Indemnification fails again in a release. Parent of child having a birthday at climbing gym signed release for the injured child, not her own child.

Indemnification is rarely if upheld in a release. The language does not meet the requirements needed under the law in most states to be an indemnification agreement.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut, Superior Court of, Judicial District of Fairfield At Bridgeport

Plaintiff: Cindy Cannon PPA Emma Cannon

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Plaintiff Claims: Negligence

Defendant Defenses: Indemnification by third party

Holding: for the Plaintiff

Year: 2020

Summary

Connecticut climbing gym had mother of a group of girls at a gym for a birthday party sign release for all the girls. After one of the girls was injured and sued, the climbing gym attempted to recover money from the mother who signed the release based on the language of the release in its indemnification clause. That failed.

If failed so badly the court voided the entire release finding it to be an adhesion contract.

Indemnification agreements in releases never work to recover damages from an injured plaintiff.

Facts

We are never made aware of the facts that gave rise to the injury that created this decision. However, since the issue is solely who is liable under contract (release) for the injury it is not really relevant.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

So, the parent of the birthday child signed releases for the children attending the birthday party. When one child was injured and sued the climbing gym, the climbing gym brought the parent who signed the release into the lawsuit based on the indemnification language in the releases she signed.

The release was signed electronically; however, this was not an issue the court seemed interested in looking at.

Analysis: making sense of the law based on these facts.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not.

The defendant climbing gym filed a motion for summary judgement arguing the mother should be liable for any damages they pay out on behalf of the injured minor child. This was based on two legal theories the first was the indemnification language found in the release itself.

The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The second defense or reason why the mother should be liable was based on common-law indemnification.

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

To succeed on an indemnification agreement the court found under Connecticut law the defendant climbing gym must show the following.

A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.

An indemnification agreement in Connecticut has four elements.

“The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.”

The plaintiff argued that the entire release was void because of two prior Connecticut court decisions.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

(See Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
and
States that do not Support the Use of a Release.)

The release stated the mother who signed the release knew that “the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. The court found this to be utterly bogus (as do I). The mother had no knowledge or experience rock climbing and no clue, whether the facility was in good condition.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

This was the same position a Connecticut court in Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500, that the requirements in the release were absurd because the knowledge necessary to know and understand if the activity was safe or the equipment was in good working order was solely within the knowledge and experience of the defendant.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The court then, using the issue of the ability of the mother who signed the release to contract about the equipment found the release to be a contract of adhesion.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve 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.

The issue of whether or not the release was an adhesion contract had been touched on lightly; however, the court eventually unloaded on the defendant finding the release to be a contract of adhesion, which voids releases in most states.

…that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Most states look at recreation, and since it is not a necessity, something needed for the modern survival of a person or family as not being contacts of adhesion. However, in Connecticut, there is no review of why the release is signed, just a review of the specific language in the release to determine if it is an adhesion contract.

The court then looked at the release under the requirements of the Connecticut Supreme Court and found the release lacking as well as the indemnification language in the release.

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

And then tore the release apart based on the lack of bargaining power between the parties.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.”

The court then looked at the common-law indemnification argument of the climbing gym. For one party to hold the other party liable under common law, the following facts must be in place.

(1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

Just looking at these requirements at a climbing wall, you know the mother of a child hosting a birthday party, there is not going to meet any of these requirements.

The defendant climbing wall could not produce any evidence that the mother was in exclusive control of the situation to the exclusion of all others.

The mother’s motion for summary judgment was granted, and the plaintiff’s indemnification claims failed.

So Now What?

Overall, the language in this release did not meet Connecticut law on many counts. However, the court found the language to be so one-sided and so bad that if found multiple ways to void it. Releases must be written for the activity, the guests and the law of the state where the release will be used. When you have a state like Connecticut, where releases are always on a thing line between valid and void, the language is critical to succeed.

Indemnification claims in a release have never worked. The only way that the claims may work, would be against third parties when the liability is created by the guest. An example of something like that might be a guest on a trip starts a forest fire. The special-use permit or concession agreement generally holds the outfitter/permittee/concessionaire liable for the damages caused by the fire. The indemnification clause might work in that situation to recover some of the money to reimburse the outfitter.

(Always make sure your outfitter liability policy provides coverage for actions to third parties by your guests.)

However, I have never found a case where indemnification has worked to recover damages for an injury from parents, friends or the leader of the group of kids. Maine looked at the language of indemnification in a release and seemed to indicate it would be supported if written correctly. See Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.

The situation that created this mess is classic. A group of kids is coming to your business or program, and no one has notified the parents of a requirement to sign a release in advance. Upon arrival, someone who does not know or understand or a facility that does not care just has the adult with the kids sign the paperwork. That does not work.

Either get the parent’s signatures on documents or spend most of the time creating an assumption of the risk defense by educating the kids.

Don’t waste the paper or electrons having a youth leader or mother responsible of the group sign the release for the rest of the children in attendance. It just does not work.

This will be the fourth article I’ve written about Connecticut courts voiding releases. If you work or operate in Connecticut you are probably working in a state that does not support the use of a release.

For more information about indemnification see:

Indemnification agreements? What are you signing?

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook

What do you think? Leave a comment.

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Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport

February 13, 2020, Decided; February 13, 2020, Filed

FBTCV186079642S

Reporter

2020 Conn. Super. LEXIS 261 *

Cindy Cannon PPA Emma Cannon v. Rock Climb Fairfield, LLC et al.

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.

Prior History: Cannon v. Rock Climb Fairfield Llc, 2019 Conn. Super. LEXIS 1819 (Conn. Super. Ct., Feb. 11, 2019)

Judges:  [*1] Richard E. Arnold, Judge Trial Referee.

Opinion by: Richard E. Arnold

Opinion

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #142

The third-party defendant Kate Licata has moved for summary judgment on Counts One and Two of the Cross Complaint filed by the defendants third-party plaintiffs, Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy.1 Count One of the cross complaint alleges contractual indemnification and Count Two alleges common-law indemnification. The cross complaint is dated February 22, 2019. The third-party defendant Licata’s motion for summary judgment is dated September 9, 2019. The defendant third-party plaintiff’s objection is dated October 14, 2019.2 Licata’s reply to the objection is dated October 17, 2019. The court heard oral argument on October 21, 2019.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock [*2]  climbing activities, thereby causing the minor plaintiff’s injuries.3 The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing [*3]  activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release [*4]  form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The plaintiff cross claim defendant, Licata, argues that the defendants cross claim plaintiffs’ claims are void as against public policy as a result of the decision in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), [*7]  regarding any waiver signed by Licata, and any waiver signed by Licata was a contract of adhesion. Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis. It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition. Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

I

Summary Judgment

The legal standard governing summary judgment motions is well settled. 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.” Practice Book §17-49. “A material fact is a fact that will make a difference in the result of the case . . . The facts [*8]  at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013).

“The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) [*9]  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, on a motion by defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint. Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 594, 113 A.3d 932 (2015). “It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013). “Because litigants ordinarily have a constitutional right to have issues [*10]  of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).

II

Additional Discovery Argument

In their objection to summary judgment, the RCF defendants argue several times that summary judgment would be inappropriate because discovery is not complete. The court has before it the scheduling orders submitted by the parties, as signed by legal counsel for the RCF parties and the plaintiff. These scheduling orders filed on February 22, 2019,were approved by the court (Kamp, J.) on March 7, 2019.6 The approved scheduling order listed September 30, 2019, as the date by which all discovery was to be completed. There have been no requests to modify the scheduling order or to extend the dates for the completion of discovery.7 The court has before it the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document and further additional information submitted by the parties to allow the court to move forward, including the transcript of the deposition [*11]  testimony of Nora Maklad and employee of RCF. There is no indication that the defendants have sought more information through the discovery process or that Licata has objected to, obstructed or delayed the discovery process. The court has a one hundred and twenty-day time limitation to issue its decision and the court will do so within that time limit with the information that is available, as a trial date assignment is pending.

III

Contractual Indemnification

Count One of the Rock Climb defendants’ third-party complaint against Licata alleges contractual indemnification. “Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements [*12]  of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.” (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).

“As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law.”
Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.); 42 Conn. L. Rptr. 843, 2007 Conn. Super. LEXIS 245; see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). “The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.” Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628, 2008 Conn. Super. LEXIS 414 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of [*13]  the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct.” Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). “[Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . .”(Citation omitted; internal quotation marks omitted.) Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S, 2011 Conn. Super. LEXIS 32 (January 7, 2011, Roche, J.).

As noted, herein, the contract relied upon by the Rock Climb defendants is the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document that has been submitted for the court’s review. It was admittedly signed by Kate Licata on October 3, 2016, the date of the alleged incident, wherein the minor child was injured. The document bears the name of the minor child [*14]  and her date of birth. It lists the e-mail address of Licata and Licata’s electronic signature.

Paragraph 1 of the document titled “activities and risks” lists indoor wall climbing and bouldering as activities. Risks include, among other things: falling from climbing surfaces; persons climbing out of control or beyond personal limits; over-exertion; inadequate physical conditioning; and the negligence of other persons, including other visitors. The document states that the risks described in the document “are inherent in RCF activities . . . and cannot be eliminated without jeopardizing the essential qualities of the activity.”

Paragraph 2, titled “Assumption of Risks” states:

I accept and assume all the risks of a visit to RCF activity sites, inherent or not and whether or not described above, If the visitor is a minor of whom I am parent or legal guardian, I have explained the risks to the minor visitor, who understands them and wishes to visit and participate in RCF activities in spite of the risks.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges [*15]  and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The Release bears a signature line and date line for the “parent or legal court appointed guardian. As stated, it is signed by Kate Licata and dated October 3, 2016. The document is not signed by the RCF defendants or any agent, servant or employee of the RCF defendants.

Licata, in moving for summary judgment, argues the “Release of Liability and Assumption of Risk” document is void as against public policy and unenforceable against her. Her argument relies upon the decisions in Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006).

In Hanks [*16] , the plaintiff, a patron, brought his three children and another child to Powder Ridge to snow-tube. Neither the plaintiff or the children had ever snow-tubed at Powder Ridge, but the snow-tubing run was open to the public generally, regardless of prior snow-tubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. In order to snow-tube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability.” The plaintiff read and signed the agreement on behalf of himself and the four children. While snow-tubing, the plaintiff’s right foot became caught between his snow-tube and the man-made bank of the snow-tubing run, resulting in serious injuries that required multiple surgeries to repair. Id., 316-17. The plaintiff alleged that the defendants negligently caused his injuries in several ways. Id. The defendants 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.” Id., 318-19.

In Hanks, our Supreme Court determined that even though the exculpatory agreement purporting to release the defendants from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct was well drafted, it nonetheless violated public policy. In finding the agreement violated public policy, the Supreme Court reversed [*17]  the trial court’s granting of summary judgment for the defendants. Id., 321-26.

In Hanks, snowtubing was the recreational activity at issue. Our Supreme Court placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34. The court recognized the clear public policy in favor of participation in athletics and recreational activities. Id., at 335.

In Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153, the plaintiff was an experienced horseback rider, who was injured while riding one of the defendant’s horses. The plaintiff subsequently challenged the validity of a release document similar to the one in Hanks, and in this case, wherein the defendant sought to insulate itself from liability. Reardon found that the decision in Hanks was controlling in determining the validity of the release and indemnity agreement.

We conclude [*18]  that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Id., 161.

Additionally, in [*19]  the present case, as in Hanks, the plaintiff “lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any hidden dangers associated with the recreational activity including the [*20]  temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

(Internal citations and quotation marks omitted.) Id., 161-62.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve 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. In the present case, signing the release [*21]  provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

(Internal citations and quotation marks omitted.) Id., 162-63.

It is also noted that the court in Reardon did not limit its decision to the sport of horseback riding or the activity of snowtubing which was the activity in Hanks. “The list of recreational activities that we identified in Hanks was meant to be illustrative, not exhaustive. [*22]  Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks decision.” Id., 165-66. The court finds that the factors considered in Hanks v. Powder Ridge Restaurant Corporation, supra, 276 Conn. 314 and Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153 apply to the activities of bouldering and rock climbing which are present in the case before this court.8

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees.9 Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” [*23]  or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the [*24]  risk more effectively then the defendants.” Reardon v. Windswept Farm, LLC, supra, 280 Conn. 162-63. The RCF release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34.10

The RCF parties additionally argue that it is improper to allow Licata to avail herself of arguments based on public policy when she in turn violated public policy by signing the Release and Indemnification Agreement when she was not the parent or legal guardian of the minor plaintiff, Cannon. They argue Licata violated societal expectations and norms in signing the document and now disclaiming responsibility. They declare that Licata is the wrongdoer and should not be allowed to walk away from this issue.

Licata in her reply to the RCF objection to summary judgment argues that the RCF defendants have cited no authority for their position that Licata’s signing of the release document on behalf of the minor, Emma Cannon constituted a violation of public policy; nor have they explained why such a violation would restrict Licata from challenging the validity of the waiver. Licata also questions why the RCF defendants would make this argument, given that the sole basis [*25]  for the contractual indemnification claim against Licata is her signing of the release document is which they now assert violated public policy. The court agrees. If the signing of the release was invalid, then it would stand to reason that the release itself is invalid. The RCF defendants, by their own reasoning would be attempting to enforce an agreement, which they themselves claim is invalid.

For the reasons set forth herein, the court grants Licata’s motion for summary judgment on Count One of the Rock Climb defendants’ third-party complaint against Licata alleging contractual indemnification.

IV Common-Law Indemnification

In Count Two of the cross claim, the RCF defendants allege common-law indemnification. Therefore, the court reviews our law concerning common-law indemnification, as set forth in Valente v. Securitas Sec. Services, USA, Inc., 152 Conn.App. 196, 203-04, 96 A.3d 1275 (2014). Citing, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965), the Appellate Court in Valente, supra, noted that “[g]enerally, there is no right to indemnification between joint tortfeasors.” Kaplan v. Merberg Wrecking Corp., supra, recognized an exception to this general rule. “Kaplan teaches that indemnification is available from a third party on whom a primary exposure of liability is claimed to rest. To hold a third party liable to indemnify one tortfeasor for damages awarded against [*26]  it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.” (Citation omitted.) Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04. “Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.” (Internal quotation marks omitted.) Id., citing, Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012) (dangerous condition held to be electric power line which electrocuted plaintiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).

The court has reviewed the objection to the motion for summary judgment filed by the RCF defendants and notes, as pointed out by Licata in her reply brief, that the RCF defendants have [*27]  not addressed Licata’s claim in her motion for summary judgment that she did not control the situation that prevailed at the RCF’s facility on the date of the minor’s injury; nor is it alleged in the cross claim that Licata controlled the situation. An essential element of common-law indemnification is that the third party, Licata, was in control of the situation to the exclusion of the third-party plaintiffs. Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04; Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

For the foregoing reasons discussed, herein, Licata’s motion for summary judgment is granted as to Count Two alleging common-law indemnification.

ORDERS

Licata’s Motion for Summary Judgment is granted as to Count One, which alleges contractual indemnification and Count [*28]  Two, which alleges common-law indemnification.

THE COURT

Judge Richard E. Arnold,

Judge Trial Referee


Push a release too far, in a state that is not sure Releases should be valid, and you provide the court with the opportunity to void releases and indemnification in the state.

Non-mother brought a group of kids to climbing gym and signed release for the kids. One was hurt, and the climbing wall sued the non-mother for indemnification in the release for the damages of the injured child.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut; Superior Court of Connecticut

Plaintiff: Cindy Cannon PPA Emma Cannon (minor)

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Defendant Third Party Plaintiffs: Kate Licata, Indemnifier

Plaintiff Claims: negligent in supervising the rock climbing activities

Defendant Defenses: release and indemnification

Holding: For the Defendant Third Party Plaintiff, Indemnifier

Year: 2020

Summary

When litigating a case, you don’t look to the future effects of what you are doing. You look at winning. That is the only thing, your client and the client’s insurance company want. That is the only thing as an attorney you are allowed to do. You must represent the client and win.

In this case, the defendant used every argument they could to try to win, and not only lost the case, but voided releases for recreation in the state an eliminated any value the indemnification clause might have had in a release.

Facts

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019. The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The defendant argued on appeal that:

Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis.

It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition.

Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

These three arguments made by the defendant are critical in how the court viewed the situation and more importantly the realities of using this type of document in a recreation case.

Analysis: making sense of the law based on these facts.

The court first set out the requirements to win a motion for summary judgment. In doing so it defined the term “a material fact.” “A material fact is a fact that will make a difference in the result of the case….”

“[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.

Summary judgment will not be granted if there is a material fact in question. So knowing the definition is important since most summary judgement claims revolve around whether there is a material fact that must be adjudicated.

The court then looked at the indemnification clause in the release; contractual indemnification. Under Connecticut law, indemnification is defined as:

Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification

Indemnification agreements are contracts and as such construed under the principles of contract law.

The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation

Additionally, for a contract to be valid, there must be mutual assent between the parties to create a contract and the parties to the contract must be reasonably clear.

The court then looked at the indemnification language in the release in this case.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The court did point out, but did not act upon the issue that release was not signed by anyone at the gym.

The court then looked at release law in Connecticut. The Supreme Court of Connecticut set forth three requirements for a release in a recreational activity to be valid.

(1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis.

The court then found that the release in this case violated public policy in Connecticut.

We conclude that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Meaning, a release cannot be used to protect the provider of a recreational activity that is open to the public and requires skill because there is a general expectation that those activities are safe. On top of that, the plaintiff lacked any knowledge, experience or skill to determine if the defendants’ facility were in good working order or safe.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

The court looked at the statements from the guest’s point of view and found it illogical that the guest could make those judgements.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The defendant also argued the release was an adhesion contract.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve 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.

