The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837Posted: March 9, 2015
The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, La Quinta Properties, Inc., La Quinta Development Partners, LP, Securitas Security Services Usa, Inc., Harry J. Burnham, Jeanette Ollie, Individually and d/b/a Shaw Athletic Youth Association, and John Does 1 through 5, Defendants
CASE NO. 2:06CV56
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, DELTA DIVISION
2007 U.S. Dist. LEXIS 16837
March 8, 2007, Decided
COUNSEL: [*1] For The Wrongful Death Beneficiaris of Christopher Elliott, Deceased, Plaintiff: Dana J. Swan, LEAD ATTORNEY, CHAPMAN, LEWIS & SWAN, Clarksdale, MS; David Randall Wade, LEAD ATTORNEY, DAVID R. WADE, ATTORNEY, Florence, MS.
For LaQuinta Corporation, LaQuinta Properties, Inc., LaQuinta Development Partners, LP, Defendants: Monte L. Barton, Jr., LEAD ATTORNEY, COPELAND, COOK, TAYLOR & BUSH, Ridgeland, MS; Philip J. Chapman, COPELAND, COOK, TAYLOR & BUSH – Ridgeland, Ridgeland, MS.
For Securitas Security Services USA, Inc., Harry J. Burnham, Defendants: Dorrance Aultman, LEAD ATTORNEY, AULTMAN, TYNER & RUFFIN, LTD., Hattiesburg, MS; William Heath Hillman, LEAD ATTORNEY, AULTMAN, TYNER, MCNEESE & RUFFIN, Hattiesburg, MS.
JUDGES: Michael P. Mills, UNITED STATES DISTRICT JUDGE.
OPINION BY: Michael P. Mills
This cause comes before the court on the plaintiffs’ motion to remand  as well as the plaintiffs’ motion  to amend to add non-diverse defendants. The court has reviewed the briefs and submissions and is prepared to rule.
This is an action for the wrongful death of sixteen year old minor Christopher Elliot. Christopher drowned at the La Quinta [*2] Inn while on a trip with a community youth basketball team. This case was removed to federal court on March 31, 2006 from the Circuit Court of Bolivar County based on diversity of citizenship and federal question jurisdiction. Defendant Jeanette Ollie did not join in the removal and the other defendants have alleged that Ms. Ollie has been fraudulently joined in this action. The defendants also assert that any stated cause of action against Ms. Ollie is preempted by the Federal Volunteer Protection Act, giving rise to federal jurisdiction. The plaintiffs assert that they have stated claims against Ms. Ollie upon which relief can be granted, and further contend that there is no federal question in this lawsuit.
The defendant’s claim that the Federal Volunteer Protection Act, 42 U.S.C. 14501 et seq., gives rise to a federal question is incorrect. In Richardson v. United Steelworkers of America, the Fifth Circuit stated:
One clear feature of the “arising under” requirement, however, is the well-pleaded complaint rule: whether a claim arises under federal law must be determined from the allegations in the well-pleaded complaint. See generally [*3] Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3566 (2d ed.1984). In removal cases removed, the plaintiff’s well-pleaded complaint, not the removal petition, must establish that the case arises under federal law. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 3232, 92 L. Ed. 2d 650 (1986); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 2847, 77 L. Ed. 2d 420 (1983). This requires the court to determine federal jurisdiction only from those allegations necessary to state a claim or, stated alternatively, a federal court does not have jurisdiction over a state law claim because of a defense that raises a federal issue. Franchise Tax Bd., 103 S. Ct. at 2846; Gully v. First Nat’l Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Under the well-pleaded complaint rule, federal preemption is generally a defensive issue that does not authorize removal of a case to federal court. See Powers, 719 F.2d at 764-65. [*4]
864 F.2d 1162, 1168 (5th Cir. 1989).
While it is true that when a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law, that is not the case in the instant matter. See Richardson at 1169. The language of 42 U.S.C. 14502(a) states that “this chapter preempts the laws of any State to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit or governmental entity.” As such, the Volunteer Protection Act does not completely preempt state law and does not give rise to a federal question.
The removing party, which is urging jurisdiction on the court, also bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The Fifth Circuit has stated:
The burden [*5] of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility” of recovery; to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir. 2000)).
The defendants’ task is made considerably more difficult by the Fifth Circuit’s decisions in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004) and McKee v. Kansas City Southern Ry. Co., 358 F.3d 329, 336 n.2 (5th Cir. 2004). [*6] A majority of the en banc Fifth Circuit in Smallwood observed that:
Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry. … Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.
Smallwood, 385 F.3d at 573. The Fifth Circuit in McKee similarly emphasized that the fraudulent joinder standard is more akin to a 12(b)(6) standard than the quasi-summary judgment standard which had previously been applied by many district judges in this circuit. It is accordingly plain, in light of McKee and Smallwood, that the improper/fraudulent joinder standard is far more deferential to a plaintiff’s allegations than had commonly been assumed.
With regard to defendant Ollie, the plaintiffs [*7] have alleged:
“That the Defendant, Jeanette Ollie d/b/a Shaw Athletic Youth Association, (“Ollie”), undertook and assumed a duty to supervise the minors in the group while in Jackson, Mississippi, but negligently failed to do so.”
The plaintiffs clearly allege negligent supervision against Ms. Ollie. However, under the Volunteer Protection Act, volunteers cannot be liable for simple negligence. The plaintiffs maintain that the Volunteer Protection Act does not apply to Ollie or the Shaw Athletic Youth Association because the organization has not received any federal designation as a qualifying exempt organization under 26 U.S.C. § 501(c)(3). Ms. Ollie has submitted an affidavit that avers that the “Shaw Athletic Youth Association” is a fictitious name created for the single purpose of ascribing a name to the group that would be traveling to Jackson, but that the group has not been formally organized or incorporated. The defendants contend that the Volunteer Protection Act does not require formal organization or articles of incorporation and presents competing affidavits regarding Ms. Ollie’s status as a volunteer for an amateur youth [*8] basketball team.
The term “nonprofit organization” is defined by the statute as a) any organization which is described in section 501(c)(3) of such title and is exempt from tax under section 501(a) of Title 26 and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534); or b) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act. The legislative history of the act reflects that the bill covers not only “501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).” 143 Cong. Rec. S4915-05. The legislative history also indicates that the bill also “covers volunteers of local charities, volunteer fire departments, little leagues, veterans groups, trade associations, chambers of commerce, [*9] and other nonprofit entities that exist for charitable, religious, educational, and civic purposes.” Id.
Given the extremely broad definition of “organization” under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act. Under the Volunteer Protection Act a volunteer is not liable for simple negligence. The plaintiffs have only alleged simple negligence against defendant Ollie. Accordingly, the plaintiffs have no possibility of recovery against Ms. Ollie and the defendant has been improperly joined in the action.
The plaintiffs have also requested to amend their complaint to include Mississippi defendants Andrew Williams and Kerlin Janiver. Fed. R. Civ. Pro. 15 provides that motions to amend a complaint “shall be freely given when justice so requires.” However, when an amendment will destroy diversity jurisdiction the court must consider:(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking [*10] for an amendment; (3) whether the plaintiff will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the equities. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). The Fifth Circuit has rejected the rigid distinction between the post-removal joinder of indispensable parties under Fed. R. Civ. Pro. 19 and post-removal joinder of permissive parties under Rule 20. Rosa v. Aqualine Res., Inc., 2004 U.S. Dist. LEXIS 22130, 2004 WL 247990 *1 (N.D. Tex. 2004).
The state court complaint filed on March 16, 2006, in Bolivar County, Mississippi states: “at this time, Plaintiffs do not know the identity of John Does 1 through 5, but that said unnamed known defendants may include a person named “Johnny Murray,” and/or other agents, employees, servants or subsidiaries of La Quinta Development Partner, LP, and/or independent contractors of La Quinta Development Partners, LP.” The complaint also states: “by information and belief, the Defendants Securitas Security Services USA, Inc., (“Securitas”), and Harry J. Burnham, (“Burnham”) and a person named “Javarius” employed by Securitas, (sometimes referred to collectively herein as the [*11] “Securitas Defendants”), undertook and assumed the duties to provide security, surveillance, monitoring, and supervision for the safety and security of the guests at the La Quinta Inn.” While the plaintiffs have moved to remand, it seems unlikely that the sole purpose the plaintiffs have moved to amend their complaint is to defeat federal jurisdiction. The plaintiffs did, in fact, make allegations against unknown plaintiffs while the case was in state court. More telling, the complaint asserts allegations against an unknown “Javarius,” and the name of one of the persons they seek to add is actually Janiver.
The plaintiffs moved to amend on June 13, 2006, roughly three months after commencing this action. Three months is not an unduly dilatory amount of time to discover the names of unknown parties, particularly as discovery has not commenced in this matter.
The court must also consider whether the plaintiffs will be significantly injured if amendment is not allowed. The defendants argue that amendment is not necessary because the proposed parties were employees of Securitas at the time of Christopher’s drowning, and that they were within the scope of their employment [*12] which means that Securitas would be vicariously liable for any tortious acts committed by the proposed defendants. The plaintiffs counter by alleging that it is unknown if proposed defendants Williams and Janiver remained within the scope of employment during the time that they should have been guarding the pool area. In Hayes v. Illinois Cent. R.R., 2000 U.S. Dist. LEXIS 2405, 2000 WL 33907691 *2 (N.D. Miss. 2000), the Judge Biggers rejected the defendants’ argument that an employee was an unnecessary party since the corporation would be responsible under the doctrine of respondeat superior. The court found that the plaintiff had a right to seek recovery from the individual as well as the corporation. Id. This court also finds that the doctrine of respondeat superior does not preclude the plaintiffs from seeking recovery from the defendants individually.
As neither party has alleged any additional factors bearing on the equity of amendment, this court finds that an examination of the Hensgens factors demonstrates that amendment is proper in this instance.
Accordingly, the plaintiffs’ motion  to remand is GRANTED. The plaintiffs’ motion  to amend is also GRANTED. [*13] Defendant Ollie has been improperly joined; however, the plaintiffs are hereby granted leave to file an amended complaint naming Andrew Williams and Keith Janiver as defendants. The amended complaint must be filed within ten days of entry of this order. This case is now remanded back to the Circuit Court of Bolivar County, Mississippi.
This the 8<th> day of March, 2007.
/s/ Michael P. Mills
UNITED STATES DISTRICT JUDGE
Guido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350Posted: February 28, 2015
Diana L. Guido et al., Plaintiffs and Appellants, v. Charles Koopman, Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE.
1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350
December 12, 1991, Decided
SUBSEQUENT HISTORY: [***1] Review Denied February 26, 1992, Reported at 1992 Cal. LEXIS 2024.
PRIOR HISTORY: Superior Court of the City and County of San Francisco, No. 897795, Stuart R. Pollak, Judge.
COUNSEL: McTernan, Stender & Wash and Marvin Stender for Plaintiffs and Appellants.
Drevlow, Murray & Payne and Mary S. Cain for Defendant and Respondent.
JUDGES: Opinion by Haning, Acting P. J., with King, J., and Poche, * concurring.)
* Associate Justice of the Court of Appeal, First District, Division Four, sitting under assignment by the Chairperson of the Judicial Council.
OPINION BY: HANING, Acting P. J.
[*839] [**438] Plaintiffs and appellants Diana L. Guido and Donald Schwartz, a married couple, appeal from a summary judgment, enforcing a release from all liability, in favor of defendant and respondent Charles Koopman, doing business as The Academy of Equestrian Arts (the Academy). Appellants contend the release is unenforceable because it was executed in reliance on respondent’s misrepresentation that it was unenforceable. We affirm.
Facts and Procedural History
Guido [***2] filed her complaint against three groups of defendants for personal injuries allegedly resulting from three separate, sequential accidents during [*840] the summer of 1988: two automobile accidents and a horseback riding accident. These incidents were unrelated, but were joined in the complaint because “[p]laintiff is in doubt as to which of the defendants … she is entitled to redress because there is a question as to which defendant is liable and to what extent for injuries, as she was injured in each incident.” Guido’s husband, Donald Schwartz, filed a separate action for loss of consortium, and the two actions were consolidated.
The summary judgment motion was brought by respondent and is addressed solely to the cause of action against him involving the horseback riding accident.
On September 29, 1987, Guido visited the Academy to inquire about taking horseback riding lessons from respondent. At that time she signed a document entitled “Release,” given to her by respondent. That document reads:
“I Hereby Release [the Academy], Charles Koopman, Donna Koopman, Managers, Trainers, Instructors and Emplyees [sic] of and From All Claims Which May Hereafter Develop [***3] or Accrue to me on account of, or by Reason of, Any Injury, Loss or Damage, Which May Be Suffered by Me or to Any Property, Because of any Matter, Thing or Condition, Negligence or Default Whatsoever, and I Hereby Assume and Accept the Full Risk and Danger of Any Hurt, Injury or Damage Which May Occur Through or by Reason of Any Matter, Thing or Condition, Negligence or Default, of Any Person or Persons Whatsoever.”
After signing the release, Guido took lessons from respondent, as often as twice a week, until the accident on June 16, 1988, when she allegedly was thrown from one of respondent’s horses.
Respondent’s motion for summary judgment was based, in part, on the ground that the waiver precluded Guido from pursuing any claims against him. The trial court found there was no triable issue of any material fact and granted summary judgment for respondent.
[HN1] “[S]ummary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party [*841] is entitled to a judgment as a matter of law. …” ( Code Civ. Proc., § 437c, subd. (c).) The issues [**439] presented are whether the release is voidable and, if [***4] so, whether the undisputed facts prevent appellants from avoiding the release.
Appellants advance two theories for avoidance of the release: First, in Guido’s declaration in opposition to respondent’s summary judgment motion, she states: “… I am an attorney. When I signed the release it was my understanding that releases from negligence were against public policy. [P] … [P] … I am not an expert on horses. But I do not think that an inherent risk of horseback riding is being thrown off of a horse ….” Second, although not mentioned in Guido’s declaration, appellants argued to the trial court, as she does on appeal, that respondent told Guido the release was “meaningless.”
(1) With regard to appellants’ initial contention regarding the legality of the release, they are in error. [HN2] Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from [the] responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” [HN3] This statute has been interpreted to mean that “a contract exempting from liability for ordinary [***5] negligence is valid where no public interest is involved ….” (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 631, p. 569; Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 97 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]; Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 148-149 [277 Cal.Rptr. 887].)
[HN4] Public interest or policy is generally defined by the constitution, statutes or judicial precedent. “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [***6] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a [*842] standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98- 101, fns. omitted.)
(2) There was a time during the development of this nation, particularly during the early westward migration, that one’s survival frequently depended upon a good horse [***7] and the ability to remain in the saddle. Indeed, legend has it that so vital was the horse to our well-being in the American West that horse thieves were routinely hanged, with a dispatch that bore little resemblance to contemporary notions of due process. However, for better or worse, the times have changed, and except for a few working cattle ranches where the cow pony has not been completely replaced by the pickup truck, equestrian activities are largely confined to the entertainment arena.
