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


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.


Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury.

Issues of why the plaintiff was standing up and not getting out of the way on a tubing hill was not discussed in the appellate decision.

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

State: Illinois, Appellate Court of Illinois, First District, Fifth Division

Plaintiff: Susan Buckel

Defendant: Tube Pro Inc.

Plaintiff Claims: Negligence (based on a product liability claim)

Defendant Defenses: No proof the allegedly defective product was theirs

Holding: For the Defendant

Year: 2016

The defendant is a snow tubing operation at a city park in Illinois. The plaintiff was tubing when something sticking out of the bottom of the tube slowed her down and stopped her. While stopped on the hill the plaintiff was struck by another tuber and was injured.

The defendant filed a motion for summary judgment saying the plaintiff could not prove her case because she could not identify what tube, let alone whose tube, (manufactured by whom), was the defective tube. The court granted the defendant’s motion, and the plaintiff appealed.

There was also exculpatory language on the back of the lift ticket the plaintiff purchased. It was raised by the defendant and discussed in one paragraph in the decision, but was not used by the court to reach its conclusion.

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

The court started its decision by looking at the testimony from the plaintiff used to describe the tube she was riding. Her testimony of the color of the tube did not match the receipts from the tubing hill that showed the tubes that were purchased from the defendant. The tubes purchased from the defendant was also purchased ten years prior to the accident so very few if any of them were still in operation with the tubing hill.

Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

The defendants also introduced evidence showing that at the time tubes were purchased from the defendant, tubes were also purchased from another tube manufacturer.

The tubes sold by the defendant also had a plastic bottom, and the plaintiff testified her inner tube had a regular rubber bottom.

The court then looked at how a product liability claim based on negligence needed to be proven under Illinois’s law.

“A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused by that breach, and (4) damages. “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.”

However, the most important issue is the plaintiff must identify the manufacturer of the defective product and establish a relationship between the injury and the product. The identification of the manufacturer must be more than speculation.

Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.”

Because the tube described by the plaintiff was different from what was sold by the manufacturer and because the plaintiff did not have the actual tube, the appellate court upheld the decision of the trial court.

She testified that a photograph of a snow tube used by her son showed a red-colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against the defendant.

So Now What?

Simple but very lengthy decision because the court bent over backwards to prove why it could not rule for the plaintiff. Yet this decision is instructive because you have to have more than an injury to ask for money in a lawsuit or claim.

There must be a relationship with what caused you the injury, and the person you are claiming caused the injury and a relationship with you. Lacking one of those it does not matter if you signed a release or assumed the risk because you can’t prove negligence.

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Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Susan Buckel, Plaintiff-Appellant, v. Tube Pro Inc., Defendant-Appellee.

No. 1-15-0427

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

March 31, 2016, Decided

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 13 L 116. The Honorable Kathy M. Flanagan, Judge, presiding.

DISPOSITION: Affirmed.

JUDGES: JUSTICE GORDON delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

OPINION BY: GORDON

OPINION

JUSTICE GORDON delivered the judgment of the court.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

[*P1] Held: Where plaintiff did not and cannot produce the allegedly defective snow tube involved in her snow tubing accident or produce any photographs of the snow tube itself, and where the subject snow tube was never retrieved or examined for defects, plaintiff cannot establish a genuine issue of material fact that defendant was the manufacturer and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P2] Plaintiff Susan Buckel brought this products liability action based on a negligence theory against defendant Tube Pro Inc., seeking damages for injuries she sustained during a snow tubing accident at the Villa Olivia ski facility in Bartlett, Illinois, on January 17, 2011. Plaintiff alleges that she was injured as a result of a defective snow tube manufactured by defendant. Defendant moved [**2] for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer of the snow tube in question. Defendant further argued that, without the claimed defective snow tube, plaintiff could not prove the necessary elements to establish a prima facie case of products liability against defendant. The trial court granted defendant’s motion, and plaintiff now appeals.

[*P3] For the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of defendant.

[*P4] BACKGROUND

[*P5] I. Pleadings

[*P6] A. Complaint

[*P7] On January 4, 2013, plaintiff filed a complaint against defendants: (1) Daniel Corrado; Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia; and Villa Olivia1; (2) Tube Pro; (3) “Unknown Snow Tube Manufacturer”; and (4) “Unknown Owners and Non-Record Claimants.”

1 On July 24, 2013, the trial court granted plaintiff’s motion to voluntary dismiss without prejudice, Daniel Corrado, Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia. The record does not contain a copy of plaintiff’s motion, but includes the trial court’s order [**3] granting it.

[*P8] In her complaint, plaintiff made the following allegations:

[*P9] Plaintiff alleged that she was at Villa Olivia on January 17, 2011, and purchased a ticket to snow tube on the premises of Villa Olivia. Villa Olivia provided her with a snow tube to use, which was manufactured by defendant. As she descended down the hill using the snow tube provided by Villa Olivia, a sharp object stuck out of the tube, dug into the ground, and caused the snow tube to stop on the hill. While her snow tube was stopped on the hill, she was struck by another snow tube from behind and was injured. Plaintiff alleged her snow tube was defective.

[*P10] Only count II of plaintiff’s complaint, which is entitled “Negligence,” is directed at defendant. Plaintiff alleged that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, and sold by defendant. Plaintiff further alleged that defendant negligently designed, manufactured, distributed, and sold the snow tube equipment without appropriate safeguarding and an adequate warning label. Plaintiff also contended that defendant failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube [**4] safely, or to properly inform or instruct the purchaser of the snow tube’s use. Plaintiff alleged that defendant negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in her accident. Plaintiff claimed that, as a result of defendant’s “careless and negligent acts and omissions,” she “was severely and permanently injured both internally and externally.”

[*P11] B. Answer

[*P12] On April 18, 2013, defendant filed its “Answer and Affirmative Defense” to plaintiff’s complaint. Defendant admitted that it manufactured snow tubes, including certain snow tubes used at Villa Olivia and that, on or before January 17, 2011, it engaged in the business of designing, manufacturing, assembling, distributing, and selling snow tubes. Defendant answered that it had no knowledge regarding the truth or falsity of plaintiff’s statement that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, or sold by defendant. Defendant denied it had negligently designed, manufactured, distributed, and sold snow tube equipment without appropriate safeguarding and an adequate warning label. Defendant also denied plaintiff’s allegation [**5] that it failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube safely, or to properly inform or instruct the purchaser of the snow tube’s use. Defendant also denied that it negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in plaintiff’s accident.

[*P13] Defendant also asserted the affirmative defense of comparative negligence, claiming plaintiff was negligent in failing to observe and avoid the snow tube which allegedly struck her and was negligent in failing to move from the middle of the hill, when she knew, or in the exercise of ordinary care, should have known, that other snow tubes were descending down the hill. Defendant also claimed plaintiff was negligent in failing to properly inspect the subject snow tube prior to riding in it and was negligent in failing to keep a proper lookout. Defendant also alleged plaintiff was inattentive and unobservant to surrounding conditions and was the sole proximate cause of her alleged injuries and damages.

[*P14] C. Plaintiff’s Reply

[*P15] In response to defendant’s affirmative defense of comparative negligence, plaintiff denied she was negligent [**6] in failing to observe and avoid the snow tube which allegedly struck her or negligent in failing to move from the middle of the snow tube hill. Plaintiff also denied that she was negligent in failing to properly inspect the subject snow tube prior to riding it or that she was negligent in keeping a proper lookout. Plaintiff denied she was inattentive or unobservant to surrounding circumstances.

[*P16] D. Amended Complaint and Answer

[*P17] On July 8, 2013, plaintiff filed an amended complaint against defendant, naming as additional defendants “Village of Bartlett and the Bartlett Park District.”2 The allegations of count II, which were directed at defendant, remained substantially the same.

2 On October 28, 2013, plaintiff filed a motion to voluntarily dismiss, without prejudice, the Village of Bartlett, which the trial court granted on November 1, 2013. 735 ILCS 5/2-1009 (West 2010). Additionally, on November 1, 2013, the trial court granted defendant Bartlett Park District’s section 2-619(a)(5) motion to dismiss count V of plaintiff’s amended complaint, without prejudice. 735 ILCS 5/2-619(a)(5) (West 2010). Tube Pro is the only remaining defendant on appeal.

[*P18] On July 12, 2013, defendant filed its “Answer and Affirmative Defense to Plaintiff’s Amended Complaint,” [**7] which asserted the same affirmative defenses and denied the same allegations.

[*P19] On March 25, 2014, defendant filed a motion for leave to file an amended answer and affirmative defenses, which included the defense of comparative negligence pled in its prior answer plus additional affirmative defenses. Defendant raised the additional affirmative defense of joint and several liability and further contended that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause of action against defendant. Defendant also raised as an affirmative defense that the negligent act of the snow tube rider who struck plaintiff was an intervening or superseding cause of her accident, which barred recovery against defendant. The trial court granted the motion on March 25, 2014.

[*P20] On April 30, 2014, plaintiff filed a motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.3

3 There is no order in the record indicating whether the trial court granted plaintiff’s motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.

[*P21] While plaintiff admitted that [**8] she paid for a ticket to engage in snow tubing at Villa Olivia, she denied defendant’s allegation that, by purchasing the snow tubing ticket, she agreed to the terms and conditions of the exculpatory clause contained on the ticket. Plaintiff denied the allegation that the parties to the exculpatory clause intended that the terms and conditions of the exculpatory clause apply to defendant. Plaintiff further denied that defendant was a thirdparty beneficiary of the exculpatory clause and that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause against defendant.

[*P22] As to defendant’s additional affirmative defense of joint and several liability, plaintiff denied the allegation that the sole proximate cause of plaintiff’s accident was the negligent acts or omissions, or intentional, reckless, willful, and wanton acts or omissions, of other persons or entities not presently parties to the lawsuit, including, but not limited to, Bartlett Park District and the snow tube rider who struck her. Plaintiff further denied defendant’s allegation that, pursuant to section 2-1117 of the Illinois Code of Civil Procedure, any fault, which it specifically denied, was less than 25% of the [**9] total fault. 735 ILCS 5/2-1117 (West 2010).

[*P23] Plaintiff denied defendant’s affirmative defense that the negligent act or omission of the snow tube rider who struck her was an intervening or superseding cause of her accident, which barred recovery against defendant. Plaintiff also denied defendant’s allegation that the intervening or superseding negligent acts or omissions of the snow tube rider who struck her barred her recovery against defendant.

[*P24] On May 23, 2013, defendant filed answers to plaintiff’s interrogatories. Defendant named its president and co-founder, William Pawson, and its cofounder, Annie Pawson, as witnesses who would testify to the design, manufacture, and sale of snow tubes by defendant. Defendant also stated that William Pawson and Annie Pawson would testify that defendant manufactures snow tubes for sale and does not inspect or maintain products subsequent to sale to a customer.

[*P25] Plaintiff filed answers to defendant’s interrogatories.4 Plaintiff named certain of defendant’s employees as witnesses who would testify regarding their knowledge of the occurrence alleged in her complaint, including their observations and the policies of defendant. The witnesses included William Pawson, Annie [**10] Pawson, Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.5

4 Exhibit “A” to defendant’s motion for authorization regarding mental health records, subpoenas, and testimony contains plaintiff’s answers to defendant’s interrogatories, but it does not provide a date of filing.

5 The record does not contain a copy of the depositions of Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.

[*P26] On December 10, 2013, the trial court ordered party depositions to be completed by January 28, 2014. The depositions of William Pawson6 and Annie Pawson7 were discovery depositions.

6 Plaintiff attached an excerpt of William Pawson’s deposition in her response to defendant’s motion for summary judgment, and defendant attached the entire transcript of William Pawson’s deposition in its motion for summary judgment.

7 Plaintiff attached the entire transcript of Annie Pawson’s deposition as Exhibit “D” to her response to defendant’s motion for summary judgment.

[*P27] II. Motion for Summary Judgment

[*P28] A. Defendant’s Motion

[*P29] On September 15, 2014, defendant moved for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer [**11] of the snow tube in question. In its motion, defendant claimed that, because the snow tube was never inspected or retained after the accident, plaintiff could not prove the necessary elements to establish a prima facie case of product liability against defendant.

[*P30] In support of its motion for summary judgment, defendant relied on invoices indicating that Villa Olivia purchased snow tubes from two different companies: (1) defendant; and (2) Tough Tube Manufacturing Inc. (Tough Tube). An invoice showed that in September 2000, Villa Olivia purchased 100 snow tubes from Tough Tube. Another invoice showed that in December 2012, Villa Olivia purchased 14 refurbished snow tube covers from defendant. The invoices also showed that in 2008, Villa Olivia purchased 5 red snow tubes, 1 navy blue snow tube, and 10 refurbished snow tube covers from defendant. The invoices showed that in 2009, Villa Olivia purchased 10 royal blue snow tubes and 36 refurbished covers from defendant.

[*P31] Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to [**12] establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

[*P32] Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

[*P33] William Pawson also testified that defendant never experienced any reports that its snow tubes were defective. William Pawson testified that he was not sure “how” or “why” a protruding object could come out of plaintiff’s snow tube. He testified that: “There is just the inner tube. It’s the only accessory item inside the actual tube cover. And the valve is welded to the tube itself. So I don’t understand. I’m not sure how that could occur.”