Because the plaintiff could not negotiate the release provisions, and her only option was not to participate, because of that, the court concluded the contract was an adhesion contract.

The court circled back to the knowledge and skill of the guest by looking at the facts, that the guests and injured child did not bring any equipment or provided any training, guidance and/or supervision to the children under the third party plaintiff’s care.

Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children.

Because the third party plaintiff had no knowledge or skill concerning climbing, she could not have been supervising the children while climbing, it does not matter whether or not she was “adequately supervising” the children because she could not. This created another whole in the indemnification argument and another issue that must be decided by the trial court.

This brought the court back to the indemnification issue.

To hold a third party liable to indemnify one tortfeasor for damages awarded against it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

The definition in Connecticut basically ruled out the third party plaintiff as a possible indemnifier for the gym.

“Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.”

Since the third party defendant did not have any control over the situation because she lacked the knowledge, experience and skill to climb or supervise anyone else climbing and because she, and the children went to the gym because of the gym’s knowledge, skill, ability to see risks and the gym had the needed equipment, there could not be indemnification.

On top of that, because the court found the climbing gym had done such a poor job of prosecuting it’s indemnification claim the court found the claim had been abandoned.

The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”

That means the indemnification claim could not be brought back up at trial.

So Now What?

There is a dozen interesting statements found in this release that when brought to the light of reality will cause or should cause concern for the way some releases are written. Not legal as much as how the assumptions on how the law would work when applied to the facts which the court rejected.

  1. Having signor of the release accept the equipment and facility as is or to be in good shape, was determined to be a joke. The signor was coming to the facility for their expertise and had no expertise to make that determination on their own.

You don’t want to have your release thrown out because a clause in the release, no matter who it protects is false.

  1. Having the signor of the release agree that they are in control of the children they bring to the gym was found ridiculous for the same reasons.
  2. The Indemnification clause was not written to follow Connecticut law and as such was found to be worthless.
    1. Worse when argued by the defendant gyms, it was found the language, and their arguments were so futile as to be abandoned.
  3. The release placed so many burdens, which the signor could not get around; the release was found to be void because it violated public policy.

I have yet to read a case where an indemnification clause has been upheld in a release, unless the circumstances were very odd and the parties knowledgeable about what they were agreeing too.

Are there situations where there is a need, and you can properly write an indemnification clause in a release. Yes. However, the injured part will be indemnifying you not for your losses, but for the losses you incur when their actions involve a third party.

An example might be you are billed for the cost of search and rescue under your permit or concession agreement to find the lost guest. A well-written indemnification clause can be used to recover for the costs of these expenses, because the defendant did not cause the loss and is not trying to recover for its losses, only the losses the guest has made the defendant liable for.

The three arguments made by the defendant set forth in the summary will soon be present in many third party defenses I predict. They are simple yet set forth the reality of the people signing the indemnification clauses. Uniformly, the courts have struck down indemnification clauses when used to recover money for a plaintiff’s claim.

For more articles on Indemnification Clauses see:

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.

New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky-diving case.

Indemnification agreements? What are you signing?

One case where an indemnification agreement was upheld:

A federal district court in Massachusetts upholds indemnification clause in a release.

This case will have far reaching effect in other states.

What do you think? Leave a comment.

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Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

No Shepard’s  Signal™
As of: April 9, 2020 8:28 PM Z

Cannon v. Rock Climb Fairfield, LLC

Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport

February 13, 2020, Decided; February 13, 2020, Filed

FBTCV186079642S

Reporter

2020 Conn. Super. LEXIS 261 *

Cindy Cannon PPA Emma Cannon v. Rock Climb Fairfield, LLC et al.

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.

Judges:  [*1] Richard E. Arnold, Judge Trial Referee.

Opinion by: Richard E. Arnold

Opinion

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #142

The third-party defendant Kate Licata has moved for summary judgment on Counts One and Two of the Cross Complaint filed by the defendants third-party plaintiffs, Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy.1 Count One of the cross complaint alleges contractual indemnification and Count Two alleges common-law indemnification. The cross complaint is dated February 22, 2019. The third-party defendant Licata’s motion for summary judgment is dated September 9, 2019. The defendant third-party plaintiff’s objection is dated October 14, 2019.2 Licata’s reply to the objection is dated October 17, 2019. The court heard oral argument on October 21, 2019.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock [*2]  climbing activities, thereby causing the minor plaintiff’s injuries.3 The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing [*3]  activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release [*4]  form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The plaintiff cross claim defendant, Licata, argues that the defendants cross claim plaintiffs’ claims are void as against public policy as a result of the decision in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), [*7]  regarding any waiver signed by Licata, and any waiver signed by Licata was a contract of adhesion. Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis. It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition. Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

I

Summary Judgment

The legal standard governing summary judgment motions is well settled. 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.” Practice Book §17-49. “A material fact is a fact that will make a difference in the result of the case . . . The facts [*8]  at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013).

“The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) [*9]  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, on a motion by defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint. Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 594, 113 A.3d 932 (2015). “It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013). “Because litigants ordinarily have a constitutional right to have issues [*10]  of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).

II

Additional Discovery Argument

In their objection to summary judgment, the RCF defendants argue several times that summary judgment would be inappropriate because discovery is not complete. The court has before it the scheduling orders submitted by the parties, as signed by legal counsel for the RCF parties and the plaintiff. These scheduling orders filed on February 22, 2019,were approved by the court (Kamp, J.) on March 7, 2019.6 The approved scheduling order listed September 30, 2019, as the date by which all discovery was to be completed. There have been no requests to modify the scheduling order or to extend the dates for the completion of discovery.7 The court has before it the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document and further additional information submitted by the parties to allow the court to move forward, including the transcript of the deposition [*11]  testimony of Nora Maklad and employee of RCF. There is no indication that the defendants have sought more information through the discovery process or that Licata has objected to, obstructed or delayed the discovery process. The court has a one hundred and twenty-day time limitation to issue its decision and the court will do so within that time limit with the information that is available, as a trial date assignment is pending.

III

Contractual Indemnification

Count One of the Rock Climb defendants’ third-party complaint against Licata alleges contractual indemnification. “Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements [*12]  of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.” (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).

“As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law.”
Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.); 42 Conn. L. Rptr. 843, 2007 Conn. Super. LEXIS 245; see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). “The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.” Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628, 2008 Conn. Super. LEXIS 414 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of [*13]  the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct.” Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). “[Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . .”(Citation omitted; internal quotation marks omitted.) Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S, 2011 Conn. Super. LEXIS 32 (January 7, 2011, Roche, J.).

As noted, herein, the contract relied upon by the Rock Climb defendants is the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document that has been submitted for the court’s review. It was admittedly signed by Kate Licata on October 3, 2016, the date of the alleged incident, wherein the minor child was injured. The document bears the name of the minor child [*14]  and her date of birth. It lists the e-mail address of Licata and Licata’s electronic signature.

Paragraph 1 of the document titled “activities and risks” lists indoor wall climbing and bouldering as activities. Risks include, among other things: falling from climbing surfaces; persons climbing out of control or beyond personal limits; over-exertion; inadequate physical conditioning; and the negligence of other persons, including other visitors. The document states that the risks described in the document “are inherent in RCF activities . . . and cannot be eliminated without jeopardizing the essential qualities of the activity.”

Paragraph 2, titled “Assumption of Risks” states:

I accept and assume all the risks of a visit to RCF activity sites, inherent or not and whether or not described above, If the visitor is a minor of whom I am parent or legal guardian, I have explained the risks to the minor visitor, who understands them and wishes to visit and participate in RCF activities in spite of the risks.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges [*15]  and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The Release bears a signature line and date line for the “parent or legal court appointed guardian. As stated, it is signed by Kate Licata and dated October 3, 2016. The document is not signed by the RCF defendants or any agent, servant or employee of the RCF defendants.

Licata, in moving for summary judgment, argues the “Release of Liability and Assumption of Risk” document is void as against public policy and unenforceable against her. Her argument relies upon the decisions in Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006).

In Hanks [*16] , the plaintiff, a patron, brought his three children and another child to Powder Ridge to snow-tube. Neither the plaintiff or the children had ever snow-tubed at Powder Ridge, but the snow-tubing run was open to the public generally, regardless of prior snow-tubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. In order to snow-tube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability.” The plaintiff read and signed the agreement on behalf of himself and the four children. While snow-tubing, the plaintiff’s right foot became caught between his snow-tube and the man-made bank of the snow-tubing run, resulting in serious injuries that required multiple surgeries to repair. Id., 316-17. The plaintiff alleged that the defendants negligently caused his injuries in several ways. Id. The defendants 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.” Id., 318-19.

In Hanks, our Supreme Court determined that even though the exculpatory agreement purporting to release the defendants from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct was well drafted, it nonetheless violated public policy. In finding the agreement violated public policy, the Supreme Court reversed [*17]  the trial court’s granting of summary judgment for the defendants. Id., 321-26.

In Hanks, snowtubing was the recreational activity at issue. Our Supreme Court placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34. The court recognized the clear public policy in favor of participation in athletics and recreational activities. Id., at 335.

In Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153, the plaintiff was an experienced horseback rider, who was injured while riding one of the defendant’s horses. The plaintiff subsequently challenged the validity of a release document similar to the one in Hanks, and in this case, wherein the defendant sought to insulate itself from liability. Reardon found that the decision in Hanks was controlling in determining the validity of the release and indemnity agreement.

We conclude [*18]  that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Id., 161.

Additionally, in [*19]  the present case, as in Hanks, the plaintiff “lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any hidden dangers associated with the recreational activity including the [*20]  temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

(Internal citations and quotation marks omitted.) Id., 161-62.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve 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. In the present case, signing the release [*21]  provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

(Internal citations and quotation marks omitted.) Id., 162-63.

It is also noted that the court in Reardon did not limit its decision to the sport of horseback riding or the activity of snowtubing which was the activity in Hanks. “The list of recreational activities that we identified in Hanks was meant to be illustrative, not exhaustive. [*22]  Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks decision.” Id., 165-66. The court finds that the factors considered in Hanks v. Powder Ridge Restaurant Corporation, supra, 276 Conn. 314 and Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153 apply to the activities of bouldering and rock climbing which are present in the case before this court.8

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees.9 Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” [*23]  or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the [*24]  risk more effectively then the defendants.” Reardon v. Windswept Farm, LLC, supra, 280 Conn. 162-63. The RCF release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34.10

The RCF parties additionally argue that it is improper to allow Licata to avail herself of arguments based on public policy when she in turn violated public policy by signing the Release and Indemnification Agreement when she was not the parent or legal guardian of the minor plaintiff, Cannon. They argue Licata violated societal expectations and norms in signing the document and now disclaiming responsibility. They declare that Licata is the wrongdoer and should not be allowed to walk away from this issue.

Licata in her reply to the RCF objection to summary judgment argues that the RCF defendants have cited no authority for their position that Licata’s signing of the release document on behalf of the minor, Emma Cannon constituted a violation of public policy; nor have they explained why such a violation would restrict Licata from challenging the validity of the waiver. Licata also questions why the RCF defendants would make this argument, given that the sole basis [*25]  for the contractual indemnification claim against Licata is her signing of the release document is which they now assert violated public policy. The court agrees. If the signing of the release was invalid, then it would stand to reason that the release itself is invalid. The RCF defendants, by their own reasoning would be attempting to enforce an agreement, which they themselves claim is invalid.

For the reasons set forth herein, the court grants Licata’s motion for summary judgment on Count One of the Rock Climb defendants’ third-party complaint against Licata alleging contractual indemnification.

IV Common-Law Indemnification

In Count Two of the cross claim, the RCF defendants allege common-law indemnification. Therefore, the court reviews our law concerning common-law indemnification, as set forth in Valente v. Securitas Sec. Services, USA, Inc., 152 Conn.App. 196, 203-04, 96 A.3d 1275 (2014). Citing, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965), the Appellate Court in Valente, supra, noted that “[g]enerally, there is no right to indemnification between joint tortfeasors.” Kaplan v. Merberg Wrecking Corp., supra, recognized an exception to this general rule. “Kaplan teaches that indemnification is available from a third party on whom a primary exposure of liability is claimed to rest. To hold a third party liable to indemnify one tortfeasor for damages awarded against [*26]  it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.” (Citation omitted.) Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04. “Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.” (Internal quotation marks omitted.) Id., citing, Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012) (dangerous condition held to be electric power line which electrocuted plaintiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).

The court has reviewed the objection to the motion for summary judgment filed by the RCF defendants and notes, as pointed out by Licata in her reply brief, that the RCF defendants have [*27]  not addressed Licata’s claim in her motion for summary judgment that she did not control the situation that prevailed at the RCF’s facility on the date of the minor’s injury; nor is it alleged in the cross claim that Licata controlled the situation. An essential element of common-law indemnification is that the third party, Licata, was in control of the situation to the exclusion of the third-party plaintiffs. Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04; Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

For the foregoing reasons discussed, herein, Licata’s motion for summary judgment is granted as to Count Two alleging common-law indemnification.

ORDERS

Licata’s Motion for Summary Judgment is granted as to Count One, which alleges contractual indemnification and Count [*28]  Two, which alleges common-law indemnification.

THE COURT

Judge Richard E. Arnold,

Judge Trial Referee

End of Document


A Waiver is giving up a right and is revocable agreement. A release is a contractual agreement not to sue and can be made irrevocable. If you run a recreational or sporting activity, you want a release, not something where the people can change their minds.

Here the defendant used a release. The plaintiff argued it was a waiver and assumption of the risk document and should be barred because they had been outlawed in Connecticut as a defense. The court agreed.

Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844

State: CONNECTICUT, SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

Plaintiff: Yulissa Rodriguez

Defendant: Brownstone Exploration & Discover Park, LLC

Plaintiff Claims:

Defendant Defenses:

Holding: for the defendant

Year: 2017

Summary

The plaintiff was injured using a rope swing at the defendant’s park.

Many states abolished the defense of Assumption of the risk. In this case, the plaintiff argued that the release she signed was just an assumption of the risk document and was void because that defense was abolished.

The plaintiff also argued the document was titled a waiver and therefore, was not a release. Both arguments of the defendant were struck down. The first because a waiver is not a release and the second because the document was no different from an assumption of the risk document, which was no longer a defense in Connecticut.

Facts

Plaintiff filed a motion to strike the first two affirmative defenses, or here; the court referred to them as special defenses, the defendant pleaded. When a defendant answers a complaint, the defendant can plead the defenses to the specific facts and legal claims, and the defendant can plead affirmative defenses. Affirmative defenses are a list of approved defenses, that if they are not pled, are lost to the defendant.

Release is an affirmative defense in most states and was pled in this case.

To get rid of the special defenses, the plaintiff filed a motion to strike.

“‘A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.’ A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.’ . . ‘In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.’ . . . ‘On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.

The court’s response to the motion to strike is here.

Analysis: making sense of the law based on these facts.

The plaintiff’s argument was because the courts had abolished the defense f assumption of the risk, the releases were not valid because they were only proof of assumption of the risk. The plaintiff argued:

“Waiver” and “Release” are, in actuality, based on assumption of risk because they purport to relieve defendant of liability for risks inherent in the activity, which by statute is not a valid defense in this negligence action.

The first affirmative defense was waiver. In vast majority of states, a waiver is different from a release. Waiver’s can be revoked. When you waive a right, a lot of states allow you to revoke that waiver. A release is a contract and can only be terminated by the terms of the agreement.

The court reviewed the prior defense of assumption of the risk.

‘Traditionally, the doctrine provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . [T]he assumption of risk variants fall generally into two separate categories: (1) a negligence defense that the plaintiff’s conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant’s negligence and the risk thereby created, but nevertheless chose to confront such risk.

However, the courts and or legislatures had abolished the defense because they felt it had not kept up with the times. Instead, the concept of assumption of the risk was part of the facts the jury undertook to determine the damages to be awarded to the plaintiff. If the plaintiff assumed the risk, then the jury could reduce the damages the plaintiff would receive.

Since then, many courts have reinstated the defense of assumption of the risk as a defense in sport and recreational activities. Many legislatures have also brought back the defense in statutes covering sports and recreational activities, such as Skier Safety Statutes. However, Connecticut has not done that. In Connecticut, assumption of the risk is not a defense; it has been merged into comparative negligence.

In this case, the release signed by the plaintiff was titled “Assumption of Risk, Release of Liability, Waiver of Claims & Arbitration Agreement.” The plaintiff argued that the document was a written assumption of risk document and should be void.

Under Connecticut law a Waiver is “the voluntary relinquishment or abandonment of a known right or privilege.” This is quite different from a release, which is contractually giving a right to sue over an injury prior to the injury. Waiver’s can be oral or in writing. The common waiver you hear about all the time is a criminal suspect on TV being told their rights. At any time, the criminal defendant can change their mind and not give up their rights because they waived their rights, which are reversible.

Connecticut courts have recognized that pre-injury waiver as a defense to a claim based on inherent risks from an activity is not the same as a waiver of a claim of defendant’s own negligence.

The court continued its analysis of Connecticut law by reviewing Connecticut Supreme Court decisions on the issue. Here the court differentiated between inherent risks, which are still assumed and assumption of risk as a defense.

…the Supreme Court differentiated between pre-injury release from inherent risks of an activity, defined by reference to a dictionary definition of “inherent” as “structural or involved in the constitution or essential character of something,” from release of negligence that involves the exercise of some control over the activity and/or conditions by defendant.

The court then found that the language of the waiver was only a defense to the inherent risks of the activity. A waiver under Connecticut law is not a release.

The language of the waiver provision here is limited to “the inherent risks of this activity” and is not broad enough to exculpate defendant for its own negligence.

