-1], ¶ 4.) Nevertheless, after signing
the waiver of liability, the Olmo family boarded the boat, which
left the dock at approximately 9:30 a.m. (See Def.’s Facts ¶ 7.)
Alternatively,

Plaintiffs

argue

that

the

liability

waiver is unenforceable as it is an “exculpatory agreement” and AC
Parasail
negligent

cannot

exculpate

conduct.

(Pls.’

itself
Opp’n

from
[D.I.

reckless
52],

5-7.)

or

grossly

Plaintiffs

contend that “[AC Parasail] was clearly reckless and grossly
negligent in accelerating the parasailing boat into very choppy
waters and large waves causing the boat to pitch and labor in a
dangerous and uncontrolled manner.” (Id. at 7.) Furthermore, in
response to AC Parasail’s argument that Plaintiffs have not pled
a cause of action for recklessness, Plaintiffs aver that “even if
[recklessness] was not properly [pled] in the initial pleadings,

11

Plaintiffs should be permitted to amend their pleadings and not
have their complaint dismissed.” (Id.)
A defendant who moves for summary judgment “bear[s] the
burden ‘to show that the plaintiff has failed to establish’ an
essential element of his claim.” Halsey v. Pfeiffer, 750 F.3d 273,
287 (3d Cir. 2014) (quoting Burton v. Teleflex Inc., 707 F.3d 417,
425 (3d Cir. 2013)). Summary judgment is appropriate “when the
pleadings, the discovery, the disclosure material on file, and any
affidavits show that there is no ‘genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’” Delaware Dep't of Nat. Res. & Envtl. Control v. U.S.
Army Corps of Eng’rs, 685 F.3d 259, 269 (3d Cir. 2012) (quoting
FED. R. CIV. P. 56(a)); see also Alabama v. North Carolina, 560 U.S.
330, 344 (2010).
In evaluating a summary judgment motion “courts are
required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the . . . motion.” Scott
v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and
citations omitted). “The line between reasonable inferences and
impermissible speculation is often thin, . . . but nevertheless is
critical

because

an

inference

based

upon

a

speculation

or

conjecture does not create a material factual dispute sufficient
to defeat summary judgment.” Halsey, 750 F.3d at 287 (internal
quotation marks and citations omitted). A non-moving party “must
12

present more than ‘bare assertions, conclusory allegations or
suspicions' to show the existence of a genuine issue.” McCabe v.
Ernst & Young, LLP, 494 F.3d 418, 436–37 (3d Cir. 2007) (internal
quotation marks and citation omitted). The Court must view the
evidence in a light most favorable to the non-moving party and any
“justifiable

inferences”

shall

be

extended

to

the

non-moving

party. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). “Where
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party,” the Court may grant summary
judgment. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
The
regarding

Court

whether

will
the

first

address

Plaintiffs

the

have

parties’

pled

a

dispute

claim

for

recklessness. Federal Rule of Civil Procedure 81 provides that the
Federal Rules of Civil Procedure “apply to a civil action after it
is removed from a state court.” FED. R. CIV. P. 81(c)(1); see also
Frederico v. Home Depot, No. 05–5579, 2006 WL 624901, at *2 n.4
(D.N.J. Mar. 10, 2006) (noting that the Federal Rules of Civil
Procedure

rather

than

the

New

Jersey

Rules

Governing

Civil

Procedure governed the plaintiff’s complaint which was originally
filed in state court and removed to federal court), aff'd, 507
F.3d 188 (3d Cir. 2007); see also Lin v. Chase Card Servs., No.
09–5938, 2010 WL 1265185, at *2 n.2 (D.N.J. Mar. 26, 2010) (holding
that

Rule

8(a)'s

pleading

requirements
13

apply

to

a

complaint

originally filed in state court and subsequently removed to federal
court). Consequently, the Court applies the federal rules to
determine the sufficiency of Plaintiffs’ pleading even though the
complaint was filed in state court and removed to this Court. Under
Rule 8, a claim for relief “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to
relief,’ in order to ‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1975)). However, a “complaint must contain
sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)

(quoting

Twombly,

550

U.S.

at

570).

