Another Child Bound by Parent to Arbitrate Claims Against Amusement Park

Nada Tupanjac took her son Luka to a trampoline park in Vernon Hills, Illinois called Sky Zone. Need I say more? The child was injured. The boy’s father (Plaintiff) brought suit, alleging that Sky Zone was negligent and that its conduct was willful and wanton. Plaintiff also sought a declaratory judgment that  Sky Zone’s waiver agreement, which contained an arbitration clause, was void and unenforceable under Illinois law.  The trial court granted Sky Zone’s motion to compel arbitration.

In Tupanjac v. SZ Orlando Park, LLC, an Illinois appellate court affirmed. Plaintiff raised an interesting argument. He claimed that the entire agreement, not just the arbitration provision, was unenforceable under the Physical Fitness Services Act. Because that argument goes to the entirety of the agreement and not just to the arbitration clause, it is not precluded under the Federal Arbitration Act. Unfortunately for Plaintiff, under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006), “regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” In this case, the agreement specified that all questions of arbitrability were to be decided by the arbiter.

The same is true of Plaintiff’s argument that a parent cannot waive a right to a jury trial in favor of arbitration on behalf of their minor child. That too is a challenge to the agreement as a whole and is for the arbiter to decide.

Finally, Plaintiff argued that the agreement was of indefinite and perpetual duration and thus was terminable at will under Illinois law. Unfortunately, the agreement provided both that it was of indefinite duration and that it ended on January 29, 2023. The specific term trumps the general? Why not just find the agreement ambiguous and construe it against the drafter? How would the court rule if the case arose after January 29, 2023? Wouldn’t Sky Zone then be arguing that the contract expressly provided that it was indefinite and perpetual in duration? Interestingly, had the court taken the argument seriously, Cardegna would have been no impediment. This argument goes to the existence of an arbitration agreement and not to its scope. 

We posted on two similar cases last year. They also ended up in arbitration.