We are unaware of any constitutional or statutory provision that would place horseback riding within the “public interest” category. Like the court in Buchan, we are also unaware of any case in the sports or recreation field that has voided such a release on public interest or public policy [**440] grounds. ( Buchan v. United States Cycling Federation, Inc., supra, 227 Cal.App.3d at p. 149.) Similar releases have been upheld for activities that are equally, if not more, hazardous than horseback riding, such as bicycle racing (Ibid.), motorcycle dirt bike racing ( Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606 [246 Cal.Rptr. 310]), [***8] white-water rafting ( Saenz v. White-water Voyages, Inc. (1990) 226 Cal.App.3d 758 [276 Cal.Rptr. 672]), scuba diving ( Madison v. Superior Court (1988) 203 Cal.App.3d 589 [250 Cal.Rptr. 299]) and skydiving. ( Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 [214 Cal.Rptr. 194].)
As to appellants’ argument that the release is ineffective because Guido did not think being thrown off a horse was an inherent risk of horseback riding, we are of the contrary view–that it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse. The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary. (See, e.g., Palmquist v. Mercer (1954) 43 Cal.2d 92 [272 P.2d 26]; Dorobek v. Ride-A-While Stables (1968) 262 Cal.App.2d 554 [68 Cal.Rptr. 774]; Griffin v. Sardella (1967) 253 Cal.App.2d 937 [61 Cal.Rptr. 834]; [***9] O’Brien v. Gateway Stables (1951) 104 Cal.App.2d 317 [231 P.2d 524].) In fact, Guido admitted she was “bucked” from a different horse a few months before this accident.
[*843] (3a) For their second contention–that respondent advised Guido the release was “meaningless”–appellants rely on Guido’s deposition testimony, submitted by respondent in support of his summary judgment motion. In her deposition Guido testified she “just didn’t feel comfortable signing something that said ‘Release’ on it on the top.” However, she signed it without reading it because respondent advised her, “… It doesn’t mean anything. It is something that I need to have you sign, because my insurance company won’t let me give lessons unless I have people sign this. [P] … As a matter of fact, the insurance company wants me to give the students this long detailed form, which I don’t do, because it scares them away when they see this long, detailed form.”
(4) [HN5] “It is well established that a party to an agreement induced by fraudulent misrepresentations or nondisclosures is entitled to rescind, notwithstanding the existence of purported exculpatory provisions contained [***10] in the agreement. [Citation.]” ( Danzig v. Jack Grynberg & Associates (1984) 161 Cal.App.3d 1128, 1138 [208 Cal.Rptr. 336]; Civ. Code, § 1689, subd. (b)(1).) The representations need not be made with knowledge of actual falsity but also include the “false assertion of [a] fact by one who has no reasonable grounds for believing his own statements to be true, and when made with [the] intent to induce the other to alter his position, to his injury. [Citation.]” ( In re Cheryl E. (1984) 161 Cal.App.3d 587, 599 [207 Cal.Rptr. 728]; Civ. Code, § 1572, subd. 2.)
[HN6] The existence of actual fraud is always a question of fact. ( Civ. Code, § 1574; Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1475 [266 Cal.Rptr. 593].) (5) [HN7] Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact. ( Seeger v. Odell (1941) 18 Cal.2d 409, 414-415 [115 P.2d 977, 136 A.L.R. 1291]; Danzig v. Jack Grynberg & Associates, supra, 161 Cal.App.3d at p. 1138.) [***11] However, whether a party’s reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 289, p. 301.)
(3b) Guido’s deposition testimony on which appellants rely also reveals that she is a practicing attorney and uses releases in her practice. In essence, she is asking this court to rule that a practicing attorney can rely on the advice of an equestrian instructor as to the validity of a written release of liability that she executed without reading. [HN8] In determining whether one can reasonably or justifiably rely on an alleged misrepresentation, the knowledge, education and experience of the person [**441] claiming reliance must be considered. ( Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503 [*844] [198 Cal.Rptr. 551, 674 P.2d 253, 44 A.L.R.4th 763]; Seeger v. Odell, supra, 18 Cal.2d at p. 415.) Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable.
The summary judgment is affirmed.
[***12] King, J., and Poche, J., * concurred. Appellants’ petition for review by the Supreme Court was denied February 26, 1992.
* Associate Justice of the Court of Appeal, First District, Division Four, sitting under assignment by the Chairperson of the Judicial Council.
Vera Gadman, Plaintiff, v. Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC., Defendants.
Case No. 2:13-CV-00327-EJL
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
2014 U.S. Dist. LEXIS 83883
June 17, 2014, Decided
June 17, 2014, Filed
CORE TERMS: foreseeable, violent, summary judgment, staff, violence, genuine, youth, ran, violent acts, deposition, non-moving, custody, owed, van, issue of material fact, adverse party, citation omitted, propensity, foreseen, commit, runaway, duty of care, undisputed, instructor, detention, outdoor, missing, assault, shoes, violent behavior
COUNSEL: [*1] For Vera Gadman, Plaintiff: James M Bendell, Grupp Law Office, Coeur D’Alene, ID.
For Marshall Dittrich, Defendant: Michael L Haman, LEAD ATTORNEY, Haman Law Office, Coeur d’Alene, ID.
For Penelope James, Phoenix Mountain Collaborative, LLC, Defendants: Mark A Ellingsen, LEAD ATTORNEY, WITHERSPOON KELLEY, Coeur d’Alene, ID.
JUDGES: Honorable Edward J. Lodge, U. S. District Judge.
OPINION BY: Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court in the above-entitled matter are Defendants’, Phoenix Mountain Collaborative, LLC and Penelope James, Motion for Summary Judgment and related Motions. The parties have filed their responsive briefing and the matters are ripe for the Court’s consideration.1 Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
1 Mr. Dittrich filed a response to Plaintiff’s opposition to the Motion for Summary Judgment wherein [*2] he takes no position on the Motion but responds only to clarify the record. (Dkt. 17.)
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2011, Defendants Joseph Martin and Marshall Dittrich were participants in a 52-day outdoor program known as the Big Sky Summer Adventure Program operated by Explorations in Trout Creek, Montana. Explorations is an entity that offers both full time residential programs and summer outdoor adventure programs for youths who may have struggled in the past either academically, socially, with interpersonal relationships, or with substance use/experimentation issues. Explorations also offers counseling sessions and life skills training. Explorations is owned and operated by Defendant Phoenix Mountain Collaborative, LLC.2 The Defendant Penelope James is the managing member of Explorations who reviews the applications for enrollment at Explorations’ camps.
2 The Court will refer to Phoenix Mountain Collaborative, LLC as “Explorations” in this Order. The Court also refers to both Ms. James and Explorations collectively as “Explorations” in this Order.
On July 29, 2011, the Explorations outdoor program was finishing a float trip down the Clark Fork River which runs [*3] from Montana to Idaho. That evening, around 10:00 p.m., the students and staff camped out on the Explorations’ property. The next morning around 8:00 a.m., an Explorations’ staff member noticed Mr. Martin and Mr. Dittrich were missing. A search was conducted but the boys were not found on the property. At 9:30 a.m. Ms. James notified local law enforcement and the boys’ parents that they had run away and were missing.
The location of the two boys was not known until July 31, 2011. On that day the Plaintiff, Vera Gadman, was driving her vehicle in Clark Fork, Idaho when she saw Mr. Martin and Mr. Dittrich, hitchhiking along Highway 200. Ms. Gadman stopped her car and offered them a ride. The boys asked Ms. Gadman to take them somewhere they could camp. After driving to a couple of locations, Ms. Gadman stopped at the east end of David Thompson Road and showed the boys where they could camp on a map. At that stop, Mr. Martin and Mr. Dittrich then brutally assaulted and battered Ms. Gadman including allegedly choking, strangling, and striking her in the head with a glass bottle, throwing and striking her with rocks, and committing other acts of violence and terror against her. (Dkt. 1 at [*4] ¶ 13.) As a result, Ms. Gadman claims she suffered serious physical and emotional injuries and incurred significant damages. Ms. Gadman has filed this action raising a negligence claim against the Defendants seeking to recover for the damages she suffered from the attack. Defendants Exploration and Ms. James have filed this Motion for Summary Judgment which the Court takes up in this Order.
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party’s case and upon which the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). [*5] If the non-moving party fails to make such a showing on any essential element, “there can be no ‘genuine issue of material fact,’ since a completely failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.3
3 See also, Rule 56(e) which provides, in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both “material” and “genuine.” An issue is “material” if it affects the outcome of the litigation. An issue, before it may be considered “genuine,” must be established by “sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties’ differing [*6] versions of the truth at trial.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party
(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party’s claim implausible.
Id. at 374 (citation omitted).
Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
1. Motion for Extension of Time to File Statement of Genuine issues of Fact
Plaintiff’s Motion asks [*7] for leave of the Court to file a late Statement of Genuine Issues of Fact in response to the Motion for Summary Judgment. (Dkt. 23.) Plaintiff mistakenly failed to file the Statement of Fact as required by the rules. Defendants oppose the Motion arguing the proposed Statement of Facts fails to satisfy the requirements of Federal Rule of Civil Procedure 56(c) and Local Civil Rule 7.1. (Dkt. 24.) The Court has reviewed the briefing and materials on this issue and will grant the Plaintiff’s Motion and allow her to file the late Statement of Facts. While the filings is untimely, the Court finds the interests of justice are best served by deciding the Motion for Summary Judgments on its merits and there is little prejudice suffered by Defendants as a result of the late filing.
2. Defendants’ Motion for Summary Judgment
Explorations and Ms. James seek dismissal of the negligence claim against them arguing 1) they owed no duty to Ms. Gadman and 2) the actions of Mr. Dittrich and Mr. Martin were not foreseeable to either Explorations or Ms. James. (Dkt. 16.) Ms. Gadman opposes the Motion and asserts that a genuine issue of material fact exists as to whether Explorations and/or Ms. James owed [*8] a duty to her. (Dkt. 19.)
On the question of whether Ms. James and/or Explorations owed a duty of care to Ms. Gadman under Idaho law, both parties cite to and discuss Caldwell v. Idaho Youth Ranch, Inc., 132 Idaho 120, 968 P.2d 215 (Idaho 1998) but arrive at opposite conclusions. In Caldwell, the Idaho Supreme Court held that the Idaho Youth Ranch did not owe a duty of care to a third-party for the violent acts committed upon the third-party by a minor who had, several months prior, been released from an Idaho Youth Ranch program. There the court concluded that the minor was not in the custody or control of the Youth Ranch at the time he committed the violent acts upon the third-party.
In reaching this conclusion, the Idaho Supreme Court discussed the “duty owed by those in charge of persons who are dangerous or who have dangerous propensities,” quoting the duty is as described in the Restatement (Second) of Torts, § 319, which provides:
§ 319. Duty of Those in Charge of Person Having Dangerous Propensities. One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third [*9] person to prevent him from doing such harm.
Caldwell, 968 P.2d at 218 (quoting Restatement (Second) of Torts, § 319 (1977)). The court then identified the two components of the duty:
The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.
Id. at 218-19. The parties in this case dispute both components — whether Ms. James/Explorations had control over the boys and whether the harm caused by the boys was foreseeable.
“No liability exists under the law of torts unless the person from whom relief is sought owed a duty to the allegedly injured party.” Jones v. Starnes, 150 Idaho 257, 245 P.3d 1009, 1012 (Idaho 2011) (quoting Vickers v. Hanover Constr. Co., Inc., 125 Idaho 832, 875 P.2d 929, 932 (Idaho 1994)). “Ordinarily, ‘there is no affirmative duty to act to assist or protect another absent unusual circumstances, which justifies imposing such an affirmative responsibility. An affirmative duty to aid or protect arises only when a special relationship exists between the parties.'” Rees v. State, Dept. of Health and Welfare, 143 Idaho 10, 137 P.3d 397, 402 (Idaho 2006) [*10] (quoting Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 987 P.2d 300, 311 (1999)) (citations omitted). “Determining when a special relationship exists sufficient to impose an affirmative duty requires an evaluation of ‘the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.'” Id. (quoting Coghlan, 987 P.2d at 311 (quoting W. Prosser, Law of Torts 333 (3d ed. 1964))).
The general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons…. [Some] relationships are custodial by nature, requiring the defendant to control his charge and to guard other persons against his dangerous propensities…. The same rule has been applied to hospitals and psychotherapists who have charge of dangerous mental patients, and to those who have charge of dangerous criminals. … Yet, in the absence of the requisite relationship, there generally is no duty to protect others against harm from third persons.
Caldwell, 968 P.2d at 218 (quoting Sterling, 723 P.2d at 768-69) (citation omitted). “[T]he key to this duty is the supervising [*11] individual’s relationship to the supervised individual, rather than a direct relationship with the endangered person or class of persons.” Caldwell, 968 P.2d at 218 (discussing Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755, 769 (Idaho 1986) superseded in part on other grounds by Idaho Code § 6-904A)). Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.
The parties in this case disagree on the level of “control” Explorations had over the youths. Explorations argues that it provides “recreational programs and counseling for children” but maintains it is “not a state run juvenile detention center or institution.” (Dkt. 16 at 1, 9.) Participation in Exploration is voluntarily and there is no physical detention or connection to the criminal justice system. (Dkt. 16 at 2, 9.) Explorations’ briefing argues that the attendees may leave the Exploration program at any time. (Dkt. 16 at 9.)
Ms. Gadman counters that Explorations and Ms. James exercised supervisory control over the students such that a special relationship was formed which gives rise to a duty. (Dkt. 19.) Ms. Gadman [*12] points out that Ms. James testified in her deposition that students are not free to leave Explorations once they are enrolled, there had been kids in the past who had ran away from camp but were caught, and described the procedures Explorations had in place for preventing kids from escaping.
The Court finds facts in this case are distinct from those in Caldwell where it was undisputed that the violent offender had been released from the Idaho Youth Ranch several months before committing the murder. There the Idaho Supreme Court found the Idaho Youth Ranch did not have control over the offender such that a duty of care was owed. In contrast here, Explorations did have control over Mr. Martin or Mr. Dittrich and had not released them from its custody — they ran away.
Although it is not akin to a juvenile detention facility, Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ [*13] permission, otherwise they were not free to leave.4 (Dkt. 19-10 at 12.) Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.” (Dkt. 19-10 at 13.)
4 Both Mr. Martin and Mr. Dittrich were seventeen at the time they were at Explorations.
Participants have ran away from Explorations in the past. Explorations has run away prevention measures called “Run Watch” which are written set of procedures and guidelines designed for responding to a runaway or missing student. (Dkt. 19-10 at 28-29) (Dkt. 19-6, Ex. F.) The Run Watch Policy states: “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.” (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) Under the Run Watch guidelines, one instructor in each group has a “run kit” which is intended to provide the instructor in pursuit of the student with whatever equipment that would be necessary to ensure the safety of the instructor. (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) A student is placed on Run Watch when: the student just [*14] had a run attempt; the student verbalized a threat to do so; the instructional team perceives a student to be a run threat; or escorts, operations directors, or a therapist suggests it. (Dkt. 19-6, Ex. F.) Explorations also has written procedures for handling the situations involving an “Accompanied Runaway” and an “Unaccompanied Runaway/Missing Student.” (DKt. 19-6, Ex. F.)