The defendant was unable to prove that there was a difference between their documents and the loss of the assumption of risk defense. Meaning the defendant lost their motion because the waiver was the same in this case as assumption of the risk, which had been abolished.

Defendant has failed to show that the waiver special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to waiver by contract. The motion to strike the First Special Defense is denied.

The second motion based on release was also denied for the same reason.

A contractual release of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the release special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to releases by contract. The motion to strike the Second Special Defense is denied.

So Now What?

This decision picked through, carefully, the differences between a defense that had been merged into a way to determine damages, assumption of the risk, and a contractual document to release the defendant from liability.

The decision is also confusing as hell!

The result is you must carefully write your release in Connecticut. You must define the risks and have the signor agree those risks are inherent in the activity.

What do you think? Leave a comment.

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Expert testimony is needed when the activity is beyond the scope of the general knowledge of a juror in Connecticut.

In this case, the plaintiff’s claim failed because they needed any expert witness and the one they had hired was disqualified. Without an expert in horseback riding lessons, the plaintiff’s claims were dismissed.

Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

State: Connecticut, United States Court of Appeals for the Second Circuit

Plaintiff: Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis

Defendant: YMCA Camp Mohawk, Inc.

Plaintiff Claims: Negligence

Defendant Defenses:

Holding: For the Defendant

Year: 2015

Summary

Your expert witness must have the experience, education or background to be able to testify as to their findings. In states where an expert opinion is needed, like Connecticut, not having an expert means not have a case.

Here the expert witness hired by the plaintiff did not have the necessary qualifications, and the court would not allow his testimony. Because horseback riding and equine issues were outside of the scope of the normal juror in Connecticut, an expert witness was needed by the plaintiff. Without an expert, the plaintiff’s case was dismissed.

Facts

On July 18, 2011, Louisa Ellis fell from a pony while taking horseback riding lessons at YMCA Camp Mohawk. Ellis sustained injuries to her hand and elbow that required surgery and therapy. Appellants identified Andres, an employee of Robson Forensic, to investigate the claims and to provide expert testimony.

The plaintiff’s hired an expert witness to provide expert testimony on why the defendant was negligent. The court found the plaintiff’s expert was not qualified to render an expert opinion on the matter.

… Corey Andres, was not qualified to render an expert opinion regarding the standard of care for an equestrian course at the YMCA camp at which twelve-year-old Louisa was injured.

The trial court dismissed the plaintiff’s case because they could not prove their case.

The district court excluded Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding. Therefore, appellants’ failure to produce an expert where expert testimony was required led the district court to grant summary judgment.

The plaintiffs appealed.

Analysis: making sense of the law based on these facts.

Although the case was brought in the federal district court because the parties were from different states, the law of the state where the accident happened was the law used in the case. Since the accident occurred in Connecticut, Connecticut law was applied to the case.

Under Connecticut law, horseback riding was outside the general knowledge of jurors and thus required expert testimony for the jurors to make their decisions.

Connecticut courts have held, on similar facts, that the general public is no longer as familiar with horsemanship as it arguably was at the beginning of the twentieth century, and that expert testimony is necessary to establish a standard of care and a breach of that standard.

An expert witness is needed to show both the standard of care in the case and whether the defendant breached that standard of care.

The plaintiff hired Andres, an employee of Robson Forensic.

Andres claimed his expertise based on his membership in the American Camp Association (“ACA”) and his study of therapeutic education at Ohio State, University of Toledo, including a study pertaining to equestrian matters. Andres’s investigation concluded that YMCA was negligent in failing to provide complete and proper instruction as to how to fall from a horse in a way that minimizes injury.

The district court excluded “Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding.”

The district stated, and the appellate court agreed that:

Andres does not rise to the level of expertise required to opine on the matters at hand. Andres has practically no knowledge or experience relating to horsemanship — his resume makes no reference to any such knowledge, and his investigation merely points to three publications that he relied on when preparing his report. Andres’s resume instead highlights a wide array of fields and organizations in which he has obtained certifications or is a member. Appellants argue that Andres’s membership in the ACA broadly reaches all camp recreations. This broad qualification falls well short of the specialized knowledge that Federal Rule of Evidence 702 demands. The district court therefore did not abuse its discretion in its decision to exclude Andres’s testimony.

Because the plaintiff’s expert witness was excluded and could not testify, the plaintiffs could not prove their case.

Appellants’ failure to provide necessary expert testimony precludes them from presenting these claims under Connecticut state law. Thus, there are no issues of material fact raised to challenge the district court’s entry of summary judgment.

So Now What?

The courts have been given broader discretion to determine who can and cannot testify as an expert witness. The courts can also determine, even if the expert is qualified to testify, that the testimony they are going to give is not based on science.

In states where expert testimony is required or any state where you want to win, you need to hire expert witnesses who are going to qualify as an expert in their field and provide an opinion based on science, history, experience and real life.

What do you think? Leave a comment.

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A Motion to Strike is used by the defendant to eliminate the threat of punitive damages in this fatality claim.

The deceased had entered onto the land of the defendant and was using a rope swing to jump into a lake. She died, somehow, using the swing and her estate sued the landowner.

Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford – Norwalk, at Stamford

Plaintiff: Renee Kopesky

Defendant: Connecticut American Water Company

Plaintiff Claims: wrongful death (?)

Defendant Defenses: Motion to Strike

Holding: for the defendant

Year: 1999

Summary

This motion to strike was used to take punitive damages off the table in the litigation. This takes a lot of pressure off the defendant and deals a significant blow to the plaintiff. The damages in the case are dropped significantly probably increasing the chance of a settlement.

Facts

The plaintiff is the administratrix of the estate for the deceased. The deceased entered on to land owned by the defendant and died when she fell off a rope swing over a lake.

The defendant filed a motion to strike. A motion to strike is a preliminary motion used to eliminate claims that have no basis in the facts or the law does not allow.

The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) For purposes of a motion to strike, the moving party admits all facts well pleaded.”

The motion to strike may also be used to contest the legal sufficiency of any prayer for relief.

The defendant argued that the second count of the complaint, a claim for punitive damages was legally insufficient because it relies on the same facts the plaintiff basis their first claim on, negligence. Those facts did not support a claim for punitive damages.

Analysis: making sense of the law based on these facts.

The court first looked at the elements the plaintiff had to prove to a claim for punitive damages. To receive punitive damages the plaintiff would have to prove the defendant’s actions were reckless.

Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid a danger to others or to take reasonable precautions to avoid injury to them . . .”

A claim for negligence must be separate and distinct and based on additional facts from a recklessness claim.

There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . . In other words, it is clearly necessary to plead a [common law] cause of action grounded in recklessness separate and distinct from a negligence action.”

For the plaintiff to prove recklessness the actions of the defendant must be intentional and the conduct must be highly unreasonable.

In order to rise to the level of recklessness, [the] action producing the injury must be intentional and characterized by highly unreasonable conduct which amounts to an extreme departure from ordinary care . . .”

Here the court found the plaintiff had not pled the facts necessary to prove a claim of recklessness. Consequently, there could be not be a claim for punitive damages and the second count must be dismissed.

So Now What?

It seems odd to file a motion to eliminate one claim. However, like bunting in baseball, it has a greater effect than sacrificing a runner.

First, it makes your insurance company rest easier because most policies do not cover punitive damages. Eliminating this claim takes tremendous burden and conflict off the defendant and the insurance company.

Second, the damages have been dropped significantly. In this case, the damages are reduced to the lost value of the life of the deceased.

Finally, it deals a blow to the plaintiff. Litigation is a lot of back and forth, minor wins or losses over the course of the litigation. This is a slightly bigger loss for the plaintiff and will put both parties in a better position to negotiate a settlement.

What do you think? Leave a comment.

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Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844

Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844

Yulissa Rodriguez v. Brownstone Exploration & Discover Park, LLC

FBTCV166055234S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2017 Conn. Super. LEXIS 844

May 4, 2017, Decided

May 4, 2017, 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: special defenses, assumption of risk, inherent risks, abolished, own negligence, contractual, legal sufficiency, risks inherent, relieve, legal doctrine, legally insufficient, duty of care, present case, statutory prohibition, legislatively, conceptually, exculpatory, sustaining, pre-injury, favorable, releasing, struck, admit, risky, participating

JUDGES: [*1] Edward T., Krumeich, J.

OPINION

MEMORANDUM OF DECISION

Plaintiff Yulissa Rodriguez has moved to strike the First and Second Special Defenses in the answer of defendant Brownstone Exploration & Discovery Park, LLC, arguing that they are barred under C.G.S. §52-572h(l), which provides: “[t]he legal doctrine . . . of . . . assumption of risk in actions to which this section is applicable [is] abolished.” Plaintiff asserts that the special defenses that are labeled “Waiver” and “Release” are, in actuality, based on assumption of risk because they purport to relieve defendant of liability for risks inherent in the activity, which by statute is not a valid defense in this negligence action. For the reasons stated below, the motion to strike the First and Second Special Defenses is denied.

Standards for Deciding a Motion to Strike Special Defenses

“‘A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.’ Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001); Practice Book §10-39(a).2 ‘A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.’ . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). ‘In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and [*2] construe them in the manner most favorable to sustaining their legal sufficiency.’ . . . Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). ‘On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.’ . . . Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (59 Conn. L. Rptr. 864, 2015 Conn. Super. LEXIS 2191). Finally, ‘the trial court is limited to considering the grounds specified in the motion [to strike].’ Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).” Pritsker v. Bowman, 2017 Conn. Super. LEXIS 190, 2017 WL 811609 *2 (Conn.Super. 2017) (Bellis, J.).

The Court May Not Review Material Outside the Pleading in Deciding a Motion to Strike

Plaintiff urged the court to consider the quoted excerpts from the contract alleged in the special defenses in the context of the entire contract, which plaintiff appended to her brief. In ruling on a motion to strike a court is required “to take the facts to be those alleged in the special defenses in the manner most favorable to sustaining their legal sufficiency.” Connecticut Nat. Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). The Court is not free to consider those portions of the contract that are not alleged nor attached as an exhibit to the answer. See generally Mercer v. Cosley, 110 Conn.App. 283, 292, 955 A.2d 550 (2008) (speaking motion to strike is improper).

The First Special Defense States the Defense of Waiver

In this action plaintiff claimed she was injured while using [*3] a rope swing at defendant’s park. Both sides referred the Court to Segal v. Brownstone Exploration and Discovery Park, LLC, 2014 Conn. Super. LEXIS 1183, 2014 WL 2696775 *2 (Conn.Super. 2014) (Roche, J.), a similar case brought against the same defendant in which Judge Roche struck a special defense based on assumption of risk: “‘[T]he doctrine [of assumption of risk] was a product of the industrial revolution, designed to insulate employers to the greatest possible extent by defeating the claims of their injured workers.’ Donahue v. S.J. Fish & Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV-539920-S (September 18, 1995, Blue, J.) (15 Conn. L. Rptr. 569, 570, 1995 Conn. Super. LEXIS 2618) [1995 WL 562216]. ‘Traditionally, the doctrine provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . [T]he assumption of risk variants fall generally into two separate categories: (1) a negligence defense that the plaintiff’s conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant’s negligence and the risk thereby created, but nevertheless chose to confront such risk.’ . . . Blondin v. Meshack, Superior Court, [*4] judicial district of New Haven, Docket No. CV-08-5018828-S (October 2, 2008, Lager, J.) [46 Conn. L. Rptr. 396, 2008 Conn. Super. LEXIS 2512] [2008 WL 4635882]. However, “[t]he harsh doctrine . . . is plainly `morally unacceptable’ in modern times . . . The majority of states have altered or abolished it, either legislatively or by judicial decision . . . [T]he Connecticut legislature has statutorily abolished the doctrine in negligence cases.” Donahue v. S.J. Fish & Sons, Inc., supra, 15 Conn. L. Rptr. at 570, 1995 Conn. Super. LEXIS 2618. General Statutes §52-572h(l) states: “The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished.” In the present case, accordingly, the defendant’s second special defense is legally insufficient because the doctrine of assumption of the risk has been legislatively abolished with regard to negligence claims. The plaintiffs’ motion to strike the defendant’s second special defense is, therefore, granted.”

Defendant has not asserted a defense of assumption of risk, but rather alleged that plaintiff signed a document entitled “Assumption of Risk, Release of Liability, Waiver of Claims & Arbitration Agreement” in which “the plaintiff agreed to waive all claims against [defendant] . . . arising out of the inherent risks of participating in programs and events operated by [defendant] . . .”1 The First Special Defense alleged [*5] “[a]ny injuries sustained by the plaintiff while using the ‘Blob’ activity at [defendant] . . . arose out of the inherent risks of this activity.”

1 This is a classic contract of adhesion that is not bargained for but accepted by the consumer as a condition for his or her participation in the activity. Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 328-29, 333, 885 A.2d 734 (2005).

“Waiver is the voluntary relinquishment or abandonment of a known right or privilege.” Brown v. City of Hartford, 160 Conn.App. 677, 698, 127 A.3d 278 (2015). See also Benedetto v. Proprietors of the Commons at Mill River, Inc., 2014 Conn. Super. LEXIS 2322, 2014 WL 5356665 *8 (Conn.Super. 2014) (Vitale, J.), contractual waiver as special defense).

Connecticut courts have recognized that pre-injury waiver as a defense to a claim based on inherent risks from an activity is not the same as a waiver of a claim of defendant’s own negligence. See e.g., Hanks, 276 Conn. at 326, 335; Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643-44, 829 A.2d 827 (2003). In Hyson, the Supreme Court distinguished between release of liability for risks inherent in an activity and exculpation of a party’s own negligence:

In keeping with the well-established principle, however, that `[t]he law does not favor contract provisions which relieve a person from his own negligence’ . . . we conclude 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. The release signed in the present case illustrates the need for such a rule. A person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only [*6] from liability for damages caused by dangers inherent in the activity of snow tubing. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights.

(Emphasis added.)

In Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687-88, 849 A.2d 813 & nn. 17-22 (2004), the Supreme Court differentiated between pre-injury release from inherent risks of an activity, defined by reference to a dictionary definition of “inherent” as “structural or involved in the constitution or essential character of something,” from release of negligence that involves the exercise of some control over the activity and/or conditions by defendant. In Hanks, 276 Conn. at 741, the Supreme Court cited the definition of inherent risk in Jagger, 269 Conn. at 692: “inherent risks . . . are innate to the activity, [and] ‘are beyond the control of the [recreational] operator’s exercise of reasonable care.'”

In Segal, 2014 Conn. Super. LEXIS 1183, 2014 WL 2696775 *8, the same court that had struck the assumption of risk special defense, declined to strike the waiver special defense; the court assumed the allegation that plaintiff had waived risks inherent in the activity was true as alleged, and concluded that the provision was exculpatory because it expressly included defendant’s negligence. [*7]

The language of the waiver provision here is limited to “the inherent risks of this activity” and is not broad enough to exculpate defendant for its own negligence. A contractual waiver of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the waiver special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to waiver by contract. The motion to strike the First Special Defense is denied.

The Second Special Defense States the Defense of Release

The Segal Court also refused to strike the release defense for the same reasons it did not strike the waiver special defense. 2014 Conn. Super. LEXIS 1183, 2014 WL 2696775 *8. The release special defense here also alleges the contractual release “arising out of the inherent risks of participation in the Programs . . .”2 A contractual release of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the release special defense is the same as the assumption [*8] of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to releases by contract. The motion to strike the Second Special Defense is denied.

2 This may be an exculpatory provision since it includes “the instruction received while participating in the Programs,” which is subject to control of the operator. Plaintiff has not moved to strike on this ground.

KRUMEICH, J.


Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

Renee Kopesky v. Connecticut American Water Company

CV 950145791

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD – NORWALK, AT STAMFORD

1999 Conn. Super. LEXIS 2166

August 2, 1999, Decided

August 2, 1999, Filed

NOTICE: [*1] 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.

DISPOSITION: Defendant’s motion to strike second count of plaintiff’s amended complaint, and that portion of the prayer for relief claiming punitive damages, denied.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant brought a motion to strike the second count of plaintiff’s amended complaint and that portion of the prayer for relief claiming punitive damages in an action alleging that decedent sustained fatal injuries on defendant’s property because of defendant’s negligence and reckless conduct.

OVERVIEW: Decedent died when she fell from a swing on defendant’s property. Plaintiff brought an action against defendant, alleging that defendant was aware that the public entered their property to go swimming. The second count of plaintiff’s complaint alleged that defendant’s acts or omissions were done recklessly, wantonly, carelessly, and with a reckless disregard for the consequences of its acts or omissions. Defendant brought a motion to strike count two of plaintiff’s complaint and that portion of the prayer for relief claiming punitive damages. The court ruled that a motion to strike could be used to contest the legal sufficiency of any prayer for relief. Further, the court held that an action sounding in reckless conduct required an allegation of an intentional act that resulted in injury. Also, the court found that in order to rise to the level of recklessness, the action producing the injury must be intentional and characterized by highly unreasonable conduct which amounted to an extreme departure from ordinary care. The court, viewing the allegations in the light most favorable to plaintiff, denied the motion, concluding that the allegations did rise to the level of recklessness.

OUTCOME: Motion to strike the second count of plaintiff’s complaint and that portion of the prayer for relief claiming punitive damages was denied where, viewing the complaint in the light most favorably to plaintiff, plaintiff alleged facts sufficient to state causes of action sounding in negligence and recklessness.

CORE TERMS: recklessness, quotation marks omitted, reckless, sounding, reckless disregard, judicial district, favorably, prayer, decedent, common law, reckless conduct, legal sufficiency, cause of action, contest, viewing, fatal injuries, punitive damages, carelessness, recklessly, omissions, wantonly, swing

JUDGES: D’ANDREA, J.

