Trial Magazine

Injuries at trampoline parks occur on their many attractions, including open-jump trampoline courts, dodgeball trampoline courts, trampoline basketball dunks, and wipeout challenges (jumping over a rotating beam). Injuries range from ruptured ligaments and tendons to fractures to quadriplegia. Ages of those injured range from two years old to adults in their 60s. The speed and power of the trampoline bed used in trampoline parks can snap the femur of a four-year-old with minimal movement.¹ When compared to consumer trampolines, trampoline park injuries are more likely to require hospitalization and surgery. These injuries increased at an alarming rate as locations and popularity grew.²

Holding trampoline parks accountable for your client’s injuries may require more than a premises liability negligence approach. Findings of gross negligence and willful and wanton conduct are attainable. So far, I have had success surviving summary judgment motions to dismiss gross negligence counts and amending a complaint to add a punitive damages count. Gross negligence and punitive damages counts should be considered for inclusion in every complaint.

Trampoline parks knowingly invite the public to have “fun” and experience “freedom from gravity” on flawed trampoline park designs and operation methods that have paralyzed people and shattered bones and joints. The trampoline park has no age requirements and offers no skill assessment, progressive instruction, or professional supervision.³ Trampoline park marketing encourages the public to attempt “advanced” skills, such as flips, trampoline-to-trampoline jumping, and wall jumping, with a recognized increased risk of injury.⁴ It is left up to the public to know how to jump safely and not exceed their skill level.⁵

It is unrealistic to expect children to possess such judgment.⁶ More important, for the uninformed public, it is impossible to know how to jump safely on the trampoline park-designed “trampoline courts” and other attractions that are minefields of hidden dangers. The victims are primarily toddlers, young children, and teenagers who experience high-impact dislocating injuries to their lower extremities.⁷

The Trampoline Park Industry’s Misuse of the Trampoline

The trampoline was patented by George Nissen on March 6, 1945.⁸ Its use in gymnastics resulted in safety issues, and in the mid-1980s, the United States Gymnastics Federation instituted safety protocols that virtually eradicated serious trampoline injuries from gymnastics.⁹ The safety practices for trampolines in gymnastics include skill assessment, progressive instruction, and supervision from professional coaches.

Most gymnastics professionals will testify that trampolines are not toys and cannot be used safely without professional skill assessment, progressive instruction, and supervision—these professionals prohibit their students from jumping at trampoline parks because of the high risk of injury.¹⁰

Defense experts say things such as: Trampolines in trampoline parks are for recreational use, unlike the trampolines used in a gymnastics program or schools that are used for instruction. By saying the word “recreation,” they try to obviate any need to discuss the dangers that are unique to trampoline parks.

The physical design and characteristics of the trampoline beds found in trampoline courts bear no resemblance to gymnastics or backyard and consumer trampolines. My gymnastics and biomechanical experts opine that the trampoline bed’s reduced size makes any maneuver besides jumping vertically in the center dangerous. The outer portions of the trampoline beds are so rigid that upon landing, spontaneous fractures occur.¹¹ The composition of the trampoline beds used by trampoline parks together with the spring pressure on the trampoline beds create so much tension that the rate of a trampoline bed’s return to its static position is capable of traumatic open/comminuted fracturing, dislocating any bone in the body, or both.¹²

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Interconnected trampoline beds allow energy from other jumpers to affect stability and predictability—and can cause a catastrophic result.

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Biomechanical engineers have gone into trampoline parks and measured these forces, and the results are shocking.¹³ Fractures and dislocations that occur at trampoline parks are more likely to require surgical intervention than those sustained on home trampolines.¹⁴ The interconnected trampoline beds allow energy from other jumpers on the trampoline court to affect the stability and predictability of the surrounding trampoline beds.¹⁵ This is enough to cause a catastrophic result if a jumper is attempting a flip or jumping from trampoline to trampoline. Lateral jumping from trampoline to trampoline is only found on the trampoline courts in trampoline parks. It did not exist until trampoline parks interconnected the trampoline beds and invented the trampoline court. This misuse of trampolines is not consistent with their intended use and design.

The ASTM standard for trampoline parks, F2970, was first published in 2013. It was revised in 2015, 2017, and 2020. While it is not enforceable, it has been recognized as an industry standard,¹⁶ and I have seen franchise agreements that require the franchisee to follow ASTM F2970. In my eight years of continuous experience in trampoline park litigation, trampoline parks have yet to produce a device analysis or risk assessment (as set forth under ASTM F2970 §6.1) for trampoline courts.