In this case, Explorations was aware the boys had planned to leave and actually took measures to thwart their plan by taking their shoes and journals. When their shoes were later returned, the boys executed their plan to run away from Explorations. The attack upon Ms. Gadman occurred two days after the boys left Explorations. While Explorations may not be akin to a juvenile detention facility, it is in charge of the custody and care of the children who are participating in its programs. This includes more than merely providing shelter, food, and programing. The relationship between Explorations and Mr. Dittrich and Mr. Martin was custodial. The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack. The Court next considers [*15] the second duty requirement: whether the harm caused by the individual was foreseeable.
B. Foreseeable Actions
“The question whether a risk of harm is foreseeable is generally a question for the trier of fact. Summary judgment is appropriate, however, if evidence is presented establishing the absence of any genuine issue of material fact concerning the general risk of harm.” Caldwell, 968 P.2d at 220 (citation omitted). Under the Idaho Tort Claims Act, “Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.'” Caldwell, 968 P.2d at 220 (quoting Harris v. State Dep’t of Health and Welfare, 123 Idaho 295, 847 P.2d 1156, 1160 (Idaho 1992)). In Caldwell, the Idaho Supreme Court recognized that “human behavior is difficult to predict with certainty, leading to the necessity for claimants to demonstrate that the harmful behavior should have been highly predictable based upon demonstrated past conduct.” 968 P.2d at 220 (citing cases).
Ms. Gadman argues [*16] Mr. Martin’s and Mr. Dittrich’s violent acts were foreseeable because both had a prior history of drug abuse and had previously attended treatment programs. (Dkt. 19.) Mr. Dittrich had also previously ran away from home and his school records include a history of “explosive and unpredictable behavior.” While at Explorations, Ms. Gadman points out that Mr. Martin had stole medications from an unlocked Explorations travel van which he ingested and then went an entire week without sleeping causing him to behave erratically and hallucinate. These factors known to Explorations, she argues, made their attack on her foreseeable.
i. Mr. Martin’s and Mr. Dittrich’s Prior Histories
Prior to attending Explorations, Mr. Martin had serious substance abuse issues that his parents knew of and he had been enrolled in different treatment programs. (Dkt. 19-8 at 7-16, 32-33.) Explorations and Ms. James were aware of Mr. Martin’s prior drug problems. In his deposition, Mr. Martin testified that after arriving at Explorations he talked with Ms. James about the problems that had brought him to the program including his prior drug use. (Dkt. 16-4 at 33-34.) Mr. Dittrich also had behavior issues having been [*17] previously kicked out of school, ran away from home, and had also previously attended treatment programs. (Dkt. 19-9 at 7-9.)
Prior to the assault on Ms. Gadman, however, neither Mr. Martin nor Mr. Dittrich had any criminal history. (Dkt. 16-4 at 39, 54) (Dkt. 18 at 56.) Mr. Martin testified in his deposition that he was “unaware” he had any type of propensity for violent behavior prior to the attack and stated he had never been violent before the incident with Ms. Gadman. (Dkt. 16-4 at 39-40.) Mr. Dittrich testified that neither he nor his parents ever told Explorations about any propensity for violence. (Dkt. 18 at 57.)
Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 foreseeable. (Dkt. 16-2, Aff. James.)
ii. Conduct at the Explorations Program
a. No Violent or Threatening Behavior
There is no evidence that either Mr. Martin or Mr. Dittrich engaged in any threatening or violent actions while at Explorations. In his deposition, Mr. Martin denied having committed any violent acts or threatening anyone while at the Explorations camp. [*18] (Dkt. 16-4 at 40-41.) Mr. Martin also testified he never observed Mr. Dittrich commit any violent acts or threaten anyone while he was at Explorations. (Dkt. 16-4 at 41.) In her affidavit, Ms. James states that she had not witnessed and there had been no reports that either boy had demonstrated any acts of aggression or violence to anyone at Explorations. (Dkt. 16-2 at ¶¶ 12-14.)
b. Mr. Martin’s Theft of Drugs
When he arrived at Explorations, Mr. Martin had been off drugs for less than two months. (Dkt. 16-4 at 46-47.) Mr. Martin stated he began using drugs again within a few days of being at Explorations by taking drugs located in the Explorations van. (Dkt. 16-4 at 18-19, 47-48, 62-63.) The Explorations’ staff learned that someone had taken drugs from the van and they confronted the group about it. (Dkt. 19-8 at 49-52.) At that time, Mr. Martin denied taking the drugs but testified that a couple of days before he ran away from camp he vaguely told one of the staff members that he had taken the drugs from the van and was “freaking out,” or “bugging out a little” and “hearing things.” (Dkt. 19-8 at 50-52, 64, 70.) Ms. James also testified that Mr. Martin had admitted to stealing pills [*19] from the Explorations van approximately ten days before he walked away from the program. (Dkt. 19-10 at 55-56.) Ms. James testified that after Mr. Martin admitted to taking the pills, she assumed that someone had ingested the pills. (Dkt. 19-10 at 106.) Mr. Martin testified that he had taken the drugs before Explorations knew of the boys’ plan to runaway. (Dkt. 19-10 at 97.)
The theft and taking of the medications from the Explorations’ van does not make the violence committed upon Ms. Gadman foreseeable. Clearly Mr. Martin’s behavior was out of line, but there were no indications that he would soon become aggressively violent such that the actions he took on July 31, 2011 were foreseeable to Explorations.5
5 In support of her response brief, Ms. Gadman has filed articles discussing the side effects of the drug Adderall, lack of sleep, and the connection between drugs and violence. (Dkt. 19, Ex. A, B, C.) Defendants have objected to the Court’s consideration of these exhibits arguing they are inadmissible. The Court agrees that the articles are not appropriate for consideration pursuant to Federal Rule of Civil Procedure 56(c).
As to the fact that Mr. Martin was hallucinating from the [*20] drugs, again the Court finds the undisputed facts do not give rise to anything that would have made Mr. Martins’ later violent actions foreseeable. Mr. Martin testified that after he had lied to the Explorations’ staff and repeatedly denied being the one who took the drugs, a day or two before they ran away he “mentioned” to staff that he was “freaking out” and “bugging out.” (Dkt. 19-8 at 51-53.) In describing what he told the Explorations’ staff, Mr. Martin testified that he “wouldn’t even call it a conversation. I mentioned I was freaking out a little” and that he “didn’t tell them I needed anything. I didn’t ask for help.” (Dkt. 19-8 at 52-53.) There is simply no basis from these facts from which Explorations could have predicted Mr. Martin would soon commit the violent assault upon Ms. Gadman. The fact that he stole drugs, ingested them, and was experiencing the side effects of the drugs does not make it highly predictable or likely that he would become violent; particularly since there was no known history of any violent behavior either prior to Mr. Martin attending Explorations program or while he was at the program.
c. The Plan to Run Away
Explorations’ field staff had learned [*21] of Mr. Dittrich’s and Mr. Martin’s plan to runaway on either July 19th or 20th. (Dkt. 19-10 at 40, 96.) Once they learned of the boys’ plan to leave, the Explorations’ staff confronted the boys about their plan and then instituted a lockdown. (Dkt. 19-8 at 22, 70-71) (Dkt. 19-9 at 19.) During the lockdown the two were separated in the campsite, the staff took away their shoes and journals, and did not allow them to talk to anyone else. (Dkt. 19-9 at 19.) Mr. Dittrich testified that they were later given back their shoes to use on the white-water rafting trip. (Dkt. 19-9 at 30-31.)
That they had planned to run away from Explorations and find drugs does not make their subsequent violent attack upon Ms. Gadman foreseeable. If anything, the plan and the drug use without any violence was consistent with the boys’ known histories. Ms. Gadman asserts that the violence was foreseeable because the boys would necessarily have to steal in order to obtain the drugs and other life necessities. The Court finds that argument is too speculative. In fact just the opposite proved to be true in light of the fact that the boys were given rides and marijuana from others when they were on the run all without [*22] them having to commit any violent acts. (Dkt. 19-9 at 37.)
Ms. Gadman also argues Mr. Dittrich’s second journal contained a list of items and supplies they would need when they left the program making the resulting assault foreseeable. (Dkt. 19 at 15.) (Dkt. 19-9 at 20-30, 78.) Mr. Dittrich testified that the staff at Explorations was not aware of his list. (Dkt. 18 at 78.) He further stated that the references to a knife, gun, and weapon in general were not intended to be used as a weapon against another person but for protection. (Dkt. 18 at 79-81.) Ms. Gadman asserts the staff should have looked at Mr. Dittrich’s second journal and discovered the “disturbing information.” (Dkt. 19 at 15.) This argument is also too speculative. The journal entries were started two to four days before the boys ran away and then later completed after the boys had left Explorations. (Dkt. 19-9 at 29.) While it may seem obvious in hindsight to argue that Explorations should have looked at Mr. Dittrich’s second journal, the fact remains that Explorations was not aware of the journal entries and there are no facts going to show that they should have foreseen any future violent acts by these boys.
C. [*23] Conclusion
The Court finds there is no genuine issue of material fact that supports a finding that Explorations and/or Ms. James could have foreseen the violent attack committed upon Ms. Gadman. Even considering the cumulative facts known by Explorations — i.e. the boys’ prior history, Mr. Martin’s theft and use of the drugs while at the camp, and their plan to run away — the violent assault on Ms. Gadman was not foreseeable. It is simply too attenuated to expect Explorations to have foreseen the attack based on what they knew about the boys prior to their running away.
Neither boy had any history of violent behavior or any criminal history. In reviewing both boys’ applications, Ms. James interviewed each of the boys’ parents, therapists, and educational consultants. None of these contacts conveyed any concerns that either boy was violent, likely because neither boy had any prior history of violence. While at Explorations, the boys did not commit any acts of violence or demonstrate any aggression. Although Explorations was aware of Mr. Martin’s history of substance abuse, that fact, even when considered in the context of the totality of the circumstances known by Explorations, does not [*24] make his later violent actions foreseeable. As to the fact that one of Mr. Dittrich’s schools had scored him at the highest end of “explosive and unpredictable behavior,” that notation was made eleven years before he attended the Explorations program. (Dkt. 19-10 at 80.) The Court finds the undisputed facts establish that the boys’ violent attack was not highly predictable or likely and, therefore, was not foreseeable. See Caldwell, 968 P.2d at 220.
It is notable that at the time they left the program the boys themselves had not even decided where they were going let alone contemplated attacking anyone. Mr. Martin testified that when they left Explorations his intention was just to get to a city so he could use drugs again but denied he had any intention of committing violence on anyone. (Dkt. 16-4 at 42.) It was not until after the boys had left Explorations that they discussed stealing a car and assaulting someone to get a car. (Dkt. 16-4 at 43-44.) If they themselves did not know or had not yet decided to commit a violent action, there certainly is no way the staff at Explorations could have foreseen the actions such that anyone could say the violence was “highly likely to occur.” [*25] Caldwell, 968 P.2d at 220 (citation omitted). Because there is no genuine issue of material fact in dispute that show Explorations and/or Ms. James could have foreseen the violent actions of Mr. Martin and Mr. Dittrich, the Court finds they did not owe a duty of care to Ms. Gadman. The Motion for Summary Judgment is granted.
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1) Plaintiff’s Motion to Extend Time (Dkt. 23) is GRANTED.
2) Defendants’ Motion for Summary Judgment (Dkt. 16) is GRANTED. The claim against Defendants Phoenix Mountain Collaborative, LLC and Penelope James is HEREBY DISMISSED.
DATED: June 17, 2014
/s/ Edward J. Lodge
Honorable Edward J. Lodge
U. S. District Judge
Platzer v. Mammoth Mountain Ski Area, 104 Cal. App. 4th 1253; 128 Cal. Rptr. 2d 885; 2002 Cal. App. LEXIS 5246; 2003 Cal. Daily Op. Service 24; 2003 Daily Journal DAR 5Posted: February 22, 2015
Joseph Platzer, a Minor, etc., et al., Plaintiffs and Appellants, v. Mammoth Mountain Ski Area, Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
104 Cal. App. 4th 1253; 128 Cal. Rptr. 2d 885; 2002 Cal. App. LEXIS 5246; 2003 Cal. Daily Op. Service 24; 2003 Daily Journal DAR 5
December 30, 2002, Decided
December 30, 2002, Filed
COUNSEL: Law Offices of Robert E. Schroth and Robert E. Schroth for Plaintiffs and Appellants.
Lauria, Tokunaga & Gates and Mark D. Tokunaga for Defendant and Respondent.
JUDGES: (Opinion by Callahan, J., with Sims, Acting P. J., and Morrison, J., concurring.)
OPINION BY: CALLAHAN
CALLAHAN, [*1255] J.
[**886] Eight-year-old Joseph Platzer (Joseph) was injured when he fell from the J-6 chairlift during a ski lesson at June Mountain Ski Area (June Mountain) in December 1998. Dagmar Platzer (Dagmar), Joseph’s mother and guardian at litem, sued Mammoth Mountain Ski Area (Mammoth), June Mountain’s corporate operator, for damages on Joseph’s behalf. The court granted Mammoth’s motion for summary adjudication, and dismissed all causes of action based on negligence. Thereafter, the trial jury returned a verdict in favor of Mammoth on the issue of gross negligence.
In this appeal from the judgment, Joseph contends the court erred in granting Mammoth’s motion for summary adjudication. He challenges the [*1256] implied finding that a release [***2] signed by his mother barred all claims for simple negligence against Mammoth, a common carrier. Joseph also maintains the court erred in admitting the release at trial, and instructing the jury that ordinary negligence was inapplicable to the case. We affirm the judgment.
I. THE RELEASE
On December 30, 1998, Dagmar enrolled Joseph in the June Mountain Sports School. She signed a document entitled “Release of Liability and Medical Authorization” WHICH READ IN RELEVANT PART:
“I have enrolled the afore-named child or children (‘Child’) in the program (‘Program’). I understand the Child’s participation in the Program involves exposure to the inherent risks of skiing and/or snowboarding that cannot be eliminated. I also understand that the Child’s participation in the Program may require the use of ski lifts and that the Child may ride lifts alone, with other guests or with other children and that the use of lifts by the Child involves a potential risk of injury.
“Individually and as the parent or guardian of the Child, I HEREBY EXPRESSLY ASSUME ALL RISKS associated with the Child’s participation in the Program including all risks associated with skiing and/or snowboarding, [***3] riding the lifts and skiing/snowboarding on terrain or using equipment intended to improve or enhance the Child’s skiing/snowboarding skills.
“Despite my understanding of the foregoing risks, I, individually and as the parent or legal guardian of the Child, AGREE NOT TO SUE AND TO RELEASE FROM LIABILITY AND TO DEFEND, INDEMNIFY AND HOLD HARMLESS MAMMOTH/JUNE SKI RESORT and their representatives, owners, employees and agents for any damage or injury arising out of the Child’s participation in the Program regardless of the cause, including NEGLIGENCE. [P] . . . [P]
[**887] “I understand that the foregoing is a LIABILITY RELEASE and a MEDICAL AUTHORIZATION that is legally binding on me, the Child, our heirs and our legal representatives and I sign it of my own free will. I acknowledge that the foregoing is binding during the 1998-1999 ski season.”