A

complaint

is

insufficient if it offers “labels and conclusions,” a “formulaic
recitation of the elements of a cause of action,” or “‘naked
assertion[s]’” devoid of “‘further factual enhancement.’” Id. at
678 (quoting Twombly, 550 U.S. at 557).
AC Parasail argues that Plaintiffs “asserted claims for
ordinary negligence and unseaworthiness (maritime negligence) in
their Complaint.” (Brief [D.I. 49-1], 14.) Although, AC Parasail
notes that “passing reference is made to ‘recklessness’ in two
counts of the Complaint[,]” AC Parasail contends that “no factual
content allows this [C]ourt to draw the reasonable inference that
Atlantic

City

Parasail

is

liable
14

for

recklessness.”

(Id.)

Plaintiffs do not dispute AC Parasail’s contention, but suggest
that if a “[recklessness] cause of action was not properly [pled]
in the initial pleadings, Plaintiffs should be permitted to amend
their pleadings and not have their complaint dismissed.” (Pls.’
Opp’n [D.I. 52], 7.)
Plaintiffs’ first reference of reckless conduct against
AC Parasail occurs in Count I of the Complaint entitled “Negligent
Entrustment,” in which Plaintiffs assert that the captain operated
the boat in “an unseamanlike, negligent and carless manner,” and
specifically “was as otherwise unseamanlike, negligent, careless
and reckless.” (See Complaint [D.I. 1], at 25–27 on the docket.)
The

second

reference

to

reckless

conduct

occurs

in

Count

II

entitled “Unseamanlike & Negligent Acts of Captain Doe Operator of
[Motor Vessel].” 8 (Id. at 27–28 on the docket.) The allegation in
Count II is identical to the allegation in Count I, where the
Plaintiffs

assert

that

the

captain

operated

the

boat

in

“an

unseamanlike, negligent and careless manner,” and specifically
that he “was as otherwise unseamanlike, negligent, careless and
reckless.” (Id.)
The Court finds that Plaintiffs have not met the minimum
pleading requirements under FED. R.

OF

CIV. P. 8 to set forth a

This Count is alleged against a fictitious Defendant, Captain
John Doe. As explained supra, because Plaintiffs have failed to
name the fictitious Defendant in their complaint, summary judgment
is granted as to this count.
8

15

plausible claim of recklessness. In particular, the Court finds
that the complaint neither provides AC Parasail with fair notice
that Plaintiff is alleging recklessness as a cause of action, nor
the

grounds

upon

which

such

a

cause

of

action

would

rest.

Plaintiffs only make passing references to “reckless” conduct, and
couch

these

references

under

counts

specifically

alleging

negligence — “Negligent Entrustment” and “Unseamanlike & Negligent
Acts of Captain Doe Operator of [Motor Vessel].” (Complaint [D.I.
1], 25-28 on the docket) (emphasis added).) These two references
to reckless conduct couched under counts asserting negligence do
not constitute fair notice to AC Parasail that Plaintiffs are
asserting a cause of action for reckless conduct.
Moreover,
construed

as

even

asserting

if

a

Plaintiffs’

claim

of

pleading

recklessness,

could

it

is

be

still

insufficient to meet the pleading requirements of Twombly and
Iqbal.

Plaintiffs

Defendants’

did

conduct

not

was

plead

the

reckless.

grounds

Under

for

Iqbal,

why
a

or

label

how
or

conclusion — such as “reckless” — without facts is not enough to
raise a plausible claim. Plaintiffs have not pled facts that would
plausibly support a claim for recklessness and thus have failed to
properly plead a cause of action for recklessness. Accordingly,
the Court rejects the Plaintiffs’ argument that it has asserted
claims that AC Parasail acted recklessly.

16

Furthermore, Plaintiffs assert — without any reasoning
or legal support — that this Court should permit them to amend
their pleadings if they did not properly plead recklessness. (Pls.’
Opp’n [D.I. 52], 7.) Even if the Court were to construe Plaintiffs’
assertion as a request to amend their pleadings, this request is
denied. “Plaintiffs cannot amend their pleadings in a summary
judgment motion.” HFGL Ltd. v. Alex Lyon & Son Sales Managers &
Auctioneers, Inc., 700 F. Supp. 2d 681, 683 n.7 (D.N.J. 2010)
(citations omitted); see also Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1315 (11th Cir. 2004) (noting that “[a]t the summary
judgment stage, the proper procedure for plaintiffs to assert a
new claim is to amend the complaint in accordance with FED. R. CIV.
P. 15(a)” and that “[a] plaintiff may not amend her complaint
through

argument

in

a

brief

opposing

summary

judgment”).