[*P34] Defendant further relied [**13] on plaintiff’s deposition that the snow tube involved in her accident did not have a plastic bottom. Plaintiff testified that the type of material she observed on the bottom of her snow tube “[was] not plastic,” but a normal inner tube material, which she assumed was rubber. Defendant also referenced William Pawson’s testimony to show that the bottom of defendant’s snow tubes were plastic. He testified that one of defendant’s component parts for its snow tubes is a “plastic bottom.”

[*P35] Defendant cited plaintiff’s deposition to show that she could not say for certain who the manufacturer of the snow tube was. Plaintiff testified that “[she] did not look at the markings on the tube” she used at the time of her accident and, therefore, was uncertain as to its manufacturer. Plaintiff testified, while looking at photographs that showed different snow tubes in use at Villa Olivia “before her accident,” she could not say for certain that they showed the name of defendant. Plaintiff testified:

“I can’t tell you the exact letters; but I can tell you how when you blow it up that it looks like two words, okay. And I can kind of make out certain letters; but could I clearly say it was a T or a P or [**14] a B or what, no.”

Plaintiff also testified she did not take any photographs of the exact snow tube involved in her accident.

[*P36] In sum, defendant argued that it was entitled to summary judgment as a matter of law because the snow tube involved in plaintiff’s accident was no longer available and, therefore, plaintiff could not identify the manufacturer of the snow tube nor support a reasonable inference that defendant manufactured the snow tube she used at the time of her tubing accident. In addition, defendant argued plaintiff could not prove a prima facie case without the allegedly defective snow tube.

[*P37] B. Plaintiff’s Response

[*P38] On December 1, 2015, plaintiff filed a response to defendant’s motion for summary judgment. In her response, plaintiff argued both: (1) that defendant was the manufacturer of the plaintiff’s defective snow tube; and (2) that genuine issues of material fact existed as to whether defendant’s defective snow tube was the proximate cause of plaintiff’s injuries.

[*P39] Plaintiff alleged that her snow tube was defective. Attaching excerpts of her deposition transcript, plaintiff described the defect as follows:

“DEFENDANT’S ATTORNEY: When is the first occasion you had to look [**15] at the tube after the accident?”

PLAINTIFF: The minute I came to a stop.

DEFENDANT’S ATTORNEY: While you were on the hill?

PLAINTIFF: While I’m on the hill.

DEFENDANT’S ATTORNEY: What did you see?

PLAINTIFF: I wanted to know why I was stuck. So I lifted up the tube, and I could see a 5-inch slash and this hard spiky thing sticking out of the tube *** It was a solid, a sharp object.”

Plaintiff further described the defect as follows:

“DEFENDANT’S ATTORNEY: Before the operator came up to you and upon you, did you look at the tube?

PLAINTIFF: Yes.

DEFENDANT’S ATTORNEY: And this–whatever you observed on the bottom of the tube, was it the material of the bottom of the tube?

PLAINTIFF: It looked like the insides of the tube.

DEFENDANT’S ATTORNEY: Well, the tube you told me was kind of like, in your mind at least, a standard rubber inner tube, correct?

PLAINTIFF: Well, I kind of remember–it could have been–I don’t recall the exact material of the tube, the outside of the tube; but the frozen object looked like it was coming out of the tube.

DEFENDANT’S ATTORNEY: This frozen object, was it part of the material of the tube or some foreign object?

PLAINTIFF: I thought maybe it was a metal piece or something, [**16] and it wasn’t. It was the innards of the tube, and I couldn’t even move it with my glove. It was shaped as if it was, like, a knifish form coming out.

DEFENDANT’S ATTORNEY: And how long was this shape?

PLAINTIFF: I know that the slash in the tube was about that big (indicating), so 5 inches, and then this item was coming out of it.”

[*P40] Plaintiff also attached the deposition transcript of Villa Olivia employee, Michael Conrardy, who worked on the snow tube hill for multiple winter seasons. Conrardy testified that during the 2010-2011 winter season, he found one snow tube in their “tube shack” that had a crack in it. Conrardy testified:

“DEFENDANT’S ATTORNEY: Did you ever become aware of cracking, cracks in the bottom of any snow tubes?

CONRARDY: Yeah, that was one thing that I noticed when I was working. I was bringing out the tubes out of the tube shack in the morning and there was quite a decent crack in the bottom.”

Conrardy further described the snow tube as follows:

“PLAINTIFF’S ATTORNEY: In as much detail as you can, can you describe to me first where the slit was?

CONRARDY: It was like the side. I don’t remember if it was the side near to where the rope connected or not, but it was just [**17] on the general like circumference of it, you know, and it was like a rounded slit that went–it was about eight inches long, and it wasn’t protruding in. It was more protruding out.

PLAINTIFF’S ATTORNEY: Okay.

CONRARDY: So if someone went down the hill, as a safety issue, if it was protruding out and they caught an edge they could just flip ***.”

[*P41] Plaintiff highlighted Conrardy’s testimony where he stated that “It would have caught snow and that’s what I’m saying. It wouldn’t protrude into the tube where it could hurt the person, like their bottom. It would literally protrude down and out.” Conrardy further stated that the slit “was on the bottom plastic part like right at the edge.” Conrardy recalled the tube with the slit “was just one of the ordinary tubes.”

[*P42] Plaintiff also attached the deposition transcript of Edward Jorens, Villa Olivia superintendant of golf and skiing, who was involved in the initial procurement and purchase of snow tubes for the facility. Jorens testified that “once in a while there’s cracks” in the plastic bottoms of the snow tubes. Jorens also testified that cracks “bigger than 2 or 3 inches or so” on the bottom of the snow tubes would “[t]o a certain degree” affect [**18] the speed of the tube going down the hill. Jorens also testified that he discussed the cracking at the bottom of the tubes with defendant and that “Annie [Pawson] [was] usually the person I talked to from Tube Pro.”

[*P43] In her response, plaintiff attached the deposition of Annie Pawson, who testified that defendant receives yearly complaints “in general” from customers about the bottom of their snow tubes being cracked. Annie Pawson testified that she has personally seen a bottom of a defendant snow tube being cracked and described it “as a slit, like a little slit, a scoring, just a little slit.” Annie Pawson also testified, “I don’t recall specifically my customer mentioning cracks, per se. I just recall them requesting that we refurbish some of their old stock that they had purchased in the past.”

[*P44] Plaintiff further claimed in her response that it was highly unlikely that Tough Tubes were being used at Villa Olivia at the time of her accident. In support of this claim, plaintiff attached testimony by Jorens, who testified that “an average of four or five” snow tubes were stolen per year. Jorens further testified:

“DEFENDANT’S ATTORNEY: With regard to the 100 tubes purchased from Tough [**19] Tube in September 2000, by the time you retired in December of 2010, do you know how many of those tubes were still left at Villa Olivia?

JORENS: Not very many. I’m sure of that.

DEFENDANT’S ATTORNEY: Why do you say that?

JORENS: Well, in other words, every year we’d send them back to get refurbished. Probably anywhere from I’m guessing 10, 10 of the tubes.”

DEFENDANT’S ATTORNEY: Did you send tubes to be refurbished to any company other than Tube Pro?

JORENS: No.”

[*P45] Plaintiff also relied on Jorens’s testimony to show that more defendant snow tubes were being used at Villa Olivia at the time of her accident than Tough Tube snow tubes. Jorens testified that, from 2000 to when he retired in 2010, Villa Olivia continued to purchase snow tubes from defendant. Jorens did not believe Villa Olivia purchased snow tubes from any other company from 2000 to 2010. Plaintiff also attached invoices showing that, from 2002 to 2009, Villa Olivia purchased 60 refurbished snow tube covers from defendant. The invoices also show that Villa Olivia purchased “5 red snow tubes,” “1 double rider snow tube,” “10 royal blue snow tubes,” and 27 inner tubes from defendant in the same period. Plaintiff also relied on [**20] Annie Pawson’s testimony and a “Customer Sales Ordering Info Sheet” to show that, in November 2002, defendant purchased 30 defendant snow tubes with Pepsi logos on them. Pawson testified as follows:

“PLAINTIFF’S ATTORNEY: Okay. And then the number of tubes, 30 and it has Pepsi. Do you know what the word next to Pepsi–is that tubes?

ANNIE PAWSON: Tubes, yes sir.

PLAINTIFF’S ATTORNEY: Is that a purchase by Villa Olivia, 30 new Pepsi tubes?

ANNIE PAWSON: Yes, it is.”

[*P46] Plaintiff also argued in her reply that “she was not an expert on materials or plastics” and therefore, her testimony about how her tube did not have a plastic bottom was immaterial in determining the identity of the manufacturer. Plaintiff relies on Conrardy’s testimony to show that he, too, was uncertain as to what the material of the tube bottoms were. Plaintiff points out that Conrardy testified that he believed the bottom of the tube was made of rubber, but then said it could be made of plastic after defendant counsel “raised the possibility of the bottom being plastic.” Conrardy testified:

“DEFENDANT’S ATTORNEY: And is it possible that the bottom may have been plastic as opposed to rubber, if you know?

CONRARDY: Actually, [**21] yeah, that’s a good point. I could see it being plastic because it just seemed more hard and thicker than the inside, so that actually makes sense because the inside was more cushiony than the bottom.”

[*P47] Plaintiff also attached an excerpt of William Pawson’s deposition transcript where he described Tough Tube and defendant as both having plastic bottoms. Pawson testified that they both had the “same sewing design premise whereby you have a sewn canvas top that’s pleated into the plastic bottom with the seatbelt based trim.”

[*P48] Finally, in her response, plaintiff claimed that she could still prove a prima facie case without the defective snow tube because the defect at issue was known to defendant.

[*P49] C. Trial Court’s Ruling

[*P50] On January 21, 2015, the trial court granted defendant’s motion for summary judgment. In its five-page memorandum opinion, the trial court held that defendant was entitled to summary judgment because “[p]laintiff [could not] establish, or even raise a question of fact that, defendant was the manufacturer of the subject snow tube.” The trial court noted that the “subject snow tube [was] no longer in existence” and, therefore, plaintiff could not “meaningfully identify the specific [**22] snow tube” that “she rode on the day of the accident.” The trial court stated that: “[n]either the Plaintiff nor any other evidence in the record can identify anything about the subject snow tube which distinguishes it from others in such a way that a reasonable inference can be made that defendant was the manufacturer of it.” The trial court found:

“[T]he evidence does not show that the specific defective condition complained of-that the tube bottom contained a 4 to 5 inch hard and sharp protrusion poking through a 5 inch slash which caused the tube to completely stop while going down the hill was known to be a common defect in a Tube Pro snow tube.”

The trial court reasoned: “The circumstantial evidence here may raise a possibility that defendant was the manufacturer of the snow tube, but it does not justify an inference of a probability that it was the manufacturer.” (Emphasis in original.) Based upon the foregoing, the trial court found that defendant was entitled to summary judgment.

[*P51] On February 12, 2015, plaintiff filed a notice of appeal, and this appeal followed.

[*P52] ANALYSIS

[*P53] In this direct appeal, plaintiff appeals the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues [**23] that the evidence demonstrates a genuine issue of material fact about whether defendant was the manufacturer of the snow tube that caused her injuries. For the following reasons, we affirm the trial court’s grant of summary judgment.

[*P54] I. Standard of Review

[*P55] Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). When determining if the moving party is entitled to summary judgment, the court construes the pleadings and evidentiary material in the record strictly against the movant. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 262 Ill. Dec. 815 (2002). We review a trial court’s decision on a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means the reviewing court performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).

[*P56] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. “Mere speculation, conjecture, or guess is insufficient to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). The party [**24] moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The movant may meet its burden of proof either “by affirmatively showing that some element of the case must be resolved in its favor” or by “‘establishing that there is an absence of evidence to support the nonmoving party’s case.'” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). To prevent the entry of summary judgment, the nonmoving party must present a bona fide factual issue and not merely general conclusions of law. Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670, 601 N.E.2d 1347, 176 Ill. Dec. 649 (1992)). Therefore, while the party opposing the motion is not required to prove her case at the summary judgment stage, she must provide some factual basis to support the elements of her cause of action. Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036, 911 N.E.2d 1144, 331 Ill. Dec. 914 (2009); Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444, 85 Ill. Dec. 76 (1984). On a motion for summary judgment, the court cannot consider any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 824, 861 N.E.2d 258, 308 Ill. Dec. 193 (2006). Thus, the party opposing summary judgment must produce some competent, admissible evidence which, if proved, would warrant entry of judgment in her favor. Brown, Udell & Pomerantz, 369 Ill.App.3d at 824. Summary judgment is appropriate if the nonmoving party cannot establish an element of her claim. Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851 N.E.2d 626, 303 Ill. Dec. 439 (2006).

[*P57] We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis, and even if the trial court’s reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P58] II. Plaintiff’s [**25] Claim Against Defendant

[*P59] Plaintiff sued defendant under a products liability claim based on a theory of negligence. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005) (discussing the differences between a products liability case based on a negligence theory and a strict products liability case). Plaintiff alleged that defendant committed one or more of the following careless and negligent acts or omissions: (1) designed, manufactured, distributed and sold the snow tube equipment without appropriate safeguarding and an adequate warning label; (2) failed to adequately warn users of the dangers of the snow tube; (3) failed to design and manufacture the snow tube safely; (4) failed to properly inform or instruct the purchaser of the snow tube’s use; and (5) negligently designed, manufactured, tested, inspected (or failed to test and inspect), and heeded the test results of the subject snow tube involved in her accident.

