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Cruz v. Jump City Everett, LLC

Superior Court of Massachusetts, Suffolk

December 22, 2017

Elmer CRUZ et al.

          Caption Date: December 21, 2017


          Joseph F. Leighton, Jr., Associate Justice

         The 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." [1] For the reasons set forth below, the defendants’ motion is DENIED.


         On March 12, 2015, Mr. Cruz visited defendants’ trampoline recreation facility in Everett, MA with his two minor children and a niece, also a minor. Mr. Cruz does not speak English.

         Defendants 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.

         The defendants’ 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 son’s 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.

         As to plaintiff’s 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.) Plaintiff’s 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.

         Otherwise, 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.


         Section 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).

         The 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. Cruz’ 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).

         The 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.

         The 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 defendants’ 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 ...

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