Plaintiffs have requested to amend their pleading as part of their
opposition to the summary judgment motion; the proper procedure is
to file a motion with the Court under Rule 15(a). Consequently,
the Court denies Plainitffs’ request to amend the pleading as
procedurally deficient. 9

9

Plaintiffs’ request to amend their pleadings suffers from
additional deficiencies. Plaintiffs have failed to attach a
proposed amended pleading to their opposition brief. This failure
alone is grounds for the Court to deny a request to amend a
pleading. See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d
267, 273 (3d Cir. 2001) (observing that “the court may deny a
request if the movant fails to provide a draft amended complaint”).
Moreover, the deadline to file a motion to amend the pleadings was
17

In addition, since the Court will grant AC Parasail’s
summary judgment motion — as discussed infra — “if Plaintiff[s]
intend[] to assert [a] new claim[] [for recklessness], [they] would
be

required

to

file

a

motion

under

Rule

59(e).”

Holland

v.

Macerich, No. 09-914, 2011 WL 6934969, at *4 (D.N.J. Dec. 29, 2011)
(citing S. Jersey Gas Co. v. Mueller Co., 429 F. App'x 128, 130–
31 (3d Cir. 2011)). Federal Rule of Civil Procedure 59 provides
that “[a] motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.” FED. R. CIV.
P. 59(e).
The Court turns next to the substantive law that governs
Plaintiffs’ claims. AC Parasail argues that since this Court
maintains admiralty jurisdiction over this action, substantive
admiralty law should govern Plaintiffs’ claims. (Brief [D.I. 491], 4.) In opposition, Plaintiffs do not dispute AC Parasail’s
application of admiralty law, but rely upon New Jersey law to argue
that

AC

Parasail

cannot

waive

grossly

negligent

or

reckless

conduct. (Pls.’ Opp’n [D.I. 52], 6–7.) In its reply submission, AC

May 30, 2014. (See Scheduling Order [D.I. 20], Mar. 4, 2014.) As
Plaintiffs’ request was made outside of the deadline to amend
pleadings, they also must satisfy the requirements under Federal
Rule of Civil Procedure 16. Under Federal Rule of Civil Procedure
16, a scheduling order may be modified “for good cause and with
the judge’s consent.” FED. R. CIV. P. 16(b)(4). Plaintiffs have
failed to address either Rules 15 or 16, and have failed to attach
a
proposed
amended
pleading
to
their
opposition
brief.
Accordingly, Plaintiffs’ request is denied.
18

Parasail cites to New Jersey substantive law to argue that “no
facts support a claim for gross negligence.” (Def.’s Reply Brief
[D.I. 55], 4–8.)
Federal courts have original jurisdiction over “[a]ny
civil case of admiralty or maritime jurisdiction.” 28 U.S.C. §
1333(1). Admiralty jurisdiction is evoked if the alleged tort
occurs on a vessel in navigable waters, and the actions giving
rise to the alleged tort have the potential to disrupt maritime
commerce

and

“bear

a

significant

relationship

to

traditional

maritime activity.” Sisson v. Ruby, 497 U.S. 358, 364–66 (1990).
“With admiralty jurisdiction comes the application of substantive
admiralty law.” E. River S.S. Corp. v. Transamerica Delaval, Inc.,
476 U.S. 858, 864 (1986); see also Fedorczyk v. Caribbean Cruise
Lines,

Ltd.,

82

F.3d

69,

73

(3d

Cir.

1996)

(observing

that

“[s]ubstantive maritime law applies to a cause of action brought
in admiralty”).
This Court has admiralty jurisdiction over this action
because the alleged tort occurred on a boat off the coast of New
Jersey and the activity — “parasailing” — bears a significant
relationship to admiralty activity. See Cobb v. Aramark Sports &
Entm’t. Servs., LLC, 933 F. Supp. 2d 1295, 1298 (D. Nev. 2013)
(applying

admiralty

law

when

plaintiff

was

injured

while

parasailing on Lake Tahoe). Even though Dina Olmo was not injured
while parasailing, her injury occurred on a boat, traveling through
19

navigable waters off the coast of New Jersey, and thus bears a
significant relationship to admiralty activity. See Matter of
Skyrider, No. 89-0128, 1990 WL 192479, at *3 (D. Haw. Aug. 6, 1990)
(observing that “[c]areful and safe navigation of vessels in
navigable waters have always been a fundamental admiralty concern.
Navigation