OPINION BY: D’ANDREA

OPINION

MEMORANDUM OF DECISION RE: MOTION TO STRIKE

The plaintiff, Renee Kopesky, the administratrix for the estate of Tiffany Jean Kopesky, brought this action against the defendant, Connecticut American Water Company, for damages sustained by the plaintiff’s decedent. The plaintiff alleges that the plaintiff’s decedent sustained fatal injuries on the defendant’s property, when she fell from a rope swing as she attempted to swing out into the water. The plaintiff alleges that the defendant was aware that the public entered their private property to go swimming, hiking, camping and fishing. In the first count of the amended complaint, the plaintiff alleges that the plaintiff’s decedent suffered severe painful and fatal injuries as a result of the defendant’s negligence and carelessness. In the second count, the plaintiff alleges that [*2] the defendant’s “acts and/or omissions . . . were done recklessly, wantonly, carelessly and with a reckless disregard for the consequences of its acts and/or omissions.”

The defendant moves to strike count two of the plaintiff’s amended complaint and that portion of the prayer for relief claiming punitive damages. The defendant argues that “count two is legally insufficient because a claim for recklessness cannot be established by relying upon the same set of facts used to establish negligence. The second count of plaintiff’s amended complaint simply restates the facts underlying the plaintiff’s claim for negligence. Reiterating the same underlying facts of a negligence claim and renaming the claim as one for recklessness does not transform ordinary negligence into recklessness.”

” [HN1] The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). ” [HN2] For purposes of a motion to strike, the moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994); [*3] see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). “The court must construe the facts in the complaint most favorably to the plaintiff.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

The motion to strike may also be used to contest the legal sufficiency of any prayer for relief. See Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298 n.4, 478 A.2d 257 (1984); Central New Haven Development Corp. v. Potpourri, Inc., 39 Conn. Supp. 132, 133, 471 A.2d 681 (1993); Practice Book 10-39(a)(2).

” [HN3] Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid a danger to others or to take reasonable precautions to avoid injury to them . . .” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). [*4]

This court has previously held that “the allegations of one count of a complaint based on a common law reckless conduct must be separate and distinct from the allegations of a second count sounding in negligence . . . There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . . In other words, it is clearly necessary to plead a [common law] cause of action grounded in recklessness separate and distinct from a negligence action.” (Alterations in original; internal quotation marks omitted.) Thompson v. Buckler, 1999 Conn. Super. LEXIS 199, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 153798 (Jan. 27, 1999) ( D’Andrea, J.), Epner v. Theratx, Inc., 1998 Conn. Super. LEXIS 603, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 161989 (Mar. 10, 1998) (D’Andrea, J.). “In short, [HN4] an action sounding in reckless conduct requires an allegation of an intentional act that results in injury.” Id.

” [HN5] In order to rise to the level of recklessness, [the] action producing the injury must be intentional and characterized [*5] by highly unreasonable conduct which amounts to an extreme departure from ordinary care . . .” (Alterations in original; internal quotation marks omitted.) Epner v. Theratx, Inc., supra, 1998 Conn. Super. LEXIS 603, Superior Court, Docket No. 161989, citing Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). In the present case, viewing the allegations in the light most favorably to the plaintiff, the allegations do rise to the level of recklessness.

“If the alleged facts constitute recklessness . . . using the same facts in the negligence count does not prevent them from also being reckless. The test is whether the alleged facts amount to recklessness.” Walters v. Turrisi, 1997 Conn. Super. LEXIS 1011, Superior Court, judicial district of New London at New London, Docket No. 541162 (Apr. 15, 1997) ( Hurley, J.). “The mere fact that the allegations and factual assertions in a reckless count are the same or similar to one in a negligence count shouldn’t ipso facto mean the reckless count cannot be brought. The test is whether the facts alleged establish a reckless count. If they do all it would mean is that the plaintiff is pleading in the alternative.” Cancisco v. Hartford, 1995 Conn. Super. LEXIS 1885, Superior Court, judicial [*6] district of Hartford-New Britain at Hartford, Docket No. 519929 (June 26, 1995) (Corradino, J.).

In this case, viewing the complaint in the light most favorably to the plaintiff, the plaintiff has alleged facts sufficient to state causes of action sounding in negligence and recklessness. The first count of the plaintiff’s amended complaint contains twenty-five paragraphs of allegations relating to the defendant’s conduct regarding the incident in question. In the first count, the plaintiff alleges that that conduct amounts to the defendant’s negligence and/or carelessness.

In the second count, the plaintiff realleges and incorporates those twenty-five paragraphs from the first count and then alleges, in paragraph twenty-six, that the aforementioned conduct indicates that the defendant acted recklessly, wantonly and with a reckless disregard for the consequences. The allegations in the second count do rise to the level of recklessness. Accordingly, the plaintiff has pled an alternative cause of action sounding in recklessness, separate and distinct from the negligence count. Therefore, the defendant’s motion to strike the second count of the plaintiff’s amended complaint, [*7] and that portion of the prayer for relief claiming punitive damages, is hereby denied.

So Ordered.

D’ANDREA, J.


Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiff-Appellant, -v.- YMCA Camp Mohawk, Inc., Defendant-Appellee.

14-3460

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

September 10, 2015, Decided

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1] Appeal from a judgment of the United States District Court for the District of Connecticut (Thompson, J.).

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403 (D. Conn., Aug. 11, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-A claim that a summer camp operator was negligent in offering horseback riding instruction required the support of expert testimony, as the intricacies of horseback riding technique and horsemanship were no longer within the bounds of ordinary knowledge or experience of judges and jurors; [2]-The proffered expert witness was not qualified under Fed. R. Evid. 702, as he claimed a generalized familiarity with camp education but had practically no knowledge or experience relating to horsemanship.

OUTCOME: Judgment affirmed.

CORE TERMS: expert testimony, summary judgment, state law, standard of care, specialized knowledge, horsemanship, expertise, juror, horseback riding, expert witness, issues of material fact, qualification, familiarity, membership, diversity, resume, equestrian, pony

COUNSEL: FOR APPELLANT: Megan L. Piltz, Sabatini and Associates, LLC, Newington, Connecticut.

FOR APPELLEES: Renee W. Dwyer and Katherine L. Matthews, Gordon, Muir and Foley, LLP, Hartford, Connecticut.

JUDGES: PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., DENNIS JACOBS, Circuit Judges.

OPINION

[*697] SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Louisa Ellis and Elizabeth Ellis (“Appellants”) appeal from the judgment of the United States District Court for the District of Connecticut (Thompson, J.), dismissing [*698] on summary judgment their diversity action alleging negligence against YCMA Camp Mohawk, Inc. (“YMCA”). Appellants argue that the district court abused its discretion in determining that their expert, Corey Andres, was not qualified to render an expert opinion regarding the standard of care for an equestrian course at the YMCA camp at which twelve-year-old Louisa was injured. Appellants also argue that the district court erred in determining that all of the issues presented require expert testimony. We assume the parties’ [**2] familiarity with the underlying facts, the procedural history, and the issues presented for review.

On July 18, 2011, Louisa Ellis fell from a pony while taking horseback riding lessons at YMCA Camp Mohawk. Ellis sustained injuries to her hand and elbow that required surgery and therapy. Appellants identified Andres, an employee of Robson Forensic, to investigate the claims and to provide expert testimony. Andres claimed his expertise based on his membership in the American Camp Association (“ACA”) and his study of therapeutic education at Ohio State, University of Toledo, including a study pertaining to equestrian matters. Andres’s investigation concluded that YMCA was negligent in failing to provide complete and proper instruction as to how to fall from a horse in a way that minimizes injury.

The district court excluded Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding. Therefore, appellants’ failure to produce an expert where expert testimony was required led the district court to grant summary judgment.

[HN1] A grant of summary judgment is reviewed de novo to determine whether any genuine issues of material fact would bar summary judgment. [**3] Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir. 2005). [HN2] We review the district court’s evidentiary ruling under an abuse-of-discretion standard. See id. at 171-72. “Either an error of law or a clear error of fact may constitute an abuse of discretion.” Schering Corp. v. Pfizer, Inc., 189 F.3d 218, 224 (2d Cir. 1999) (internal quotation marks and citations omitted). [HN3] A district court’s qualification of an expert witness will only be overturned if it is manifestly erroneous. United States v. Barrow, 400 F.3d 109, 123 (2d Cir. 2005).

[HN4] In a diversity action, whether expert testimony is required is a matter of state law, whereas the admissibility of a given expert witness is governed by the Federal Rules of Evidence. See 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6263; see also Beaudette v. Louisville Ladder Inc., 462 F.3d 22, 27 (1st Cir. 2006). [HN5] Under Connecticut state law, expert testimony is required when a matter goes “beyond the ordinary knowledge and experience of judges or jurors.” LePage v. Horne, 262 Conn. 116, 809 A.2d 505, 511 (Conn. 2002). Connecticut courts have held, on similar facts, that the general public is no longer as familiar with horsemanship as it arguably was at the beginning of the twentieth century, and that expert testimony is necessary to establish a standard of care and a breach of that standard. Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829, 833-34 (Conn. App. Ct. 2006).

As the district court held, Appellants’ claims required the support of expert testimony. The intricacies of horseback riding technique and horsemanship [**4] are no longer within the bounds of ordinary knowledge or experience of judges and jurors. Questions [*699] such as whether the stirrups were improperly installed and whether the pony was of sufficient size to carry the rider are not questions that the average juror can decide based on past knowledge or experience. We therefore agree that Ellis needed expert testimony to show both a standard of care and a breach of that standard.

Andres claimed a generalized familiarity with camp education. However, [HN6] Federal Rule of Evidence 702 requires expertise based on specialized knowledge and experience, not a mere understanding derived from others’ publications. “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a); see also Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013). Andres does not rise to the level of expertise required to opine on the matters at hand. Andres has practically no knowledge or experience relating to horsemanship — his resume makes no reference to any such knowledge, and his investigation merely points to three publications [**5] that he relied on when preparing his report. Andres’s resume instead highlights a wide array of fields and organizations in which he has obtained certifications or is a member. Appellants argue that Andres’s membership in the ACA broadly reaches all camp recreations. This broad qualification falls well short of the specialized knowledge that Federal Rule of Evidence 702 demands. The district court therefore did not abuse its discretion in its decision to exclude Andres’s testimony.

Appellants’ failure to provide necessary expert testimony precludes them from presenting these claims under Connecticut state law. See LePage, 809 A.2d at 511. Thus, there are no issues of material fact raised to challenge the district court’s entry of summary judgment.

For the foregoing reasons, and finding no merit in Appellant’s other arguments, we hereby AFFIRM the judgment of the district court.


Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it

Plaintiff successfully argued he did not have enough time to read the release before he signed it. The court bought it.

DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235

State: Connecticut, Superior Court of Connecticut, Judicial District of New Haven at New Haven

Plaintiff: Guy DeWitt, Jr.

Defendant: Felt Racing, LLC and Pedal Power, LLC 

Plaintiff Claims: no time to read the release, not told he needed to sign a release

Defendant Defenses: Release

Holding: for the plaintiff 

Year: 2017 

Summary

This case looks at demoing a bike in Connecticut. The rider/plaintiff argued that he did not have enough time to read the release, and the bike shop was chaotic creating confusing for him. He was injured when the handlebars broke causing him to fall. 

Facts

The plaintiff participated in the Wednesday night right put on by Pedal Power, LLC, one of the defendants. That night Pedal Power made arrangements for people to demo Felt Bicycles. Most people did so and sent their information to Felt Racing so the bikes were fit and ready to go when they arrived.

The plaintiff arrived with his own bike. However, once he got there he decided to demo a felt bicycle. While the bike was being fitted for him, he was handed a release to sign. The plaintiff stated the place was chaotic, and he did not have time to read the release

During the ride, the handlebar failed or cracked causing the plaintiff to fall and hit a tree.

What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic and rushed there What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic and rushed there to make the ride. I just did not have the time to read that . . .” Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride. to make the ride. I just did not have the time to read that . . .” Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride.

 The defendants filed a motion for summary judgment, and this was the analysis of the motion by the court. 

Analysis: making sense of the law based on these facts. 

Each state has its own requirements for when a court can grant a motion for summary judgment. The court in this case set forth those requirements before starting an analysis of the facts as they applied to the law.

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Practice Book section 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.”

Most states apply similar standards to deciding motions for summary judgment. The major point is there is no genuine issue of fact’s material to the case. Meaning no matter how you look at the facts, the motion is going to win because the law is clear.

Additional statements in the case indicated the court was not inclined to grant any motion for summary judgment.

“Summary judgment is particularly ‘ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .”

“The courts hold the movant to a strict standard. To satisfy [their] burden the movant[s] must make a showing that it is clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, the nonmoving party has no  obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”

The court then analyzed the entire issue of why summary judgments are rarely granted in this judge’s opinion.

“[T]he 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 tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” “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 shift the risk to the weak bargainer.’

The writing on the wall, or in the opinion, makes it pretty clear this judge was not inclined to grant motions for summary judgment in tort cases when the risk of the injury would transfer to the plaintiff.

The court then reviewed the requirements of what is required in a release under Connecticut law. 

…requirements for an enforceable agreement as well as the elements which demonstrate that an agreement violates public policy and renders the agreement unenforceable: the agreement concerns a business of a type suitable for regulation; the party seeking to enforce the agreement is engaged in performing a service of great importance to the public; the party holds itself out as willing to perform a service for any member of the public; there is an economic component to the transaction; the agreement is an adhesive contract; and as a result of the transaction, the plaintiff is placed under the control of the seller. 

Nowhere in the requirements does it state a requirement that the plaintiff have enough time to read the release, even if did go ahead and sign the release. 

The language quoted sounds like similar language found in other decisions in other states regarding releases. 

Connecticut also requires “that in order for an exculpatory clause to validly release the defendant, it must be clear and contain specific reference to the term “negligence.” 

In this release, the term negligence is only found once. 

The plaintiff argued that he did not have time to sign the release, and the place was chaotic. This was enough for the court to say there were material facts at issue in this case. “If the plaintiff was not afforded the opportunity to read and consider the Waiver and Release, then the agreement cannot be enforced. It is for the trier of fact to determine this.”

The defendants created the conditions under which the plaintiff could participate in the ride on a Felt bicycle. Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants’ actions when there is a question of fact regarding whether the plaintiff had been given sufficient time to read and consider the Waiver and Release, would violate public policy, even if the language of the agreement was explicit and clear. For this reason, this court denies the defendants’ motions for summary judgment.

The motion for summary judgment was denied. 

So Now What? 

This is the first time I have read a decision where the claim there was not enough time to read the release was upheld by a court. Normally, the court states if the release is signed the signor read and agreed to the terms.

This is one more argument that will eliminate releases in Connecticut. There have been several already, and although there are several decisions that support releases, there is a growing list of decisions that are providing opportunities for the courts to throw them out. 

The final issue to be aware of is the language in this case is identical to language in most other release cases. However, here that language was used to throw out a release rather than support it.

Other Connecticut Decisions Involving Releases

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

Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and  spinning hold send climbing wall gym back to trial in Connecticut.

Connecticut court determines that a release will not bar a negligent claim created by statute.

What do you think? Leave a comment.

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bike, ride, summary judgment, public policy, relieve,
bicycle, quotation marks omitted, disputed, participating, chaotic, riding,
custom, rider, tort law, moving party, entitled to judgment, nonmoving party,
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entities, sufficient time, sponsored, pre-sized, arranged, sponsors, borrow,
Felt Racing, LLC, Pedal Power, LLC, Products Liability, Release,

 

 

 


DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235

DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235

Guy DeWitt, Jr. v. Felt Racing, LLC et al.

CV136040482

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN

2017 Conn. Super. LEXIS 235

February 6, 2017, Decided

February 6, 2017, 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: bike, ride, summary judgment, public policy, relieve, bicycle, quotation marks omitted, disputed, participating, chaotic, riding, custom, rider, tort law, moving party, entitled to judgment, nonmoving party, question of fact, primary function, exculpatory, unambiguous, genuine, movant, entities, sufficient time, sponsored, pre-sized, arranged, sponsors, borrow

JUDGES: [*1] Angela C. Robinson, J.

OPINION BY: Angela C. Robinson

OPINION

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENTS #149 AND #150

Guy DeWitt, Jr., the plaintiff, claims that on June 18, 2013, he was injured as a direct result of the negligence and/or actions of the defendants, Felt Racing, LLC and Pedal Power, LLC, in violation of the products liability statute. At the time of the incident, the plaintiff was participating in a group ride of bicyclists that was sponsored by Pedal Power. During the ride, at the time he was injured, the plaintiff was riding a bike he borrowed from Felt Racing. Prior to participating in the ride, and before he was allowed to borrow the Felt bike, the plaintiff signed a Waiver and Release.

The defendants both now move for summary judgment based upon the Waiver and Release, which they argue releases them from all liability. The plaintiff objects to the defendants’ motion claiming that the language of the Release and Waiver does not sufficiently relieve the defendants of liability; and that it violates public policy.

Most of the facts pertinent to the resolution of the motion are not in dispute. Pedal Power sponsored a group ride in Middletown, Connecticut. Felt Racing arranged [*2] to have a Felt bicycle demonstration at the Pedal Power store, and brought 35 Felt bikes to loan out for the ride. The plaintiff had brought his own bike to ride during the activity, but decided to try a Felt bike. The plaintiff was provided with a Felt AR2, which was selected and custom fit to him by a Felt employee. He had not arranged to ride the bike ahead of time. According to Mr. Rudzinsky, Certified USA Cycling Professional Mechanic and agent of Felt Racing, the plaintiff was not one of “the guys that was pre-sized . . .” Rather, “he showed up late.” (Rudzinsky Depo p. 57.) In order to borrow the bike, the plaintiff signed a Waiver, provided a copy of his driver’s license and left his personal bike as collateral. As the plaintiff was riding the Felt AR2 eastbound on Livingston Street in Middletown, Connecticut the right side of the handle bars failed and/or cracked, ejecting him off the bike and causing him to violently hit the ground and collide with a tree.