Although trampoline parks post rules that say to jump in the center of the trampoline, that is unrealistic when the centers of the trampolines are 7 to 8 feet apart (or longer on a diagonal). Jumping laterally puts torsional pressure on the lower limbs that have caused, for example, bilateral open tibia/fibula fractures and torn patellar ligaments and quadricep tendons.

Trampoline parks refuse to require a minimum age for their patrons. One trampoline park’s mantra is: “If you can walk you can jump.”¹⁷ In case after case, little children are injured by adults and older children despite ASTM F2970 §19, which states young children should be segregated in a protective “Children Zone.” Trampoline parks’ no minimum age policy is contrary to the Position Statement of the American Academy of Orthopaedic Surgeons,¹⁸ the Consumer Product Safety Commission Safety Alert,¹⁹ and the ASTM F381 standard for backyard/consumer trampolines,²⁰ which say that children six years and younger should not jump on trampolines.

Likewise, trampoline parks refuse to prohibit flips. Trampoline parks’ policy on flips is contrary to the Position Statement of the American Academy of Orthopaedic Surgeons²¹ (flips only with proper supervision and instruction and protective equipment such as harnesses); the Consumer Product Safety Commission Safety Alert²² (no flips allowed); and the ASTM F381 standard for backyard/consumer trampolines²³ (no flips allowed).

Beginning in 2011, trampoline parks were repeatedly warned by safety experts at ASTM F2970 Task Group meetings and the International Association of Trampoline Parks annual conferences that the design and operation of trampoline courts in trampoline parks were unsafe and would lead to deaths, paralysis, and disabling injuries.²⁴ Beginning in 2015, ASTM F2970 included a recommended notice with a warning that says:

Master the fundamentals of single trampoline jumping before moving on to more advanced maneuvers such as trampoline-to-trampoline jumping, wall trampoline jumping, and aerial type skills which increase the risk of injury (emphasis added).

This warning conflicts with trampoline parks’ marketing of kids flying high, defying gravity and performing all types of acrobatic skills.

Combining activities such as dodgeball and basketball dunking with trampoline jumping is another misuse of trampolines. Playing other sports while jumping on a trampoline interferes with the jumper’s ability to jump and land safely and increases the risk of injury. If your client weighs 250 pounds or more, compare the manufacturer’s trampoline bed weight limit to the trampoline park’s weight limit to assess potential liability for admitting the client to the trampoline park.

To prove knowledge, the safety experts on the ASTM F2970 Task Group who raised the alarm about the dangers inherent to jumping at a trampoline park and were outvoted by the trampoline park industry members of the group, can be called as expert witnesses.²⁵ These safety experts can identify which members of the trampoline park industry were present at specific meetings and put the trampoline park defendant on the defensive to explain why the warnings were ignored.

Participant Agreements

Be aware that the typical trampoline park business model anticipates injuries and litigation. Expect an aggressive defense. To start, customers must sign waivers that are designed to intimidate and include questionable provisions. You are likely to see waiver provisions contrary to state law such as provisions on indemnification, liquidated damages, negotiation, mediation, and arbitration (binding or nonbinding). The waiver also may call for the application of commercial rules rather than consumer rules, expedited arbitration rules, and out-of-state law or require out-of-state proceedings and unavailable arbitration forums. Do not take any of these provisions at face value.

Preinjury waivers for minors are unenforceable in some states.²⁶ Gross negligence cannot be waived in some states.²⁷ Some courts, for example in New Jersey, have found arbitration provisions to be unenforceable when the waiver of the right to a trial is inadequate.²⁸ Arbitration provisions also may be unenforceable against a minor when the adult signing the participant agreement lacks parental authority.²⁹

The Federal Arbitration Act (FAA) preempts state law and favors the enforcement of arbitration agreements, except on legal or equitable grounds for the revocation of a contract.³⁰ A winning argument under the FAA and state arbitration laws for not enforcing the arbitration provision requires that the deficiency in the arbitration provision be an essential or integral term; otherwise, the FAA allows the substitution of terms.³¹ Other unconscionable provisions do not necessarily void the arbitration provision if a severance clause is included because the FAA favors the enforcement of arbitration provisions.