[*P60] “A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 923, 871 N.E.2d 82, 312 Ill. Dec. 682 (2007) (citing Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 117, 454 N.E.2d 197, 73 Ill. Dec. 337 (1983)). To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused [**26] by that breach, and (4) damages. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 82, 955 N.E.2d 1138, 353 Ill. Dec. 327 (citing Heastie v. Roberts, 226 Ill. 2d 515, 556, 877 N.E.2d 1064, 315 Ill. Dec. 735 (2007)). “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” Sobczak , 373 Ill. App. 3d at 923 (quoting Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 433, 764 N.E.2d 35, 261 Ill. Dec. 744 (2002)). “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Sobczak v. General Motors Corp., 373 Ill. App. 3d at 923 (citing Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 255, 864 N.E.2d 249, 309 Ill. Dec. 383 (2007)). Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.” Blue, 345 Ill. App. 3d at 463 (citing Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 419, 681 N.E.2d 156, 224 Ill. Dec. 174 (1997)).

[*P61] Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” Zimmer v. Celotex Corp., 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 140 Ill. Dec. 230 (1989) (citing Schmidt v. Archer Iron Works, Inc., 44 Ill. 2d 401, 405-06, 256 N.E.2d 6 (1970), cert. denied 398 U.S. 959, 90 S. Ct. 2173, 26 L. Ed. 2d 544). While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.” Zimmer, 192 Ill. App. 3d at 1091. Therefore, when circumstantial evidence is relied on, the circumstances must justify an inference of probability as distinguished from mere possibility.” (Emphasis added.) Naden v. Celotex Corp., 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 137 Ill. Dec. 821 (1989); Mateika v. LaSalle Thermogas Co., 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 49 Ill. Dec. 649 (1981); Zimmer, 192 Ill. App. 3d at 1091.

[*P62] III. Parties’ Arguments

[*P63] A. [**27] Plaintiff’s Arguments

[*P64] On appeal, plaintiff claims that the trial court erred in granting defendant’s motion for summary judgment because she raised a genuine issue of material fact about whether defendant was the manufacturer of the snow tube. Plaintiff argues that, since the court is to consider the evidence strictly against defendant and liberally in favor of her, summary judgment was not a proper disposition here. Plaintiff argues that the record, including invoices and witness testimony, shows that fair minded persons could draw different conclusions about whether defendant was the manufacturer.

[*P65] Specifically, plaintiff argues that according to the testimony of Jorens, Villa Olivia’s superintendent of golf and skiing, four to five snow tubes were stolen each year between 2000 to 2011 and that the majority of defendant snow tubes purchased by Villa Olivia occurred in 2008 and 2009. According to plaintiff, this figure equates to potentially 44 to 55 Tough Tubes being stolen prior to plaintiff’s injury. Plaintiff also relies on invoices that show Villa Olivia purchased 60 refurbished snow tube covers from defendant. Plaintiff argues that, given the refurbishment of these 60 snow tubes [**28] and the approximately 44 to 55 Tough Tubes stolen each year between 2000 to 2011, it was highly unlikely that Tough Tubes were still being used at Villa Olivia at the time of plaintiff’s accident. Plaintiff also relies on the testimony of Jorens to show that more defendant snow tubes than Tough Tube snow tubes were being used at Villa Olivia in January 2011.

[*P66] Plaintiff also claims that witness testimony raises questions of material fact as to whether the defect identifies defendant as the subject manufacturer. Plaintiff claims that defendant was aware of alleged defects in its snow tubes at Villa Olivia prior to her accident. Annie Pawson testified that she had observed defective defendant snow tubes before and that Villa Olivia employee Conrardy described the defective snow tube he observed as having a protruding crack. Additionally, plaintiff relies on her own testimony when she described the alleged defect “like a knife had gone through the ice, sharp object had gone through the ice.” Jorens testified that he discussed the cracking plastic defect with defendant, and that the plastic cracking would decrease speed on a hill. Plaintiff also observes that, prior to January 2011, defendant [**29] had received yearly complaints regarding the cracking of the plastic bottoms.8 Based on this evidence, plaintiff argues that she can prove a prima facie case without the snow tube because the defect at issue was known to defendant.

8 In her brief, plaintiff claims that, prior to January 2011, defendant received yearly complaints regarding the plastic bottoms cracking, without citing to the record.

[*P67] B. Defendant’s Arguments

[*P68] Defendant, on the other hand, argues that the evidence presented to the trial court shows that plaintiff could not identify anything about the subject snow tube which distinguished it from other tubes such that a reasonable inference could be drawn that defendant manufactured the allegedly defective snow tube. Defendant claims that, without the snow tube, plaintiff has failed to present evidence on a critical element in her product liability claim based on negligence. Since plaintiff did not and could not produce the snow tube, she could not introduce the alleged defect into evidence. Consequently, defendant argues that plaintiff has failed to show and cannot show that any defect existed at the time the snow tube left defendant’s control. Hence, without the tube itself [**30] or photos of it, defendant asserts that a jury could only speculate about whether plaintiff’s injuries were caused by a defect in the tube, and whether the defect was present when the snow tube allegedly left defendant’s control, and whether defendant even manufactured the snow tube. Under such circumstances, defendant argues that the trial court properly entered summary judgment in its favor.

[*P69] IV. Failure to Cite Authority

[*P70] First, we observe that plaintiff’s appellate brief fails to comply with Illinois Supreme Court Rule 341(h)(7), which requires a proponent to cite supporting authority; and the failure to do so results in waiver. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Illinois Supreme Court Rule 341(h)(7) provides that an appellant’s brief must “contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” (Emphasis added.) Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). The purpose of this rule is to provide “[a] court of review” with “clearly defined” issues and cites to “pertinent authority.” People v. Trimble, 181 Ill. App. 3d 355, 356, 537 N.E.2d 363, 130 Ill. Dec. 296 (1989) (discussing the provisions of former Illinois Supreme Court Rule 341(e)(7), which is now numbered as Illinois Supreme Court Rule 341(h)(7), and its importance to the appellate court). A reviewing court “is not a depository in which the appellant may dump the burden of argument and research.” Trimble, 181 Ill. App. 3d at 356. The appellate [**31] court stated in Trimble:

“To ignore such a rule by addressing the case on the merits would require this court to be an advocate for, as well as the judge of the correctness of, defendant’s position on the issues he raises. On the other hand, strict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is essential to an accurate determination of the issues raised on appeal.” Trimble, 181 Ill. App. 3d at 356-57.

[*P71] In the instant case, plaintiff failed to cite a single substantive case in support of her argument that the trial court improperly granted summary judgment in favor of defendant. The cases that plaintiff cites in the argument section of her brief merely establish general principles of law regarding summary judgment and a products liability action. In Part A of the argument section of her brief which discusses how the evidence justifies an inference of probability that defendant was the manufacturer of the subject snow tube, plaintiff cites only Black’s Law Dictionary and fails to cite any precedent in furtherance of her argument. Furthermore, in Part B of the argument section of her brief, plaintiff fails to cite any legal authority supporting her argument [**32] that she can prove a prima facie case without the defective tube since the defect at issue was known to defendant.9 Accordingly, because plaintiff has failed to comply with Illinois Supreme Court Rule 341(h)(7), the plaintiff has waived consideration of her claim that the trial court improperly granted summary judgment in favor of defendant.

9 Plaintiff mentions Wiesner v. Fontaine Trailer Co., No. 06-CV-6239, 2010 U.S. Dist. LEXIS 81672, 2010 WL 3023398 (N.D. Ill. 2010), an unreported case discussed in defendant’s motion for summary judgment. However, we will not cite an unreported case. State Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st) 140447, ¶ 101, 391 Ill. Dec. 170, 30 N.E.3d 440 (“We will not cite an unreported case.”); Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15, 964 N.E.2d 1225, 358 Ill. Dec. 203 (“an unreported case” is “not binding on any court”); People v. Moore, 243 Ill. App. 3d 583, 584, 611 N.E.2d 1246, 183 Ill. Dec. 598 (1993) (“the decision was unreported and of no precedential value”). “Unreported decisions have no precedential value, and this is even more true for decisions from foreign jurisdictions.” American Family Mutual Insurance Co. v. Plunkett, 2014 IL App (1st) 131631 ¶ 38, 383 Ill. Dec. 393, 14 N.E.3d 676; Burnette v. Stroger, 389 Ill. App. 3d 321, 329, 905 N.E.2d 939, 329 Ill. Dec. 101 (2009); West American Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 82, 777 N.E.2d 610, 267 Ill. Dec. 807 (2002) (a “foreign, unreported decision” is of no precedential value”). Specifically, with respect to unpublished federal cases, this court has held that they do not carry any authority before an Illinois court. Lyons v. Ryan, 324 Ill. App. 3d 1094, 1107 n.11, 756 N.E.2d 396, 258 Ill. Dec. 414 (2001) (“unreported federal court orders” are not “any kind of authority before an Illinois court”); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093, 608 N.E.2d 54, 180 Ill. Dec. 932 (1992) (“we decline” to follow “an unreported Federal district court decision”).

[*P72] V. No Prima Facie Case

[*P73] However, even if plaintiff did not waive her claims regarding summary judgment, [**33] plaintiff still could not prove a prima facie case without the allegedly defective snow tube. The facts in Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 216 N.E.2d 244 (1966), cited by defendant, are similar to the present case. In Shramek, the plaintiff was injured when the automobile in which he was riding crashed after one of the tires suffered a blowout. Shramek, 69 Ill. App. 2d at 74. He filed both a negligence claim and a breach of implied warranty claim against the tire and auto manufacturers claiming a defect was in the tire at the time it left the control of the manufacturer or seller. Shramek, 69 Ill. App. 2d at 75. The tire, however, was never examined for a defect and could not be located. Shramek, 69 Ill. App. 2d at 78. The trial court granted the automobile and tire manufacturers’ motions for summary judgment, and this court affirmed. Shramek, 69 Ill. App. 2d at 77. The appellate court held that summary judgment was required because the record conclusively demonstrated that the plaintiff could not prove, either by direct or circumstantial evidence, that the accident was caused by a defective tire. Shramek, 69 Ill. App. 2d at 77. The court noted that the mere occurrence of a blowout does not establish a manufacturer’s negligence or that the tire was defective, since blowouts can be attributed to a myriad of causes. Shramek, 69 Ill. App. 2d at 78. The court stated:

“[A]side from a superficial inspection of the damaged car [**34] and tire after the accident by plaintiff and his cousin, the tire in question was never subjected to an examination which would reveal that the blowout was due to a pre-existing defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.” Shramek, 69 Ill. App. 2d at 78.

[*P74] The reasoning in Shramek has been cited with approval and applied in other cases (E.g., Scott v. Fruehauf Corp. 602 F. Supp. 207, 209 (S.D. Ill. 1985); Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 874, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992); Phillips v. U.S. Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987) (discussing and applying Shramek)). In Scott, the plaintiff sued a tire rim manufacturer and distributor, alleging he was injured while working on a tire rim. Scott, 602 F. Supp. at 208. As in Shramek, the allegedly defective product was unavailable. Scott, 602 F. Supp. at 209. The court held that, because the plaintiff could not produce the rim, he “could never prove his case” and, therefore, summary judgment was proper. Scott, 602 F. Supp. at 209. The Scott case held this, even though there were photographs of the rim. Scott, 602 F. Supp. at 209. However, the court found that even photographs were insufficient because the rim had never been examined by a qualified expert and was never made available to the defendant. Scott, 602 F. Supp. at 209. In the case at [**35] bar, plaintiff does not even have photographs of the tube, and the tube was certainly never examined by an expert or made available to defendant. Thus, pursuant to the reasoning of both Shramek and Scott, summary judgment was warranted.

[*P75] Similarly, in Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 872-73, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992), the plaintiff brought a negligence and product liability action against defendant for improper installation of a tire and inner tube. The inner tube was unavailable and the plaintiff’s expert never examined the inner tube or took photographs of it. Sanchez, 237 Ill. App. 3d at 873. In affirming summary judgment, the appellate court held that the cause of the incident could only be left to speculation because the expert’s testimony indicated nothing more than a mere possibility that the inner tube was improperly installed. Sanchez, 237 Ill. App. 3d at 874; see also Scott, 602 F. Supp. at 209 (“the very fact that other factors could have caused the injury warranted granting of summary judgment motions since without the alleged[ly] defective product the plaintiff could never prove up his case”). Similarly, in the case at bar, without the tube, the cause of the incident could only be left to speculation.

[*P76] Lastly, in Phillips v. United States Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987), the plaintiff brought a negligence and strict products liability claim against defendant for personal injuries he sustained [**36] when he fell from a scaffold manufactured by the defendant. As in Shramek, the plaintiff failed to produce the allegedly defective product involved in the accident or any photographs of it. Phillips, 163 Ill. App. 3d at 415. And as in Scott, the plaintiff failed to provide any expert testimony regarding the alleged defect in the product. Phillips, 163 Ill. App. 3d at 415. In affirming summary judgment, this court held that the plaintiff failed to present facts to support the elements of his products liability claims based in negligence and strict liability. Phillips, 163 Ill. App. 3d at 418. This court reasoned that, because the scaffold was never examined for the presence of preexisting defects, the plaintiff “could never prove, either by direct or circumstantial evidence, that the accident was caused by a defective scaffold, since he did not and could not produce the scaffold.” Phillips, 163 Ill. App. 3d at 418.