What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic [*3] and rushed there to make the ride. I just did not have the time to read that . . .” (Deposition of Plaintiff attached to Plaintiff’s Objection.) Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride.

The defendants request that judgment enter in their favor on the plaintiff’s complaint based upon the Release and Waiver.

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book section 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.” (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).

“Summary [*4] judgment is particularly ‘ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .” Michaud v Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

“The courts hold the movant to a strict standard. To satisfy [their] burden the movant[s] must make a showing that it is clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Zielinski v Kotsoris, 279 Conn. 312, 318-9, 901 A.2d 1207 (2006).

The defendants claim to be entitled to judgment because the Waiver contains language transferring all the risks of participating in the group ride from Felt Bicycles, and sponsors of the ride to the participant rider borrowing the Felt bike. Specifically, the Waiver provides:

I HEREBY WAIVE, RELEASE, DISCHARGE, AND COVENANT NOT TO SUE Felt Bicycles, Felt Racing, or its . . . agents . . . members, volunteers and employees, and/or other participants, sponsors [*5] . . . and/or where applicable, owners and lessors or (Sic) premises on which the Event takes place . . . from liability, claims, demands, losses or damages.

Though term “negligence” appears only once in the waiver, in paragraph 1, the defendants maintain that this is not determinative of their motion regarding the negligence claims. Further, the defendants argue that the language of the waiver sufficiently covers the actions of the agents and/or employees of Felt, LLC and Pedal Power, LLC, as well as the legal entities, themselves.

To support their arguments, both the defendants and the plaintiff rely primarily upon Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734, (2005). The plaintiff also cites and relies upon Hyson v. White Water Mountain Resorts of Connecticut, 265 Conn. 636, 829 A.2d 827 (2003); Lewis v. Habitat for Humanity of Greater New Haven, Superior Court, Judicial District of New Haven, docket no. CV 095030268 (January 9, 2012, Frechette, J.) [53 Conn. L. Rptr. 512, 2012 Conn. Super. LEXIS 146]; Kelly v. Deere & Co, 627 F.Sup. 564 (D.C. 1986).

In Hanks v. Powder Ridge Restaurant, Corp, the Supreme Court held that because exculpatory agreements relieve a party of liability, they undermine public policy considerations governing our tort system, and should be enforced judiciously, only when certain factors are present. First and foremost, the agreement should be enforced only when “an ordinary person of reasonable intelligence would understand that [*6] by signing the agreement, he or she was releasing the defendants from liability from their future negligence.” Id. at 324-5. But, even if it is clear and unambiguous, it should not be enforced if it violates the principles that undergird Tort Law.

“[T]he 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 tort system is the 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 shift the risk to the weak bargainer.’ Tunkl v. Regents of the Univ. Of Cal., 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963).” Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 327, 885 A.2d 734.

Hanks sets forth the [*7] requirements for an enforceable agreement as well as the elements which demonstrate that an agreement violates public policy and renders the agreement unenforceable: the agreement concerns a business of a type suitable for regulation; the party seeking to enforce the agreement is engaged in performing a service of great importance to the public; the party holds itself out as willing to perform a service for any member of the public; there is an economic component to the transaction; the agreement is an adhesive contract; and as a result of the transaction, the plaintiff is placed under the control of the seller. These are not the exclusive elements to consider. 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.” Id. at 330.

Also, the Hyson v. Whitewater Mountain Resorts court required that in order for an exculpatory clause to validly release the defendant, it must be clear and contain specific reference to the term “negligence.” Id. at 643.

The plaintiff argues that the language of the release is not clear; and that there are insufficient references to the [*8] word “negligence.” Also, the plaintiff asserts that the circumstances under which he was required to sign the release prevented him from reading it or considering the ramifications of it. Defense counsel disputed the characterization of the transaction as “chaotic.”

Because of this factual dispute, the court concludes that the motions should be denied. It is irrelevant to the court’s consideration whether the transaction was commercial or not; whether the language was sufficiently clear and unambiguous; or whether the plaintiff could have ridden his own bike during the ride. If the plaintiff was not afforded the opportunity to read and consider the Waiver and Release, then the agreement cannot be enforced. It is for the trier of fact to determine this.

There is no dispute that Felt Racing brought the bikes to the ride for the specific purpose of demonstrating and loaning them to interested riders and potential future customers. They were prepared for and anticipated last minute requests for bikes. Additionally, they custom fitted the bikes to the riders, regardless of whether the bikes had been pre-sized for them or not.

There are certainly instances in which it may be appropriate and [*9] in line of public policy to enforce contractual agreements which relieve one party of liability to another for injuries. However, Connecticut has a long history of requiring courts to carefully scrutinize such contracts. See e.g., Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006) (“[T]he law does not favor contract provisions which relieve a person from his own negligence . . . Hyson v. White Water Mountain Resorts of Conn., Inc. . . .”).

The defendants created the conditions under which the plaintiff could participate in the ride on a Felt bicycle. Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants’ actions when there is a question of fact regarding whether the plaintiff had been given sufficient time to read and consider the Waiver and Release, would violate public policy, even if the language of the agreement was explicit and clear. For this reason, this court denies the defendants’ motions for summary judgment.

Robinson, A., J.


Connecticut court determines that a release will not bar a negligent claim created by statute.

Statute requires ski area to mark equipment on the slope. The ski area argued the release protected them from negligence claims based on the statute, and the court disagreed.

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

State: Connecticut, Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

Plaintiff: Alexandra Laliberte

Defendant: White Water Mountain Resorts

Plaintiff Claims: negligence

Defendant Defenses: Connecticut Skier Safety Act & release

Holding: for the plaintiff

Year: 2004

The plaintiff was skiing as part of a high school varsity ski team. She hit a snow making device which was inadequately identified and placed on the trail according to the plaintiff.

The defendant moved for summary judgment based on the Connecticut Skier Safety Act and a release the plaintiff had signed to participate on the ski team.

The release had been signed when the plaintiff was a minor, however, she did not rescind the release when she became an adult.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution.

Analysis: making sense of the law based on these facts.

The first argument was whether the Connecticut Skier Safety Act shielded the defendant from liability. The act requires the ski area operator to mark conspicuously the location of snow making equipment.

Sec. 29-211.  (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.

In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to: (1) Conspicuously marking all trail maintenance vehicles and furnishing the vehicles with flashing or rotating lights which shall be operated whenever the vehicles are working or moving within the skiing area; (2) conspicuously marking the entrance to each trail or slope with a symbol, adopted or approved by the National Ski Areas Association, which identifies the relative degree of difficulty of such trail or slope or warns that such trail or slope is closed; (3) ensuring that any lift tower that is located on a trail or slope is padded or otherwise protected; (4) maintaining one or more trail boards, at prominent locations within the ski area, displaying such area’s network of ski trails and slopes, designating each trail or slope in the same manner as provided in subdivision (2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act; (5) in the event maintenance personnel or equipment are being employed on any trail or slope during the hours at which such trail or slope is open to the public, conspicuously posting notice thereof at the entrance to such trail or slope; (6) conspicuously marking trail or slope intersections; (7) ensuring that passenger tramways, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, are equipped with restraint devices; (8) at the entrance of a passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, conspicuously posting instructions regarding the proper use of a restraint device on such passenger tramway and notice that the use of a restraint device on such passenger tramway is required by section 29-213, as amended by this act; and (9) ensuring that any hydrant, snow-making equipment and pipes that are located within the borders of a designated slope, trail or area that is approved and open for skiing by the operator and regularly groomed as part of the operator’s normal maintenance activities are padded or marked by portable fencing or a similar device.

Emphasize (bold) added

The plaintiff’s argued it was not marked. The ski area argued that the snow making device was not located on a ski trail or slope. Consequently, the court held that because there was a factual dispute, this matter had to go to trial.

The next issue was whether the release stopped claims created or based upon the statute. Normally, these claims are called negligence per se claims. (See Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability or Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case for more on Negligence Per Se claims.) Negligence per se claims are negligence claims based on a statute or rule created to protect people. Normally, releases do not work against negligence per se claims. That wording or pleading in describing the claim was not used in this case.

The parties agreed that the release itself was valid. The issue was what the release applied to.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.”

Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The court first looked at the Connecticut Skier Safety Act and found the act was silent on the effect of a release. The court then reviewed other Connecticut cases and decisions from other states where a release was raised as a defense to a negligence claim based upon a statute. Generally, the court found “… the statute created a public duty which the tenant had no power to extinguish. Private parties cannot “suspend the law by waiver or express consent.” Quoting from another case the court found ““parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.”

The court found two bases for invalidating releases when argued to bar claims like this.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member.

Here the court found using a release to avoid liability for a statutory duty would allow defendants to have free reign to ignore the statute.

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

The motion for summary judgment was denied and the case set for trial.

So Now What?

This result is probably the result you will find in all cases where the release is raised as a defense to a statutory duty. The only way to avoid this is to have the statute that creates the duty, include a clause that states the release is still valid.

Similar arguments are used by courts when they have determined that a statute that may have statutory duties and also has statutory protections eliminates the use of a release in full. Meaning the statute provided the protection the legislature wanted, that is all you get. Hawaii did this (Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release) and New Mexico in Berlangieri v. Running Elk Corporation, 132 N.M. 332; 2002 NMCA 60; 48, P.3d 70; 2002 N.M. App. 39; 41 N.M. St. B. Bull. 25.

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Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Alexandra Laliberte v. White Water Mountain Resorts

X07CV030083300S

Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

2004 Conn. Super. LEXIS 2194

August 2, 2004, Decided

August 2, 2004, Filed

Notice: [*1]  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.

Judges: Sferrazza, J.

Opinion By: Sferrazza

Opinion: Memorandum of Decision

The defendant, White Water Mountain Resorts, Inc., moves for summary judgment as to all counts in this action filed by the plaintiff Suzanne Bull, individually and as next friend of her daughter, Alexandra Laliberte. The plaintiffs’ complaint alleges that the defendant, a ski area operator, negligently failed to mark a snow-making device conspicuously so as to comply with General Statutes § 29-211.

The movant contends that judgment ought to enter in its favor because General Statutes § 29-212 exempts the defendant from liability and because the plaintiffs executed a valid waiver of liability. The plaintiffs argue that a genuine factual dispute exists which puts into doubt the applicability of § 29-212 and that the plaintiffs had no power to waive liability for any statutory obligation imposed by § 29-211.

Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that [*2] no genuine dispute as to material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.

It is undisputed that on January 13, 2003, Alexandra Laliberte sustained serious injury to her left leg while engaged in ski practice, as a member of the Glastonbury High School varsity ski team, while at the defendant’s ski area. The plaintiffs’ complaint avers that this injury was caused when Laliberte struck a snow-making machine which was inadequately identified and which was positioned upon a portion of a ski trail or slope.

On November 14, 2002, the plaintiffs knowingly and voluntarily signed an anticipatory release of liability absolving the defendant from any claims by the plaintiffs resulting from participation in the ski team practices or events at the defendant’s ski facility, even if such “injury is caused by the negligence” of the defendant. It is uncontroverted that, if this waiver is enforceable, it would exonerate the defendant from the liability on the plaintiffs’ claims.

I

The court first addresses the movant’s contention that § 29-212 exempts the defendant from liability. Section 29-212 must be examined in conjunction with [*3] § 29-211 because these related provisions “form a consistent, rational whole.” Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 681, 849 A.2d 813 (2004). These statutes were enacted to delineate the respective responsibilities of the skier and the ski area operator. Id., 682. Section 29-212 enumerates a nonexhaustive list of risks inherent in the sport of skiing for which ski area operators bear no responsibility if injury ensues. Id. Section 29-211, on the other hand, imposes specified duties upon ski area operators. Id., 681.

Subsection 29-211(2) obligates the operator to mark conspicuously the location of snow- making devices that are placed on a trail or slope. A review of the pleadings and documents submitted discloses that a genuine factual dispute exists as to whether the particular device which Laliberte struck was sited on a ski trail or slope. Consequently, summary judgment is unavailable on this ground.

II

The enforceability of the preinjury release poses a more difficult question.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is [*4] against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.” Fischer v. Rivest, Superior Court, New Britain J.D. Complex Litigation, dn. X05-CV00-509627, 33 Conn. L. Rptr. 119 (August 15, 2002), Aurigemma, J.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution. Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The statutes regarding skiing and ski area operations, General Statutes §§ 29-211 though 29-214 are silent as to whether waiver of the duties imposed on ski area operators are permitted or forbidden.

In Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003), our Supreme Court held that a preinjury waiver [*5] which omitted express reference to negligence was insufficient to absolve the ski area operator, the same defendant as in the present case, from liability for negligence. Id., 643.

The majority explicitly stated that its decision ventured no opinion regarding the viability of an anticipatory release should it include the missing language.

Id., 640 and 643, fn. 11. Despite this disclaimer, the Hyson case, supra, does provide some guidance bearing on the issue before this court because the majority reiterated the proposition that a preinjury release from liability for negligent acts “is scrutinized with particular care.” Id., 642.

The two dissenting justices in Hyson, supra, indicated that such preinjury releases are valid despite the absence of the use of a form of the word negligence expressly. Id., 649. Implicit in the dissenters’ position is that such waiver is possible as to violations of the duties imposed by § 29-211.

While a plausible argument can be made that this implication supports the movant ‘s contention, this Court is reluctant to harvest precedential value on this issue from that dissent [*6] because the precise claim of unenforceability raised in the present case was never raised in Hyson, supra.

In L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), the Supreme Court ruled that where a statute compels a landlord to illuminate a common stairwell, a tenant cannot waive that burden and could, indeed, sue the landlord for injury caused by that statutory violation. Id., 355-56. The Supreme Court determined that the statute created a public duty which the tenant had no power to extinguish. Id. Private parties cannot “suspend the law by waiver or express consent.” Id., 357. Of course, L’Heureux, supra, involved a tenancy and not recreational activity.

A similar case is Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (1969). There, another tenant was permitted to sue a landlord based on housing code violations despite a written lease containing a waiver clause. Id., 104. Again, Panaroni v. Johnson, supra, did not involve a recreational activity waiver.

A Connecticut case closer to the facts of the present one is Fedor v. Mauwehu Council, 21 Conn.Sup. 38, 143 A.2d 466 (1958). [*7] The trial court granted a demurrer to a special defense based on a written waiver signed by the injured boy’s father, which waiver purported to release a boy scout camp from liability.

The court stated that “parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.” Id., 39.

On the national level, some jurisdictions invalidate recreational activity releases if the negligent conduct contravenes public policy as embodied in statutorily imposed duties while other jurisdictions recognize the enforceability of such preinjury waivers. See 54 A.L.R.5th 513 (2004), §§ 5[a] and [b].

In McCarthy v. National Association for Stock Car Auto Racing, 48 N.J. 539, 226 A.2d 713 (1967), the New Jersey Supreme Court affirmed a trial court’s invalidation of a preinjury release in a case where the plaintiff was allegedly harmed by the defendants’ failure to comply with a state regulation governing the placement of fuel lines in racing cars. That Court stated that the “prescribed safety requirements may not be contracted away, for if they could be, [*8] the salient protective purposes of the legislation would largely be nullified.” Id. 54. That opinion recognized that such anticipatory releases are enforceable when they relate to strictly private affairs, however the Court remarked that the “situation becomes an entirely different one in the eye of the law when the legislation in question is . . . a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.” Id.

The West Virginia Supreme Court reached a similar result in Murphy v. American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991). West Virginia has a statutory scheme regarding the division of responsibility for harm resulting from the risks of whitewater rafting. That scheme immunizes commercial rafting operators from liability for risks inherent in that activity but “imposes in general terms certain statutory duties upon commercial whitewater outfitters.” Id., 317. A rafter suffered injuries when the outfitter ‘s employee attempted to use one raft to dislodge another which was hung up on some rocks. Id., 313-14. [*9] That Court concluded “when a statute imposes a standard of care, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable.” Id., 318. The West Virginia Supreme Court also observed that that state’s skiing statutes were very similar to their whitewater rafting legislation. Id., 317.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member. The court finds this reasoning persuasive.

Common-law negligence is a breach of a duty to exercise reasonable care with respect to another when confronting a particularized and individualized set of surrounding circumstances which may never arise again. A party is entitled to contract away the right to hold the releasee responsible for careless conduct peculiar to the releasor’s situation.

On the other hand, statutory negligence [*10] is based on deviation from a legislatively mandated course of conduct which governs a generalized set of circumstances. The statutory rule applies in every case in which those generic circumstances may exist and where the injured party falls within the class the statute was designed to protect. Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965). The doctrine of statutory negligence applies to create liability regardless of whether the defendant acted with reasonable prudence. Jacobs v. Swift & Co., 141 Conn. 276, 279, 105 A.2d 658 (1954).

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

Given our Supreme Court’s reluctance to afford liberal recognition to preinjury waivers and the need to prevent the undermining of statutorily defined duties, the court holds [*11] as a matter of law, that the plaintiffs’ release in this case is unenforceable to defeat the claims of a violation of § 29-211.

The motion for summary judgment is, therefore, denied.

Sferrazza, J.


Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500

Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500

Gregory D. Hanks v. Powder Ridge Restaurant Corporation et al.

(SC 17327)

SUPREME COURT OF CONNECTICUT

276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500

April 18, 2005, Argued

November 29, 2005, Officially Released

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. 1 In this opinion KATZ, VERTEFEUILLE and ZERELLA, Js., concurred. NORCOTT, J., with whom BORDEN and PALMER, Js., join, dissented.

