Connecticut court works hard to void a release for a cycling event

Lewis v. Habitat for Humanity of Greater New Haven, Inc., 2012 Conn. Super. LEXIS 146

Based on this decision you cannot right a release that will prevent a lawsuit for any fund raising or any other event in Connecticut.

This case is scary if you run fund-raising events or any event in Connecticut. Connecticut is quickly eliminating a release as a defense to claims.

In this case, Habitat for Humanity created a cross country bicycle race to raise money. Participants raised money for their ride and then rode across the US over a nine-week period. The event was called the Habitat Bicycle Challenge.

After a participant signed up and “was qualified” to participate, the defendants provided a SAG van and trailer for the event.

The court then listed the rest of the facts it found relevant. You can tell from the restatement of the facts where the court was going with this decision. These statements are fairly leading:

Despite having a history of injuries and deaths during prior HBC events, the defendant made the decision to organize, promote and sanction another HBC event in 2007.

At all relevant times, the defendant was in control of said event and was responsible for taking the necessary precautions to provide for the safety needs of the bicycle riders participating in the HBC. The defendant was responsible for selecting “trip leaders” with sufficient skill, maturity, knowledge and training to appropriately and safely coordinate the HBC. The defendant was also responsible for properly evaluating prospective participants for the HBC event and for making sure that all participants had a sufficient skill level to safely participate in the HBC event.

….he complied with the application and training requirements to participate in the event, including signing all the paper work presented by the defendant without any opportunity to negotiate or modify any of the terms.

The defendant had not made any provision for signage along the route or any other means of warning or advising the public, including drivers on the highway, of the presence of the cyclists.

The defendant did not coordinate efforts with local or state public-safety officials to implement any safety precautions for the bicycle riders. The HBC scheduled the cyclists to ride fifty to seventy miles per day with only one day of rest out of thirty-five days of travel.

[Emphasize added]

Either the court pulled specific negative facts from the briefs in this case or the defendants had created a situation where they took this responsibility in writing.

The plaintiff was injured when he was acting as a sweep rider for the day in Kansas. The SAG van had taken someone to the hospital so there was no van behind the riders. The plaintiff “realized” that his sweep partner was no longer with him. He crossed the highway and started riding eastbound. He was struck by a vehicle traveling eastbound.

What is striking is how traveling the write way on a road is subject to liability for an organization in Connecticut.

Summary of the case

The plaintiff argued that it was foreseeable that he would be hit by a car. More than 700 people die each year in the US when they are struck by cars. The plaintiff also argued that the defendant did nothing to minimize the risks to the riders. The plaintiff argued the defendant was negligent in.

organizing the event with knowledge that there had been two fatalities and other injuries in the past; failing to restrict the size or scope of the event to maximize safety; failing to properly supervise and train the participants; failing to properly gauge the skill level of the participants; failing to supervise and train the trip leaders; failing to limit days when dangerous weather conditions existed; failing to provide proper ongoing oversight and safety policy enforcement by experienced individuals during the event; failing to coordinate  [*5] with public safety officials; failing to clearly post warnings and other signs about the event, in advance of and during the event, to alert the public of the presence of the cyclists; failing to require the cyclists to stay together to increase visibility; allowing financial and public relations aspects to outweigh prudent safety concerns and; choosing to conduct three separate trips when there were inadequate resources.

The defendant claimed that the plaintiff was comparative negligent (similar to assumption of the risk) and his claims were barred because he signed a release. The defendant then filed a motion for summary judgment based on the release.

Supposedly, under Connecticut law the language in a release must specifically provide that the defendant will be exculpated for his own negligence. A Connecticut release must also be clear and consistent with public policy.

First, the court looked at the clarity issue. A release under Connecticut law must “plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility….” This means the terms used must be unambiguous and understandable. The provisions in the release must be clear and coherent. The issue then is whether “an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence.”

The court then found that the language releasing the party from liability must be conspicuous. Conspicuous means:

(A) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size; and (B) Language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.”

However, the court capped off all of these requirements by finding that the term “ordinary negligence” was confusing to people.

The language in the release, releasing liability was:

I agree, for myself, my heirs, executors and administrators, to not sue and to release, indemnify and hold harmless Habitat for Humanity of Greater New Haven, its affiliates, officers, directors, volunteers and employees and all sponsoring businesses and organizations and their agents and employees, from any and all liability,  [*16] claims, demands and causes of action whatsoever, arising out of my participation in the Challenge and related activities–whether it results from the negligence of any of the above or from any other cause. I agree not to make a claim against or sue Habitat for Humanity or other sponsors or affiliated organizations for injuries or damages related to bicycling and/or other activities during the Challenge.”

The court found this language was not clear and thus could not relieve the defendant of liability. The court stated:

The language waiving the plaintiffs’ right to sue the defendants for the defendants negligence is not conspicuous, as no effort has been made to set the word negligence off from the rest of the text. Furthermore, the particular paragraph in which the provision appears is not set off by headings or any other marker from the remainder of the two-page agreement. The court concludes that a reasonable individual  [*17] reading such an agreement would not be sufficiently informed that he or she is waiving the right to sue the defendant for its own negligent conduct.

However, the court then should be flagged for piling on. It found the release violated public policy. In Connecticut, the release would violate public policy because it would unfairly shift the loss to the wrong party, and it would eliminate an incentive to prevent future harm.

The court then found that because the defendant was a charity, its work was important and thus subject to the public policy exclusion. All other courts have found public policy to be the delivery of necessary services such as utilities or public transportation. (For six pages it evaluated this issue.)

The plaintiff hired an expert who testified that the trip would cause physical and mental fatigue. As such, the event should be organized to allow the cyclists to make as “few decisions as possible, including whether they should have a break or drink water.” [Emphasize added]

So Now What?

If you are based in Connecticut, there is not much you can do. The short list of options would be…….move.

This court did point out an issue that has been occurring more often of late. Courts want the release or negligence language emphasized for the reader. This can be done by either by a heading, larger type or bolding the print; you may want to review your release, (or have one professionally written) that makes this apparent to all readers.

What do you think? Leave a comment.

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