[*P77] Similar to the plaintiff in Phillips, plaintiff in this case did not and cannot produce the allegedly defective product involved in her accident. The subject snow tube was never retrieved or examined for defects. Plaintiff also has not produced any photographs of the snow tube itself or provided testimony by an eyewitness to the accident or its aftermath, other than plaintiff herself. Plaintiff testified [**37] that all of the photographs she took on the day of the accident were of different snow tubes in use at Villa Olivia and not of the tube involved in her accident. Plaintiff testified that the last time she saw the tube was when she left it with the Villa Olivia employees when she walked inside with the paramedic to report the accident. Plaintiff also testified that her basis for believing that defendant manufactured the tube in her accident was that she saw a different tube that had writing on it that said defendant’s name. She testified that a photograph of a snow tube used by her son showed a red colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against defendant.

[*P78] Therefore, for the reasons stated above, we cannot find that the trial court erred in granting summary judgment in favor of defendant. [**38] Outboard Marine Corp., 154 Ill. 2d at 102 (discussing when summary judgment should be granted).

[*P79] CONCLUSION

[*P80] On appeal, plaintiff argues that the trial erred in granting summary judgment because there is a genuine issue of material fact as to whether defendant was the manufacturer of the snow tube that injured her. For the foregoing reasons, we conclude that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact as to the manufacturer of the snow tube and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P81] Affirmed.


What is Skiing? In New Hampshire, the definition does not include tubbing in 2004.

Definition of the New Hampshire Skier Safety Act in 2004 was not written broadly enough to include tubing.

Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Alaina Sweeney

Defendant: Ragged Mountain Ski Area, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: New Hampshire Skier Safety Act

Holding: Reversed and Remanded, sent back to trial for the Plaintiff

Year: 2004

Colorado’s ski area statute uses the term skier to describe anyone on the resort property. That means the term skier also includes snowboarders, telemark skiers, bike skiers, Nordic skier and tubers.

The plaintiff went tubing at the defendant’s tubbing hill. The hill was only for tubing and did not allow skiing on the tubing hill. No employees were present at the tubing hill when the plaintiff was tubing. While tubing she crossed from one lane to the other and collided with another tuber.

She sued, and the ski area argued to the trial court that the New Hampshire Ski Area Safety Act defined skier to include tubers. The trial court agreed and dismissed the complaint.

The plaintiff appealed.

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

The New Hampshire Ski Area Safety Act has been amended since this case to include in the definition of skier a snow tuber. At the time of this case, the definition of skier, which is what the controlled was defined “A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.”

A court look or examining a statute cannot broaden the definitions in the statute unless the statute specifically grants the court that right. Although the courts are the final arbiter of a statute, the review is limited to what the legislature put into the statute.

We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent.

When a statute such as this one changes the common law, the statute must be interpreted strictly. The presumption in a law like this is the statute took away rights, not created or added additional ones. Here the statute created immunity for ski areas, taking away the common law right to sue so the statute was to be interpreted strictly.

Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent.

The court then looked at how ski slopes, trails, jumps or other areas were defined in the act to see if that included tubing hills. However, that definition was also specific and narrow.

Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator on trail boards or maps . . . to be used by skiers for the purpose of participating in the sport of skiing.

Again, tubing was not part of the definition of the act. “Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”

The court then went back and examined other parts of the New Hampshire Ski Safety Act to see if any part of the act could be used to provide protection to the ski area. The declaration, the first part of the statute detailing why the statute was created and the value of the statute to the state did not include a reference to tubing, only to skiing.

It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.

The court found that based on the declaration, the purpose and focus of the statute was for alpine and Nordic ski area. Because the plaintiff was not utilizing an alpine or Nordic slope, the plaintiff was not a skier. As such there was no protection afforded by the New Hampshire Skier Safety Act because the act, at the time of the lawsuit, only protected ski areas from skiers.

The trial court dismissal was overthrown, and the case sent back to proceed to trial.

So Now What?

There is an old adage that says the law grinds slowly but grinds finely. Meaning the law works slowly but when it works to solve the problem. Here the New Hampshire Skier Safety Act was probably enacted prior to the interest in tubing. Many other states with skier safety statutes have broader definitions of a skier who in most cases includes tubing. In some cases, the definition of a skier is a person on the ski area for any purpose.

Here the act was written narrowly, the definitions were not broad enough to include tubing. Nor were the definitions able to be broadened because that power was not provided to the court by the legislature when it passed the act.

Of real interest is the idea that no employees were present on the tubing hill at the time of the accident. It does not say, but the tubing hill probably did not include a lift and people walked up hill pulling a tube.

Either way, if you are in doubt as to whether or not a statute may provide protection to you for the activity you are selling, you should use a release.

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Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

Alaina Sweeney v. Ragged Mountain Ski Area, Inc.

No. 2003-719

SUPREME COURT OF NEW HAMPSHIRE

151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

May 6, 2004, Argued

July 15, 2004, Opinion Issued

SUBSEQUENT HISTORY: [***1] Released for Publication July 15, 2004.

PRIOR HISTORY: Merrimack.

DISPOSITION: Reversed and remanded.

COUNSEL: Wiggin & Nourie, P.A., of Manchester (Peter E. Hutchins on the brief and orally), for the plaintiff.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief and orally), for the defendant.

JUDGES: GALWAY, J. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.

OPINION BY: GALWAY

OPINION

[*240] [**428] GALWAY, J. The plaintiff, Alaina Sweeney, appeals an order of the Superior Court (Fitzgerald, J.) granting a motion to dismiss filed by the defendant, Ragged Mountain Ski Area, Inc. (Ragged Mountain). We reverse and remand.

The relevant facts follow. On March 21, 2001, the plaintiff went snow tubing at Ragged Mountain, which operates, among other things, snow tube runs. The snow tube area was designated only for snow tubing, and was not used for alpine or nordic skiing. When the plaintiff went snow tubing, no employees of Ragged Mountain were present to instruct her on the proper use of the snow tube. The plaintiff made a few “runs” down the snow tube trail. On [***2] her last run, she crossed the center line between snow tube lanes, [**429] continued down the adjacent lane, and ultimately collided with another snow tuber.

The plaintiff brought a negligence claim against Ragged Mountain for injuries sustained as a result of the collision. Ragged Mountain moved to dismiss, alleging that RSA 225-A:24, I (2000) barred recovery because it precludes claims brought by those injured in the “sport of skiing,” which, Ragged Mountain argued, includes snow tubing. The plaintiff argued that the statute does not apply to snow tubers. The court granted Ragged Mountain’s motion to dismiss.

On appeal, the plaintiff first argues that RSA 225-A:24, I, does not bar her claim because it does not apply to snow tubers. Because we agree, we need not address her other arguments.

The plaintiff contends that pursuant to RSA 225-A:24, I, ski area operators are granted immunity from liability only when claims are filed by those who participate in the “sport of skiing.” She argues that because snow tubing is not the “sport of skiing,” RSA 225-A:24, I, does not preclude her [***3] recovery. Ragged Mountain disagrees, arguing that the “sport of skiing” includes snow tubing.

[HN1] “In reviewing the trial court’s grant of a motion to dismiss, our task is to ascertain whether the allegations pleaded in the plaintiff’s writ are reasonably susceptible of a construction that would permit recovery.” Rayeski v. Gunstock Area, 146 N.H. 495, 496, 776 A.2d 1265 (2001) (quotation omitted). “We assume all facts pleaded in the plaintiff’s writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff’s favor.” Id. “We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law.” Id. (quotation omitted). If the facts fail to constitute a basis for legal relief, we will uphold the granting of [*241] the motion to dismiss. Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673, 674-75, 846 A.2d 521, 523 (2004).

The question before us is one of statutory interpretation-whether RSA 225-A:24, I, grants immunity to ski area operators against claims for injuries brought by snow tubers. [HN2] We are the final arbiter of the intent of the legislature as expressed in [***4] the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515, 842 A.2d 77 (2004). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent. Id.

Furthermore, [HN3] “statutes in derogation of the common law are to be interpreted strictly.” 3 N. Singer, Sutherland Statutory Construction § 61:6, at 255 (6th ed. rev. 2001). While a statute may abolish a common law right, “there is a presumption that the legislature has no such purpose.” Id. § 61.1, at 222. If such a right is to be taken away, “it must be noted clearly by the legislature.” Id. at 222-23. Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent. See State v. Hermsdorf, 135 N.H. 360, 363, 605 A.2d 1045 (1992); see also Douglas v. Fulis, 138 N.H. 740, 742, 645 A.2d 76 (1994). [***5]

RSA 225-A:24, entitled, “Responsibilities of Skiers and Passengers,” states, in relevant part:

[HN4] It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing as [**430] a sport and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore:

I. Each person who participates in the sport of skiing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; . . . pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.

[*242] RSA 225-A:24, I (emphasis added). As we have previously [***6] held, RSA 225-A:24, I, [HN5] limits skiers’ recovery, thereby functioning as an immunity provision for ski area operators. See Nutbrown v. Mount Cranmore, 140 N.H. 675, 680-81, 671 A.2d 548 (1996). In enacting this provision, “the legislature intended to supersede and replace a skier’s common law remedies for risks inherent in the sport of skiing.” Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 7 (1st. Cir. 1991). The question we must answer today is whether that statute also replaces the plaintiff’s common law remedy. In answering this question, we need not precisely define the “sport of skiing,” nor list every activity encompassed within that phrase.

Because the phrase “sport of skiing,” is not specifically defined, we look to other provisions of the statutory scheme for guidance. [HN6] A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.” RSA 225-A:2, II (2000). “Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator [***7] on trail boards or maps . . . to be used by skiers for the purpose of participating in the sport of skiing.” RSA 225-A:2, IV (2000) (emphasis added). Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”

We next look to the declaration of policy set forth at the beginning of the statutory scheme for guidance. See RSA 225-A:1 (2000). RSA 225-A:1 states, in part:

[HN7] It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.

(Emphasis added.) This provision indicates that the focus of the statutory scheme is upon those who utilize alpine and nordic areas. It further indicates that [***8] alpine areas are those used for downhill activities, while nordic areas are those used for cross country activities and ski jumps. While utilizing the alpine and nordic areas may not be the sole, defining characteristic of a skier, the policy provision indicates that it is an essential characteristic nonetheless.

Here, the plaintiff was not utilizing an alpine or nordic slope. Rather, as the trial court found, she was utilizing a snow tube run designated [*243] exclusively for snow tubing. Accordingly, we do not believe [**431] she was a skier, or other user of alpine or nordic areas, and, therefore, we cannot conclude that she “participated in the sport of skiing” as intended by the legislature in RSA 225-A:24, I.

Although Ragged Mountain looks to the same statutory provisions we have referenced for support, we believe those provisions are consistent with our more narrow interpretation of RSA 225-A:24, I. [HN8] Nothing in those provisions clearly expresses a legislative intent to preclude a snow tuber, injured while sliding down a run used exclusively for snow tubing, from recovering for her injuries. See Hermsdorf, 135 N.H. at 363. [***9]

Ragged Mountain first relies upon the statutory definition of “skier,” RSA 225-A:2, II, to support its position. Given that the statute broadly defines “skier,” Ragged Mountain argues that the “sport of skiing” must be similarly broadly defined. We disagree. Ragged Mountain errs in reading the definition of “skier” in isolation. As explained above, [HN9] when that definition is read in conjunction with RSA 225-A:2, IV and RSA 225-A:1, it appears that a “skier” does not include a person snow tubing on a track designated solely for snow tubing. At the very least, we cannot conclude that the statute “clearly expresses” an intent to abrogate the common law right to recover of a snow tuber injured while using a track designated solely for snow tubing. Hermsdorf, 135 N.H. at 363.

Ragged Mountain also relies upon RSA 225-A:1, the policy provision prefacing the statutory scheme, to support its claim. It argues that because the policy provision of the statute “clearly encompasses more than traditional downhill skiing,” the “sport of skiing” must include snow tubing.

[HN10] To the extent [***10] that RSA 225-A:1 contemplates winter sports activities other than skiing, it is concerned only with winter sport activities that occur on alpine and nordic slopes. See RSA 225-A:1. The plaintiff in the instant case was not utilizing an alpine or nordic slope, but rather was injured while utilizing a snow tube on a track designated solely for snow tubing. Nothing in the policy provision, then, clearly expresses the legislative intent to extinguish the common law claims of snow tubers injured on a track designated solely for snow tubing.

Because Ragged Mountain cannot point to a statutory provision that clearly expresses a legislative intent to abrogate the plaintiff’s common law right to recover, we conclude that the plaintiff’s claim is not precluded by RSA 225-A:24, I. See Hermsdorf, 135 N.H. at 363. We reverse the trial court’s order granting Ragged Mountain’s motion to dismiss and remand [*244] for further proceedings consistent with this opinion. In light of our opinion, we need not address the plaintiff’s remaining arguments on appeal.