II. SUMMARY ADJUDICATION OF CLAIMS BASED ON ORDINARY NEGLIGENCE
Mammoth moved for summary judgment based on the release signed by Dagmar. The parties later stipulated that Mammoth’s motion would be [*1257] deemed a motion for summary adjudication, and Joseph filed an amended complaint alleging gross negligence by Mammoth as a common carrier. [***4] The court granted the motion for summary adjudication.(1a) On appeal, Joseph maintains that Mammoth cannot contract away its liability for ordinary negligence, and the release is void as against public policy.
[HN1] The trial court shall grant defendant’s motion for summary adjudication “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f).) We review the trial court’s ruling de novo (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1727 [22 Cal. Rptr. 2d 781] (Westlye)), and conclude there was no error.
The dispositive question in this appeal is whether the release signed by Dagmar absolved Mammoth of liability for ordinary negligence. Citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl) and Civil Code section 1668, 1 Joseph argues that regardless of the language of Civil Code section 2175, 2 contracts purporting to exempt common carriers from liability for negligence are void as being against public policy. Mammoth [***5] counters by citing a maxim of statutory construction: “Expressio unius est exclusio alterius: The mention of one thing implies the exclusion of another.” It reasons that the Legislature’s reference to gross negligence–but not ordinary negligence–in Civil Code section 2175 means it intended to exclude ordinary negligence from the purview of the statute. As these arguments suggest, the resolution of this appeal requires our consideration of two lines of cases–those involving Civil Code section 2175 and releases dealing with common carriers, and those involving releases void under Tunkl and Civil Code section 1668 as against public policy.
1 Civil Code section 1668 provides: [HN2] “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
2 Civil Code section 2175 states that [HN3] “[a] common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants.” (Italics added.)
[***6] [HN4] “Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” (Civ. Code, § 2168.) Common carriers for reward “must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.) There is no dispute chairlift operators like Mammoth are common carriers. ( [*1258] [**888] Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal. Rptr. 2d 897] (Squaw Valley).(2))
[HN5] “At common law a common carrier might make any other contract relative to the carriage of property intrusted to it, save one exempting it from liability for any kind of negligence. This rule was founded upon considerations of public policy, it being deemed derogatory thereto to allow a common carrier to contract against its own negligence, because to permit this had a tendency to promote negligence. But, as far as ordinary negligence is concerned, the rule at common law has been abrogated by our code (sec. 2174) 3 to the [***7] extent that the shipper and carrier may now contract for the purpose of limiting the liability of the latter therefor. The prohibition of the common law against a carrier limiting his liability for any kind of negligence is declared in this state by section 2175 only to apply to the limitation for gross negligence.” (Donlon Bros. v. Southern Pacific Co. (1907) 151 Cal. 763, 770 [91 P. 603], italics added; see also Walther v. Southern Pacific Co. (1911) 159 Cal. 769, 772-773 [116 P. 51].) (1b)) Mammoth is correct that nothing in Civil Code sections 2174 and 2175 prevented it from negotiating a release from liability for ordinary negligence.
3 Civil Code section 2174 reads: “The obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract.”
The next question is whether public policy bars enforcement of such a release.(3) In Tunkl, a case arising under [***8] the more general contract provisions of Civil Code section 1668, the Supreme Court considered the validity of a release from liability for future negligence imposed as a condition for admission to the University of California Los Angeles Medical Center, a charitable research hospital. (Tunkl, supra, 60 Cal. 2d at p. 94.) It concluded that “an agreement between a hospital and an entering patient affects the public interest and that, in consequence, the exculpatory provision included within it must be invalid under Civil Code section 1668.” (Ibid.) Of interest here is the Supreme Court’s description of the types of transactions that involve the public interest. An “attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who [***9] seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [*1259] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Id. at pp. 98-101, fns. omitted.(1c))
California courts have consistently declined to apply Tunkl and invalidate exculpatory agreements in the recreational sports context. ( [**889] Westlye, supra, 17 Cal. App.4th at pp. 1734, 1735 [22 Cal. Rptr. 2d 781] [adjustment of ski bindings]; see also Hulsey v. Elsinore Parachute Center (1985) 168 Cal. App. 3d 333, 343 [214 Cal. Rptr. 194] [parachute jumping] (Hulsey).) The Hulsey [***10] court distinguished parachute jumping from activities that Tunkl and its progeny have found to affect the public interest. “First, parachute jumping is not subject to the same level of public regulation as is the delivery of medical and hospital services. Second, the Tunkl agreement was executed in connection with services of great importance to the public and of practical necessity to anyone suffering from a physical infirmity or illness. Parachute jumping, on the other hand, is not an activity of great importance to the public and is a matter of necessity to no one. [P] Finally, because of the essential nature of medical treatment, the consuming party in Tunkl had little or no choice but to accept the terms offered by the hospital. . . . Purely recreational activities such as sport parachuting can hardly be considered ‘essential.’ ” (Hulsey, supra, at pp. 342-343.)
The court in Okura v. United States Cycling Federation (1986) 186 Cal. App. 3d 1462 [231 Cal. Rptr. 429] (Okura) distinguished bicycle racing in a similar manner. “Measured against the public interest in hospitals and hospitalization, escrow transactions, banking transactions and [***11] common carriers, this transaction is not one of great public importance. There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation. The number of participants is relatively minute compared to the public use of hospitals, banks, escrow companies and common carriers. Also, the risks involved in running such an event certainly do not have the potential substantial impact on the public as the risks involved in banking, hospitals, escrow companies and common carriers. The service certainly cannot be termed one that ‘is often a matter of practical necessity for some members of the public.’ (Tunkl . . ., supra, 60 Cal. 2d at p. 99.)” (Okura, supra, at p. 1467.)
Defendant Mammoth is a common carrier in the recreational sports setting. One fact favors enforcing the release, the other does not. We conclude the release is effective for two reasons.
[*1260] First, [HN6] Civil Code sections 2174 and 2175 govern release agreements affecting the liability of common carriers. Civil Code section 1668 speaks more generally to contracts [***12] that “exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, . . .” (Italics added.) [HN7] A specific statute on a subject controls over a general provision. (Code Civ. Proc., § 1859; Div. of Labor Law Enforcement v. Moroney (1946) 28 Cal.2d 344, 346 [170 P.2d 3]; Kennedy v. City of Ukiah (1977) 69 Cal. App. 3d 545, 552 [138 Cal. Rptr. 207].) Accordingly, Civil Code sections 2174 and 2175 govern the release at issue here.
Second, although Mammoth’s chairlift operations fit the statutory definition of common carrier (Civ. Code, § 2168; Squaw Valley, supra, 2 Cal. App. 4th at pp. 1507-1508), it differs from the typical common carriers–airlines, railroads, freight lines–in significant ways. “Skiing, like other athletic or recreational pursuits, however beneficial, is not an essential activity.” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 621-622 [55 Cal. Rptr. 2d 818].) [HN8] Public Utilities Code section 212, subdivision [***13] (c) expressly excludes chairlift operators from regulation by the Public Utilities Commission. (Squaw Valley, [**890] supra, 2 Cal. App. 4th at pp. 1511-1512.) We already explained that courts routinely exclude recreational sports from the purview of Tunkl, concluding that such activities are not of great public importance or practical necessity. (See Westlye, supra, 17 Cal.App.4th at pp. 1734, 1735; Okura, supra, 186 Cal. App. 3d at p. 1467; Hulsey, supra, 168 Cal. App. 3d at pp. 342-343.)
III. ADMISSION OF THE RELEASE AT TRIAL
Joseph argues the court erred in admitting the release into evidence over his objection, but fails to cite the grounds for his objection at trial, or explain how he was prejudiced by admission of that evidence. On appeal he states in general terms that the release was irrelevant and highly prejudicial once the court ruled that the release exonerated Mammoth from ordinary negligence. He declares in conclusionary fashion that “[t]he only value the release had at trial was to the defendant, who used it to the prejudice of the Plaintiff.”
(4) [HN9] “Where inadmissible evidence is offered, the party who desires to raise the point [***14] of erroneous admission on appeal must object at the trial, specifically stating the grounds of the objection, and directing the objection to the particular evidence that the party seeks to exclude. . . . [F]ailure to object at all waives the defect.” ( [*1261] 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 371, pp. 459-460.) The reporter’s transcript indicates that Joseph’s counsel objected to admission of the release, and the court overruled the objection. However, neither the reporter’s transcript nor the clerk’s transcript reveals the grounds for his objection, or confirms he objected on grounds of relevancy. Joseph “must affirmatively show error by an adequate record.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, p. 562.(1d))
However, even if we were to assume Joseph preserved his evidentiary objection for consideration on appeal, we conclude the release was relevant to the issue of gross negligence. Among other things, it described the inherent risks of skiing and using the ski lifts. The court did not abuse its discretion in admitting the release into evidence.
IV. JURY INSTRUCTIONS ON GROSS NEGLIGENCE
Joseph also contends the court erred in instructing [***15] the jury “that ordinary negligence was inapplicable in this case and that plaintiff would have to prove Defendant was guilty of gross negligence.” In light of our conclusion the trial court did not err in granting Mammoth’s motion for summary adjudication and dismissing all causes of action based on ordinary negligence, we reject Joseph’s claim of instructional error.
The judgment is affirmed.
Sims, Acting P. J., and Morrison, J., concurred.
Appellants’ petition for review by the Supreme Court was denied April 9, 2003.
Daniel Mrotek, an Individual, Plaintiff Below, Appellant, v. Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Defendants below, Appellees, and Elk Mountain Outfitters, Inc., A Corporation, Defendant/Third-Party Plaintiff Below, Appellees, v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc., Third-Party Defendants Below, Appellees.
SUPREME COURT OF APPEALS OF WEST VIRGINIA
214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179
November 18, 2003, Submitted
December 3, 2003, Filed
PRIOR HISTORY: [***1] Appeal from the Circuit Court of Pocahontas County. Honorable James J. Rowe, Judge. Civil Action No. 99-C-37.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
COUNSEL: Larry E. Losch, William A. McCourt, Jr., Summersville, West Virginia, Attorneys for Appellant.
William J. Hanna, Robert P. Lorea, Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorneys for Appellee, Elk Mountain Outfitters, Inc.
Rob J. Aliff, Jackson & Kelly, Charleston, West Virginia, Attorney for Appellee, Skis Dynastar.
Robert M. Steptoe, Jr. [***2] , Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Appellee, Adidas American, Inc.
M. Hance Price, Steptoe & Johnson, Martinsburg, West Virginia, Attorney for Adidas American, Inc.
[*491] [**684] Per Curiam:
This appeal was filed by Daniel Mrotek, appellant/plaintiff below (hereinafter referred to as “Mr. Mrotek”), from an order of the Circuit Court of Pocahontas County granting summary judgment in favor of Coal River Canoe, Ltd., d/b/a Elk Mountain Outfitters, Inc. (hereinafter referred to as “EMO”), appellee/defendant below. Mr. Mrotek filed an action against EMO alleging that he sustained injuries as a result of his use of an allegedly defective ski that he rented from EMO. The circuit court granted summary judgment on two alternative grounds. The circuit court found that Mr. Mrotek did not produce any evidence of negligence on the part of EMO. Alternatively, the court found that Mr. Mrotek signed a valid release of his right to sue EMO for any injury caused by its equipment. In this appeal, Mr. Mrotek contends that genuine issues of material fact are in dispute as to whether EMO supplied him with a defective ski and that the release from liability he signed was unenforceable. [***3] Upon review of the briefs and record in this case, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Mr. Mrotek is a resident of Florida. On December 28, 1997, Mr. Mrotek and a group of seven friends came to Snowshoe, West Virginia, for a four day skiing vacation. Upon their arrival, Mr. Mrotek and some of his companions rented skiing equipment from EMO. As part of the rental transaction, EMO required all customers to read and execute a document releasing EMO from any harm caused by its equipment. Mr. Mrotek signed the release.
Shortly after renting the ski equipment, Mr. Mrotek and his companions ventured off to engage in night skiing. During the first run of the evening Mr. Mrotek fell and apparently hit his head. A skiing companion, Herman Serpa, saw Mr. Mrotek fall and came to his aid. Mr. Serpa states that he noticed that a toe binding on Mr. Mrotek’s right ski was missing. Mr. Serpa states that he found the toe binding with three rusty screws protruding from it. The toe binding was allegedly thrown away by either Mr. Serpa or Mr. Mrotek. However, neither man appears to have recalled who threw away the toe binding.
Mr. Serpa allegedly returned the defective ski and received [***4] a replacement. Mr. Mrotek did not report the incident to EMO even though, as a result of the fall, he allegedly “became very dizzy, sick at his stomach with vomiting along with severe headaches.”
Upon returning to Florida, Mr. Mrotek sought medical treatment for blurred vision, nausea and exhaustion. A medical examination revealed Mr. Mrotek suffered from Papilledema, i.e., fluid on the brain caused by a damaged ventricle. On February 16, 1998, Mr. Mrotek underwent surgery to place a shunt in his skull to drain the excess fluid. Due to complications, Mr. Mrotek eventually underwent three more surgeries. Although Mr. Mrotek has recovered from the problems caused by the excess fluid, he must permanently have “a small tube running underneath his skin from his brain down his neck and into his heart to maintain the pressure and stability inside his skull.”
Mr. Mrotek filed this action against EMO [**685] [*492] in 1999, 1 alleging EMO supplied him with a defective ski which caused him to fall and sustain a head injury. 2 After a period of discovery, EMO moved for summary judgment. By order entered June 17, 2002, the circuit court granted summary judgment in favor of EMO. 3 This appeal is a result [***5] of the circuit court’s ruling.
1 The record submitted on appeal is extremely sparse and does not contain the pleadings.
2 EMO filed a third-party complaint against the suppliers of the ski, Skis Dynastar, Inc. and Salomon North American, Inc., for indemnity or contribution.
3 The circuit court’s order also dismissed EMO’s third-party complaint.
STANDARD OF REVIEW
The standard for our review of an order granting summary judgment is well established. [HN1] “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Insofar as “‘appellate review of an entry of summary judgment is plenary, this Court, like the circuit court, must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.'” Provident Life and Accident Ins. Co. v. Bennett, 199 W. Va. 236, 238, 483 S.E.2d 819, 821 (1997) (quoting [***6] Asaad v. Res-Care, Inc., 197 W. Va. 684, 687, 478 S.E.2d 357, 360 (1996)). We have made clear that [HN2] “summary judgment is appropriate [only] if ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'” Pritt v. Republican Nat’l Comm., 210 W. Va. 446, 452, 557 S.E.2d 853, 859 (2001) (quoting W. Va.R. Civ. P. 56(c)). Further, [HN3] “summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). With these standards as our guide, we now address the issues asserted on appeal.
