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.