Reversed and remanded.

BRODERICK, C.J., and [***11] NADEAU, DALIANIS and DUGGAN, JJ., concurred.


$2.1 M award after jury trial for snow tubing injury in PA.

The way the plaintiff arrived at the hill with tickets unintentionally skirted the release & risk management procedures in this case. The rest of the mistakes were just dumb. Appeal should follow.

This is an article from Pennsylvania written after a jury verdict. It is before an appeal, if any. Do not rely on it for any law, but it is full of interesting risk management issues.

Please read the article: Berks jury awards $2.1M to man in snow tubing crash

A Pennsylvania verdict against a ski area with a tubing hill was for $2.1 million. The plaintiff was part of a group. After skiing all day a friend in the group gave him tubing tickets. He went tubing without signing the release because he already had tickets.

Risk Management Issue Number 1: how do you sell tickets and get release signed

The plaintiff went down the run and hit the stop at the bottom incurring some injuries along the way. Before he could get out of the way, another tuber hit him either increasing his injuries or creating new, worse injuries.

Risk Management Issue Number 2: how do you design a run so that the tubers are not “stopped” but slow to a gentle stop?

Risk Management Issue Number 3: how do you make sure tubers don’t run into each other?

Risk Management Issue Number 4: how do you create a safe exit from the tubing hill

The lawsuit was based on failure to warn which then brings up how many signs can you have posted or should you just put up a drive through screen to have everyone watch for an hour.

I knew a raft company that required people to hand in their release to get their PFD. No PFD you could not get on the bus to go raft.

What else could you do?

Do Something

This case is the perfect example of a combination of “errors” and an injury lead to a massive payout.

This is a great example of holes in a program. How many you can afford to fill is the biggest question. Also remember that the article was based on what the reporter figured out from attending the trial and what he was told by the plaintiff at the end of the trial. The facts might be different.

How knows what the ending may be or where this is going, we probably will never know.

Read the article: Berks jury awards $2.1M to man in snow tubing crash

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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.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The record reveals the following factual and procedural history. The defendants [*3]  operate a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On February 16, 2003, the plaintiff brought his three children and another child to Powder Ridge to snowtube. Neither the plaintiff nor the four children had ever snowtubed at Powder Ridge, but the snowtubing run was open to the public generally, regardless of prior snowtubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. Further, in order to snowtube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability” (agreement). The plaintiff read and signed the agreement on behalf of himself and the four children. While snowtubing, the plaintiff’s right foot became caught between his snow tube and the man-made bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair.

Thereafter, the plaintiff filed the present negligence action against the defendants. Specifically, the plaintiff alleges that the defendants negligently caused his injuries by: (1)  [*4]  permitting the plaintiff “to ride in a snow tube that was not of sufficient size to ensure his safety while on the snow tubing run”; (2) “failing to properly train, supervise, control or otherwise instruct the operators of the snow tubing run in the proper way to run the snow tubing course to ensure the safety of the patrons, such as the plaintiff”; (3) “failing to properly groom the snow tubing run so as to direct patrons . . . such as the plaintiff away from the sidewalls of [the] run”; (4) “placing carpet at the end of the snow tubing run which had the tendency to cause the snow tubes to come to an abrupt halt, spin or otherwise change direction”; (5) “failing to properly landscape the snow tubing run so as to provide an adequate up slope at the end of the run to properly and safely slow snow tubing patrons such as the plaintiff”; (6) “failing to place warning signs on said snow tubing run to warn patrons such as the plaintiff of the danger of colliding with the side wall of [the] snow tubing run”; and (7) “failing to place hay bales or other similar materials on the sides of the snow tubing run in order to direct patrons such as the plaintiff away from the sidewalls of [the]  [*5]  run.”

The defendants, in their answer to the complaint, denied the plaintiff’s allegations of negligence and asserted two special defenses. Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Thereafter, the defendants moved for summary judgment, claiming that the agreement barred the plaintiff’s negligence claim as a matter of law. The trial court agreed and rendered summary judgment in favor of the defendants. Specifically, the trial court determined, pursuant to our decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640-44, that the plaintiff, by signing the agreement, unambiguously had released the defendants from liability for their allegedly negligent conduct. Thereafter, the plaintiff moved to reargue the motion for summary judgment. The trial court denied the plaintiff’s motion and this appeal followed.

The plaintiff raises two claims on appeal. First, the plaintiff claims that the trial court improperly concluded that the agreement clearly [*6]  and expressly releases the defendants from liability for negligence. Specifically, the plaintiff contends that a person of ordinary intelligence reasonably would not have believed that, by signing the agreement, he or she was releasing the defendants from liability for personal injuries caused by negligence and, therefore, pursuant to Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643, the agreement does not bar the plaintiff’s negligence claim. Second, the plaintiff claims that the agreement is unenforceable because it violates public policy. Specifically, the plaintiff contends that a recreational operator cannot, consistent with public policy, release itself from liability for its own negligent conduct where, as in the present case, the operator offers its services to the public generally, for a fee, and requires patrons to sign a standardized exculpatory agreement as a condition of participation. We disagree with the plaintiff’s first claim, but agree with his second claim.

Before reaching the substance of the plaintiff’s claims on appeal, we review this court’s decision in Hyson. The plaintiff in Hyson was injured while [*7]  snowtubing at Powder Ridge and, thereafter, filed a complaint against the defendant, White Water Mountain Resorts of Connecticut, Inc., alleging that the defendant’s negligence proximately had caused her injuries. n3 Id., 637-39. Prior to snowtubing at Powder Ridge, the plaintiff had signed an exculpatory agreement entitled “RELEASE FROM LIABILITY.” Id., 638 and n.3. The issue presented in Hyson was whether the exculpatory agreement released the defendant from liability for its negligent conduct and, consequently, barred the plaintiff’s negligence claims as a matter of law. Id., 640. We concluded that it did not. Id.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 We note that White Water Mountain Resorts of Connecticut, Inc., is also a defendant in the present matter and that the plaintiff in the present matter was also injured while snowtubing at Powder Ridge.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

In arriving at this conclusion, we noted that there exists “widespread support in other jurisdictions for a rule requiring that any agreement intended [*8]  to exculpate a party for its own negligence state so expressly”; id., 641-42; and that this court previously had acknowledged “the well established principle . . . that ‘the law does not favor contract provisions which relieve a person from his own negligence . . . .’” Id., 643. Accordingly, we determined that “the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.” Id. This rule “prevents individuals from inadvertently relinquishing valuable legal rights” and “does not impose . . . significant costs” on entities seeking to exculpate themselves from liability for future negligence. Id. Examining the exculpatory agreement at issue in Hyson, we observed that “the release signed by the plaintiff [did] not specifically refer to possible negligence by the defendant” but, instead, only referred to “inherent and other risks involved in [snowtubing] . . . .” n4 (Internal quotation marks omitted.) Id., 640. Thus, “[a] person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing [*9]  the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing.” Id., 643. Accordingly, we concluded that the exculpatory agreement did not expressly release the defendants from liability for future negligence and, therefore, did not bar the plaintiff’s claims. Consequently, we declined to decide whether a well drafted exculpatory agreement expressly releasing a defendant from prospective liability for future negligence could be enforced consistent with public policy. See id., 640 (“we do not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable”); id., 643 n.11 (“we do not decide today whether a contract having such express language would be enforceable to release a party from liability for its negligence”).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 That exculpatory agreement provided:

”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.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*10]

As an initial matter, we set forth the appropriate standard of review. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005).

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).

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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

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n11 Recklessness entails “something more than a failure to exercise a reason able degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . Willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.” (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003).  [*62]

n12 The Ohio Supreme Court has equated willful and wanton conduct with recklessness as that term is defined in the Restatement Second of Torts, stating: “The actor’s conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” (Internal quotation marks omitted.) Thompson v. McNeill, 53 Ohio St. 3d 102, 104-105, 559 N.E.2d 705 (1990), quoting 2 Restatement (Second), Torts § 500, p. 587 (1965).

n13 Other states do, however, characterize gross negligence as more serious than ordinary negligence, while not rising to the level of recklessness. See Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714, 968 P.2d 65, 80 Cal.Rptr.2d 506 (1998) (characterizing willful and wanton conduct as more serious than gross negligence), overruled on other grounds, Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 854, 24 P.3d 493, 107 Cal.Rptr.2d 841 (2001); Travelers Indemnity Co. v. PCR, Inc., 889 So. 2d 779, 793 n.17 (Fla. 2004) (defining “’culpable negligence’ as ‘reckless indifference’ or ‘grossly careless disregard’ of human life” and gross negligence as “an act or omission that a reasonable, prudent person would know is likely to result in injury to another”); Altman v. Aronson, 231 Mass. 588, 592, 121 N.E. 505 (1919) (defining gross negligence as less serious than recklessness); Parret v. Unicco Service Co., 2005 OK 54, *11-13, 2005 Okla. LEXIS 54,     P.3d     (June 28, 2005) (same); Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986) (punitive damages cannot be awarded for gross negligence, which is less serious than reckless or wanton conduct). Despite these decisions, I am not persuaded that our conclusion provides inadequate protection to snowtube patrons.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*63]

Furthermore, at least one other court has concluded that releases similar to the one in question are valid notwithstanding the absence of a gross negligence doctrine. New Hampshire, like Connecticut, does not recognize differing degrees of negligence, yet its highest court has upheld a release of liability for negligence, stating: “The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. . . . The plaintiff advances no reasons for abandoning this rule and we decline to create an exception to allow him to pursue his claims of gross negligence.” (Citation omitted.) Barnes v. New Hampshire Karting Assn., Inc., supra, 128 N.H. 108-109; but see Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 705 n.3 (Pa. Super. 2000) (declining to reach issue of whether agreement that released liability for gross negligence would violate public policy where agreement in question stated [*64]  only “negligence”); Bielski v. Schulze, 16 Wis. 2d 1, 18-19, 114 N.W.2d 105 (1962) (recognizing potential problems that Wisconsin’s abolition of gross negligence might raise in area of exculpatory clauses).

The great weight of these numerous and highly per suasive authorities compels my conclusion that the release at issue herein does not violate public policy as it pertains to the sport of snowtubing. Accordingly, I conclude that the trial court properly granted summary judgment in the defendants’ favor and I would affirm that judgment. I, therefore, respectfully dissent.


Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota

Court in its ruling referred to the language on the lift ticket as additional proof that plaintiff had knowledge of the risk.

Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047

State: Minnesota, Court of Appeals of Minnesota

Plaintiff: Donya L. Dawson

Defendant: Afton Alps Recreation Area

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of Risk

Year: 2014

Holding: for the Defendant

The plaintiff went tubing at the defendant’s property. She failed to stop and collided with a fence at the end of the run. She had been tubing before in the past couple of years. She purchased a ticket to tube but did not read the disclaimer language on the back of the ticket before she affixed it to her jacket.

The language on the lift ticket was quite extensive and outlined the risks of tubing.

The plaintiff could see the fence which was behind a snow barrier when she was standing at the top of the tubing run. The plaintiff tubed for about 1.5 hours when she linked her tube with her boyfriends. At the end of the run the plaintiff “flipped out of her tube” hitting the fence injuring her leg.

The plaintiff sued, and the trial court granted the defendant’s motion for summary judgment stating the plaintiff’s claims were barred by the doctrine of primary assumption of the risk.

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

Primary assumption of the risk is a complete bar to a recovery by a plaintiff. Under Minnesota law, primary assumption of the risk is defined as:

Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .

In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.

The court also stated that in Minnesota for a person to assume the risk, they must:

The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.”

The knowledge required when knowing the risk is actual knowledge of the risk. That means the plaintiff could not be held to know the risk of tubing and hitting the fence if she had not seen the fence. Actual knowledge that there was a fence at the end of the run is required, not just the knowledge that you can be hurt tubing.

The court then broke down the requirements and discussed each component of the steps necessary to prove assumption of the risk. The first is, was there a duty of care owed by the defendant to the plaintiff. Under Minnesota law, a person operating a place of amusement owes a duty to make the amusement reasonable safe.

(holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.

The court found that the plaintiff had the opportunity to discover the risks of tubing, knew about those risks thus she accepted the risks of tubing.

Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.

Next the court looked at whether the plaintiff had knowledge and appreciated of the risk. Knowledge must be “Actual knowledge of a sport’s risks may be inferred from experience in the sport.”

The plaintiff argued she did not know she could be hurt hitting the fence.

The court basically did not buy it. The plaintiff knew she could be injured if she hit other objects or other tubers. The plaintiff knew the hill was icy that night and knew she was unable to control the tube as it went down the hill. The plaintiff knew the activity was not safe and wore a ticket that stated it was not safe.

The court concluded that if the plaintiff wanted to avoid the risks, she could have not gone tubing that evening.

So Now What?

I found this statement in the decision to be quite interesting. “Snowtubing is a sport, like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” This might be interesting and provide help either direction in a skiing case in Minnesota.

Assumption of the risk is the second defense available to most outdoor recreation providers. However, proving assumption of the risk is difficult. Here it was a lot easier because the plaintiff had gone tubing before and had been tubing for an hour and half the nigh to the incident as well as saw the risk before encountering it.