I have been successful when the arbitration provision did not adequately describe the right being waived (trial by a jury), the arbitration process, or both. I lost when I argued that the designated arbitrator was not licensed to practice law in my state. The courts held that an arbitrator could be substituted. Take your time in researching the applicable law before accepting the case.

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Going beyond the boundaries of a premises liability case involves naming the franchisor and the manufacturer of the trampoline court components.

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Naming the Right Parties

Going beyond the boundaries of a premises liability case involves naming the franchisor and the manufacturer of the trampoline court components. In many cases, this will be critical to proving something greater than ordinary negligence and being able to nullify the waivers that are common to trampoline parks. In my experience, hitting the higher bars of gross negligence and willful and wanton conduct may be necessary to overcome the waivers used by trampoline parks and combat potential jury nullification (such as, trampoline park patrons assume the risk of injury).

Be careful when naming the franchisor. Franchisors can be less than forthright, and franchisor corporate ownership in the trampoline park industry is fluid. It is a good practice to focus the initial discovery on pinning down the correct corporate entities. This may allow the complaint to be amended late in the game if the defendants give misleading responses.

The franchisor may be held liable for the acts and omissions of the franchisee on the theory of agency or vicarious liability.³² The franchise agreement is not the determining factor. Rather, courts look to how the franchisor and franchisee interact, the amount of control the franchisor has over day-to-day operations, and the specific feature of the franchisee’s business responsible for liability.³³

Vicarious liability can be based on actual authority or apparent authority. For actual authority, look at all the ways the franchisor controls how the franchisee is required to build and operate the trampoline park.³⁴ For apparent authority, concentrate on the branding and marketing that represent the franchisee’s apparent authority to act on behalf of the franchisor.³⁵ Obtain the franchisor’s operations manual and franchise agreement, which can be very comprehensive. They control the trampoline park’s design, build, operation, and display of safety videos and signage. Some franchisors, for an increased fee, will handle hiring and day-to-day operations for the franchisee.³⁶ Franchise agreements may require the franchisee to follow ASTM F2970 trampoline park standards.

Some trampoline park franchisors have long-standing relationships with manufacturers, making it easy to name the manufacturer. Identifying the manufacturers for other trampoline parks will require discovery or inspection. Trampoline beds are required to have a manufacturer’s tag with the date of manufacture or installation.³⁷

Confidentiality

At the start of discovery, trampoline parks will push for a confidentiality agreement. Do not agree. Make them pursue a protective order and prove proprietary information. In many cases, they can’t justify the need for a protective order.

Many useful documents are already in the public domain. Join the AAJ Trampoline Park Litigation Group and ask other attorneys for help.³⁸ Keep yourself unencumbered to network with other attorneys who handle trampoline park cases.

Site Inspections

A site inspection is key to exposing the hidden dangers in trampoline courts that cause injuries. Simply eyeballing the trampoline court can reveal the age of the trampoline beds, holes in the trampoline beds, bloodstains, broken springs, poorly adjusted chain link systems, torn redundancy beds, disintegrated foam pads, and a general lack of maintenance.

A gymnastics expert and biomechanical engineer are needed to document and measure the flaws and defects in the trampoline court design, construction, and condition that contributed to the injury. The passing of significant time should not be a deterrent to conducting a thorough site inspection. Most likely, the experts can test multiple trampoline beds in the trampoline court and find that the defects are inherent to the design and build—and not unique to the specific trampoline bed where the injury occurred.

Trampoline Park Smoking Guns

It is always the best when you can use a violation of the defendants’ own rules against them. In addition to the defendants’ own operations and risk management manuals,³⁹ these are some of documents to get:

• Gymnastics Safety Manual, Second Edition, United States Gymnastics Safety Association (1979)
• Gymnastics Safety Manual, United States Gymnastics Federation (1985)
• Safety Handbook 2002 Edition, USA Gymnastics, by William. A. Sands
• International Association of Trampoline Parks, Trampoline Park Risk Management, Supervisor Certification Handbook, 2015 Edition
• Trampoline & Adventure Safety & Risk Management Handbook, 2017 Edition
• Trampoline & Adventure Safety & Risk Management Handbook, 2021 Edition.