1 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

[*316] [**736] SULLIVAN, C. J.

This appeal 2 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.

2 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.

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 [*317] 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 [*318] such as the plaintiff away from the sidewalls of [the] [***5] run.”

[**737] 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 [*319] 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. 3 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.

3 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.

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. [**738] 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 [*320] 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] . . . .” 4 (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 [*321] 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”).

4 That exculpatory agreement provided:

“SNOWTUBING

“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.

[***10] As an initial matter, we set forth the appropriate standard of review. [HN1] “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).

[**739] I

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.

[HN2] “The law does not favor contract provisions which relieve a person from his own negligence . . . .” Hyson v. White Water Mountain Resorts of Connecticut, Inc., [*322] 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”). [HN3] “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).

[*323] The agreement 5 at issue in the present case provides in relevant part: “I understand [**740] that there are inherent risks involved in snowtubing, including the risk of serious [*324] 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.)

5 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.)

[***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 [*325] agreement, he or she was releasing the defendants from liability for their future negligence. 6 [**741] 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 [*326] [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.

6 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. [HN4] “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.'”

[***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.

II

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 [**742] conclude that it does and, accordingly, reverse the judgment of the trial court.

[HN5] 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, [*327] 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 . . . . [HN6] 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).

[*328] 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 [HN7] 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: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] 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. [3] 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. [4] 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. [5] In exercising a [**743] 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. [6] 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 [HN8] an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied. 7 Id., 101.

7 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.

[***21] [*329] 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: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] 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: [1] one party is at an obvious disadvantage in bargaining power; [2] 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 [*330] 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 Ass’n, 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 [HN9] “no definition of the concept of public interest can be contained within the four corners of a formula.” [**744] 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] [*331] would, within their good conscience, operate a safe ride.”

[HN10] 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 [*332] 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, [**745] to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.” 8 (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 [HN11] 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. 9

8 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]

9 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.

[***28] [*333] Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a “take it or leave it” basis. [HN12] 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 [**746] 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 [*334] 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.” 10 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. 11 See [*335] Dalury v. S-K-I, Ltd., supra, 164 Vt. 335 [HN13] (“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 [**747] 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.

10 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]

11 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.

For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because [*336] it violates public policy. 12 Accordingly, the trial court improperly rendered summary judgment in favor of the defendants.

12 We clarify that our conclusion does not extend to the risks inherent in the activity of snowtubing. As we have explained, [HN14] 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.

[***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, [*337] 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 [**748] degrees of negligence and treats all negligence alike”). [HN15] 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) [*338] (“‘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 BY: NORCOTT

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).

[*339] In determining whether prospective releases of liability violate public policy, the majority adopts the Vermont Supreme Court’s totality of the circumstances approach. 1 Dalury v. S-K-I, Ltd., 164 Vt. 329, 334, [**749] 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.

1 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.

[***38] “The attempted but invalid [release agreement] involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] 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. [3] 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. [4] 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. [5] In exercising a superior bar gaining power the party confronts the public with a standardized adhesion contract of exculpation, and [*340] makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] 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, 2 numerous other states [**750] have adopted them to determine whether a prospective release violates public policy under their common law. See, e.g., Morgan v. [*341] 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). 3

2 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]

3 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: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] 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: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is involved [public utility companies, common carriers]”).

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 [*342] exempts snowtubing from the scope of General Statutes (Rev. to 2005) § 29-212, which applies to liability for injuries sustained by skiers. 4 Thus, while the legislature has [**751] chosen to regulate, to some extent, the sport of skiing, it conspicuously has left snowtubing untouched.

4 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.)

[***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 [*343] 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, [*344] 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 [**752] 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 . . . .” [*345] 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 [*346] (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. [**753] 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 Ass’n, 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). 5

5 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).

[***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 [*347] 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), 6 and Restatement (Third) of Torts, Apportionment of Liability 2 (2000). 7

6 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]

7 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.”).

[***52] [*348] [**754] 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. 8 By contrast, in those fields [*349] 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. 9 That position remains the distinct minority view, followed only by [**755] the courts of Vermont and Virginia. 10 Hiett v. Lake Barcroft Community Ass’n, 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”).

8 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.

9 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]

10 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.”

[*350] 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. 11 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. . . . [*351] 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 [**756] 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 [*352] 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, 2004 Minn. LEXIS 752, Nos. A03-1635, A04-205 (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.]); [*353] Harsh v. Lorain County Speedway, Inc., 111 Ohio App. 3d 113, 118-19, 675 N.E.2d 885 (1996) (upholding release [**757] for negligence but not “willful and wanton conduct”); 12 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.]). 13

11 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]

12 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).

13 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, 127 P.3d 572 (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.

[***63] [*354] 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 [**758] 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).

[*355] The great weight of these numerous and highly persuasive 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.


Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330

Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330

Jessica Reardon v. Windswept Farm, LLC, et al.

SC 17506

SUPREME COURT OF CONNECTICUT

280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330

May 16, 2006, Argued

October 3, 2006, Officially Released

COUNSEL: Jeffrey I. Carton, with whom, on the brief, was Robert J. Levine, for the appellant (plaintiff).

John C. Turner, Jr., for the appellees (defendants).

JUDGES: Borden, Norcott, Katz, Vertefeuille and Zarella, Js. In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred. NORCOTT, J., concurring.

OPINION BY: BORDEN

OPINION

[*154] [**1157] BORDEN, J. The dispositive issue in this appeal is whether a release signed by the plaintiff, Jessica Reardon, indemnifying the defendants, Windswept Farm, LLC, and its owners, William Raymond and Mona Raymond, from an action brought in negligence, precludes the plaintiff from recovering damages. More specifically, the question before this court is whether the release signed by the plaintiff violates public policy pursuant to our holding in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005). [***2] The plaintiff appeals 1 from the judgment of the trial court granting the defendants’ motion for summary judgment. The plaintiff claims that: (1) the trial court incorrectly concluded that the release signed by the plaintiff was clear and unambiguous; and (2) in light of this court’s holding in Hanks, the release violates public policy. 2 [*155] We conclude that our holding in Hanks controls the present case and, therefore, that the release signed by the plaintiff was invalid. Accordingly, we reverse the judgment of the trial court.

1 The plaintiff appealed from the judgment of the trial court to the Appellate Court. We then transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

2 Briefly stated, in Hanks this court dealt with an issue left unresolved by our holding in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003), wherein we did not have the opportunity to pass upon the question of whether the enforcement of a well drafted agreement that purports to release a party from liability for its prospective negligence is contrary to public policy. In particular, in Hanks we concluded that an otherwise well drafted, clear and unambiguous exculpatory agreement, purporting to release a defendant from its prospective liability for ordinary negligence, nonetheless violated public policy and was therefore unenforceable. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326. That decision was issued during the pendency of the present appeal, which led us to order supplemental briefing by the parties regarding whether the trial court’s judgment should be summarily reversed in light of our decision in Hanks.

[***3] The plaintiff brought this personal injury action against the defendants alleging negligence. The defendants moved for summary judgment, arguing that the release signed by the plaintiff was clear and unambiguous, and thus satisfied the standard [**1158] that this court set forth in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003), which provided that [HN1] “a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.” The trial court agreed that the plaintiff had signed a well drafted waiver of liability in the defendants’ favor, granted the defendants’ motion for summary judgment, and rendered judgment thereon. This appeal followed.

The following facts are relevant to our analysis of the plaintiff’s claims. The defendants are in the business of providing horseback riding lessons to the general public. In October, 2002, the plaintiff came to the defendants’ property and requested a horseback riding lesson. As a condition to riding one of the defendants’ horses, the plaintiff was required by the defendants to sign a release and indemnity agreement [***4] (release). The release was printed on a single page and consisted of [*156] three sections entitled, “Warning,” 3 “RELEASE,” 4 and “INDEMNITY AGREEMENT.” 5 It is undisputed that the plaintiff signed and dated the release prior to commencing her horseback riding lesson with the defendants. Similarly, it is undisputed that the plaintiff identified herself on the release as an “[e]xperienced [r]ider” and as someone who had “[r]idden [horses] frequently” several years earlier.

3 The “Warning” portion of the release provided as follows: “Pursuant to Connecticut General Statutes § 52-577p, [now § 52-557p] a person engaged in recreational activities assumes the risk and responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in the equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person provided the horse or horses or his agents or employees.”

[***5]

4 The “RELEASE” portion of the release provided in relevant part: “For, and in consideration of, the privilege to participate in an equine activity at Windswept Farm this date, receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees to release, discharge and acquit WINDSWEPT FARM, its owners, stockholders, officers, directors, employees, agents, and servants from any and all claims, demands, sums of money, actions, rights, causes of action, liabilities and obligations of any kind or nature whatsoever, including ordinary negligence, which I may have had or now have or claim to have had, or hereafter may have, or assert to have, which arise out of, or is in any manner whatsoever directly or indirectly, connected with or related to my participation in the equine activity on this date. . . .” (Emphasis added.)

5 The “INDEMNITY AGREEMENT” portion of the release provided in relevant part: “The undersigned represents and warrants that he/she has read and understood the above-captioned Warning and Release. . . .”

Subsequent to the plaintiff signing the release [***6] provided by the defendants, the defendants paired the plaintiff with one of the horses from their stables and with one of the instructors in their employ. During the course of the plaintiff’s horseback riding lesson, the horse provided by the defendants became excited, bucked back and forth suddenly and without warning, and threw the plaintiff to the ground, causing her serious injuries.

[*157] The plaintiff brought an action in August, 2003, alleging that she had been injured due to the defendants’ negligence. In particular, the plaintiff alleged that her injuries were caused by the “carelessness, recklessness and negligence of the defendants” including, among other things, that (1) the “defendants failed to ensure that the horse on which [she] was placed was an appropriate horse commensurate with [**1159] [the plaintiff’s] skill and experience”; (2) the “defendants failed to prevent, warn or protect the plaintiff from the risk of a fall”; (3) the “defendants knew of the horse’s propensity to buck yet failed to warn [the plaintiff] of the same”; and (4) the “defendants failed properly to hire and train their riding instructor . . . .” In their answer, the defendants raised a special defense, [***7] namely, that “[t]he plaintiff [had] assumed the risk and legal responsibility for any injury to her person per . . . General Statutes [§ ] 52-557p,” 6 and that “[t]he plaintiff’s claims [were] barred [due to the fact] that she signed a waiver/release of all claims in favor of the defendants.”

6 The “Warning” section of the release mirrors General Statutes § 52-557p, which provides: [HN2] “Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees.”

The plaintiff makes two claims on [***8] appeal. First, the plaintiff claims that the release of all claims “includ[ing] ‘ordinary negligence'” set forth in the release was ambiguous when read together with the “Warning” section printed above it, which, tracking § 52-557p, did not exempt from liability injuries “proximately caused by the negligence of the person providing the horse or horses to the individual engaged in the equestrian activities . . . .” Second, pursuant to our order for supplemental [*158] briefing, the plaintiff claims that the release is void as a matter of public policy in light of this court’s decision in Hanks v.Powder Ridge Restaurant Corp., supra, 276 Conn. 314. We agree with the plaintiff that our decision in Hanks controls the present case. Accordingly, we need not consider the plaintiff’s claim that the trial court incorrectly concluded that the release signed by the plaintiff was clear and unambiguous. 7

7 Specifically, assuming that the standards identified in Hanks have been satisfied, as we conclude in the present case, it is irrelevant whether the underlying release of liability was clearly and unambiguously drafted and, therefore, was also invalid pursuant to our holding in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643, which provided that “a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.”

[***9] We begin with the appropriate standard of review. [HN3] “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. . . . [HN4] The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . [HN5] Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).

[**1160] In light of our holding in Hanks, we cannot conclude that the defendants are entitled to a judgment [***10] in their [*159] favor as a matter of law. Put another way, our reasoning in Hanks requires that we invalidate the release signed by the plaintiff; thus, several genuine issues of material fact surrounding the defendants’ potential negligence remain in dispute.

As previously noted, in Hanks, we concluded that [HN6] the enforcement of a well drafted exculpatory agreement that releases a provider of a recreational activity from prospective liability for personal injuries sustained as a result of the provider’s negligence may violate public policy if certain conditions are met. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326. In general, we noted that “[t]he law does not favor contract provisions which relieve a person from his own negligence . . . . This is because exculpatory provisions undermine the policy considerations governing our tort system . . . [which include] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . .” (Citation omitted; internal quotation marks omitted.) Id., 327. Moreover, we recognized that “it is consistent [***11] 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.” (Internal quotation marks omitted.) Id.

Additionally, when assessing the public policy implications of a particular release or waiver of liability, we concluded that “[n]o definition of the concept of public interest [may] be contained within the four corners of a formula,” and that “[t]he 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.” (Internal quotation marks omitted.) Id., 330. Our [*160] analysis in Hanks was also guided, though not limited, by the factors articulated by the Supreme Court of California in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 98-101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), 8 which include, among other things, [HN7] a consideration as to whether the release pertains to a business thought suitable for [***12] public regulation, whether the party performing the service holds himself out as making the activity available to any member of the public who seeks it, and whether the provider of the activity exercises superior bargaining power [**1161] and confronts the public with a standard contract of adhesion.

8 The complete list of factors identified by the Supreme Court of California are as follows: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] 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. [3] 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. [4] 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. [5] 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. [6] 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 the University of California, supra, 60 Cal.2d 98-101.

[***13] In the context of snowtubing, which was the recreational activity at issue in Hanks, we placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and [*161] offered to the plaintiff on a “‘take it or leave it'” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 331-34. Moreover, we recognized the clear public policy in favor of participation in athletics and recreational activities. Id., 335 (“[v]oluntary 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”).

We conclude that, based on our decision in Hanks, the totality of the circumstances surrounding [***14] the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Additionally, in the present case, as in Hanks, the plaintiff “lacked the knowledge, experience [***15] and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition.” Hanks v. Powder Ridge Restaurant [*162] Corp., supra, 276 Conn. 331. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider 9 to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” (Internal quotation marks omitted.) Id., 331-32. In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. [**1162] In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any [***16] hidden dangers associated with the recreational activity including the temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

9 We also note that we view the release as it applies to all customers, not solely this plaintiff, who happened to have significant riding experience, albeit several years prior to the date of her accident.

Furthermore, the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks. [***17] Specifically, we have noted that [HN8] “[t]he most salient feature [*163] [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts,” and that they tend to involve 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 . . . .” (Internal quotation marks omitted.) Id., 333. In the present case, signing the release provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position [***18] to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

We are also mindful that, as evidenced by § 52-557p, recreational horseback riding is a business thought suitable for public regulation, but that the legislature has stopped short of requiring participants to bear the very risk that the defendants now seek to pass on to the plaintiff by way of a mandatory release. In particular, the legislature has prescribed that “[e]ach person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual . . . .” [*164] (Emphasis added.) General Statutes § 52-557p; see footnote 6 of this opinion. This language establishes that the plaintiff assumed the risk for certain injuries when riding at the defendants’ facility due to the nature of horseback riding as an activity, but that an operator of such a facility can still be liable [***19] for injuries caused by its own negligence. For the reasons previously discussed, we conclude that the defendants’ attempt contractually to extend the plaintiff’s assumption of risk one step beyond that identified by the legislature in § 52-557p violates the public policy of the state and, therefore, is invalid.

The defendants contend that the plaintiff’s only claim before the trial court was that the release was ambiguous, and that the plaintiff otherwise conceded the [**1163] release’s enforceability, thereby failing to preserve for appeal the issue of whether the release violated public policy. 10 Put another way, the defendants contend that the issue before the trial court was only whether the addition of the “warning” language to the release as a whole resulted in contradictory language, and that regardless of our decision in Hanks, we still must decide the issue articulated by the trial court. We disagree.

10 As part of the defendants’ motion for summary judgment, and in an effort to clarify the plaintiff’s case, the trial court asked the plaintiff directly if the release were found to be clear and unambiguous, would it be enforceable: “The Court: You are not trying to claim that it’s not possible under Connecticut law for a person in the defendants’ position to present an effective release to a horse rider and then to rely upon it to avoid liability, are you? “[Plaintiff’s Counsel]: Absolutely not, Your Honor. . . . “The Court: Okay. Then . . . so that what we have to do is to determine whether this is a sufficient release. That’s the only issue before us. “[Plaintiff’s Counsel]: Absolutely, Your Honor.” (Emphasis added.)

[***20] We recognize that [HN9] this court is not “bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 60-5; see also Pestey v. Cushman, 259 Conn. 345, 372-74, 788 A.2d 496 (2002). Additionally, as a general rule, “[a] [*165] party cannot present a case to the trial court on one theory and then ask a reversal in the [S]upreme [C]ourt on another.” (Internal quotation marks omitted.) Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 770, 717 A.2d 150 (1998). This court, however, has the discretion to act, sua sponte, on grounds not directly raised by the parties. See Burton v. Browd, 258 Conn. 566, 569, 783 A.2d 457 (2001). That is exactly what we did in the present case when, in light of our decision in Hanks, we ordered the parties to brief the issue of whether the release was void as a matter of public policy. 11 In sum, because Hanks resolved an issue previously unaddressed, and because the parties had the opportunity to brief the case’s impact, we conclude that the interest in the uniform application of the plainly [***21] governing law warrants our consideration of a claim beyond the narrow issue that was before the trial court.

11 See footnote 2 of this opinion.

Finally, the defendants contend that horseback riding is somehow different from snowtubing and, therefore, that the defendants’ release does not violate public policy. In particular, the defendants note that horseback riding is not one of the recreational activities that we specifically identified by name in Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 335, and that, unlike in Hanks, which involved an injury caused by a defective snowtube run, in the present case the plaintiff was injured when the horse she was riding bucked and threw her to the ground. The defendants claim that this distinction is significant because they characterize a bucking horse as a risk that is inherent to horseback riding in general. We are not persuaded.