Keep track of who visits your operation. Repeat visitors may tell you of the dozens of times they have stopped by in the past and then on the stand say it was a first time for them. Assumption of the risk is hard to prove without prior experience, videos or proof the persons assumed the risk in writing.

What do you think? Leave a comment.

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Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047

Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047

Donya L. Dawson, Appellant, vs. Afton Alps Recreation Area, Respondent.

A14-0194

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 1047

September 22, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

SUBSEQUENT HISTORY: Review denied by Dawson v. Afton Alps Rec. Area, 2014 Minn. LEXIS 685 (Minn., Dec. 16, 2014)

PRIOR HISTORY: [*1] Washington County District Court File No. 82-CV-13-224.

DISPOSITION: Affirmed.

CORE TERMS: snowtubing, fence, ticket, colliding, tube, barrier, pillow, well-known, incidental, snowtuber, skiing, sport, summary judgment, review denied, collision, snowtubed, speed, record supports, actual knowledge, genuine, icy, snowboarding, snowtube, descent, jacket, tubing, linked, user, hit, matter of law

COUNSEL: For Appellant: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota.

For Respondent: Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota.

JUDGES: Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Willis, Judge*.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

OPINION BY: WILLIS

OPINION

UNPUBLISHED OPINION

WILLIS, Judge

Appellant sustained injuries from colliding with a fence while snowtubing and brought a negligence action against the owner and operator of the snowtubing business. The district court entered summary judgment in favor of the owner, concluding that the doctrine of primary assumption of the risk barred appellant’s claim. We affirm.

FACTS

In January 2012, appellant Donya Dawson went snowtubing at respondent Afton Alps Recreation Area with a group of friends. Dawson, who was 41 years old, had snowtubed at least once in the preceding two years. A friend of Dawson’s signed a release in order to get Dawson’s ticket; Dawson affixed the ticket to her jacket. The ticket contained the following language:

The [*2] purchaser or user of this ticket agrees and understands that skiing, snowboarding, and tubing can be hazardous. Trail conditions vary constantly because of weather changes and individual use. Ice, variations in terrain, moguls, forest growth, rocks and debris, lift towers and other obstacles and hazards, including other skiers, snowboarders and tubers may exist throughout the area. Be aware that snowmaking and snowgrooming may be in progress at any time. Always stay in control.

In using the ticket and skiing, snowboarding or tubing at the area, such dangers are recognized and accepted whether they are marked or unmarked. Ski, snowboard and tube on slopes of your ability and read trail maps.

The user realizes that falls and collisions do occur and injuries may result and therefore assumes the burdens of skiing, snowboarding and tubing under control at all times.

. . . .

The user of this ticket assumes all risk of personal injury or loss or damage to property.

While Dawson did not read the fine print of the ticket, she testified that she had read similar language on a ticket when she snowtubed previously.

Standing at the top of the hill, Dawson saw that there was a fence directly behind a [*3] pillow barrier at the foot of the hill. The pillow barrier was composed of several large, foam-filled pads that were tied together with thick rope and that in turn were tied to the fence. Dawson testified that the conditions on the hill were icy and that she had no control over the speed or direction of travel of her tube during the descent. On her first run, Dawson snowtubed down the hill with five of her friends. All six linked their tubes together. When Dawson reached the bottom of the hill, she “flipped upside down” as she hit the pillow barrier. An Afton Alps employee told her that the facility allowed only two snowtubers to go down the hill together because linking tubes increases the speed of descent. Dawson testified that she continued to snowtube down the hill linked with a friend’s tube, and she hit the pillow barrier “very hard” each time. After snowtubing for approximately an hour and a half, Dawson and her boyfriend snowtubed down the hill with their tubes linked together. At the end of the run, Dawson flipped off her tube and her body hit the fence, injuring her left leg.

Dawson asserts that her bodily injury was directly and proximately caused by Afton Alps’s negligence. [*4] The district court granted Afton Alps’s motion for summary judgment, concluding that Dawson’s claims were barred by the doctrine of primary assumption of the risk. This appeal follows.

DECISION

“On appeal from summary judgment, we must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504-05 (Minn. 2011). “[T]he applicability of primary assumption of the risk may be decided by the court as a matter of law when reasonable people can draw only one conclusion from undisputed facts. . . . [A]n appellate court reviews that decision de novo.” Grady v. Green Acres, Inc., 826 N.W.2d 547, 549-50 (Minn. App. 2013) (alterations in original).

Primary assumption of the risk acts as a complete bar to a plaintiff’s recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979). Minnesota courts have applied primary assumption of the risk to cases involving participants in inherently dangerous sporting activities. See Wagner v. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986) (rollerskating); see also Grisim v TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn. 1987) (golf); Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966) (ice skating); Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn. App. 2007) (skiing), review denied (Minn. Aug. 21, 2007); Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 152 (Minn. App. 2002) (paintball); Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 746-47 (Minn. App. 2000) (diving), review denied (Minn. Oct. 17, 2000); Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn. App. 1996), (snowmobile racing), review denied (Minn. Jan. 29, 1997); Swagger v. City of Crystal, 379 N.W.2d 183, 184-85 (Minn. App. 1985) (softball), review denied (Minn. Feb. 19, 1986). In Grady, this court recently held that primary assumption of [*5] the risk applies to adult snowtubers because it is an inherently dangerous sport. 826 N.W.2d at 552.

Here, the doctrine of primary assumption of the risk relates to Afton Alps’s legal duty to protect Dawson, a snowtuber, from the risk of harm.

Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .

In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.

Id. at 550.

“The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.” Id. at 551 (citing Peterson, 733 N.W.2d at 792). “Application of the doctrine requires actual, rather than constructive, knowledge.” Snilsberg, 614 N.W.2d at 746.

A. Duty of Care

“The first step in determining whether primary [*6] assumption of the risk applies is to determine whether the defendant owed a duty to the plaintiff.” Grady, 826 N.W.2d at 550. Afton Alps acknowledges that it owed Dawson the duty of reasonable care. See Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59 (Minn. App. 1989) (holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.” Snilsberg, 614 N.W.2d at 744.

Dawson argues that Afton Alps breached its duty because it failed to warn her that she could be injured by colliding with the fence, and Afton Alps should have either removed or properly cushioned the fence. But Dawson offers no evidence other than her own argument that such measures would have lessened the inherent risks associated with snowtubing. See Grady, 826 N.W.2d at 550 (dismissing appellant’s assertion that respondent was negligent in reducing risk of collision with another snowtuber when it failed to provide numerous safety measures on the course).

A well-known, incidental risk of snowtubing is the possibility of colliding with a fixed object. Snowtubing is a sport, [*7] like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” Id. Even if Afton Alps had a duty to warn, it met that duty when it informed Dawson of the risk of possibly colliding into a fixed object, such as the fence. Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.”

B. Knowledge and appreciation of the risk

Actual knowledge of a sport’s risks may be inferred from experience in the sport. Grady, 826 N.W.2d at 551; see also Snilsberg, 614 N.W.2d at 746 (concluding that appellant’s actual knowledge of the danger of diving into the lake from the dock was established by her general knowledge as an experienced swimmer and diver and specific knowledge of the shallow water at the dock).

Dawson argues that she did not have actual knowledge that she could suffer severe harm from colliding with the fence while snowtubing. But the record supports the district court’s determination that Dawson had such actual knowledge. Dawson testified that she had general knowledge [*8] of snowtubing because she had done it at least once before. Dawson also had specific knowledge that she could collide with the fence while snowtubing–she saw that the fence was located directly behind the pillow barrier at the foot of the hill. Dawson knew of the icy conditions on the hill that evening and that she was unable to control her tube as it went down the hill. An Afton Alps employee told Dawson after her first run that linking tubes increases the speed of descent. Despite her knowledge of these risks, she continued to snowtube down the hill.

The record also supports the district court’s conclusion that Dawson appreciated the risk of being injured by colliding with the fence. Dawson wore a ticket on her jacket stating that she acknowledged that “obstacles and hazards . . . may exist throughout the area” and “collisions do occur and injuries may result,” and that she “recognized and accepted those dangers” and “assume[d] all risk of personal injury.”

Although Dawson insisted that she was unaware that she could be injured by colliding with the fence, she testified that it was possible that she could collide with other persons or objects while snowtubing and that snowtubing is a sport [*9] that cannot be made completely safe. The record supports the district court’s conclusion that Dawson knew and appreciated the risk of a collision with the fence.

The district court also properly concluded that Dawson had a chance to avoid the risk. See Grady, 826 N.W.2d at 552 (concluding appellant had the chance to avoid the risk of colliding with another snowtuber by not going down the hill). Dawson could have avoided the risk by not snowtubing that evening. The district court noted that when Dawson stood at the top of the hill, “she could see and appreciate the conditions then existing” and that she “was aware from her previous trips down the hill that the hill was icy and that she would in all likelihood run into the [pillow barrier], and possibly the fence, at the end of her run.” The record supports the district court’s conclusion.

C. Expert testimony

Dawson argues that primary assumption of the risk is inapplicable here because her liability expert testified that the fence was not a well-known risk incidental to snowtubing. But colliding with a fixed object is a well-known risk of snowtubing, and here the fence was an obvious fixed object. No genuine issue for trial exists when “the record taken as a [*10] whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). No genuine issue of fact exists here because the evidence is conclusive, and there is no fact issue for a jury to decide. See Snilsberg, 614 N.W.2d at 744 (holding that applicability of primary assumption of the risk is “[g]enerally a question for the jury” but that it “may be decided as a matter of law” when the evidence is conclusive).

The record supports the district court’s determination that Dawson’s injuries resulted from the inherent risks of snowtubing, and it did not err by granting Afton Alps’s motion for summary judgment.

Affirmed.


First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.

How many times do I have to repeat this, hire an attorney to write your release? Hire an attorney that understands your activity and your guests. These releases (yes two of them) are truly ridiculous. The release attempted to cover skiing, snowboarding, “sliding,” (whatever that is) and the tubing hill. On top of that the skier responsibility code or “your responsibility code” was included in the release for tubing. Two different releases were signed for the same activity. Finally the language in the release was just plain wrong and the court pointed it out.

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Plaintiff: James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor

Defendant:  Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr,

Plaintiff Claims: negligence

Defendant Defenses: release, assumption of risk, no duty owed

Holding: For the defendant snowtubers who hit the plaintiff’s and for the plaintiff’s against the ski area because the release failed.

 

The case is about facts that probably occur every day on a tubing hill. One group of three tubers, plaintiffs, veered into another lane in the run out. As the second group of tubers, defendant tubers, came down they hit the plaintiffs. The parents of the injured tubers filed suit against the ski area owner of the tubing hill Perfect North Slope, and the defendant tubers that hit the kids.

As luck would have it or actually extremely poor management of the legal issues and documents of the defendants; plaintiff’s signed one release to go tubing, and the defendant tubers signed a different release. The director of Snowsport’s Operations stated:

…testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms.

Both groups of defendants filed motions for summary judgment leading to this decision.

Summary of the case

The court first looked at the claims against the defendant tubers. The plaintiff’s brought the defendant tubers into the case arguing the tubers assumed a duty of care to the plaintiff’s by signing the release. The plaintiff’s quote language in the release and specifically in the “Your Responsibility Code” in the release which they argued created liability on the part of the defendant tubers.

The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.”

Your responsibility control was based on skiers and boarders on ski slopes. It is based on the simple premise that skier and boarders can turn and stop, that you can ski and board under control. In tubing, the only control, you have is to hold on or not. “Your Responsibility Code” has no bearing on tubing and in this case gave the plaintiffs away to drag in other guests of the ski area.

Under Indiana law a contract that creates a duty can create negligence. That means you sign an agreement that says you will act or not act in a certain way. You breach that duty which causes injury to the other party to the contract, under Indiana law you could be liable. The contract created the standard of care you breached.

Generally, only the parties to the contract can create the duty which can create liability. Third parties, those not identified in the contract or signors to the contract are not part or have benefits or duties from the contract. It is difficult to bring third parties into a contract unless the contract is made to benefit the third party or contemplates the third party in the contract.

Here the court agreed with the defendant tubers that the contract they signed with the defendant ski area did not create a duty of care owed to the plaintiffs. However, that conclusion was based on a very thorough and intense review of the “release” the defendant tuber’s signed. There were several sentences in the agreement that caused the court’s concern.

The signor of the agreement which contained the skier responsibility code agreed to abide by the code. The release also stated, “…as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” The plaintiff argued that those statements created an affirmative duty of care on the part of one group of tubers to another.

The ski area testified that the skier responsibility code had nothing to do with tubing. In fact, much of the deposition testimony incorporated into the decision concerning the intent of the ski area with the release was about the defendant tubers. The judge concluded: “It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other patrons, while other snow tubers did not.” The third party defendants were dismissed from the case.

Defendant Ski Areas arguments

The same confusion that led to the release from the suit of the defendant tubers worked against the ski area. There is an axiom in the law that states a contract will be construed against the person who drafted it. This means if there is a section of the contract that could be interpreted either for or against the drafter; it will be interpreted against the drafter. This applies to all releases because releases are presented to the guests on a take it or leave it basis. As the drafter, the court figures they had the best chance to write the release correctly and thus wrote the release to help the other party if the release is confusing.

Badly written releases are legally termed ambiguous. Here the court held the release was ambiguous.