is

an

essential

component

in

the

parasailing

activity”); see also Charnis v. Watersport Pro, LLC, No. 07-0623,
2009 WL 2581699, at *2 (D. Nev. May 1, 2009) (noting that “the
operation of recreational boats, including those pulling skiers or
wakeboarders,

bears

a

significant

relationship

to

traditional

maritime activity”).
The Court must also decide whether to apply substantive
admiralty law or New Jersey law to this matter. Generally, “[w]ith
admiralty jurisdiction . . . comes the application of substantive
admiralty law.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 206 (1996) (internal quotation marks and citation omitted).
However, the application of admiralty law is not an “‘automatic
displacement of state law.’” Centennial Ins. Co. v. Lithotech
Sales, LLC, 29 F. App’x 835, 836 (3d Cir. 2002) (quoting Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545
(1995)). A federal court sitting in admiralty jurisdiction may
rely on state law as long as the law in question “does not conflict
with [federal] maritime law.” Id.

20

Both admiralty law and New Jersey law recognize that
exculpatory contracts, in certain circumstances, are valid and
enforceable. See Charnis, 2009 WL 2581699, at *4 (holding that,
under admiralty law, “owners of recreational vessels may, through
written waivers, disclaim liability for their own negligence”) 10;
see also Stelluti v. Casapenn Enters., LLC, 1 A.3d 678, 694 (N.J.
2010) (applying New Jersey law, the court upheld an exculpatory
provision that eliminated liability for a fitness center's own
negligence if the consumer was injured while using the fitness
center).
Under admiralty law, an enforceable exculpatory clause
must be “(1) clear and unambiguous; (2) [] not inconsistent with
public policy; and (3) [] not an adhesion contract.” Cobb, 933 F.
Supp. 2d at 1298 (citing Charnis, 2009 WL 2581699, at *4). Under
New Jersey law, courts also require that an exculpatory clause be
clear and unambiguous. See Stelluti, 1 A.3d at 689–90 (explaining
that

to

enforce

an

exculpatory

10

clause

it

must

“reflect

the

See also Olivelli v. Sappo Corp., 225 F. Supp. 2d 109, 118–20
(D.P.R. 2002)(applying admiralty law and validating release of
liability for negligence signed by scuba diver in wrongful death
claim); see also Cutchin v. Habitat Curacao–Maduro Dive Fanta–
Seas, Inc., No. 98-1679, 1999 WL 33232277, *3 (S.D. Fla. 1999)
(applying admiralty law and holding that a pre-accident waiver
signed by a scuba diver absolved defendant from liability); see
also Waggoner v. Nags Head Water Sports, Inc., No. 97-1394, 1998
WL 163811, at *5–6 (4th Cir. 1998) (applying admiralty law and
enforcing a liability waiver and dismissing negligence claim
against a company that rented a jet ski to the plaintiff).
21

unequivocal expression of the party giving up his or her legal
rights that this decision was made voluntarily, intelligently and
with the full knowledge of its legal consequences” (internal
quotation

marks

exculpatory

and

clause

citation

is

omitted)).

enforceable

if

it

Furthermore,
is

not

an

“plainly

inconsistent with public policy.” Id. at 689. 11 In addition, both
admiralty law and New Jersey law provide that exculpatory clauses
that

disclaim

liability

for

conduct

beyond

negligence

or

carelessness are inconsistent with public policy. See Charnis,
2009 WL 2581699, at *5 (noting that “[u]nder federal maritime law
[],

owners

of

recreational

boats

may

disclaim

liability

for

negligence, but they may not do so for gross negligence” and that
“[g]ross negligence goes beyond ordinary negligence and is the
willful,

wanton,

or

reckless

infliction

of

harm”

(internal

quotation marks and citation omitted)); see also Stelluti, 1 A.3d
at 694–95 (applying New Jersey law and stating that defendant
“could not exculpate itself from [] reckless or gross negligence,”
but could exculpate itself from “injuries sustained as a matter of

11

The New Jersey Supreme Court in Stelluti listed four
considerations to determine if a clause is consistent with public
policy, including whether: (1) it adversely affects the public
interest; (2) the exculpated party is under a legal duty to
perform; (3) it involves a public utility or common carrier; or
(4) the contract grows out of unequal bargaining power or is
otherwise unconscionable. 1 A.3d at 689.
22

negligence”). 12 Finally, New Jersey also recognizes, under the
public policy factors outlined in Stelluti, that an exculpatory
contract can be invalidated if the contract grows “out of unequal
bargaining power or is otherwise unconscionable” such as a contract
of adhesion. 1 A.3d at 687–89 (holding that “although the terms of
the agreement were presented ‘as is’ to [plaintiff], rendering
this a fairly typical adhesion contract in its procedural aspects,
we hold that the agreement was not void based on any notion of
procedural

unconscionability”).