There is a good chance that the defendants’ liability expert will be an administrator or contributor for one or more of these safety manuals.⁴⁰

The Trampoline Park Industry Is Evolving in the Wrong Direction

The trampoline park industry is battling on the ASTM F2970 Task Group for major changes to the trampoline park standard to limit its application to trampoline courts only and not the other attractions found in trampoline parks, such as trampoline basketball, warped wall, foam pit, wipeout, battle beam, rock wall, log roll, ninja course, trapeze swing, stunt bag, and zip line. None of these attractions comply with ASTM F2970 standards; in particular, a device analysis or risk assessment is missing.⁴¹ Injuries occur on a regular basis due to dangerous designs, a lack of supervision, or both.

Having attended the ASTM F2970 meetings for the past year, I am familiar with the trampoline park industry’s most egregious effort to modify ASTM F2970, which is to introduce performance trampolines or string beds into trampoline parks. Performance trampolines have always been prohibited by ASTM F2970.⁴² With performance trampolines, instead of being able to jump 2 to 5 feet in the air on the standard trampoline park polypropylene trampoline beds, jumpers will be able to jump 10 to 15 feet high, wall walk, jump onto and from platforms, and suffer gruesome injuries when they land wrong.

This is the second trampoline parks article to appear in Trial.⁴³ The first article merits reading, and as it predicted, the expansion of the trampoline park industry has resulted in a tremendous increase in injuries.⁴⁴ Rudimentary regulation of the trampoline park industry is active in only about 10 states.⁴⁵ There is no federal regulation. It is being left up to us, the trial lawyers, to induce the trampoline park industry to follow better safety standards and practices.

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David K. Chazen is a founding partner at Chazen & Chazen in Englewood, N.J., and can be reached at chazen@chazenlaw.com.