The list of recreational activities that we identified in Hanks was meant to be illustrative, [***22] not exhaustive. See id. Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks [*166] decision. 12 Additionally, as previously [**1164] discussed in detail, the circumstances surrounding the defendants’ horseback riding business and the signing of the release by the plaintiff bear many similarities to the circumstances present in Hanks. In particular, the defendants’ horseback riding business was open to the general public regardless of skill level, the plaintiff was ill equipped to discern whether she had been paired negligently with her horse and instructor commensurate with her skill level, the defendants controlled which horse and instructor were assigned to the plaintiff, and the defendants’ release constituted a classic contract of adhesion.

12 We are mindful that contrary to the defendants’ argument, our courts repeatedly have referenced horseback riding as a recreational activity. See Conway v. Wilton, 238 Conn. 653, 668, 680 A.2d 242 (1996) (state legislator commenting on necessity of “maintaining land that could very well serve for . . . horseback riding and for many other recreational activities”); Miskimen v. Biber, 85 Conn. App. 615, 620, 858 A.2d 806 (2004) (“[t]he excess land is also used for . . . horseback riding and other recreational activities”), cert. denied, 272 Conn. 916, 866 A.2d 1287 (2005). Moreover, our characterization of snowtubing as a recreational activity; see Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 330; does not, in and of itself, dictate our public policy.

[***23] Furthermore, the fact that there are certain risks that are inherent to horseback riding as a recreational activity, as the legislature recognized in § 52-557p, one of which may be that horses move unexpectedly, does not change the fact that an operator’s negligence may contribute greatly to that risk. For example, the defendants’ may have negligently paired the plaintiff with an inappropriate horse given the length of time since she last had ridden or negligently paired the plaintiff with an instructor who had not properly been trained on how to handle the horse in question. Both of these scenarios present factual questions that, at trial, may reveal that the defendants’ negligence, and not an inherent risk of the activity, was to blame for the plaintiff’s injuries.

[*167] Moreover, as aptly noted at oral argument before this court, the plaintiff does not challenge the fact that there were risks inherent in the activity of horseback riding that she otherwise was prepared to assume. Rather, she challenges the defendants’ claimed indemnity from the alleged neglect and carelessness of the stable operator and its employees to whom she entrusted her safety. Indeed, the inherent unpredictability [***24] of a horse is something that the legislature already has considered in providing to an operator of a horseback riding facility a defense to a claim of negligence pursuant to the assumption of risk doctrine codified in § 52-557p. This protection granted by the legislature, however, does not permit the operator to avoid liability entirely for its negligence or that of its employees. Accordingly, on the basis of our decision in Hanks, as well as the circumstances of the present case, we are unable to conclude that the recreational activity of horseback riding is so different from snowtubing that the release in this case should be enforced as a matter of law.

The judgment is reversed and the case is remanded to the trial court with direction to deny the defendants’ motion for summary judgment, and for further proceedings according to law.

In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.

CONCUR BY: NORCOTT

CONCUR

NORCOTT, J., concurring. I agree with the majority that this court’s holding in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) [***25] , controls the present case.


No one saw the deceased drown; no one could prove what happened. Campground was not liable for death of a swimmer.

Legally if a tree falls in the woods and no one is around to see it fall it does not make any noise.

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

State: Connecticut, Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport

Plaintiff: Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro

Defendant: Odetah Camping Resort, Inc.

Plaintiff Claims: failure to provide lifeguards and knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

Defendant Defenses: No proximate causation

Holding: for the Defendant

Year: 2015

The defendant is a camping area that allows day users in order to access other recreational opportunities at the campground.

The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. T

The plaintiff and friends entered the defendant’s campground and paid an entrance fee. The campground was adjacent to a large lake. There was a swimming area on the campground and roped off in the lake. Outside of the roped area were two large inflatable platforms, one described as a trampoline and the other described as an “iceberg.”

There were no lifeguards at either the defendant’s pool or the lake area. A single sign was posted that warned that there were no lifeguards at the lake.

The plaintiff and a friend entered the designated swimming area for the purpose of swimming out to the trampoline. The trampoline was just beyond the buoy line. The friend made it to the trampoline. However, the plaintiff, deceased never did.

When it was noticed he was missing 911 was called. A firefighter found the deceased floating just below the surface inside the swimming area. A postmortem autopsy determined the cause of death to be “asphyxia due to submersion.”

No one saw the deceased struggling or in distress, and no one saw him drown.

The case went to trial on two theories:

The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

The jury returned a verdict based on the second issue. The defendant filed an appeal.

Analysis: making sense of the law based on these facts.

Under Connecticut law to establish a basic or prima facie case, the plaintiff must:

[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor.

To win its case the plaintiff must prove negligence.

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.”

The defendants’ defense was no one saw the deceased drown. There was thus no proof of causation.

Interrogatories were provided to the jury. Interrogatories are questions the jury must answer in reaching its decision or in deciding the case. The interrogatory answers seemed to focus on the fight the owner’s manual of the trampoline warned that users should wear life jackets. Life jackets were available to swimmers in a shed on the beach; however, they were not required to be worn.

The plaintiff hired an expert witness who opined that the defendant campground was liable for failing to have safety measures in place, failing to have life guards and failing to have an emergency safety plan. However, these breaches of duty, if true, still had no link to how the decedent died. There was no way to say having one of the missing items identified by the expert witness was not proof that the plaintiff might have lived. “To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct…

The court reversed the jury’s decision because there was no evidence of what happened to the plaintiff. Consequently, there was no relationship, no causal link between the failures to require life jackets to the deceased’s death.

The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.”

The appellate court reversed the jury findings.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what caused this drowning is fatal to the plaintiff’s case.

So Now What?

It is sad when someone dies. However, just because someone dies or a bandage is used, does not mean there is liability and the need to write a check. There must be a connection between something the defendant did wrong and the injury to the victim.

That connection in Connecticut must be an unbroken string of events linking the plaintiff’s injuries to the defendant’s conduct.

 

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De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro v. Odetah Camping Resort, Inc.

FBTCV126026625

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2015 Conn. Super. LEXIS 2297

September 2, 2015, Decided

September 2, 2015, 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.

JUDGES: [*1] Michael P. Kamp, J.

OPINION BY: Michael P. Kamp

OPINION

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

PROCEDURAL BACKGROUND

The defendant, Odetah Camping Resort, Inc., has filed a renewal of its motion for directed verdict and a motion to set aside the jury’s verdict.1 The trial commenced on April 28, 2015, and evidence concluded on May 6, 2015, when the defense rested its case. The jury received the charge on the law on May 6, 2015. On May 6, 2015, the jury returned a verdict for the plaintiff, Adelson Luiz DeCastro, Administrator of the Estate of Jose Luiz DeCastro, and awarded total damages of $229,155.96. Regarding the question of comparative negligence, the jury found the plaintiff’s decedent, Jose DeCastro, was 49% responsible for his own injuries.

1 The defendant originally moved for a directed verdict at the close of the plaintiff’s case in chief. At that time, the court reserved decision, and the defendant commenced its defense. On close of the defendant’s case, the matter was submitted to the jury.

The defendant filed its motion to set aside the verdict on May 15, 2015. The plaintiff filed its objection to the defendant’s motion [*2] on May 19, 2015. On June 22, 2015, the court heard the matter at short calendar and took the papers.

The defendant argues in its motion that the plaintiff failed to prove beyond the realm of surmise and speculation that the defendant’s negligence was the proximate cause of the death of the decedent. This argument is based upon a lack of evidence as to what actually caused the decedent to drown.

II

FACTS

After a trial, the jury could have found as follows. On July 7, 2011, the decedent and a group of friends went to the defendant resort located in Bozrah, Connecticut. In order to gain entrance, the decedent paid an entrance fee. The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just [*3] beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. The defendant did not provide lifeguards at the pool or lake swim area. A single sign was posted at one end of the beach area, indicating: “No Lifeguard on Duty. Swim at Your Own Risk.” No employees of the defendant directly supervised the lake swimming area.

On July 9, 2011, the decedent and his friend, Saulo Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line. When Sousa reached the rope line, he observed the decedent immediately behind him in the water. The depth of the water at this location was approximately six feet. As Sousa lifted the rope line to duck under it, he observed the decedent diving forward and under the rope. When Sousa reached the trampoline, he climbed on it but did not observe the decedent. After spending a few minutes on the trampoline, Sousa reentered the water and swam to the shore. After unsuccessfully attempting to locate the decedent, employees of the defendant [*4] were notified that he was missing. After a brief search, 911 emergency services were dispatched, and Bozrah firefighters and rescue personnel responded to the scene. When notified that the decedent was last seen in the designated swim area near the buoy line, firefighter Colin Laffey entered the water and located the decedent floating unresponsive just below the surface of the water just inside the buoy line. Laffey testified that he located the decedent in an area where the depth of the water was less than six feet. The decedent was brought to shore, and CPR was administered. The decedent was then transported by ambulance to Backus Hospital, but never regained consciousness and was pronounced dead. A postmortem autopsy determined the cause of death to be asphyxia due to submersion. The postmortem examination was negative for any signs of illness, traumatic injury, or any preexisting medical condition or disease. A toxicology examination was negative for the presence of any drugs, alcohol, or medication.

The decedent’s drowning was unwitnessed despite the fact that there were numerous people in the water and on the beach. Although other members of the decedent’s group, including his [*5] girlfriend, were on the beach adjacent to the swimming area, no one saw him in distress or struggling in the water. He was identified by his friends as a good or strong swimmer.

III

DISCUSSION

Practice Book §16-37 provides, in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” “Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal [*6] quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn.App. 556, 565-66, 874 A.2d 259 (2005).

Likewise, “[a] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury.” (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010), rev’d on other grounds, Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 32 A.3d 318 (2011).

“[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] [*7] favor.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn.App. 447, 455-56, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.” Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “[I]t is not the function of [the trial] court to sit as the seventh juror when [it] review[s] the sufficiency of the evidence . . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier’s] verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if [the trial] court disagrees with it.” (Internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under [*8] the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Insurance Company, 310 Conn. 768, 776-77, 83 A.3d 576 (2014).

The defendant’s primary argument is that no one [*9] witnessed the decedent’s drowning, and there was no evidence offered as to what caused him to drown. The defendant relies on Wu v. Fairfield, 204 Conn. 435, 528 A.2d 364 (1987). In Wu, the plaintiff’s decedent who was fifteen years old, went to Lake Mohegan, a freshwater lake, with her mother and two brothers for an afternoon of swimming. Id., 437. There was a designated swim area marked by a buoy line. At the time of the occurrence, there were four lifeguards on duty. Id. Those lifeguards had observed that the plaintiff’s decedent was a poor swimmer and had warned her twice to return to the shallow portion of the designated swim area. Id. When an approaching storm prompted the lifeguards to clear the water, the plaintiff’s decedent did not return to shore. Id. After a search, one of the lifeguards found the decedent’s body at the bottom of the lake in the designated swim area but beyond the shallow portion. Id., 437-38. The plaintiff alleged that the town and several of its employees, the lifeguards, were negligent in the performance of their duties. Id., 436. A jury returned a verdict for the defendants. Id. The plaintiff then filed a motion to set aside the verdict, which motion was denied. Id. In affirming the trial court’s denial of the plaintiff’s [*10] motion to set aside the verdict, the court held that “[w]hile it is undisputed that the decedent drowned, there was no evidence tying any negligence on the defendant lifeguards’ part to her death . . . Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning.” Id., 440.

In this case, the plaintiff’s May 4, 2015 amended complaint contained two specifications of negligence as to the conduct of the defendant. The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so. In response to jury interrogatories submitted by the court the jury found that the defendant was negligent with regard to the second specification but not the first. With regard to the claim of negligence concerning encouraging [*11] swimmers to use the flotation devices, the plaintiff relied on testimony that the owner’s manual for the two devices contained warnings that recommended users wear life vests. Although life vests were available in a shed adjacent to the lake swim area, the defendant did not require guests entering the lake or using any of the flotation devices to wear them. In addition, the plaintiff argued that the defendant failed to properly supervise and monitor the swimming area and had an inadequate emergency rescue plan.

The plaintiff offered the testimony of Gerald Dworkin, an aquatic safety expert. Dworkin offered opinion testimony regarding the defendant’s lack of safety measures including its failure to have lifeguards monitoring the swim area. Dworkin was also critical of the defendant’s lack of an emergency safety plan. Dworkin did not, however, offer any opinion testimony as to what actually caused the decedent to drown. He affirmed that it was an unwitnessed drowning. In addition, although the owner’s manuals for the flotation devices recommended the use of life vests, the decedent was not using either device when he drowned; the little evidence there is indicates he never left the designated [*12] swim area. The flotation devices were located outside that designated area.

Here, as in Wu, the plaintiff presented no evidence other than that the decedent died in an unwitnessed drowning. There was no evidence as to what caused the decedent to drown. In the absence of any such evidence, any number of factual possibilities could explain this accident. Without any evidence as to what caused this unfortunate incident, only speculation and conjecture could link the plaintiff’s drowning to the negligent conduct of the defendant. The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town Of Fairfield, supra, 204 Conn. 441.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what [*13] caused this drowning is fatal to the plaintiff’s case.

IV

CONCLUSION

Because the plaintiff failed to establish that the negligent conduct of the defendant was the proximate cause of the decedent’s drowning, the defendant’s motion to set aside the verdict is granted. Judgment may enter for the defendant.

KAMP, J.


Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.

Failure of the plaintiff to find an expert witness in a case requiring an expert results in dismissal of the plaintiff’s complaint.

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

State: Connecticut, United States District Court for the District of Connecticut

Plaintiff: Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis

Defendant: Y.M.C.A. Camp Mohawk, Inc.

Plaintiff Claims: negligence and consequential damages

Defendant Defenses: Plaintiff cannot prove their case because they do not have an expert witness qualified to prove their claims.

Holding: Plaintiff

Year: 2014

The plaintiff attended the day camp of the defendants. One of the activities was horseback riding. For one of various reasons, the plaintiff was given a pony to ride rather than a horse. While riding the horse, the plaintiff fell over the shoulder or head of the horse suffering injuries.

The plaintiff sued for negligence and consequential damages (which is slightly confusing). The plaintiff hired an expert witness to prove their case that had no qualifications as a horse expert. The plaintiff’s expert was then disqualified. Because under Connecticut law, an expert witness was needed to prove the plaintiff’s case, the case was dismissed. The plaintiff appealed.

Analysis: making sense of the law based upon these facts.

The court first looked at what an expert witness is and when a case requires an expert witness. An expert witness is a person that is qualified to prove testimony as an expert because of their knowledge, skill, experience, training or education. “…the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.”

The plaintiff’s expert had no “education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.” His work experience also provided no background in horses or horseback riding. Consequently, the plaintiff’s expert was not qualified to be an expert witness.

The next issue was whether or not an expert was needed to prove the case.

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror.

The court then looked at whether the average jury would know enough about horses to understand the case. This court looked at a prior ruling on the subject:

The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Therefore, the court concluded; it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.”

The court reached this conclusion. “The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors.”

Because the plaintiff did not have an expert witness, the plaintiff was unable to prove their case. The court upheld the dismissal of the case.

So Now What?

This is an extremely rare decision, in fact, the first I have ever read. It is paramount that if you are involved in litigation, you assist your defense attorney in finding the best expert witness you can for your case. That means two things.

1.                  The expert has the necessary qualifications to be an expert.

2.                The expert has the ability to convey their opinion to the jury in a way the jury will understand.

You can have the most qualified person in the world as your expert but if he or she is unable to convey the message in a way the jury will understand you may still lose your case.

What do you think? Leave a comment.

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Summer Camp, Day Camp, Horse, Pony, Horseback Riding, Expert Witness, Expert Qualifications,

 


Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis, Plaintiffs, v. Y.M.C.A. Camp Mohawk, Inc., Defendant.

Civil No. 3:12cv515(AWT)

United States District Court for the District of Connecticut

2014 U.S. Dist. LEXIS 110403

August 11, 2014, Decided

August 11, 2014, Filed

COUNSEL: [*1] For Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiffs: James V. Sabatini, Megan Leigh Piltz, LEAD ATTORNEYS, Sabatini & Associates, Newington, CT.

For Y.M.C.A. Camp Mohawk, Inc., Defendant: Katherine L. Matthews, Renee Wocl Dwyer, LEAD ATTORNEYS, Gordon, Muir & Foley, Hartford, CT.

JUDGES: Alvin W. Thompson, United States District Judge.

OPINION BY: Alvin W. Thompson

OPINION

RULING ON MOTION FOR SUMMARY JUDGMENT

This action arises out of injuries suffered by the minor plaintiff, Louisa Ellis (the “Camper”), when she fell from a horse while participating in activities at a day camp operated by the defendant, Y.M.C.A. Camp Mohawk, Inc. (“Camp Mohawk”). The plaintiffs’ complaint consists of two counts, one for negligence and one for consequential damages. Camp Mohawk has moved for summary judgment on both counts. For the reasons set forth below, the defendant’s motion is being granted.

I. FACTUAL BACKGROUND

On July 18, 2011, the Camper participated in a horseback riding lesson while attending Camp Mohawk’s day camp in Cornwall, Connecticut. During this lesson, the Camper was assigned a pony, named Geri, to ride. The plaintiffs claim that the Camper was given a pony rather than a horse because Camp Mohawk [*2] did not have enough horses for all of the campers to ride. At some point during the lesson, the Camper lost control of the pony and was thrown over the pony’s shoulder or head. The Camper allegedly had her hands caught in the pony’s reins when she fell.