The dispositive issue in this case is the determination by the circuit court that Mr. Mrotek “failed to identify any act or omission allegedly committed by EMO which in any way caused or contributed to the alleged skiing accident.” [HN4] This Court has observed that “it is an elementary principle [***7] of law that negligence will not be imputed or presumed. The bare fact of an injury standing alone, without supporting evidence, is not sufficient to justify an inference of negligence.” Walton v. Given, 158 W. Va. 897, 902, 215 S.E.2d 647, 651 (1975). 4 Moreover, [HN5] “negligence . . . is a jury question when the evidence is conflicting or the facts are such that reasonable men may draw different conclusions from them.” Burgess v. Jefferson, 162 W. Va. 1, 3, 245 S.E.2d 626, 628 (1978).
4 Mr. Mrotek contends that the doctrine of res ipsa loquitur should be applied to the facts of this case to overcome summary judgment. [HN6] “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Syl. pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Clearly, under the Foster formulation of [HN7] res ipsa loquitur, the doctrine simply has no application to falling while skiing–which is an extremely frequent incident that can occur without any negligence. See Syl. pt. 2, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991) [HN8] (“The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.”).
[***8] The primary evidence relied upon by Mr. Mrotek was the deposition [**686] testimony of Mr. Serpa. Mr. Mrotek presented the deposition [*493] testimony of Mr. Serpa to show that the toe binding on the right ski came loose. Mr. Serpa testified that he found a piece of the binding with three rusty screws protruding from it. There was also testimony by Mr. Serpa that he returned the defective ski to EMO and was given a replacement. There was also evidence to show that the skis rented by Mr. Mrotek were not tested for weakness by EMO prior to 1997-98 ski season.
EMO took the position that nothing happened to the skis that were rented to Mr. Mrotek. According to EMO’s records the skis rented to Mr. Mrotek were returned in good condition and were rented out again the day after Mr. Mrotek returned them. EMO presented an affidavit from its management employee, Charlie McDaniels. Mr. McDaniels indicated that the bindings used on the skis rented by EMO were made of aluminum or were galvanized and would not rust.
In looking at the evidence in the light most favorable to Mr. Mrotek, we do not find a material issue of fact in dispute. EMO presented evidence to establish that no defect existed in the skis rented [***9] to Mr. Mrotek. In fact, there was evidence that Mr. Mrotek examined the skis before renting them and found nothing wrong. EMO also established that they had no record to show that Mr. Serpa or Mr. Mrotek turned in a broken ski. Mr. Mrotek presented bare testimonial evidence to show that a toe binding broke loose from the right ski. No actual evidence was introduced showing the defective ski or the parts that were allegedly broken from the ski. See Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) [HN9] (“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”). The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing. [HN10] The mere fact of falling while skiing is not actionable negligence. See Painter v. Peavy, 192 W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (1994) [HN11] (“The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.”); Syl. pt.1, in part, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981) [***10] [HN12] (“In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case. 5
5 Because we affirm the circuit court’s initial reason for granting summary judgment, we need not address the issue involving the release signed by Mr. Mrotek.
In view of the foregoing, the circuit court’s order granting summary judgment in favor of EMO is affirmed.
Isadora Machado Lecuna v. Carabiners Fairfield, LLC
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD-NORWALK AT STAMFORD
2014 Conn. Super. LEXIS 2610
October 23, 2014, Decided
October 23, 2014, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
CORE TERMS: summary judgment, bouldering, climbing, loose, issue of material facts, minimized, genuine, matter of law, genuine issue, material fact, party opposing, question of fact, inherent risk, unresolved, staff member, falling, matting
JUDGES: [*1] Taggart D. Adams, Judge Trial Referee.
OPINION BY: Taggart D. Adams
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (115.00)
The plaintiff Isadora Lecuna has sued Carabiners, the owner and operator of a recreational climbing facility, alleging that she suffered injuries at the facility including a fractured foot and several tears of ligaments, tendons and muscles in her left knee and leg when she fell from a climbing wall that was allegedly unsafe due to the negligence of the defendant and its agents. At the time of injury, Lecuna was “bouldering” in one of the defendant’s bouldering caves. The defendant describes bouldering “as a type of climbing in which the individual climber is not affixed to any ropes or belaying harnesses.” Def. Memo., 1 Dkt. Entry 115.00. Among the allegations of negligence were that one of the climbing hold attachments on the wall turned or came loose, that an attendant was not present to break her fall, and that the surface she fell to was not cushioned.
Several months before the plaintiff’s fall she had signed an agreement with Carabiners waiving claims of liability and acknowledging the risks of participation at the Carabiners facility included: “Falling [*2] off the wall; loose and or damaged artificial holds . . . falling to the ground.” Carabiners has moved for summary judgment dismissing the complaint largely, as set forth in its memorandum, on the basis of this waiver and release. Lecuna has filed a memorandum of law, an affidavit and excerpts from her deposition transcript in opposition. Carabiners filed a reply memorandum and an affidavit of a purported expert.
II. Scope of Review
Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1985). ‘The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.” Appleton v. Board of Education, supra, 254 Conn. 209. “A material fact has been defined adequately and simply as [*3] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact. . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” Maffucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Appleton v. Board of Education, supra, 254 Conn. 209.
The motion for summary judgment is denied for four reasons. First, there is a question of fact that the loose climbing handle on the bouldering wall that caused the plaintiff’s fall is an inherent risk of the plaintiff’s activity that should be legitimately assumed. The court is aware of the assertions in Carabiner’s papers that it is common in climbing [*4] gyms for holds to work loose and create a “spinner” or shifting hold, a condition that cannot be minimized by the exercise of due care. See Carabiner Memorandum, 2-3, 13 (Dkt. Entry 115.00); Robert Richards affidavit, ¶6 (Dkt. Entry 124.00). These conclusory statements are unsupported by any factual evidence. Moreover, the plaintiff has testified that the bouldering wall she fell from had just been opened to the public that day. Lecuna Memorandum, Exhibit C, 86, Dkt. Entry 123.00. Even if it were established that holds may turn or spin over time, it seems elementary that they should have been tested prior to opening day. In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) the Connecticut Supreme Court described inherent risks as being beyond the control of the recreation area operator and not able to be minimized by the operator’s exercise of reasonable care. Id., 336 n.12. The court finds that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.
Second, there is evidence in the record that the Carabiner’s staff member assigned to “spotting” the plaintiff while she was on the wall had walked away from that post when the fall occurred and the [*5] staff member apologized to the plaintiff and admitted he should not have left. Pl. Memo., Exhibit C 110-11, 123. Third, there was evidence that the new bouldering area did not have the “thick” “gymnastics kind” of floor matting that existed in the older areas but only offered “carpeted concrete.” Id., 53. This circumstance also raises an unresolved fact question of whether the risk of bouldering could, or should, have been minimized by the additional fall protection afforded by more substantial matting.
Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. See Hanks, supra, 276 Conn. 328. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.
TAGGART D. ADAMS
JUDGE TRIAL REFEREE
Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500
Gregory D. Hanks v. Powder Ridge Restaurant Corporation et al.
Supreme Court of Connecticut
276 Conn. 314; 2005 Conn. LEXIS 500
April 18, 2005, Argued
November 29, 2005, Officially Released
Prior History: [*1] Procedural History Action to recover damages for personal injuries sustained as a result of the defendants’ alleged negligence, brought to the Superior Court in the judicial district of Middlesex and referred to Hon. Daniel F. Spallone, judge trial referee, who granted the defendants’ motion for summary judgment and, exercising the powers of the Superior Court, rendered judgment thereon, from which the plaintiff appealed.
Disposition: Reversed; further proceedings.
Counsel: William F. Gallagher, with whom, on the brief, was David McCarry, for the appellant (plaintiff).
Laura Pascale Zaino, with whom, on the brief, were John B. Farley and Kevin M. Roche, for the appellees (defendants).
JUDGES: Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js. n1 In this opinion KATZ, VERTEFEUILLE and ZERELLA, Js., concurred. NORCOTT, J., with whom BORDEN and PALMER, Js., join, dissented.
n1 This case originally was argued before a panel of this court consisting of Justices Borden, Norcott, Katz, Palmer and Vertefeuille. Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte, ordered that the case be considered en banc. Accordingly, Chief Justice Sullivan and Justice Zarella were added to the panel. They have read the record, briefs and transcript of the oral argument. [*2]
OPINION BY: SULLIVAN
OPINION: SULLIVAN, C. J. This appeal n2 arises out of a complaint filed by the plaintiff, Gregory D. Hanks, against the defendants, Powder Ridge Restaurant Corporation and White Water Mountain Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, seeking compensatory damages for injuries the plaintiff sustained while snowtubing at the defendants’ facility. The trial court rendered summary judgment in favor of the defendants, concluding that this court’s decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003), precluded the plaintiff’s negligence claim as a matter of law. We reverse the judgment of the trial court.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n2 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The record reveals the following factual and procedural history. The defendants [*3] operate a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On February 16, 2003, the plaintiff brought his three children and another child to Powder Ridge to snowtube. Neither the plaintiff nor the four children had ever snowtubed at Powder Ridge, but the snowtubing run was open to the public generally, regardless of prior snowtubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. Further, in order to snowtube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability” (agreement). The plaintiff read and signed the agreement on behalf of himself and the four children. While snowtubing, the plaintiff’s right foot became caught between his snow tube and the man-made bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair.
Thereafter, the plaintiff filed the present negligence action against the defendants. Specifically, the plaintiff alleges that the defendants negligently caused his injuries by: (1) [*4] permitting the plaintiff “to ride in a snow tube that was not of sufficient size to ensure his safety while on the snow tubing run”; (2) “failing to properly train, supervise, control or otherwise instruct the operators of the snow tubing run in the proper way to run the snow tubing course to ensure the safety of the patrons, such as the plaintiff”; (3) “failing to properly groom the snow tubing run so as to direct patrons . . . such as the plaintiff away from the sidewalls of [the] run”; (4) “placing carpet at the end of the snow tubing run which had the tendency to cause the snow tubes to come to an abrupt halt, spin or otherwise change direction”; (5) “failing to properly landscape the snow tubing run so as to provide an adequate up slope at the end of the run to properly and safely slow snow tubing patrons such as the plaintiff”; (6) “failing to place warning signs on said snow tubing run to warn patrons such as the plaintiff of the danger of colliding with the side wall of [the] snow tubing run”; and (7) “failing to place hay bales or other similar materials on the sides of the snow tubing run in order to direct patrons such as the plaintiff away from the sidewalls of [the] [*5] run.”
The defendants, in their answer to the complaint, denied the plaintiff’s allegations of negligence and asserted two special defenses. Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Thereafter, the defendants moved for summary judgment, claiming that the agreement barred the plaintiff’s negligence claim as a matter of law. The trial court agreed and rendered summary judgment in favor of the defendants. Specifically, the trial court determined, pursuant to our decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640-44, that the plaintiff, by signing the agreement, unambiguously had released the defendants from liability for their allegedly negligent conduct. Thereafter, the plaintiff moved to reargue the motion for summary judgment. The trial court denied the plaintiff’s motion and this appeal followed.
The plaintiff raises two claims on appeal. First, the plaintiff claims that the trial court improperly concluded that the agreement clearly [*6] and expressly releases the defendants from liability for negligence. Specifically, the plaintiff contends that a person of ordinary intelligence reasonably would not have believed that, by signing the agreement, he or she was releasing the defendants from liability for personal injuries caused by negligence and, therefore, pursuant to Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643, the agreement does not bar the plaintiff’s negligence claim. Second, the plaintiff claims that the agreement is unenforceable because it violates public policy. Specifically, the plaintiff contends that a recreational operator cannot, consistent with public policy, release itself from liability for its own negligent conduct where, as in the present case, the operator offers its services to the public generally, for a fee, and requires patrons to sign a standardized exculpatory agreement as a condition of participation. We disagree with the plaintiff’s first claim, but agree with his second claim.
Before reaching the substance of the plaintiff’s claims on appeal, we review this court’s decision in Hyson. The plaintiff in Hyson was injured while [*7] snowtubing at Powder Ridge and, thereafter, filed a complaint against the defendant, White Water Mountain Resorts of Connecticut, Inc., alleging that the defendant’s negligence proximately had caused her injuries. n3 Id., 637-39. Prior to snowtubing at Powder Ridge, the plaintiff had signed an exculpatory agreement entitled “RELEASE FROM LIABILITY.” Id., 638 and n.3. The issue presented in Hyson was whether the exculpatory agreement released the defendant from liability for its negligent conduct and, consequently, barred the plaintiff’s negligence claims as a matter of law. Id., 640. We concluded that it did not. Id.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n3 We note that White Water Mountain Resorts of Connecticut, Inc., is also a defendant in the present matter and that the plaintiff in the present matter was also injured while snowtubing at Powder Ridge.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
In arriving at this conclusion, we noted that there exists “widespread support in other jurisdictions for a rule requiring that any agreement intended [*8] to exculpate a party for its own negligence state so expressly”; id., 641-42; and that this court previously had acknowledged “the well established principle . . . that ‘the law does not favor contract provisions which relieve a person from his own negligence . . . .’” Id., 643. Accordingly, we determined that “the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.” Id. This rule “prevents individuals from inadvertently relinquishing valuable legal rights” and “does not impose . . . significant costs” on entities seeking to exculpate themselves from liability for future negligence. Id. Examining the exculpatory agreement at issue in Hyson, we observed that “the release signed by the plaintiff [did] not specifically refer to possible negligence by the defendant” but, instead, only referred to “inherent and other risks involved in [snowtubing] . . . .” n4 (Internal quotation marks omitted.) Id., 640. Thus, “[a] person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing [*9] the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing.” Id., 643. Accordingly, we concluded that the exculpatory agreement did not expressly release the defendants from liability for future negligence and, therefore, did not bar the plaintiff’s claims. Consequently, we declined to decide whether a well drafted exculpatory agreement expressly releasing a defendant from prospective liability for future negligence could be enforced consistent with public policy. See id., 640 (“we do not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable”); id., 643 n.11 (“we do not decide today whether a contract having such express language would be enforceable to release a party from liability for its negligence”).
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n4 That exculpatory agreement provided:
”RELEASE FROM LIABILITY
”PLEASE READ CAREFULLY BEFORE SIGNING
”1. I accept use of a snowtube and accept full responsibility for the care of the snowtube while in my possession.
”2. I understand that there are inherent and other risks involved in SNOW TUBING, including the use of lifts and snowtube, and it is a dangerous activity/sport. These risks include, but are not limited to, variations in snow, steepness and terrain, ice and icy conditions, moguls, rocks, trees, and other forms of forest growth or debris (above or below the surface), bare spots, lift terminals, cables, utility lines, snowmaking equipment and component parts, and other forms [of] natural or man made obstacles on and/or off chutes, as well as collisions with equipment, obstacles or other snowtubes. Snow chute conditions vary constantly because of weather changes and snowtubing use. Be aware that snowmaking and snow grooming may be in progress at any time. These are some of the risks of SNOWTUBING. All of the inherent risks of SNOWTUBING present the risk of serious and/or fatal injury.
”3. I agree to hold harmless and indemnify Powder Ridge, White Water Mountain Resorts of Connecticut, Inc. and/or any employee of the aforementioned for loss or damage, including any loss or injuries that result from damages related to the use of a snowtube or lift.
”I, the undersigned, have read and understand the above release of liability.” (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 638 n.3.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*10]
As an initial matter, we set forth the appropriate standard of review. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005).