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence, and its construction is a matter for the fact-finder. An ambiguity exists where a provision is susceptible to more than one interpretation, and reasonable persons would differ as to its meaning.

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Ambiguous contracts or releases cannot be upheld.

In reading the release signed by the plaintiff the court looked at whether it was intended to apply to the minor children. The first part of the release was written to prevent suits by the “signor.” In this case, the signor was the parents of the injured minors.

Only in the second part of the release, the medical authorization was there a mention to other parties, children or minors.

Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.”

Reading the contract as a whole, the court found the only part of the release that applied to the children was the medical authorization. The release part of the release only applied to the person who signed it.

The ski area was not released from the lawsuit.

So Now What?

When you have a new release, you shred, recycle, and throw out the old release. You don’t keep them around to save money or paper. The amount of paper you save is just a small percentage of what the parties will go through in a trial.

Make sure that your release does not create duties of care or promises that create liability for you or for third parties. You cannot disclaim liability for future injuries and promise not to injure a guest in the same document.

Don’t put anything in your release that could confuse or compromise the release. Here the skier responsibility code had no application to tubing and could have created liability for third parties. Why waste the space to complicate your document.

Never write, or use, a release that is confusing. Here the interpretation of several confusing sections led to the decision that could have gone either direction to some extent. Your release must be clear and distinctly understandable showing that the parties intend the document will prevent future litigation for any injuries.

The court never considered if the release covered minors. Here was a perfect opportunity for the court to hold that releases stopped suits by minors. However, the release was written so badly the court never even got to that issue.

How hard is it to include a simple phrase into a release so that other tubers are not drawn into a lawsuit? Do you think the defendant tubers are going to go tubing for a while, or for that matter, any other sport with other people they do not know? Instead of marketing and keeping people safe, the release at issue here probably helped keep people from the sport.

This contract was written to cover everything and effectively covered nothing. It just does not work to write releases to cover the world if your operation is that big. Your release must be written for the law of the state where you are operating or based and must be written to cover the activities your client’s are engaged in. Here the release was written to cover everything, written badly and ended up covering nothing.

The release in this case was a disaster. The new release was equally bad. Both were written badly and included language that made them ineffective at best and increased liability to a greater extent. It is difficult to write a release where the language voids it because you describe the risks improperly, however, this release did.

Other Tubing Cases

Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing            http://rec-law.us/So8QS8

Bad release and prepped plaintiff defeat motion for summary judgment filed by ski areahttp://rec-law.us/12mE4O1

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Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor, Plaintiffs, v. Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr, Defendants.

Case No. 4:12-cv-00027-TWP-WGH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION

2014 U.S. Dist. LEXIS 468

January 3, 2014, Decided

January 3, 2014, Filed

PRIOR HISTORY: Sauter v. Perfect North Slopes, Inc., 2012 U.S. Dist. LEXIS 95882 (S.D. Ind., July 11, 2012)

CORE TERMS: snow, slope, tube, tubing, lane, summary judgment, patrons, ambiguity, skiing, signor, duty of care, snowboarding, tuber, ski, affirmatively, ambiguous, signing, safely, trail, authorization, extrinsic, collision, skier, sport, seal, language used, patent, release form, ride, top

COUNSEL: [*1] For JAMES STEPHEN SAUTER, Individually and as Natural Guardian of M.S., a Minor, PIPER SAUTER, Individually and as Natural Guardians of M.S., a Minor, Plaintiffs: Louise M Roselle, Paul M. De Marco, MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, OH; Wilmer E. Goering, II, ALCORN GOERING & SAGE, LLP, Madison, IN.

For PERFECT NORTH SLOPES, INC., Defendant: Michael C. Peek, CHRISTOPHER & TAYLOR, Indianapolis, IN.

JUDGES: Hon. Tanya Walton Pratt, United States District Judge.

OPINION BY: Tanya Walton Pratt

OPINION

ENTRY ON SUMMARY JUDGMENT

Following a tragic accident which occurred at Defendant Perfect North Slopes, Inc. (“Perfect North Slopes”) on January 30, 2011, Plaintiffs James Stephen Sauter (“Mr. Sauter”) and Piper Sauter (“Mrs. Sauter”) (collectively, “the Sauters”) filed this negligence action. Perfect North Slopes is a ski resort which among other activities, offers snow tubing, a recreational activity that involves sitting on an inner tube and sliding down a hill. The Sauters were at Perfect North Slopes with their three children, T.S. age 8, J.S., and M.S. age 10 (collectively, “the Sauter children”), on January 30, 2011, for a Boy Scouts event. While snow tubing, the Sauter children veered into Defendants’, [*2] Andrew Broaddus, Stephanie Daniel,1 Christopher Daniel, Jenny Warr, and Anthony Warr (collectively, “Snow Tube Defendants”), snow tube lane, after which the Snow Tube Defendants collided into the Sauter children. As a result of the collision, M.S. suffered a brain injury.

1 The Court notes that the Complaint and CM/ECF caption use this spelling for Stephanie Daniel’s name. However, Snow Tube Defendants’ briefing uses the spelling, “Stephany Daniel.” If “Stephanie” is incorrect, the parties are ordered to file a motion to correct the error.

The Sauters filed suit against both Perfect North Slopes and the Snow Tube Defendants for negligence. Before the Court are the Defendants’ separate Motions for Summary Judgment. The issue of Perfect North Slopes’ alleged negligence has not been briefed, and the sole issue before the Court regarding Perfect North Slopes is the validity and applicability of the release form signed by Mrs. Sauter. For the reasons set forth below, Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED and the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED.

I. BACKGROUND

A. Snow Tubing and Perfect North Slopes

Perfect North Slopes is a [*3] ski resort located in Lawrenceburg, Indiana. It has terrain parks, ski slopes, and a snow tubing hill. Snow tubing involves sitting or lying inside a round inner tube and riding at a quick speed down a snow-covered slope. To reach the top of the snow tubing hill, patrons at Perfect North Slopes ride a moving walkway called the “magic carpet” up to the top of the hill. The snow tube hill is divided into multiple lanes separated by packed snow barriers approximately one foot high. On January 30, 2011, there were nine express lanes, nine regular lanes, and four super lanes on the snow tubing hill. Express lanes were longer than regular lanes and the super lanes were wider than regular lanes. The snow tubing hill flattens into a gravel lot called the “run-out” area, which is approximately 180 feet long. Snow tubers can average between 20 and 40 miles per hour down the hill.

Perfect North Slopes employees are located at the top of the snow tubing hill to direct the flow of patrons down the hill. The employees specifically determine when it is safe for patrons to proceed down the hill and they assist the patrons’ start by pushing or pulling the tubes into the designated lane. Perfect North [*4] Slopes also has employees located at the bottom of the hill to assist patrons exiting the snow tube area.

On January 30, 2011, Perfect North Slopes had rules and regulations governing use of the snow tubing hill. The rules and regulations were posted throughout the park, as well as broadcast on a loud speaker system. Only one rider was allowed per tube. Linking — allowing a number of tubers going at one time in one lane — was allowed as conditions warranted. Linking was to be single file and “[w]hen linking, tubers must hold on to each other’s short tube handles the entire time.” Dkt. 85-23 at 2. Perfect North Slopes’ website FAQs stated that, “[o]n the main hill, as many as three tubes can ‘link’ together.” Dkt. 129-10 at 2. Perfect North Slopes also recommended that parents supervise their children at all times.

B. The Releases

Before participating in snow tubing, all patrons were required to sign a release form prepared by Perfect North Slopes. On January 30, 2011, Perfect North Slopes provided the Snow Tube Defendants with a release titled “Skiing/Snowboarding/Tubing Waiver”. Mrs. Sauter was provided a release titled “Snow Tubing Release of Liability”. The [*5] two forms differed in language.

The Skiing/Snowboarding/Tubing Waiver included the following language in its “YOUR RESPONSIBILITY CODE”:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This waiver also states that, “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. Each of the five Snow Tube Defendants signed this release.

Conversely, the Snow Tubing Release of Liability form did not have a personal responsibility code. It included language releasing Perfect North Slopes of liability for claims of personal injury, death and/or property [*6] damage. Dkt. 85-20 at 1 (under seal). It acknowledged acceptance of risk of snow tubing as a hazardous activity and risk of injury. It specifically stated, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). It further stated:

I, the undersigned, acknowledge that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself. I understand that my signature below expressly waives any rights I may have to sue Perfect North Slopes, Inc. for injuries and damages.

Dkt. 85-20 at 1 (under seal). Mrs. Sauter filled in the names of her three children and signed and dated this release.

C. The Collision

After Mrs. Sauter signed the release, Mr. Sauter took their three children to the “magic carpet,” where he escorted the children in line and then left. The Sauter children and Snow Tube Defendants each made their way to the top of the snow tubing hill. The Sauter children went to Express Lane 7 and the Snow Tube [*7] Defendants went to Express Lane 8. The Sauter children linked their tubes and were pushed down the lane by Perfect North Slopes employee Kelsi Carlson (“Ms. Carlson”). Unfortunately, at some point during their ride, the Sauter children veered out of their lane into Express Lane 8 and came to a stop before the end of the lane 8. Two of the Sauter children got out of their tubes and were pulling the third child in his or her tube toward the “magic carpet”. The Snow Tube Defendants had linked their five tubes and were pushed down lane 8 by Ms. Carlson. Stephanie Daniel went down the hill backwards in her tube and could not see where the tube was going. The Snow Tube Defendants collided with the Sauter children in Express Lane 8, approximately 25 feet short of the end of the snow tube slope. The Snow Tube Defendants’ tubes continued down Express Lane 8 after the collision and came to a stop in the gravel run-out area. Both Stephanie Daniel and Christopher Daniel suffered minor injuries from the collision. M.S. was knocked unconscious by the collision and was seriously injured.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, [*8] depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, “neither the mere existence [*9] of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).

III. DISCUSSION

As previously discussed, the Sauters’ Complaint alleges both Perfect North Slopes and the Snow Tube Defendants were negligent. Perfect North Slopes filed a motion for summary judgment based on the Snow Tubing Release of Liability and the Snow Tube Defendants move for summary judgment on the bases that they acted reasonably at all times and owed no duty to the Sauter Children. The motion’s are addressed in turn.

A. Snow Tube Defendants’ Motion for Summary Judgment

The Court must first address whether the Snow Tube Defendants owed a duty of care to M.S., because in the absence of duty a claim of negligence necessarily fails. See Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). The Snow Tube Defendants contend they had no duty of care toward the Sauter children, and thus should be dismissed from the suit. The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing [*10] Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.” Dkt. 85-21 at 1.

In Indiana, “[i]f a contract affirmatively evinces an intent to assume a duty of care, actionable negligence may be predicated upon the contractual duty.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002). To make this determination, “it is the court’s duty to ascertain the intent of the parties at the time the contract was executed as disclosed by the language used to express their rights and duties.” Walker v. Martin, 887 N.E.2d 125, 135 (Ind. Ct. App. 2008). “Generally, only parties to a contract or those in privity with the parties have rights under a contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind. 1996). The Indiana Supreme Court has stated that:

One not a party to an agreement may nonetheless enforce it by demonstrating that the parties intended to protect him under the agreement by the imposition of a duty in his favor. To be enforceable, it must clearly appear that it was the purpose or a purpose of the contract [*11] to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.

Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990)).

The Snow Tube Defendants argue that the Skiing/Snowboarding/Tubing Waiver does not affirmatively create a duty of care of the signor of the waiver to other patrons at Perfect North Slopes. The Court agrees. The waiver included the following general language:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep [*12] off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This list of responsibilities appears at the beginning of the waiver and by signing the waiver, a signor attests that he or she is “familiar with and will adhere to” the responsibilities. The waiver also states: “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. This statement appears within the first full paragraph of the waiver, in which the signor also acknowledges the risks of the snow sports offered at Perfect North Slopes, Perfect North Slopes’ lack of duty to warn of dangers, and that participating in snow sports is voluntary with knowledge of the aforesaid risks.

The Court is not persuaded by the Sauters’ argument that the recitation of these responsibilities, even with the acknowledgment of the signor to adhere to them, represents an affirmative assumption of a duty of care. First, the “Your Responsibility Code” includes basic safety instructions and concludes with the words, “This is a partial list. Be [*13] safety conscious.” This implies not that the list imposes affirmative duties that are actionable if ignored, but that it is a general guideline. Second, the statement that the signor will tube safely and in control is included as one of many acknowledgments in a paragraph that ends with the statement, “I . . . hereby expressly agree to accept and assume all such risks of [in]jury or death associated with the sport of snow skiing/boarding/tubing.” Dkt. 85-2 at 1. This affirmative assumption of the risks does not mention the responsibilities listed within the same paragraph. Instead, the language regarding the responsibilities includes the words “recognize,” “familiar,” and “agree.” However, it does not affirmatively state the signor “assumes” those responsibilities.

Especially considering that the Sauters are third parties to the contract between the Snow Tube Defendants and Perfect North Slopes, there is no evidence that “it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.” OEC-Diasonics, Inc., 674 N.E.2d at 1315. [*14] While performance of the responsibilities listed certainly would benefit third parties like the Sauters and M.S., there is no evidence of clear intent as required.