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Notes

1. For investigative news videos on the dangers of trampoline parks, see www.chazenlaw.com.
2. See Carlos Nunez et al., Trampoline Centre Injuries in Children and Adolescents: A Systematic Review and Meta-Analysis, Injury Prevention J., Sept. 21, 2022, https://injuryprevention.bmj.com/content/28/5/440.info; Jesse Doty et al., Trampoline Related Injuries: A Comparison of Injuries Sustained at Commercial Jump Parks Versus Domestic Home Trampolines, 27 J. Am. Acad. Orthopedic Surgeons 23 (2019); Lloyd Roffe et al., The Effect of Trampoline Parks on Presentations to the Christchurch Emergency Department, 131 N.Z. Med. J. 43, 45 (2018); Lisa N. Sharwood et al., Increasing Injuries as Trampoline Parks Expand Within Australia: A Call for Mandatory Standards, 42 Austl. & N.Z. J. of Pub. Health 153, 155 (2018); Kathryn E. Kasmire et al., Trampoline Park & Home Trampoline Injuries, 138 Pediatrics 3 (Sept. 2016).
3. In my experience, most trampoline park operation manuals prohibit employees from instructing patrons.
4. ASTM Int’l, ASTM F2970-15 (Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts) §18 (2015) (available for purchase at https://www.astm.org/).
5. ASTM F2970-15 §18.
6. See Michael Jacki et al., Trampoline & Adventure Safety & Risk Management Handbook ch. 5 (2017 ed.) (available for purchase at www.taagsafe.com).
7. Nunez, supra note 2; Kasmire, supra note 2.
8. U.S. Patent No. 2,370,990 (filed June 4, 1941, issued Mar. 6, 1945).
9. Gerald S. George, United States Gymnastics Federation Gymnastics Safety Manual (1st ed. 1985).
10. USA Gymnastics, Gymnastics Risk Management Safety Course Handbook 83–93 (2016 ed.).
11. Id.
12. Id.
13. P.E. Pidcoe & E. Nyman, Energy Transfer in Mechanically Linked Trampoline Systems: Injury Potentiation (presentation on file with author).
14. Nunez, supra note 2; Doty, supra note 2; Roffe, supra note 2; Sharwood, supra note 2; Kasmire, supra note 2.
15. Pidcoe, supra note 13.
16. Michael Jacki et al., Trampoline & Adventure Safety & Risk Management Handbook (2017 & 2021 eds.) (available for purchase at www.taagsafe.com).
17. Undercover Boss: Sky Zone (CBS television broadcast Mar. 14, 2014).
18. Am. Acad. Orthopaedic Surgeons, Position Statement: Trampolines and Trampoline Safety 1, 2, Sept. 2015, https://tinyurl.com/y6kmft3b.
19. Consumer Prod. Safety Comm’n, CPSC Safety Alert: Trampoline Safety, https://tinyurl.com/yc6pdkn9.
20. ASTM Int’l, ASTM F381-99 (Standards Safety Specification for Components, Assembly, Use, and Labeling of Consumer Trampolines) §7.5.1.4, §8.3.3.4, §10.2.1.2 (2017) (available for purchase at https://www.astm.org/).
21. Am. Acad. Orthopedic Surgeons, supra note 18, at 1.
22. Consumer Prod. Safety Comm’n, supra note 19, at 1.
23. ASTM F381-99 §7.4.2.1, §7.5.1.1, §8.2.2.1, & §8.3.3.1.
24. ASTM meeting minutes, obtained from Consumer Prod. Safety Comm’n via FOIA (minutes on file with author).
25. Id.
26. Galloway v. State, 790 N.W.2d 252, 256–57 (Iowa 2010); Hojonowski v. Vans Skate Park, 901 A.2d 381, 397 (N.J. 2006); Childress v. Madison Cty., 777 S.W.2d 1, 7 (Tenn. Ct. App. 1989); Munoz v. II Jaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993); Rutherford v. Talisker Canyon Fin. Co., LLC, 445 P.3d 474, 481–82 (Utah 2019).
27. Flood v. Young Woman’s Christian Ass’n of Brunswick, Ga., Inc., 398 F.3d 1261, 1266–67 (11th Cir. 2005); Stelluti v. Casapenn Enters., 1 A.3d 678, 693–94 (N.J. 2010). See also Conradt v. Four Star Promotions, Inc., 728 P.2d 617, 621 (Wash. Ct. App. 1986).
28. Defina v. Go Ahead & Jump 1, LLC, 2019 WL 2622074, at *2 (N.J. Super. Ct. App. Div. June 13, 2019). Note that arbitration provisions in these contracts could be the subject of an entire article.
29. Gayles v. Sky Zone Trampoline Park, 254 A.3d 1271, 1276 (N.J. Super. Ct. App. Div. 2021), cert. denied, 259 A.3d 305 (N.J. 2021).
30. 9 U.S.C. §2 (2022).
31. Keefe v. Allied Home Mortgage Corp., 67 N.E.3d 616, 623 (Ill. App. Ct. 2016); Miller v. GGNSC Atlantic, LLC, 746 S.E.2d 680, 685 (Ga. Ct. App. 2013).
32. Gary S. Kessler & Phil McNicholas, Vicarious Liability When a Franchisor Is Liable for Its Franchisee’s Actions, Law J. Newsls. Emp. Strategist 2 (2013); The Harmonie Grp., Franchisor Liability Issues (2013) (review of law in Canada, the United States, and the U.S. Virgin Islands).
33. Id.
34. Id.
35. Id.
36. See, e.g., Get Air Trampoline Park, Franchise, https://tinyurl.com/4t6j7b53.
37. ASTM F2970-15 §7.10.12.
38. For more information, visit https://www.justice.org/community/litigation-groups/trampoline-injury-litigation-group.
39. See, e.g., Sky Zone Risk Management Manual, June 4, 2014 (on file with author).
40. For example, Michael P. Jacki is listed as a contributor in the Gymnastics Safety Manual, Second Edition, U.S. Gymnastics Safety Ass’n (1979), and is listed as the executive director in the Gymnastics Safety Manual, U.S. Gymnastics Fed’n (1985). Michael P. Jacki and Robert Ito are authors of the Trampoline & Adventure Safety & Risk Management Handbook (2017 & 2021 eds.).
41. ASTM F2970-15 §6.
42. ASTM F2970-15 §7.10.2.
43. Thomas A. Crosley, High Flying Danger, Trial, Dec. 2016, at 40.
44. Nunez, supra note 2.
45. Ariz. Rev. Stat. Ann. §37-1421 (2020); Cal. Lab. Code §7900 (2021); 7 Colo. Code Regs. §1101-12 (2019); 430 Ill. Comp. Stat. 85 (2022); La. Stat. Ann. §40:1484.1 (2011); Mich. Comp. Laws §691.1731 (2014); N.Y. Gen. Bus. Law §220 (2020); 4 Pa. Cons. Stat. §§401–419 (2015); Tenn. Code Ann. §68-121 (2010); Utah Code §11-63-101 (2022).