We first address the plaintiff’s claim that the agreement does not expressly release the defendants from liability for personal injuries incurred as a result of their own negligence as required by Hyson. Specifically, the plaintiff maintains that an ordinary person of reasonable intelligence would not understand that, by signing the agreement, he or she was releasing the defendants from liability for future negligence. We disagree.
”The law does not favor contract provisions which relieve a person from his own negligence . . . .” Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643. [*11] “The law’s reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . . .
”Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understand able as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon. . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . . .” (Internal quotation marks omitted.) B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 72, 807 A.2d 1001 (2002), [*12] quoting Gross v. Sweet, 49 N.Y.2d 102, 107-108, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979); see also Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643 (“a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides”). “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) “Goldberg v. Hartford Fire Ins. Co.,” 269 Conn. 550, 559-60, 849 A.2d 368 (2004).
The agreement n5 at issue in the present case provides in relevant part: “I understand that there are inherent risks involved in snowtubing, including the risk of serious physical injury or death and I fully assume all risks associated with snowtubing, even if due to the NEGLIGENCE of [the defendants] . . . including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, [*13] moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like. . . . I . . . agree I will defend, indemnify and hold harmless [the defendants] . . . from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of [the defendants] . . . . I . . . hereby release, and agree that I will not sue [the defendants] . . . for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of [the defendants] . . . .” (Emphasis in original.)
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n5 The complete agreement provides:
”Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability
”In consideration for the privilege of participating in snowtubing at Powder Ridge Ski Area, I hereby agree that:
”1. I understand that there are inherent risks involved in snowtubing, including the risk of serious physical injury or death and I fully assume all risks associated with snowtubing, even if due to the NEGLIGENCE of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area and its Affiliates, Officers, Directors, Agents, Servants and/or Employees, including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like.
”2. I, for myself and for my heirs, assigns, successors, executors, administrators, and legal representatives, agree I will defend, indemnify and hold harmless White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and Employees from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees.
”3. I, for myself and for my heirs, assigns, successors, executors, administrators, and legal representatives, hereby release, and agree that I will not sue, White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees.
”I have read this Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability and fully understand its terms. I further understand that by signing this agreement that I am giving up substantial legal rights. I have not been induced to sign this agreement by any promise or representation and I sign it voluntarily and of my own free will.” (Emphasis in original.)
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*14]
We conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence. The agreement explicitly provides that the snowtuber “fully assumes all risks associated with snowtubing, even if due to the NEGLIGENCE” of the defendants. (Emphasis in original.) Moreover, the agreement refers to the negligence of the defendants three times and uses capital letters to emphasize the term “negligence.” Accordingly, we conclude that an ordinary person of reason able intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence. n6 The plaintiff claims, however, that the agreement does not expressly release the defendants from liability for their prospective negligence because the agreement “defines the word ‘negligence’ solely by reference to inherent [risks] of the activity.” We disagree. The agreement states that the snowtuber “fully assumes all risks associated with snowtubing, even if due to the NEGLIGENCE of [the defendants]” and provides a nonexhaustive list of such risks. (Emphasis in original.) We acknowledge that some of the risks listed [*15] arguably can be characterized as inherent risks because they are innate to the activity, “are beyond the control of the [recreational] area operator and cannot be minimized by the operator’s exercise of reasonable care.” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, 849 A.2d 813 (2004). Other risks listed in the agreement, for example, “lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions” are not inherent risks. The recreational operator has control over safety devices, warnings and instructions, and can ensure their adequacy through the exercise of reasonable care. Thus, a snowtuber who, by virtue of signing the present agreement, assumes the risk of inadequate safety devices, warnings or instructions, necessarily assumes the risk of the recreational operator’s negligence.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n6 The plaintiff claims that the trial court improperly rendered summary judgment in the present matter because “there [was] a question of fact as to [the plaintiff’s] understanding of the scope of the release.” We reject this claim. “It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.” (Internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 94, 709 A.2d 540 (1998). Accordingly, where the language of a contract is clear and unambiguous, “[a] party may not assert as a defense to an action on [the] contract that [he] did not understand what [he] was signing.” John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 645, 760 A.2d 980 (2000).
Regardless, the plaintiff’s deposition testimony establishes that he understood the scope of the agreement, but did not believe that the defendants would seek to enforce the agreement or that the agreement would be upheld as a matter of law. See part II of this opinion. Specifically, the plaintiff testified: “I did not understand that I was saying it was okay for Powder Ridge to willingly kill me or injure me or my children or anyone else that participated in the ride, and it is my understanding of the form as it’s written, that Powder Ridge has the right, from this document, to take my life, injure me, injure my children, without regard or responsibility. That is my under standing of the form now. At the time I read that, I did not believe that, and I had that understanding of the words as they’re written and I did not believe that any organization would attempt to enforce language of that kind nor would any court uphold it.” The plaintiff further testified: “My son, who at that time was [twelve], read [the agreement] as well and he said, ‘Dad, don’t sign this thing.’ And I looked at it and I said, ‘It’s so patently egregious, I don’t see how it could be enforced.’ He was right and I was wrong. ‘Out of the mouths of babes.’”
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*16]
We conclude that the trial court properly determined that the agreement in the present matter expressly purports to release the defendants from liability for their future negligence and, accordingly, satisfies the standard set forth by this court in Hyson.
We next address the issue we explicitly left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640, namely, whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy. We conclude that it does and, accordingly, reverse the judgment of the trial court.
Although it is well established “that parties are free to contract for whatever terms on which they may agree”; (internal quotation marks omitted) Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997); it is equally well established “that contracts that violate public policy are unenforceable.” Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999). “The question [of] whether a contract is against [*17] public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review.” (Internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn. App. 235, 245, 866 A.2d 629 (2005), citing 17A Am. Jur. 2d 312, Contracts § 327 (2004).
As previously noted, “the law does not favor contract provisions which relieve a person from his own negligence . . . .” (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643. This is because exculpatory provisions undermine the policy considerations governing our tort system. “The fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. . . . An equally compelling function of the tort system is the [*18] prophylactic factor of preventing future harm . . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). Thus, it is consistent with public policy “to posit the risk of negligence upon the actor” and, if this policy is to be abandoned, “it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.” Tunkl v. Regents of the University of California, 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963).
Although this court previously has not addressed the enforceability of a release of liability for future negligence, the issue has been addressed by many of our sister states. A frequently cited standard for determining whether exculpatory agreements violate public policy was set forth by the Supreme Court of California in Tunkl v. Regents of the University of California, supra, 60 Cal.2d 98-101. In Tunkl, the court concluded that exculpatory agreements [*19] violate public policy if they affect the public interest adversely; id., 96-98; and identified six factors (Tunkl factors) relevant to this determination: “ [The agreement] concerns a business of a type generally thought suitable for public regulation.  The party seeking exculpation is engaged in per forming a service of great importance to the public, which is often a matter of practical necessity for some members of the public.  The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.  As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bar gaining strength against any member of the public who seeks his services.  In exercising a superior bar gaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.  Finally, as a result of the transaction, the person [*20] or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” Id., 98-101. The court clarified that an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied. n7 Id., 101.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n7 In Tunkl, the plaintiff filed suit against a charitable research hospital for personal injuries allegedly incurred as a result of the negligence of two physicians employed by the hospital. Tunkl v. Regents of the University of California, supra, 60 Cal.2d 94. Upon admission, the plaintiff was required to sign an exculpatory agreement that released the hospital from “any and all liability for the negligent or wrongful acts or omissions of its employees . . . .” (Internal quotation marks omitted.) Id. Applying the Tunkl factors, the court determined that the exculpatory agreement was unenforceable because it violated public policy. Id., 101-104.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*21]
Various states have adopted the Tunkl factors to determine whether exculpatory agreements affect the public interest adversely and, thus, violate public policy. See, e.g., Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa School District, 110 Wn. 2d 845, 851-52, 758 P.2d 968 (1988). Other states have developed their own variations of the Tunkl factors; see, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (“in determining whether an exculpatory agreement is valid, there are four factors which a court must consider:  the existence of a duty to the public;  the nature of the service performed;  whether the contract was fairly entered into; and  whether the intention of the parties is expressed in clear and unambiguous language”); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) (“express agreements exempting one of the parties for negligence are to be sustained except where:  one party is at an obvious disadvantage in bargaining power;  a public duty is [*22] involved [public utility companies, common carriers]”); while still others have adopted a totality of the circumstances approach. See, e.g., Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994) (expressly declining to adopt Tunkl factors because “the ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of cur rent societal expectations”); Dalury v. S-K-I, Ltd., 164 Vt. 329, 333-34, 670 A.2d 795 (1995) (same). The Virginia Supreme Court, however, has determined that all exculpatory agreements purporting to release tortfeasors from future liability for personal injuries are unenforceable because “to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be law fully done where an enlightened system of jurisprudence prevails. Public policy forbids it . . . .” (Internal quotation marks omitted.) Hiett v. Lake Barcroft Community Assn., 244 Va. 191, 194, 418 S.E.2d 894 (1992).
Having reviewed the various methods for determining whether exculpatory [*23] agreements violate public policy, we conclude, as the Tunkl court itself acknowledged, that “no definition of the concept of public interest can be contained within the four corners of a formula.” Tunkl v. Regents of the University of California, supra, 60 Cal.2d 98. Accordingly, we agree with the Supreme Courts of Maryland and Vermont that “the ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” Wolf v. Ford, supra, 335 Md. 535; Dalury v. S-K-I, Ltd., supra, 164 Vt. 333-34. Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.
We now turn to the merits of the plaintiff’s claim. The defendants are in the business of providing snowtubing services to the public generally, regardless of prior snowtubing experience, with the minimal restriction that only persons at least six years old or forty-four inches tall are eligible to participate. [*24] Given the virtually unrestricted access of the public to Powder Ridge, a reasonable person would presume that the defendants were offering a recreational activity that the whole family could enjoy safely. Indeed, this presumption is borne out by the plaintiff’s own testimony. Specifically, the plaintiff testified that he “trusted that [the defendants] would, within their good conscience, operate a safe ride.”
The societal expectation that family oriented recreational activities will be reasonably safe is even more important where, as in the present matter, patrons are under the care and control of the recreational operator as a result of an economic transaction. The plaintiff, in exchange for a fee, was permitted access to the defendants’ snowtubing runs and was provided with snowtubing gear. As a result of this transaction, the plaintiff was under the care and control of the defendants and, thus, was subject to the risk of the defendants’ carelessness. Specifically, the defendants designed and maintained the snowtubing run and, therefore, controlled the steepness of the incline, the condition of the snow and the method of slowing down or stopping patrons. Further, the defendants [*25] provided the plaintiff with the requisite snowtubing supplies and, therefore, controlled the size and quality of the snow tube as well as the provision of any necessary protective gear. Accordingly, the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an exciting, but reasonably safe, snowtubing experience.
Moreover, the plaintiff lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ snowtubing runs were maintained in a reasonably safe condition. As the Vermont Supreme Court observed, in the context of the sport of skiing, it is consistent with public policy “to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. [The] defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the costs of insurance among [*26] their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.
”If the defendants were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk would be removed, with the public bearing the cost of the resulting injuries. . . . It is illogical, in these circumstances, to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.” n8 (Citations omitted.) Dalury v. S-K-I, Ltd., supra, 164 Vt. 335. The concerns expressed by the court in Dalury are equally applicable to the context of snowtubing, and we agree that it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control. n9
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n8 Exculpatory agreements, like the one at issue in the present matter, shift the costs of injuries from the tortfeasor to the person injured. As a consequence, health care insurance providers or the state, through its provision of medicaid benefits, absorb the costs of the tortfeasor’s negligence. These costs necessarily are passed on to the population of the state through higher health care premiums and state taxes. Accordingly, in the present matter, it ultimately would be the population generally, and not the snowtube operators and their patrons, who would bear the costs if these agreements were to be enforced. [*27]
n9 The dissent claims that “the Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation.” The dissent mischaracterizes both the conclusion of the Vermont Supreme Court in Dalury v. S-K-I, Ltd., supra, 164 Vt. 335, and our conclusion today. In Dalury, the court did not rely solely on the volume of public participation in determining that exculpatory agreements violate public policy in the context of skiing. Rather, the court relied on the following relevant factors: “(1) the ski area operated a facility open to the general public, (2) the ski area advertised and invited persons of every level of skiing ability onto its premises, (3) the ski area, and not recreational skiers, had the expertise and opportunity to foresee and control hazards and to guard against the negligence of its employees and agents, (4) the ski area was in a better position to insure against the risks of its own negligence and spread the cost of the insurance among its customers, and (5) if ski areas were permitted to obtain broad waivers of their liability, incentives for them to manage risks would be removed, with the public bearing the cost.” Spencer v. Killington, Ltd., 167 Vt. 137, 141, 702 A.2d 35 (1997) (discussing Dalury). Likewise, we conclude today that the agreement at issue in this case violates public policy, not solely because of the volume of public participation, but because: (1) the defendants invite the public generally to snowtube at their facility, regardless of snowtubing ability; (2) snowtubers are under the care and control of the defendants as a result of an economic transaction; (3) the defendants, not recreational snowtubers, have the knowledge, experience and authority to maintain the snowtubing runs in reasonably safe condition, to determine whether the snowtubing equipment is adequate and reasonably safe, and to guard against the negligence of its employees and agents; (4) the defendants are in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons; (5) if we were to uphold the present agreement under the facts of this case, the defendants would be permitted to obtain broad waivers of their liability and the incentive for them to maintain a reasonably safe snowtubing environment would be removed, with the public bearing the cost; (6) the agreement at issue is a standardized adhesion contract, offered to snowtubers on a “take it or leave it” basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee; and (7) the defendants had superior bargaining authority.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*28]
Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a “take it or leave it” basis. The “most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988); see also Black’s Law Dictionary (7th Ed. 1999) (defining adhesion contract as “[a] standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms”). Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him the option of procuring protection against negligence at an additional reasonable cost. See Restatement (Third), Torts, Apportionment of Liability 2, comment (e), p. 21 (2000) (factor relevant to enforcement of contractual limit on liability is “whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reasonable, additional fee”). Moreover, the defendants did not inform prospective [*29] snowtubers prior to their arrival at Powder Ridge that they would have to waive important common-law rights as a condition of participation. Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants’ proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge. Under the present factual circumstances, it would ignore reality to conclude that the plaintiff wielded the same bargaining power as the defendants.