The complaint alleges that the Camper’s fall, as well as the injuries and losses the plaintiffs have suffered as a result of the fall, were caused by Camp Mohawk’s negligence. Specifically, the plaintiffs list 10 ways in which they believe Camp Mohawk was negligent with respect to the Camper’s horseback riding lesson:

(a) In that the pony was of an insufficient size for the plaintiff to properly and safely ride;

(b) In that the plaintiff’s weight and/or height exceed the reasonably safe riding weight for the pony assigned to the plaintiff;

(c) In that the riding equipment on the pony (the stirrups) were improperly installed or fitted thereby rendering the pony unsafe for the plaintiff to ride;

(d) In that the pony was not adequately and/or properly trained thus rendering the pony unsafe and hazardous for the plaintiff to ride;

(e) In [*3] that the pony was of a disobedient disposition thereby causing the pony to be unsafe for riding by the plaintiff;

(f) In that the defendant failed to properly or adequately train and instruct its employees;

(g) In that the defendant failed to properly and adequately supervise the camp students including the plaintiff;

(h) In that the defendant failed to properly or []adequately instruct or teach the camp students including the plaintiff on how to safely and properly ride on a pony;

(i) In that the defendant failed to warn the plaintiff of the dangers and hazards associated with riding the pony; and

(j) In that the defendant could not have reasonably assumed that the plaintiff, a minor, possessed the experience and judgment necessary to fully appreciate the dangerous condition of the pony and/or the full extent of the risk involved.

(Complaint (Doc. No. 1), at 3-4.)

II. LEGAL STANDARD

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [*4] Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). Rule 56(a) “mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is well-established that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.” Anderson, 477 U.S. at 255. Thus, the trial court’s task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined . . . to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

Summary [*5] judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Id. As the Court observed in Anderson: “[T]he materiality determination rests on the substantive law, [and] it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Id. Thus, only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. When confronted with an asserted factual dispute, the court must examine the elements of the claims and defenses at issue on the motion to determine whether a resolution of that dispute could affect the disposition of any of those claims or defenses. Immaterial or minor facts will not prevent summary [*6] judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).

When reviewing the evidence on a motion for summary judgment, the court must “assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)). Because credibility is not an issue on summary judgment, the nonmovant’s evidence must be accepted as true for purposes of the motion. Nonetheless, the inferences drawn in favor of the nonmovant must be supported by the evidence. “[M]ere speculation and conjecture is insufficient to defeat a motion for summary judgment.” Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (internal quotation marks omitted) (quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)). Moreover, the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which [a] jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

Finally, the nonmoving party cannot [*7] simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 324. “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact,” Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, who must “demonstrate more than some metaphysical doubt as to the material facts, . . . [and] must come forward with specific facts showing that there is a genuine issue for trial.” Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quotation marks, citations and emphasis omitted). Furthermore, “unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant fails to meet this burden, summary judgment should be granted.

III. DISCUSSION

Camp Mohawk argues that summary judgment is appropriate here because expert testimony is required to establish the standard of care and breach of duty with respect to instruction in horseback riding, and the plaintiff has not offered [*8] a relevant opinion from a qualified expert.

A. Whether Expert Testimony is Required

“In this diversity action, the question of whether or not expert testimony is required to prove negligence is a question of [Connecticut] State law.” Conte v. Usalliance Federal Credit Union, Civ. No. 3:01-cv-463(EBB), 2007 U.S. Dist. LEXIS 82908, 2007 WL 3355381, at *3 (D. Conn. Nov. 8, 2007) (citing Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir. 2006) (“In a diversity action, whether expert testimony is required is a matter of state law[.]”)). The Connecticut Supreme Court has stated on multiple occasions that “[e]xpert testimony is required ‘when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.'” LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002) (quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961)) (emphasis in original); see also Santopietro v. City of New Haven, 239 Conn. 207, 226, 682 A.2d 106 (“If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.”); State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988) (holding that expert testimony is required when a matter is [*9] “manifestly beyond the ken of the average trier of fact, be it judge or jury”).

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror. The court concludes that the questions at issue here are such that the answers are beyond such understanding, knowledge and experience. The Connecticut Appellate Court reached a similar conclusion in Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829 (2006). The court in Keeney found that

the proper method of teaching a novice rider, the qualification necessary to be a competent and qualified instructor of a novice rider, whether to instruct such a rider to remove her or his feet from the stirrups, [and] where those stirrups should then be placed . . . are not matters within the common knowledge of the jury but, rather, are specialized matters unique to the profession of those teaching novice riders.

Id. at 376. These questions are either the same as or substantially similar to the majority of those raised by the plaintiffs in their complaint. See also Raudat v. Leary, 88 Conn. App. 44, 868 A.2d 120 (2005) [*10] (holding that expert testimony was required on the issue of whether a horse was one “that is incompletely broken or trained”) (internal quotation marks omitted)). In Keeney the court explained that “[t]he plaintiffs’ allegations in the present case are akin to allegations of professional negligence or malpractice . . . . because the defendant was rendering specialized professional service to the plaintiff.” Keeney, 93 Conn. App. at 375. The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Id. Therefore, the court concluded, it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.” Id. at 376.

The same reasoning is applicable here. The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors. Since Keeny, the general public has not become more familiar with horsemanship or [*11] the appropriate method for teaching minors how to ride horses. Therefore, the issues raised by the plaintiffs’ contentions as to all the ways in which Camp Mohawk was negligent require expert testimony.

The plaintiffs’ arguments to the contrary are not persuasive. The plaintiffs point to three issues they claim do not require expert testimony: “whether [the Camper] was too big to be riding Geri the pony to begin with”; “whether [the Camper’s] stirrups were properly adjusted prior to beginning her lesson”; and “whether Geri the pony was disobedient.” (Pl.’s Mem. Opp. Mot. Summ. J. (Doc. No. 48) (“Pl.’s Mem.”), at 10-11.) In support of this contention, the plaintiffs point to excerpts of deposition testimony by a number of witnesses that included substantially similar statements. However, the mere existence of a lay opinion regarding a particular issue does not obviate the necessity of an expert opinion on that same issue, if an expert opinion is required in the first place. None of the deponents cited are the plaintiffs’ expert. Therefore, their testimony does not suffice to create a genuine issue of material fact as to these issues.

B. Whether the Plaintiffs’ Expert is Qualified

The defendants [*12] argue that because expert testimony is required on the issues raised by the plaintiffs’ contentions, summary judgment should be granted because the only expert the plaintiffs have identified is not qualified to give an expert opinion on those issues. The court agrees.

Under Federal Rule of Evidence 702 a witness may serve as an expert if he or she “is qualified as an expert by knowledge, skill, experience, training, or education.” Among other requirements, “the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.” Id. The plaintiffs have disclosed Corey Andres of Robson Forensic as their expert. His expert report contains a description of his education and experience. He has no education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.

In 1998, Andres received a Bachelor’s of Education with a major in therapeutic recreation and a minor in psychology. He received a Master’s of Education with a major in therapeutic arts in 1999. In 2005, Andres received a Master’s of Arts in educational [*13] policy and leadership; in connection with that degree, he participated in the Principal Licensure Cohort Program. His work experience is comprised of working as a graduate teaching assistant from 1998 to 1999 (where his focus was community recreation programming), working as a 4th and 5th grade teacher from 2001 to 2002, and working as an intervention specialist teacher at a high school in Ohio from 2002 to the present; in that capacity he leads a department of 36 professionals that serve special needs students. Since 2010 he has also been an associate at Robson Forensic, Inc.

In high school and college, Andres was involved with football, lacrosse, track, tennis and various intramural sports, in addition to being a certified lifeguard. He worked at a summer camp in 1995 instructing skills and techniques of golf, basketball, baseball, waterfront activities and tennis. He subsequently worked at camps in a number positions during the period from 1995 to 2008 and taught weightlifting and lacrosse. He has coached lacrosse and also served as a weight room supervisor, giving instructions on proper lifting techniques and exercises.

His resume indicates that his work for Robson Forensic, Inc. [*14] has involved providing technical investigations, analysis reports and testimony in connection with commercial and personal injury litigation involving: school administration, child supervision, recreation and sports programing, coaching, camp supervision and administration, weight training and athletic conditioning.

The only indication that he has had any involvement whatsoever with horseback riding is the fact that at page 6 of his report he cites in footnotes three publications on which he has relied in preparing his report.

At issue in Keeney was whether the plaintiff’s riding instructor was negligent in providing an unsafe instruction to a novice rider. The court concluded that the trial court had not abused its discretion in precluding the proposed expert witness from testifying about the appropriate standard for a riding instructor to teach a young novice rider, explaining

The issue in this case, however, was whether Heather Keeney’s riding instructor was negligent in providing an unsafe instruction to this novice rider. The expert, although having been a certified horse riding instructor since 1973, testified that she had not trained young novice riders in more than twenty years, [*15] had taken no refresher courses in training students, had no specialized training in the use of lunge lines with novice riders, had never prepared any instructional or training materials for instructors, had never served on a safety committee and had never taught riding instructors. On the basis of this testimony, we cannot conclude that the court abused its discretion in precluding this witness from testifying as to the appropriate standard for a riding instructor to teach a young novice rider.

93 Conn. App. 372-73.

Andres falls far short of having the qualifications possessed by the proffered expert in Keeney. Because expert testimony is required for the plaintiffs to establish their case and they have failed to produce a qualified expert, they have failed to create a genuine issue of material fact as to any of the issues raised in the complaint, and the defendant is entitled to judgment as a matter of law.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment (Doc. No. 43) is hereby GRANTED.

The Clerk shall enter judgment in favor of defendant Y.M.C.A. Camp Mohawk, Inc. as to all the claims in the complaint and close this case.

It is so ordered.

Dated this [*16] 11th day of August, 2014, at Hartford, Connecticut.

/s/ Alvin W. Thompson

United States District Judge


Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.

Release failed the CT Supreme Court test for releases, and the appellate court slammed the climbing wall.

Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford

Plaintiff: Isadora Machado Lecuna

Defendant: Carabiners Fairfield, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Year: 2014

Holding: for the plaintiff

The plaintiff sued the climbing gym when she fell from a climbing wall injuring her knee and leg. The plaintiff was bouldering when a hold spun causing her to fall. She fell suffering her injuries. She claimed that there was no one there to spot her, and the landing was not padded.

The defendants filed a motion for summary judgment based on the release the plaintiff had signed when she joined the gym. The trial court granted the dismissal based on the motion, and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The court starts off fairly quickly stating the motion for summary judgment failed for four reasons. The first was the court did not see the spinning hold as an inherent risk of the sport of climbing. The plaintiff also argued that since the area has just been opened that day to the public, the hold should have been checked before opening, which the judge also bought.

The court found “…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.”

The second issue was the employee who was supposed to spot the plaintiff had walked away. This was proved to the court by the statement by the employee apologizing upon his return: “…staff member apologized to the plaintiff and admitted he should not have left.”

The third issue was the bouldering cave there the accident occurred only had carpet over concrete instead of padding. The standard for this gym was padding, because the gym had padding every place else. If you are going to change or alter the safety equipment in your operation, you need to notice the people in the release and place notices where they can be seen.

The final decision was the release being used by the plaintiff did not meet the requirements for a release in Connecticut. The Supreme Court of Connecticut decision Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) set forth six factors for a release to be valid in Connecticut.

This court did not list the factors that the release under question failed; it just stated this decision missed three of the six.

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. 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.

Based on these four factors the court quickly sent the case back for trial.

So Now What?

This decision was short and sweet and really only looked at the evidence of the plaintiff. Either the defendant release was so terrible the court could not deal with it or the actions of the defendant were such the court was not going to allow the defendant to win.

There was not a single argument supporting any position of the defendant in the decision. That is odd.

When writing a release you list the major risks, the minor risks and the risks that occur all the time. A spinning hold is something that occurs with enough frequency at a climbing gym that it should be listed in your release. That in turn might have wiped out the first argument the court objected to.

Anything you say in the heat of the moment is admitable as evidence under the excited utterance exception to the hearsay evidentiary rule. That means it is easy to get these statements into the record. Make sure your staff is trained in how to respond physically and orally to problems.

No matter what if there is a Supreme Court decision in your state that lists the requirements for a release to be valid you better well make sure your release meets those requirements.

What do you think? Leave a comment.

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Email: Rec-law@recreation-law.com

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Connecticut, Release, Climbing Wall, Bouldering, Padding, Hold,

 


Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

Isadora Machado Lecuna v. Carabiners Fairfield, LLC

FSTCV136017951S

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

OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (115.00)

I. Background

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.

III. Discussion

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

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.

(SC 17327)

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.

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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.

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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.

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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.

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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”).

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n4 That exculpatory agreement provided:

”SNOWTUBING

”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.

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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).

I

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.)

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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.)

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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.

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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.’”

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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.

II

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: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] 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. [3] 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. [4] 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. [5] 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. [6] 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.

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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.

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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: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] 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: [1] one party is at an obvious disadvantage in bargaining power; [2] 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

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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.

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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.

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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.

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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.

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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.

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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.

DISSENTBY: NORCOTT

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.

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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.

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”The attempted but invalid [release agreement] involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] 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. [3] 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. [4] 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. [5] 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. [6] 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

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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: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] 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: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is involved [public utility companies, common carriers]”).

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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.

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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.)

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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

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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

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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.”).

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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”).

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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.”

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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

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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.

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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.


Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.

LLICV095006358S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD

2012 Conn. Super. LEXIS 2684

November 1, 2012, Decided

November 2, 2012, 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.

JUDGES: [*1] John W. Pickard, J.

OPINION BY: John W. Pickard

OPINION

MEMORANDUM OF DECISION

This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.

I. Personal Liability of David and Sharon Miskit

The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”

Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.'” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.

The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.

Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”

The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”

[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.

Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.

The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”

[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.1 The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] 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.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:

a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:

b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:

c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;

d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”

II. Open and Obvious

The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.

The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.

Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.

III. Conclusion

For the reasons given above, the motion for summary judgment is denied.

BY THE COURT,

John W. Pickard

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Connecticut statute allows Camp Director to be personal liable for injuries of camper

Connecticut has been moving towards the defendant is liable no matter what attitude.

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

Plaintiff: John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers

Defendant: Summerland, Inc. dba Camp Kenwood, David B. Miskit and Sharon B. Miskit, Camp Directors

Plaintiff Claims: negligence

Defendant Defenses: individuals not personally liable and dangers were open and obvious to the plaintiff.

Holding: For the plaintiff, Connecticut statute creates personal liability for the camp directors and the open and obvious argument is a genuine issue of material fact to be determined by the jury.

Another case with good information, however, the case is probably not decided yet and the basis for the decision could be different than first reported.

The facts are spotty in this decision. The deceased was a thirteen-year-old  girl attending the defendant Camp Kenwood. As part of the camp, the plaintiff was mountain biking on Bald Hill Road. The road gets steeper as it descends.

The camper was biking on the road and seems to have run off the road which caused her fatality. The administrator of her estate sued the camp and the camp directors individually.

Summary of the case

This appeal was of a denial of a motion for summary judgment. The motion looked at two issues. The first was the individual camp directors should not be personally liable for the plaintiff’s claims. The second was the case should be dismissed because the risks of the riding a bike on that road is open and obvious.

The individual liability issue was the first examined by the court. Connecticut has several statutes regulating summer camps for minors. One of those statutes C.G.S. §19a-422(c) states:

[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.

Another statute C.G.S. §19a-428(a) states:

“The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff….

The regulations adopted by the Commissioner of Public Health, included Regs., Connecticut State Agencies §19-13-B27a which states:

(1) No person shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.

Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.

The plaintiffs argued that because the statutes and regulations created a duty on the part of the directors to care for the “health, comfort and safety of camps” any injury to a camper created personal liability on the part of the camp director.

The defendant argued that liability for actions of a corporation, which owned the camp, could not be imputed to an individual, which is the law in most jurisdictions. That is the argument normally made in this situation where the employee is only acting on behalf of the employer or corporation and as such the corporation has the liability. However, the statutory scheme of Connecticut eliminated that defense.

Consequently, the court easily found that the statutory and regulatory framework in Connecticut created personal liability on the camp director.

The Open and Obvious argument was easier for the court to decide. Even though two camp counselors had warned the deceased of the risks of the road, and the road’s risks were discernible to any rider, the court found that whether or not a thirteen-year-old camper recognized and understood the risks was a decision for a jury.

So Now What?

Part of any plan to develop a business must look at any statutes that apply to the business. At the same time, when the legislature is making laws that may apply to your business you need to become involved and make sure the laws will not make your business life miserable or create liability.

If the statutes or regulations create liability either for the organization, business or program which you do not want to deal with or personal liability, make sure you want to deal with that state. In the alternative make sure can afford the insurance you will need.

Here what could probably appear to be a harmless statute created personal liability for the camp director. Normally, this is a “play” made by the plaintiff to try to increase the value of the case.

However, one issue that should be explored by any camp or outfitter is if the insurance coverage of the corporation provides a defense to individuals for actions of the individual who create statutory liability.

Absent that protection, the individual defendants could be personally liable for any damages. Their homeowner’s insurance would not provide coverage for the liability that occurs because of work. Whether or not their corporate documents, articles and bylaws, provide for indemnification of employees or the board of directors is willing to pay for the damages, the employees could be stuck with the bill personally. Dependent upon how the damages are paid; this could also create a tax liability for the individuals. The final issue is whether the insurance policy provides coverage for employees liable individually.

Whenever you are dealing with kids 12-14 years of age and younger, it is fairly impossible to prove assumption of the risk or the sub-set defense of open and obvious. Unless you have a record of prior experience, a video proving the training, you are going to have a difficult time with this defense.

What do you think? Leave a comment.

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