Accordingly,

as

there

is

no

conflict between admiralty law and New Jersey law regarding the
enforceability of exculpatory contracts, and Plaintiffs do not
dispute the application of admiralty law, this Court will apply
substantive admiralty law to this motion.
Exculpatory clauses in admiralty contracts are permitted
as long as they are clear and unambiguous, consistent with public
policy, and not a contract of adhesion. See Olivelli v. Sappo
Corp., 225 F. Supp. 2d 109, 116 (D.P.R. 2002). The Court finds
that the language contained in the liability waiver signed by Dina
Olmo is clear and unambiguous and that it unequivocally should
have put her on notice of its legal significance and effect. “A
waiver

is

clear

and

unambiguous

12

if

it

specifically

bars

the

Moreover, under New Jersey law, “[a]n agreement containing a
pre-injury release from liability for intentional or reckless
conduct also is plainly inconsistent with public policy.”
Stelluti, 1 A.3d at 689.
23

plaintiff’s

negligence

claim

and

explicitly

exonerates

all

defendants in the lawsuit.” Cobb, 933 F. Supp. 2d at 1299. The
language of the waiver is deemed “ambiguous where it is reasonably
susceptible to more than one interpretation.” F.W.F., Inc. v.
Detroit Diesel Corp., 494 F. Supp. 2d 1342, 1357 (S.D. Fla. 2007).
However, a release does not need to “list . . . each possible
manner in which releaser could be injured during an inherently
dangerous event.” Olivelli, 225 F. Supp. 2d at 118.
In Olivelli, the decedent died during a scuba diving
excursion and the cause of death was determined to be air embolism.
Id. at 110-11. Prior to diving, the Olivelli decedent executed a
“Liability Release and Express Assumption of Risk form” in which
she agreed to assume all risks associated with diving, whether
foreseen or unforeseen and release the defendants of liability for
negligence. Id. at 110–11. The Olivelli plaintiffs brought an
action asserting that the decedent’s death was the result of
defendants’ negligence. Id. at 111. Similar to Dina Olmo, the
Olivelli plaintiffs argued that the liability waiver “failed to
warn [the decedent] of the dangers [she would] encounter[] once
she boarded the boat.” Id. at 117. The Olivelli court disagreed
with the plaintiffs and held that the liability waiver clearly and
unambiguously waived their claims of negligence. Id. at 118–19.
The Olivelli court reasoned that the liability waiver executed by
the

decedent

(a)

advised

and

thoroughly
24

informed

her

of

the

inherent risks of diving; 13 (b) included a “specific recitation of
the types of risks associated with diving;” and (c) explained that
by executing the agreement, she had “accepted responsibility for
the consequences.” Id. at 118. Accordingly, the Olivelli court
held

that

the

decedent

“had

the

particular

knowledge

of

the

specific and precise risk” and she agreed to release the defendants
from

liability

for

personal

injury

she

suffered

due

to

the

that

by

defendants’ negligence. Id. at 117-18.
In

the

present

matter,

Dina

Olmo

contends

executing the liability waiver, she thought she was only waiving
her legal rights in “regard to the parasailing event and not the
boat ride to and from the event.” (Pls.’ Opp’n [D.I. 52], 5.)
However, Dina Olmo’s purported understanding of the liability
waiver is contrary to the clear and precise language of the
liability waiver. Similar to the liability waiver in Olivelli,
where the decedent agreed to release the defendants from liability,
the liability waiver executed by Dina Olmo also agreed to release
AC Parasail from liability for personal injury she suffered due to
negligence. The liability waiver advised and informed Dina Olmo of
the “inherent hazards . . . associated with Parasailing [and] water
transportation to and from the parasail vessel . . . .” (Exhibit
C to Kupfer Dec. [D.I. 49-3], 56 on the docket (emphasis added).)