The defendants contend, nevertheless, that they did not have superior bargaining power because, unlike an essential public service, “snowtubing is a voluntary activity and the plaintiff could have just as easily decided not to participate.” n10 We acknowledge that snowtubing is a voluntary activity, but we do not agree that there can never be a disparity of bargaining power in the context of voluntary or elective activities. n11 See Dalury v. S-K-I, Ltd., supra, 164 Vt. 335 (“while interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that [*30] implicate public concerns”). Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga, are pursued by the vast majority of the population and constitute an important and healthy part of everyday life. Indeed, this court has previously recognized the public policy interest of promoting vigorous participation in such activities. See, e.g., Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 702 (important public policy interest in encouraging vigorous participation in skiing); Jaworski v. Kiernan, 241 Conn. 399, 409, 696 A.2d 332 (1997) (important public policy interest in promoting vigorous participation in soccer). In the present case, the defendants held themselves out as a provider of a healthy, fun, family activity. After the plaintiff and his family arrived at Powder Ridge eager to participate in the activity, however, the defendants informed the plaintiff that, not only would they be immune from claims arising from the inherent risks of the activity, but they would not be responsible for injuries resulting from their own carelessness and negligence [*31] in the operation of the snowtubing facility. We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n10 The defendants also claim, and the dissent agrees, that the defendants did not have superior bargaining power because the plaintiff “could have participated in snowtubing elsewhere, either on that day or another day.” We are not persuaded. Snowtubing is a seasonal activity that requires the provision of specific supplies and particular topographic and weather conditions. Although the dissent correctly states that “’snowtubing occurs regularly at locations all across the state, including parks, backyards and golf courses’”; we point out that, even when weather conditions are naturally appropriate for snowtubing, not all individuals are fortunate enough to have access to places where snowtubing is both feasible topographically and permitted freely. Moreover, the dissent argues that the plaintiff had ample opportunity to select a snowtubing environment “based on whatever safety considerations he felt were relevant.” As already explained in this opinion, however, the defendants, not the plaintiff, had the requisite knowledge and experience to determine what safety considerations are relevant to snowtubing. As such, it was reasonable for the plaintiff to presume that the defendants, who are in the business of supplying snowtubing services, provide the safest snowtubing alternative. [*32]
n11 We need not decide whether an exculpatory agreement concerning a voluntary recreational activity violates public policy if the only factor militating against enforcement of the agreement is a disparity in bargaining power because, in the present matter, there are additional factors that combine to render the agreement contrary to public policy. See footnote 9 of this opinion.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because it violates public policy. n12 Accordingly, the trial court improperly rendered summary judgment in favor of the defendants.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n12 We clarify that our conclusion does not extend to the risks inherent in the activity of snowtubing. As we have explained, inherent risks are those risks that are innate to the activity, “are beyond the control of the [recreational] area operator and cannot be minimized by the operator’s exercise of reasonable care.” Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 692 (distinguishing between inherent risks of skiing and ski operator’s negligence); see also Spencer v. Killington, Ltd., 167 Vt. 137, 143, 702 A.2d 35 (1997) (same). For example, risks inherent in the sport of skiing include, but are not limited to, the risk of collision with another skier or a tree outside the confines of the slope. See Public Acts 2005, No. 05-78, § 2. The risks inherent in each type of recreational activity will necessarily vary, and it is common knowledge that some recreational activities are inherently more dangerous than others.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*33]
The defendants and the dissent point out that our conclusion represents the “distinct minority view” and is inconsistent with the majority of sister state authority upholding exculpatory agreements in similar recreational settings. We acknowledge that most states uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct. Put simply, we disagree with these decisions for the reasons already explained in this opinion. Moreover, we find it significant that many states uphold exculpatory agreements in the context of simple negligence, but refuse to enforce such agreements in the context of gross negligence. See, e.g., Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235-36 (9th Cir. 1995) (Oregon law); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993), superseded in part by Haw. Rev. Stat. § 663-1.54 (1997) (recreational providers liable for simple negligence in addition to gross negligence); McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 758, 603 S.E.2d 7 (2004), cert. denied, 2005 Ga. LEXIS 69 [*34] (January 10, 2005); Boucher v. Riner, 68 Md. App. 539, 543, 514 A.2d 485 (1986); Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. 17, 18-19, 687 N.E.2d 1263 (1997); Schmidt v. United States, 1996 OK 29, 912 P.2d 871, 874 (Okla. 1996); Adams v. Roark, 686 S.W.2d 73, 75-76 (Tenn. 1985); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 852, 728 P.2d 617 (1986); see also New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 62-65, 525 N.W.2d 25 (1994); 8 S. Williston, Contracts (4th Ed. 1998) § 19:23, pp. 291-97 (“an attempted exemption from liability for a future intentional tort or crime or for a future willful or grossly negligent act is generally held void, although a release exculpating a party from liability for negligence may also cover gross negligence where the jurisdiction has abolished the distinction between degrees of negligence and treats all negligence alike”). Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 833, 836 A.2d 394 and n.10, 266 Conn. 822, 836 A.2d 394 (2003). [*35] Accordingly, although in some states recreational operators cannot, consistent with public policy, release themselves from prospective liability for conduct that is more egregious than simple negligence, in this state, were we to adopt the position advocated by the defendants, recreational operators would be able to release their liability for such conduct unless it rose to the level of recklessness. Id., 832 (recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent” [internal quotation marks omitted]). As a result, recreational operators would lack the incentive to exercise even slight care, with the public bearing the costs of the resulting injuries. See 57A Am. Jur. 2d 296, Negligence § 227 (2004) (“’gross negligence’ is commonly defined as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or ‘slight diligence’”). [*36] Such a result would be inconsistent with the public policy of this state.
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.
DISSENT: NORCOTT, J., with whom BORDEN and PALMER, Js., join, dissenting. Although I concur in part I of the majority opinion, I disagree with its conclusion in part II, namely, that the prospective release of liability for negligence executed by the plaintiff, Gregory D. Hanks, in this case is unenforceable as against public policy. I would follow the overwhelming majority of our sister states and would conclude that prospective releases from liability for negligence are permissible in the context of recreational activities. Accordingly, I respect fully dissent from the majority’s decision to take a road that is, for many persuasive reasons, far less traveled.
I begin by noting that “it is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence [*37] of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract . . . .” Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993). Nevertheless, contracts that violate public policy are unenforceable. See, e.g., Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999).
In determining whether prospective releases of liability violate public policy, the majority adopts the Vermont Supreme Court’s totality of the circumstances approach. n1 Dalury v. S-K-I, Ltd., 164 Vt. 329, 334, 670 A.2d 795 (1995). Although it also purports to consider the widely accepted test articulated by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), the majority actually accords the test only nominal consideration. Because I consider the Tunkl factors to be dispositive, I address them at length.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 The majority also cites Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994), in support of its totality of the circumstances approach. The Wolf court concluded that a release executed in the context of a stockbroker-client relationship did not implicate the public interest. Id., 527-28. Such a result is incongruous with the vast majority of American law and I am aware of no other case in which a court held that a release of liability for negligence in such a sensitive context did not implicate the public interest. In my view, Wolf illustrates the significant problem inherent in employing an amorphous “totality of the circumstances” test.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*38]
”The attempted but invalid [release agreement] involves a transaction which exhibits some or all of the following characteristics.  It concerns a business of a type generally thought suitable for public regulation.  The party seeking exculpation is engaged in per forming a service of great importance to the public, which is often a matter of practical necessity for some members of the public.  The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.  As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bar gaining strength against any member of the public who seeks his services.  In exercising a superior bar gaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.  Finally, as a result of the transaction, the person or property of the purchaser is placed under the control [*39] of the seller, subject to the risk of carelessness by the seller or his agents.” Id., 98-101.
”Not all of the Tunkl factors need be satisfied in order for an exculpatory clause to be deemed to affect the public interest. The [Tunkl court] conceded that ‘no definition of the concept of public interest can be contained within the four corners of a formula’ and stated that the transaction must only ‘exhibit some or all’ of the identified characteristics. . . . Thus, the ultimate test is whether the exculpatory clause affects the public interest, not whether all of the characteristics that help reach that conclusion are satisfied.” (Citations omitted.) Health Net of California, Inc. v. Dept. of Health Services, 113 Cal. App. 4th 224, 237-38, 6 Cal.Rptr. 3d 235 (2003), review denied, 2004 Cal. LEXIS 2043 (March 3, 2004).
Notwithstanding the statutory origins of the Tunkl factors, n2 numerous other states have adopted them to determine whether a prospective release violates public policy under their common law. See, e.g., Morgan v. South Central Bell Telephone Co., 466 So. 2d 107, 117 (Ala. 1985); Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); [*40] La Frenz v. Lake County Fair Board, 172 Ind. App. 389, 395, 360 N.E.2d 605 (1977); Lynch v. Santa Fe National Bank, 97 N.M. 554, 558-59, 627 P.2d 1247 (1981); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa School District, 110 Wn. 2d 845, 852, 758 P.2d 968 (1988); Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). n3
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n2 The Tunkl court construed California Civil Code 1668, which provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Internal quotation marks omitted.) Tunkl v. Regents of the University of California, supra, 60 Cal.2d 95. Despite the sweeping language of the statute, California courts had construed it inconsistently, with many allowing prospective releases from liability for negligence. See id., 95-98. The Tunkl court, in reconciling conflicting lower court decisions, confined the effect of 1668 on releases from liability for negligence to situations affecting the public interest, stating: “While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, [circumstances affecting the public interest] pose a different situation.” Id., 101. [*41]
n3 I note that still other states have chosen to adopt variations on the Tunkl factors. See, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (“in determining whether an exculpatory agreement is valid, there are four factors which a court must consider:  the existence of a duty to the public;  the nature of the service performed;  whether the contract was fairly entered into; and  whether the intention of the parties is expressed in clear and unambiguous language”); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) (“on the basis of these authorities we hold that express agreements exempting one of the parties for negligence are to be sustained except where:  one party is at an obvious disadvantage in bargaining power;  a public duty is involved [public utility companies, common carriers]”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Applying the six Tunkl factors to the sport of snow tubing, I note that the first, second, fourth and sixth factors support the defendants, Powder Ridge Restaurant Corporation and White Water Mountain [*42] Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, which operate the Powder Ridge facility, while the third and fifth factors support the plaintiff. Accordingly, I now turn to a detailed examination of each factor as it applies to this case.
The first of the Tunkl factors, that the business is of a type thought suitable for regulation, cuts squarely in favor of upholding the release. Snowtubing runs generally are not subject to extensive public regulation. Indeed, the plaintiff points to no statutes or regulations that affect snowtubing, and I have located only one statutory reference to it. This sole reference, contained in No. 05-78, § 2, of the 2005 Public Acts, explicitly exempts snowtubing from the scope of General Statutes (Rev. to 2005) § 29-212, which applies to liability for injuries sustained by skiers. n4 Thus, while the legislature has chosen to regulate, to some extent, the sport of skiing, it conspicuously has left snowtubing untouched.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n4 Public Act 05-78, 2, which amended General Statutes (Rev. to 2005) 29-212 effective October 1, 2005, provides: “(a) For the purposes of this section:
”(1) ‘Skier’ includes any person who is using a ski area for the purpose of skiing or who is on the skiable terrain of a ski area as a spectator or otherwise, but does not include (A) any person using a snow tube provided by a ski area operator, and (B) any person who is a spectator while in a designated spectator area during any event;
”(2) ‘Skiing’ means sliding downhill or jumping on snow or ice using skis, a snowboard, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain, but does not include snow tubing operations provided by a ski area operator; and
”(3) ‘Ski area operator’ means a person who owns or controls the operation of a ski area and such person’s agents and employees. “(b) Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211, as amended by this act, or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.
”(c) The provisions of this section shall not apply in any case in which it is determined that a claimant’s injury was not caused by a hazard inherent in the sport of skiing.” (Emphasis added.)
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*43]
The second Tunkl factor also works in the defendants’ favor. Snowtubing is not an important public service. Courts employing the Tunkl factors have found this second element satisfied in the contexts of hospital admission and treatment, residential rental agreements, banking, child care services, telecommunications and public education, including interscholastic sports. See Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 573 P.2d 465, 143 Cal.Rptr. 247 (1978) (residential rental agreements); Tunkl v. Regents of the University of California, supra, 60 Cal.2d 92 (hospitals); Gavin W. v. YMCA of Metropolitan Los Angeles, 106 Cal. App. 4th 662, 131 Cal.Rptr.2d 168 (2003) (child care); Vilner v. Crocker National Bank, 89 Cal. App. 3d 732, 152 Cal.Rptr. 850 (1979) (banking); Morgan v. South Central Bell Telephone Co., supra, 466 So. 2d 107 (telephone companies); Anchorage v. Locker, supra, 723 P.2d 1261 (telephone companies); Wagenblast v. Odessa School District, supra, 110 Wn. 2d 845 (public schools and interscholastic sports). The public nature of these industries [*44] is undeniable and each plays an important and indispensable role in everyday life. Snowtubing, by contrast, is purely a recreational activity.
The fourth Tunkl factor also counsels against the plaintiff’s position that snowtubing affects the public interest because snowtubing is not an essential activity. The plaintiff’s only incentive for snowtubing was recreation, not some other important personal interest such as, for example, health care, banking or insurance. The plaintiff would not have suffered any harm by opting not to snowtube at Powder Ridge, because snowtubing is not so significant a service that a person in his position would feel compelled to agree to any terms offered rather than forsake the opportunity to participate. Furthermore, “unlike other activities that require the pro vision of a certain facility, snowtubing occurs regularly at locations all across the state, including parks, back yards and golf courses.” Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 650 n.4, 829 A.2d 827 (2003) (Norcott, J., dissenting). Thus, the plaintiff had ample opportunity to snowtube in an environment of his choosing, which he [*45] could have selected based on whatever safety considerations he felt were relevant. In the absence of a compelling personal need and a limited choice of facilities, I cannot conclude that the defendants enjoyed a significant bar gaining advantage over the plaintiff.
Finally, the sixth Tunkl factor weighs against a determination that the release implicates the public interest. The plaintiff did not place his person or property under the defendants’ control. Unlike the patient who lies unconscious on the operating table or the child who is placed in the custody of a day care service, the Powder Ridge patron snowtubes on his own, without entrusting his person or property to the defendants’ care. In fact, the attraction of snowtubing and other recreational activities often is the lack of control associated with participating.
In contrast, the third and fifth Tunkl factors support the plaintiff’s position. With respect to the third factor, although the defendants restricted access to the snow tubing run to persons at least six years old or forty-four inches tall, this minimal restriction does not diminish the fact that only a small class of the general public is excluded from [*46] participation. See Tunkl v. Regents of the University of California, supra, 60 Cal.2d 102 (research hospital that only accepted certain patients nevertheless met third prong of Tunkl because it accepted anyone who exhibited medical condition that was being researched at hospital). Such a small exclusion does not diminish the invitation to the public at large to partake in snowtubing at the defendants’ facility, because the snowtubing run is open to any person who fits within certain easily satisfied parameters. See id., 99-101.
Finally, I examine the fifth Tunkl factor, namely, whether the release agreement is an “adhesion contract . . . .” Id., 100. “[The] most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988). Although the plaintiff made no attempt to bargain as to the terms of the release, it defies logic to presume that he could have done so successfully. As the majority correctly notes, the defendants presented patrons with a “take it or leave it” situation, [*47] conditioning access to the snowtubing run on signing the release agreement. Accordingly, the fifth Tunkl factor indicates that the agreement does affect the public interest.
