Elmer CRUZ et al.
JUMP CITY EVERETT, LLC et al.
Caption Date: December 21, 2017
MEMORANDUM AND ORDER OF DECISION ON DEFENDANTSâ
MOTION TO COMPEL ARBITRATION
F. Leighton, Jr., Associate Justice
Plaintiff, Elmer Cruz, and his wife, Santos Cruz, filed the
instant action alleging negligence and violation of G.L.c.
93A and, in the case of Ms. Cruz, loss of consortium against
the defendants in connection with an injury suffered by Mr.
Cruz at a trampoline facility in Everett, MA on March 12,
2015. The defendants filed a motion to compel arbitration,
which they contend is required under the terms of a document
called, " Participant Agreement, Release of Liability
Waiver."  For the reasons set forth below, the
defendantsâ motion is DENIED.
March 12, 2015, Mr. Cruz visited defendantsâ trampoline
recreation facility in Everett, MA with his two minor
children and a niece, also a minor. Mr. Cruz does not speak
require patrons to execute an electronic document called a
" Participant Agreement, Release and Liability
Waiver" (the " Agreement") as a condition of
entry to the facility. The Agreement contains an arbitration
provision, which gives rise to this motion.
defendantsâ original contention regarding their motion to
compel was that by affixing his electronic signature to the
document, Mr. Cruz bound himself to its terms, including the
arbitration provision. However, when the plaintiffs opposed
the motion, they submitted an affidavit signed by Mr. Cruz.
in which he avers that the electronic signature in question
was not entered by him, but was entered by his 15-year-old
son, David, who does speak English. In reply, defendants do
not dispute this factual assertion, but maintain that the
plaintiff is nonetheless bound by the Agreement based on his
sonâs actions under principles of agency, apparent authority
and/or ratification. Defendants also point out in their reply
memorandum that Mr. Cruz had been to the facility on a prior
occasion and had electronically executed an Agreement in
connection with that visit.
plaintiffâs affidavit, Mr. Cruz specifically avers that while
he and the children were standing in line to enter the
facility on the day of the accident, a worker spoke to him in
English, which he did not understand. (Affidavit of Elmer
Cruz at par. 4.) Plaintiffâs son, David, interpreted, telling
Mr. Cruz, in Spanish, that the worker said that " we
need to go to the computer screen." (Id.) Mr.
Cruz and David went to the computer screen indicated as the
employee watched. (Id. at par. 5.) Mr. Cruz could
not read the English language text on the screen.
(Id.) David entered information into the computer
and the group was allowed into the facility. (Id.)
Mr. Cruz further avers that he did not authorize his son to
sign the Agreement on his behalf. (Id. at par. 6.)
Plaintiffs argue that Mr. Cruz is not bound to the terms of
the agreement under these circumstances.
the plaintiffs contend that the arbitration clause is
unenforceable as unconscionable and/or procured by fraud. In
this regard, plaintiffs claim that the arbitration language
is not clear enough and not sufficiently prominent; that its
inclusion of a one-year limitation on filing renders it
unconscionable; and that the defendants should not be allowed
to take advantage of a legal document where, as here, they
knew that their patron does not speak English and could not
understand the document.
2(a) of the Massachusetts Arbitration Act, M.G.L.c. 251,
applies to the instant dispute and requires the court to
" proceed summarily to the determination" of the
issues raised by this motion. The Supreme Judicial Court has
interpreted this statutory mandate to mean that a motion to
compel arbitration should be treated as a motion for summary
judgment. Miller v. Cotter, 448 Mass. 671, 676
(2007). The burden is thus on the moving party to establish
the binding nature of the agreement to arbitrate as a matter
of law or undisputed fact. See, Ajemian v. Yahoo,
Inc., 83 Mass.App.Ct. 565 (2013) (party moving for
summary judgment on the enforceability of a provision in an
electronic agreement has the burden of establishing, on
undisputed facts, that the provision in question was
reasonably communicated and understood).
defendants have not met their burden under the circumstances
presented in this case because they have not established, as
a matter of law or undisputed fact, that the entry of Mr.
Cruzâ electronic signature by his 15-year-old son bound the
plaintiff to the terms of the Agreement, including the
arbitration provision. The court cannot compel arbitration
without a basis in undisputed fact, or as a matter of law,
regarding the binding nature of the Agreement. See, id. at
576, quoting Baggy v. Highbeam Research, Inc., 862
F.Supp.2d 41, 44 (D.Mass. 2002) (denying summary judgment
where no acceptance shown to forum selection clause contained
in electronic agreement).
defendants argue that David Cruz had apparent authority to
bind the plaintiff. It is true that a principal may cloak his
or her agent with apparent authority by words or conduct.
See, Fergus v. Ross, 89 Mass.App.Ct. 528 (2016). The
actions of a principal in this regard must be such that when
" reasonably interpreted" they cause a third person
" to believe that the principal consents to have the act
done on his behalf by the person purporting to act for
him." Id. at 523 (citations omitted).
Generally, the issue of apparent authority turns on questions
of fact. On the record before the court, Mr. Cruz uttered no
words to bestow authority on his son to bind him to the
Agreement, and I find that his simple act of standing by
while the 15-year-old entered information into the computer,
under the circumstances presented, does not establish
apparent authority as a matter of law or undisputed fact.
defendants also contend that Mr. Cruz is bound to the
arbitration provision by ratification. That is, they contend
that the plaintiff acquiesced to the terms of the agreement
when he entered the facility and used the trampolines after
his son input his information into defendantsâ computer.
Normally, a principal has a duty to disavow unauthorized acts
by an agent but a failure to do so constitutes ratification
only if the principal has full knowledge of the material
facts. See Linkage Corp. v. Trustees of Boston
University, 425 Mass. 1, 18 (1997), cert. den., 522 U.S.
1015 (1997). Ratification is a question of fact. TheColony of Wellfeet, Inc. v. Harris, 71 Mass.App.Ct.
522, 529 (2008). On the ...