13

Included in the list of inherent risks was embolism. Olivelli,
225 F. Supp. 2d at 117.
25

The liability waiver also recited specific types of hazards Dina
Olmo should be aware of, including “changing water flow, tides,
currents, wave action and ship’s wakes.” (Id.) Furthermore, Dina
Olmo agreed that in order to participate in the “Watersports,
transportation, and parasailing activities . . . including water
transportation (shuttle boat) to and from the parasail vessel” she
agreed

to

“waive

and

release

any

and

all

claims

based

upon

negligence . . . against [Capt. Eric Redner and Atlantic City
Parasail]. (Id. (emphasis added).
Dina Olmo’s assertion that she was not waiving legal
rights in regards to the boat ride to and from the parasailing
site is unfounded based on the clear and unambiguous language found
in the liability waiver. Dina Olmo does not dispute that she
executed the liability waiver. Moreover, Dina Olmo does not dispute
that she was injured while on AC Parasail’s boat and that her
injury occurred when the boat hit a wave while Captain Redner was
transporting

the

Accordingly,

the

passengers
Court

finds

to
that

the

parasailing

based

on

the

location.
clear

and

unambiguous language in the liability waiver executed by Dina Olmo,
she had particular knowledge of the specific and precise hazards
involved with parasailing and the related activities (including
water transportation) and she agreed to release Defendants from
liability for personal injury she suffered due to AC Parasail’s

26

negligence.

Therefore,

the

liability

waiver

was

clear

and

unambiguous.
In addition, under admiralty law, exculpatory clauses
waiving

liability

for

negligence

are

consistent

with

public

policy. See e.g., Cobb, 933 F.3d at 1299 (noting that an “express
waiver [wa]s not inconsistent with public policy because waivers
of liability on navigable waters do not contravene federal public
policy”); see also In re Aramark Sports & Entm't Servs., LLC, No.
09-637, 2012 WL 3776859, at *7 (D. Utah Aug. 29, 2012) (holding
that an admiralty exculpatory clause disclaiming negligence was
consistent with public policy and enforceable). Plaintiffs do not
dispute

that

exculpatory

clauses

disclaiming

negligence

consistent with public policy. (See Pls.’ Opp’n [D.I.

are

52], 5–7.)

Instead, Plaintiffs argue that “there can be no waiver or release
of or immunity from gross negligence . . . [and] since the []
exculpatory agreement does not release Defendants from reckless or
gross negligence . . . summary judgment . . . should be denied.”
(Id. at 7.) However, as explained supra, Plaintiffs have failed to
plead a cause of action for recklessness or gross negligence.
Accordingly, because the liability waiver disclaims liability for
negligence, and disclaiming negligence is not a violation of public
policy, the Court finds the liability waiver executed by Dina Olmo
to be consistent with public policy.

27

Finally,

the

Court

addresses

whether

the

liability

waiver constitutes a contract of adhesion. AC Parasail argues that
the liability waiver was not a contract of adhesion as Dina Olmo
had the opportunity to decline to participate in the parasailing
activity. (See Brief [D.I.

49-1], 11.) AC Parasail relies upon

Dina Olmo’s

where

own

testimony

she

admittedly

engaged

in

a

conversation with AC Parasail’s employee where she “‘gather[ed]
information so [the family] could decide whether we were going to
[go parasailing] or not.’” (Id. at 11–12 (quoting Dina Olmo Dep.
[D.I. 49-3], 122:14 to 124:13, 32-34 on the docket).) AC Parasail
contends that after this conversation, Dina Olmo and her family
decided to participate in the parasailing activity and signed the
liability waiver. (Id. at 12.) AC Parasail concludes that because
Dina

Olmo

was

free

to

decide

whether

to

participate

in

the

parasailing activity, the liability waiver cannot be a contract of
adhesion. (Id. at 12–13.) In opposition, Plaintiffs make cursory
reference to contracts of adhesion when discussing Stelluti, 14 but
do not argue precisely why the liability waiver in the present
matter is an unenforceable adhesive contract. (See Pls.’ Opp’n
[D.I.

52], 6–7.)