In sum, I conclude that, under the Tunkl factors, the defendants’ release at issue in this case does not violate public policy with respect to the sport of snowtubing. This conclusion is consistent with the vast majority of sister state authority, which upholds releases of liability in a variety of recreational or athletic settings that are akin to snowtubing as not violative of public policy. See, e.g., Barnes v. Birmingham International Raceway, Inc., 551 So. 2d 929, 933 (Ala. 1989) (automobile racing); Valley National Bank v. National Assn. for Stock Car Auto Racing, 153 Ariz. 374, 378, 736 P.2d 1186 (App. 1987) (spectator in pit area at automobile race); Plant v. Wilbur, 345 Ark. 487, 494-96, 47 S.W.3d 889 (2001) (same); Madison v. Superior Court, 203 Cal. App. 3d 589, 602, 250 Cal.Rptr. 299 (1988) (scuba diving), review denied, 1988 Cal. LEXIS 1511 (October 13, 1988); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) [*48] (horseback riding); Theis v. J & J Racing Promotions, 571 So. 2d 92, 94 (Fla. App. 1990) (automobile racing), review denied, 581 So. 2d 168 (Fla. 1991); Bien v. Fox Meadow Farms Ltd., 215 Ill. App. 3d 337, 341, 574 N.E.2d 1311, 158 Ill. Dec. 918 (horseback riding), appeal denied, 142 Ill. 2d 651, 584 N.E.2d 126, 164 Ill. Dec. 914 (1991); Clanton v. United Skates of America, 686 N.E.2d 896, 899-900 (Ind. App. 1997) (roller skating); Boucher v. Riner, 68 Md. App. 539, 551, 514 A.2d 485 (1986) (skydiving); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965) (spectator at automobile race); Lloyd v. Sugarloaf Mountain Corp., 2003 ME 117, 833 A.2d 1, 4 (Me. 2003) (mountain biking); Gara v. Woodbridge Tavern, 224 Mich. App. 63, 66-68, 568 N.W.2d 138 (1997) (recreational sumo wrestling); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982) (weightlifting at fitness center); Mayer v. Howard, 220 Neb. 328, 336, 370 N.W.2d 93 (1985) (motorcycle racing); Barnes v. New Hampshire Karting Assn., Inc., 128 N.H. 102, 108, 509 A.2d 151 (1986) [*49] (go-cart racing); Kondrad v. Bismarck Park District, 2003 ND 4, 655 N.W.2d 411, 414 (N.D. 2003) (bicycling); Cain v. Cleveland Parachute Training Center, 9 Ohio App. 3d 27, 28, 9 Ohio B. 28, 457 N.E.2d 1185 (1983) (skydiving); Manning v. Brannon, 1998 OK CIV APP 17, 956 P.2d 156, 159 (Okla. App. 1997) (skydiving); Mann v. Wetter, 100 Or. App. 184, 187-88, 785 P.2d 1064 (1990) (scuba diving); Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 448, 603 A.2d 663 (1992) (ski racing); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 631, 281 S.E.2d 223 (1981) (automobile racing); Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 798 (S.D. 2000) (automobile racing); Kellar v. Lloyd, 180 Wis. 2d 162, 183, 509 N.W.2d 87 (App. 1993) (flagperson at automobile race); Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988) (ski race during decathlon). n5
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n5 See also McAtee v. Newhall Land & Farming Co., 169 Cal. App. 3d 1031, 1034-35, 216 Cal.Rptr. 465 (1985) (motocross racing); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 343, 214 Cal.Rptr. 194 (1985) (skydiving); Jones v. Dressel, 623 P.2d 370, 375 (Colo. 1981) (skydiving).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*50]
This near unanimity among the courts of the various states reflects the fact that “most, if not all, recreational activities are voluntary acts. Individuals participate in them for a variety of reasons, including to exercise, to experience a rush of adrenaline, and to engage their competitive nature. These activities, while surely increasing one’s enjoyment of life, cannot be considered so essential as to override the ability of two parties to contract about the allocation of the risks involved in the provision of such activity. When deciding to engage in a recreational activity, participants have the ability to weigh their desire to participate against their willingness to sign a contract containing an exculpatory clause.” Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 649 (Norcott, J., dissenting). It also is consistent with the view of the American Law Institute, as embodied in 2 Restatement (Second) of Contracts § 195 (1981), n6 and Restatement (Third) of Torts, Apportionment of Liability 2 (2000). n7
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n6 Section 195 of 2 Restatement (Second) of Contracts provides in relevant part: “(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if
”(a) the term exempts an employer from liability to an employee for injury in the course of his employment;
”(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or
”(c) the other party is similarly a member of a class protected against the class to which the first party belongs. . . .” 2 Restatement (Second), Contracts § 195, p. 65 (1981). [*51]
n7 Restatement (Third), Torts, Apportionment of Liability § 2, p. 19 (2000), provides: “When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm. Unlike a plaintiff’s negligence, a valid contractual limitation on liability does not provide an occasion for the factfinder to assign a percentage of responsibility to any party or other person.”
The commentary to § 2 further supports our conclusion in the present case. See id., comment (b), p. 20 (“In appropriate situations, the parties to a transaction should be able to agree which of them should bear the risk of injury, even when the injury is caused by a party’s legally culpable conduct. That policy is not altered or undermined by the adoption of comparative responsibility. Consequently, a valid contractual limitation on liability, within its terms, creates an absolute bar to a plaintiff’s recovery from the other party to the contract.”); see also id., comment (e), p. 21 (“Some contracts for assumption of risk are unenforceable as a matter of public policy. Whether a contractual limitation on liability is unenforceable depends on the nature of the parties and their relationship to each other, including whether one party is in a position of dependency; the nature of the conduct or service provided by the party seeking exculpation, including whether the conduct or service is laden with ‘public interest’; the extent of the exculpation; the economic setting of the transaction; whether the document is a standardized contract of adhesion; and whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reasonable, additional fee.”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*52]
Notwithstanding the foregoing authority, the majority adopts the Vermont Supreme Court’s holding in Dalury v. S-K-I, Ltd., supra, 164 Vt. 334, and concludes that the release agreement in the present case violates public policy. In Dalury, the plaintiff “sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski lift line. Before the season started, [the plaintiff] had purchased a midweek season pass and signed a form releasing the ski area from liability.” Id., 330. The release signed by the plaintiff in Dalury clearly disclaimed liability for negligence. Id. Citing the Tunkl factors, but fashioning an alternative test based on the totality of the circumstances, the Dalury court held the release invalid as against public policy. Id., 333-35. The Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation. Id., 334. I find the Vermont court’s opinion unpersuasive.
Although the number of tickets sold to the public is instructive in determining whether [*53] an agreement affects the public interest, it is by no means dispositive. Private, nonessential industries, while often very popular, wield no indomitable influence over the public. The average person is capable of reading a release agreement and deciding not to snowtube because of the risks that he or she is asked to assume. n8 By contrast, in those fields implicating the public interest, the patron is at a substantial bargaining disadvantage. Few people are in a position to quibble over contractual obligations when seeking, for example, insurance, medical treatment or child care. A general characteristic of fields entangled with the public interest is their indispensability; snow tubing hardly is indispensable. Under the majority’s reasoning, nearly any release affects the public interest, no matter how unnecessary or inherently dangerous the underlying activity may be. n9 That position remains the distinct minority view, followed only by the courts of Vermont and Virginia. n10 Hiett v. Lake Barcroft Community Assn., 244 Va. 191, 194, 418 S.E.2d 894 (1992) (“to hold that it was competent for one party to put the other parties to the contract at the mercy of its own [*54] misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails”).
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n8 The majority apparently considers snowtubing to be so important that the average consumer would be unable to pass up participation, stating: “Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants’ proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge.” Because snowtubing, unlike the important societal considerations that other courts have concluded implicate the public interest, is wholly nonessential, I disagree with the majority’s position that the mere inconvenience of having to forgo it creates an unacceptable disparity in bargaining power.
n9 Indeed, the majority states: “Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga are pursued by the vast majority of the population and constitute an important and healthy part of everyday life.” [*55]
n10 Although New York courts formerly upheld prospective releases from liability; see Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); that state’s legislature superseded many of those precedents with New York Gen. Oblig. Law 5-326 (McKinney 2001), which provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The majority also contends that, because [*56] of the status of Connecticut negligence law, my conclusion would have broader public policy implications than the decisions of other courts upholding releases. Specifically, the majority contends that because the law of Connecticut does not recognize differing degrees of negligence, my position allows snowtube operators to insulate themselves from liability even for grossly negligent acts. This is a contrast from states that do recognize a separate claim for gross negligence. Thus, the majority avers, in this state, it would be possible to insulate oneself from liability for all acts not rising to the level of recklessness, whereas elsewhere only simple negligence may be disclaimed.
Although the majority’s theory initially appears compelling, closer examination reveals that the line it draws is a distinction without a difference because many states that prohibit prospective releases of liability for gross negligence define gross negligence in a way that mirrors Connecticut recklessness law. n11 See Mich. Comp. Laws § 691.1407 (7) (a) (2005) (governmental immunity statute defining gross negligence as “conduct so reckless as to demonstrate a substantial [*57] lack of concern for whether an injury results”); see also Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997) (“Wanton misconduct is aggravated negligence. . . . Willful, wanton, and reckless conduct have commonly been grouped together as an aggravated form of negligence.” [Citations omitted; internal quotation marks omitted.]); Cullison v. Peoria, 120 Ariz. 165, 169, 584 P.2d 1156 (1978) (“Wanton [or gross] negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is in the air, so to speak. It is flagrant and evinces a lawless and destructive spirit.” [Internal quotation marks omitted.]); Ziarko v. Soo Line R. Co., 161 Ill. 2d 267, 274-75, 641 N.E.2d 402, 204 Ill. Dec. 178 (1994) (“Unlike intentionally tortious behavior, conduct characterized as willful and wanton may be proven where the acts have been less than intentional—i.e., where there has been a failure, after knowledge of impending danger, to exercise ordinary care to prevent the danger, or a failure to discover the danger through . . . carelessness when it could have been discovered by the exercise of ordinary [*58] care. . . . Our case law has sometimes used interchangeably the terms willful and wanton negligence, gross negligence, and willful and wanton conduct. . . . This court has previously observed that there is a thin line between simple negligence and willful and wanton acts . . . .” [Citations omitted; internal quotation marks omitted.]); Murphy v. Edmonds, 325 Md. 342, 375, 601 A.2d 102 (1992) (“gross negligence . . . has been defined in motor vehicle tort cases as a wanton or reckless disregard for human life in the operation of a motor vehicle” [internal quotation marks omitted]); Stringer v. Minnesota Vikings Football Club, 686 N.W.2d 545, 552-53 (Minn. App. 2004) (“Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal [*59] obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others.” [Internal quotation marks omitted.]), quoting State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480 (1946), review granted, Nos. A03-1635, A04-205, 2004 Minn. LEXIS 752 (November 23, 2004); State v. Chambers, 589 N.W.2d 466, 478-79 (Minn. 1999) (person is grossly negligent when he acts “without even scant care but not with such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong” [internal quotation marks omitted]), quoting State v. Bolsinger, supra, 159; Bennett v. Labenz, 265 Neb. 750, 755, 659 N.W.2d 339 (2003) (“gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty”); New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 64, 525 N.W.2d 25 (1994) (relying on New York law characterizing gross negligence as “conduct that evinces a reckless indifference to the rights of others”); Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992) [*60] (“Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, must smack of intentional wrongdoing. . . . It is conduct that evinces a reckless indifference to the rights of others.” [Citations omitted; internal quotation marks omitted.]); Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D. 1996) (“[Where] gross negligence is defined [by statute] as the want of slight care and diligence. . . . This court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically willful in its nature.” [Citation omitted; internal quotation marks omitted.]); Harsh v. Lorain County Speedway, Inc., 111 Ohio App. 3d 113, 118-19, 675 N.E.2d 885 (1996) (upholding release for negligence but not “willful and wanton conduct”); n12 Bogue v. McKibben, 278 Or. 483, 486, 564 P.2d 1031 (1977) (“gross negligence refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized [*61] by conscious indifference to or reckless disregard of the rights of others” [internal quotation marks omitted]); Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159 (1997) (Pennsylvania Supreme Court approved a trial court’s characterization of gross negligence for purposes of governmental immunity statute as “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”); Jinks v. Richland County, 355 S.C. 341, 345, 585 S.E.2d 281 (2003) (For the purposes of a governmental immunity statute, gross negligence is defined as “the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. . . . It is the failure to exercise slight care. . . . Gross negligence has also been defined as a relative term and means the absence of care that is necessary under the circumstances.” [Citations omitted.]). n13
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n11 Recklessness entails “something more than a failure to exercise a reason able degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . Willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.” (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003). [*62]
n12 The Ohio Supreme Court has equated willful and wanton conduct with recklessness as that term is defined in the Restatement Second of Torts, stating: “The actor’s conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” (Internal quotation marks omitted.) Thompson v. McNeill, 53 Ohio St. 3d 102, 104-105, 559 N.E.2d 705 (1990), quoting 2 Restatement (Second), Torts § 500, p. 587 (1965).
n13 Other states do, however, characterize gross negligence as more serious than ordinary negligence, while not rising to the level of recklessness. See Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714, 968 P.2d 65, 80 Cal.Rptr.2d 506 (1998) (characterizing willful and wanton conduct as more serious than gross negligence), overruled on other grounds, Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 854, 24 P.3d 493, 107 Cal.Rptr.2d 841 (2001); Travelers Indemnity Co. v. PCR, Inc., 889 So. 2d 779, 793 n.17 (Fla. 2004) (defining “’culpable negligence’ as ‘reckless indifference’ or ‘grossly careless disregard’ of human life” and gross negligence as “an act or omission that a reasonable, prudent person would know is likely to result in injury to another”); Altman v. Aronson, 231 Mass. 588, 592, 121 N.E. 505 (1919) (defining gross negligence as less serious than recklessness); Parret v. Unicco Service Co., 2005 OK 54, *11-13, 2005 Okla. LEXIS 54, P.3d (June 28, 2005) (same); Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986) (punitive damages cannot be awarded for gross negligence, which is less serious than reckless or wanton conduct). Despite these decisions, I am not persuaded that our conclusion provides inadequate protection to snowtube patrons.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*63]
Furthermore, at least one other court has concluded that releases similar to the one in question are valid notwithstanding the absence of a gross negligence doctrine. New Hampshire, like Connecticut, does not recognize differing degrees of negligence, yet its highest court has upheld a release of liability for negligence, stating: “The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. . . . The plaintiff advances no reasons for abandoning this rule and we decline to create an exception to allow him to pursue his claims of gross negligence.” (Citation omitted.) Barnes v. New Hampshire Karting Assn., Inc., supra, 128 N.H. 108-109; but see Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 705 n.3 (Pa. Super. 2000) (declining to reach issue of whether agreement that released liability for gross negligence would violate public policy where agreement in question stated [*64] only “negligence”); Bielski v. Schulze, 16 Wis. 2d 1, 18-19, 114 N.W.2d 105 (1962) (recognizing potential problems that Wisconsin’s abolition of gross negligence might raise in area of exculpatory clauses).
The great weight of these numerous and highly per suasive authorities compels my conclusion that the release at issue herein does not violate public policy as it pertains to the sport of snowtubing. Accordingly, I conclude that the trial court properly granted summary judgment in the defendants’ favor and I would affirm that judgment. I, therefore, respectfully dissent.