New Jersey Water Park Personal Injury Case Raises Questions About Convenient Venues and Forum Selection Clauses

The Superior Court of New Jersey, Bergen County, recently dealt with a motion by the defendants to transfer the personal injury against them out of the Plaintiffs’ home court and into theirs. The motion was denied.

The case of Flatley v. Mountain Creek Water Park began when the plaintiffs where injured while riding “the Gauley,” a water slide at Mountain Creek Water Park. Mountain Creek is located in Vernon Township in Sussex County. The plaintiffs filed their personal injury lawsuit in a Bergen County court, which is their county of residence and also the residences of all the doctors who treated the plaintiffs and who could potentially be called as witnesses.

The defendants first moved for a change of venue to Sussex County on the grounds that litigating the case in Bergen County would be inconvenient, or that it would be more convenient to try the case in Sussex County. Also, the fine print on the admission ticket to the park contained what is known as a “forum selection clause,” which clearly stated that any actions against the park had to be brought in Sussex County.

Unfortunately for the defendants, New Jersey Civil Procedure limits the time in which a party can make a motion for change of venue, and the defendants’ motion in this case came too late. The defendants could only succeed if they could demonstrate that they could not get a fair trial in Bergen County – there is no deadline for that type of pre-trial motion. The defendants could not prove that heavy burden, however.

The court went further and held that even if the defendants’ motion was timely, the judge was not persuaded that Bergen County would be substantially inconvenient for the parties and witnesses, or that Sussex County would be more convenient.

What about the forum selection clause?

Whether this clause is enforceable depends upon certain facts which must be litigated. Therefore, the case may yet be transferred to Sussex County if the clause is found to be enforceable, but for now the case remains in Bergen County where it was filed.