14

Plaintiffs argue “[t]he Stelluti case involved a contract of
adhesion for a fitness club similar to the contract in question
here except that contract did not contain an indemnification
section of the agreement.” (See Pls.’ Opp’n [D.I. 52], 6.)
28

The Olivelli, Charnis, and Cobb courts all found that
liability waivers for voluntary recreational activities are not
adhesive contracts. See Olivelli, 225 F. Supp. 2d at 119 (holding
that scuba diving is a “strictly voluntary recreational pursuit”
and is not an “essential service[] such as medical care . . . where
the court[] would be more likely to find that a contract of
adhesion

exists”);

see

also

Charnis,

2009

WL

2581699,

at

*5

(concluding that a liability waiver for the recreational activity
of wakeboarding was not a contract of adhesion for the reasons
explained in Olivelli); see also Cobb, 933 F. Supp. 2d at 1299
(observing that “[u]nder federal admiralty law, liability waivers
for recreational sporting activities like parasailing are not
contracts of adhesion because they are not essential services”).
Similarly, the Court finds the liability waiver is not a contract
of adhesion. Parasailing is a voluntary recreational activity and
Dina Olmo freely agreed to participate in the activity. Prior to
signing the liability waiver, Dina Olmo gathered information from
AC Parasail’s employee in order to decide whether the family would
participate in the activity. The Court finds that the liability
waiver is not a contract of adhesion.
Accordingly, because the liability waiver is clear and
unambiguous, conforms to public policy, and is not a contract of
adhesion, the Court finds the liability waiver to be enforceable,
and therefore, Plaintiff has waived her claims of liability against
29

AC Parasail. AC Parasail’s motion for summary judgment regarding
Dina Olmo’s claims against AC Parasail for negligent entrustment
of the subject motor vessel (Count I); Defendant Captain Doe’s
negligent

maintenance

and/or

supervision

of

passengers

(Count

III); violation of common carrier higher duty of care (Count IV);
and unseaworthiness (Count V) is granted. Therefore, these claims
are dismissed.
AC Parasail also moves for summary judgment with respect
to Gene Olmo’s loss of consortium claim. (Brief [D.I. 49-1], 21.)
AC Parasail argues that the loss of consortium claim should be
dismissed because admiralty law does not recognize such a claim.
(See id.) In Miles v. Apex Marine Corp., the Supreme Court denied
recovery for loss of society under general admiralty law asserting
that the law does not recognize such a cause of action. 498 U.S.
19, 32–33 (finding that “[w]e must conclude that there is no
recovery for loss of society in a general maritime action for the
wrongful death of a Jones Act seaman . . . [t]oday we restore a
uniform rule applicable to all actions for the wrongful death of
a seaman, whether under DOHSA, the Jones Act, or general maritime
law”). In Miles, the plaintiff was the mother and administratrix
of the estate of a seaman who was stabbed and killed by a fellow
crew member aboard a vessel. Id. at 21. However, courts have
distinguished Miles by holding that it only applies to seamen or
crewmen aboard a vessel, and have not extended the holding to non30

seaman. See Foulk v. Donjon Marine Co., 182 F.R.D. 465, 476 (D.N.J.
1998) (noting that “[t]his Court has already held that Miles does
not prevent a loss of consortium claim . . . if [Plaintiff] is not
a

seaman,

loss

of

consortium

damages

might

or

might

not

be

available” (citing Koernschild v. W.H. Streit, Inc., 834 F. Supp.
711, 720 (D.N.J. 1993))); see also Rosen v. Brodie, No. 94–3501,
1995 WL 394087, at *1 (E.D. Pa. 1995) (observing that “plaintiffs'
claim is that of a non-seaman injured in territorial waters to
which Miles has not been extended”); see also Ehlman v. First
Marine Transp. Corp., No. 05-111, 2007 WL 528656, at *5 (W.D. Ky.
Feb. 14, 2007) (asserting that “general maritime law does not
preclude all loss of consortium claims”).
As the Court has granted AC Parasail’s summary judgment
motion with respect to Dina Olmo’s claims, summary judgment is
also granted with respect to Gene Olmo’s loss of consortium claim.
See Watson v. Oceaneering Int'l, Inc., 387 F. Supp. 2d 385, 391
(D. Del. 2005). Accordingly, the Court need not determine whether
loss of consortium claim is recoverable under admiralty law. See
id.

(finding

that

“[b]ecause

the

court

has

concluded

that

[plaintiff's] general maritime claims should be dismissed, it will
not examine whether loss of consortium is recoverable under the
general maritime law”).

31

Consequently, for the reasons set forth and for good
cause shown, AC Parasail’s motion for summary judgment [D.I. 49]
is granted. An appropriate order will be entered.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 28, 2016

32