Further, to the extent the contract language is ambiguous regarding the assumption of a duty of care, the extrinsic evidence of record supports the Snow Tube Defendants’ position. The Director of Snow Sports Operations at Perfect North Slopes, Mike Mettler (“Mr. Mettler”), explained during his deposition that the “Your Responsibility Code” section of the Skiing/Snowboarding/Tubing Waiver was derived from the “Skier’s Responsibility Code” developed by the National Ski Areas Association as a standard code for all skiers and snowboarders. Dkt. 85-7 at 5, 111:14-20. Mr. Mettler testified that there are not standard rules for snow tubing, the “Your Responsibility Code” did not apply to snow tubing, and that snow tubing is inherently distinct from skiing or snowboarding, particularly because a snow tuber lacks the ability to steer and control the tube. Dkt. 85-7 at 5, 111:22-25; Dkt. 85-8 at 51-53, 214:22-216:21; Dkt. 85-8 at 51, 214:6-21. Perhaps also telling, the Snow Tubing Release of Liability signed by Mrs. Sauter did not [*15] include a “Your Responsibility Code” section or any similar language. Mr. Mettler testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms. He further stated that there were no distinction between the forms in terms of responsibilities while snow tubing. Dkt. 85-8 at 50, 213:7-17.

Mr. Mettler’s explanations support the conclusion that the Snow Tube Defendants did not assume a specific duty of care to other patrons. First, Perfect North Slopes did not expect or intend for snow tubers to have the exact abilities and safety responsibilities as skiers and snow boarders given the differences between the sport activities. Second, Perfect North Slopes was phasing out use of the Skiing/Snowboarding/Tubing Waiver for snow tubing, and the new form, the Snow Tubing Release of Liability, did not include any mention of responsibilities to stop and give right of way to other patrons. It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other [*16] patrons, while other snow tubers did not. The random nature of who signed which form is evidence that Perfect North Slopes considered the two forms to contain the same obligations and releases.

Accordingly, the Court finds that the Sauters have not established as a matter of law that the Snow Tube Defendants affirmatively assumed a duty of care to the Sauter children. Nor have the Sauters established a common law duty existed. Therefore, the Snow Tube Defendants’ motion is GRANTED and they will be dismissed from the suit.

B. Perfect North Slopes’ Motion for Summary Judgment

At first glance, Perfect North Slopes’ motion is seemingly straightforward, as it contends that the Sauters released all claims for liability when Mrs. Sauter signed the Snow Tubing Release of Liability form on behalf of her children. The Sauters respond with two arguments in the alternative. First, they ask the Court to invalidate the release on public policy grounds, an issue on which the Indiana Supreme Court has not spoken. Second, the Sauters contend the language of the release does not contain a waiver of claims on behalf of minors. Because the Court finds that the release is ambiguous and thus does not bar the [*17] Sauters’ claim against Perfect North Slopes, the Court will not speculate on the public policy issue raised by the Sauters.

The Sauters contend that the Snow Tubing Release of Liability does not waive a minor’s possible negligence claims against Perfect North Slopes. The Indiana standard of review for contract interpretation is as follows:

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002). If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734, 744 (Ind. Ct. App. 2010), trans. denied. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence and its construction is a matter for the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004). But the fact that the parties disagree over the meaning of the contract does not, in and of itself, establish an ambiguity. [*18] Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).

When interpreting a written contract, the court should attempt to determine the parties’ intent at the time the contract was made, which is ascertained by the language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).

Claire’s Boutiques, Inc. v. Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013). Furthermore, an ambiguity may be patent or latent:

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013) [*19] (internal citations omitted). If an ambiguity arises by reason of the language used, construction of the ambiguous contract is a question of law for the court. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind. Ct. App. 2010).

The Sauters present the release form as a dual-purpose document; a medical authorization on one hand, and a release of liability on the other. They argue that nowhere does the release explicitly release the claims of minors, and the only reference to minors is in regard to medical authorization. The Court agrees that at best, the release is ambiguous regarding whether a minor’s claims against Perfect North Slopes are waived.

Specifically, the release is written from the viewpoint of an adult signor. Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). In the seventh and final paragraph the release also states, “I, the undersigned, acknowledge [*20] that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself.” Dkt. 85-20 at 1 (under seal). Perfect North Slopes argues this final statement applies to the entirety of the agreement, while the Sauters argue it applies only to the medical authorization.

Contract interpretation requires “the contract to be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless.” Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 56 (Ind. Ct. App. 2009). Here, the release inserts a specific reference to minors only regarding medical authorization. It does not reference minors regarding acceptance of risk, awareness that tubing is a hazardous activity, or releasing Perfect North Slopes from damage resulting from negligence, or any other clause. This disparity creates a susceptibility of more than one interpretation of the release’s provisions. However, if Perfect North Slopes’ interpretation that the final statement applies to the entire release was accepted, the specific [*21] reference to minors regarding medical authorization would be rendered redundant or unnecessary. Rather, it is reasonable to interpret the release as referencing minors when the release specifically applies to them, which is reiterated at the conclusion of the release. Thus, the Court finds the contract ambiguous. The ambiguity is a patent one, as it is inherent in the language of the document. In this circumstance, extrinsic evidence is not admissible or necessary to the Court’s determination. The release does not include a clear, unambiguous waiver of M.S.’s claims against Perfect North Slopes for its alleged negligence. Therefore, Perfect North Slopes’ motion is DENIED.

IV. CONCLUSION

For the reasons set forth above, the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED. The Sauters’ claims against the Snow Tube Defendants are DISMISSED with prejudice. Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED. The Sauters’ negligence claim may proceed. No final judgment will issue for the Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved.

SO ORDERED.

Date: 01/03/2014

/s/ Tanya Walton Pratt

Hon. Tanya Walton Pratt, [*22] Judge

United States District Court

Southern District of Indiana

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Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Mazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416

Release stops the lawsuit in this case; however, if written better there might not have been a lawsuit.

Tubing brings in a lot of money for minimal investment and space for an area with snow. On top of that tubing requires no skills and can be done even when you are

English: Snow tubers going down a hill.

exhausted, and you can still have fun. Consequently, tubing hills are showing up everywhere, and at all ski areas.

In this case, the plaintiff’s tube appears to have become detached from the lift and she “catapulted” over an embankment causing her injuries. Normally, the term catapulted means some force was applied to launch the projectile, but when you don’t have a solid legal case, you sometimes pump up the facts.

Summary of the case

The tubing trip was put together by the Fraternal Order of the Eagles. The plaintiff signed a release for the Eagles and for Ski Shawnee. Both releases were reviewed by the courts. Under Pennsylvania law, a release is defined as “a contractual provision relieving a party from any liability resulting from a negligent or wrongful act.” After looking at the releases the court stated the four-part test in Pennsylvania to determine if a release was valid. The ways to invalidate a release under Pennsylvania law are almost identical to the ways releases are invalidated in other states.

(1) The contract must not violate any policy of the law;

(2) The contract must be between individuals and relate to their private affairs;

(3) Each party must be a free bargaining agent rather than one drawn into a contract of adhesion;

(4) The agreement must express the intent of the parties with the utmost particularity.

The court looked at the activity and the releases and found the releases valid. The parties were private parties; the contract was not one of adhesion; the language was conspicuous and expressed the intent of the parties, and snow tubing is a recreational activity.

The plaintiff’s claims were the tubing facility was designed negligently, and the lift was operated negligently. Neither of these issues was identified in the release. However, the court was able to find language in the release which the court found protected the defendants from these claims. The court first found the issues were part of snow tubing and consequently, were an inherent risk of the sport and the release mentioned the lift in it.

So Now What?

Snow tubes

Tubing is going to continue to grow as a sport. This is a great decision in Pennsylvania to help a tubing operation write a release and a great decision in other states to argue what the risks of tubing are and as such which ones are inherent to the sport.

However, both releases did not point out the risks of the sport who allowed the plaintiff the slightly open door to start their suit. The better your release is written the greater the chance that an injured and unhappy plaintiff can find a way to test your release.

What do you think? Leave a comment.

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Mazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416

Mazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416

Mazza v. Ski Shawnee Inc.

no. 10506 CV 2004

COMMON PLEAS COURT OF MONROE COUNTY, PENNSYLVANIA

2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416

June 29, 2005, Decided

COUNSEL: [*1] Eric W. Wassel, for plaintiffs.

Hugh M. Emory, for defendant.

JUDGES: CHESLOCK, J.

OPINION BY: CHESLOCK, J.

OPINION

[**417] CHESLOCK, J., June 29, 2005 Plaintiffs Jean Mazza and Mark Mazza, h/w, commenced this action by complaint filed on December 29, 2004. The complaint seeks damages for personal injuries stemming from a snow tubing accident which occurred on January 10, 2003. The complaint avers that plaintiff Jean Mazza’s snow tube broke loose from the tubing lift, causing her to be catapulted over an embankment, resulting in significant personal injuries. On February 11, 2005, defendant Ski Shawnee Inc. filed an answer with new matter. On April 25, 2005, defendant filed a motion for judgment on the pleadings. Defendant filed a brief in support of its motion on May 17, 2005. Plaintiffs filed their brief in opposition to defendant’s motion for judgment on the pleadings on June 1, 2005. We heard oral arguments from counsel on June 6, 2005, and we are now prepared to dispose of this matter.

Pa.R.C.P. 1034 provides as follows:

[HN1] “(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.

[*2] “(b) The court shall enter such judgment or order as shall be proper on the pleadings.”

[HN2] Pa.R.C.P. 1034 provides for a motion for judgment on the pleadings to be used to test whether such a cause [**418] of action as pleaded exists at law. Bensalem Township School District v. Commonwealth of Pennsylvania, 518 Pa. 581, 544 A.2d 1318 (1988). A judgment on the pleadings may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 595 A.2d 128 (1991). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 456 A.2d 1066 (1983). “The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Conrad v. Bundy, 777 A.2d 108, 110 (Pa. Super. 2001).

The pleadings [*3] establish that Mazza signed two releases, one provided by defendant and the other provided by the Fraternal Order of Eagles who arranged to use the snow tubing facility on January 10, 2004. Plaintiffs agree that Mazza signed a “Snow tubing acknowledgement of risk and agreement not to sue” (release) which was provided by defendant. The release contains the following language, in relevant part:

“Snow Tubing Acknowledgement Of Risk And Agreement Not To Sue This Is A Contract Read It!

“(1) I understand and acknowledge that snow tubing is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. . . .

[**419] “(3) I acknowledge and understand that some, but not necessarily all, of the risks of snow tubing are the following: . . .

“*the use of the snow tubing lift or tow, including falling out of a tube, coasting backwards, becoming entangled with equipment and other risks. . . .

“(5) I agree and understand that snow tubing is a purely voluntary recreational activity and that if I am not willing to acknowledge the risks and agree not to sue, I should not go snow tubing.

“(6) [*4] In Consideration Of The Above And Of Being Allowed To Participate In The Sport Of Snow Tubing, I Agree That I Will Not Sue And Will Release From Any And All Liability Ski Shawnee Inc. If I Or Any Member Of My Family Is Injured While Using Any Of The Snow Tubing Facilities Or While Being Present At The Facilities, Even If I Contend That Such Injuries Are The Result Of Negligence Or Any Other Improper Conduct On The Part Of The Snow Tubing Facility.

“(7)I Further Agree That I Will Indemnify And Hold Harmless Ski Shawnee Inc. from any loss, liability, damage or cost of any kind that may incur as the result of any injury to myself, to any member of my family or to any person for whom I am signing this agreement, even if it is contended that any such injury as caused by the negligence or other improper conduct on the part of Ski Shawnee Inc.

“(10) I have read and understood the foregoing acknowledgement of risks and agreement not to sue and am voluntarily signing below, intending to be legally bound thereby.”

[**420] Mazza also signed a release form from the Eagles which provides, in relevant part:

“(1) The Eagle member and guest agrees and understands that snow tubing is [*5] an inherently dangerous sport. Trail conditions vary constantly because of weather conditions and snow tubing and other obstacles and hazards may exist throughout the area. The member voluntarily assumes the risk of injury while participating in the sport. In consideration of using Shawnee Mountain snow tubing facilities the user agrees to accept the risks and agrees not to sue F.O.E. no. 1106 or Ski Shawnee Inc. or its employees or agents if hurt while using the facility regardless of any negligence of F.O.E. no. 1106 or Ski Shawnee Inc. or its employees or agents. . . . The user voluntarily assumes the risk of injury while participating in the sport. . . .

“(3) I have read and understand the foregoing regulations and release agreement and am voluntarily signing below intending to be legally bound thereby.”

The standard of review for a valid release agreement is set forth in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), affirmed, 490 Pa. 428, 416 A.2d 1010 (1980) (citation omitted); see also, Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 447, 603 A.2d 663, 665 (1992). The Superior Court in [*6] Zimmer set forth [HN3] the following four-part test to determine the validity of exculpatory clauses:

(1) The contract must not violate any policy of the law;

(2) The contract must be between individuals and relate to their private affairs;

[**421] (3) Each party must be a free bargaining agent rather than one drawn into a contract of adhesion;

(4) The agreement must express the intent of the parties with the utmost particularity. 253 Pa. Super. at 478, 385 A.2d at 439.

[HN4] As a general rule, exculpatory disclaimers between private parties are enforceable in Pennsylvania and are not viewed as violating public policy. Missar v. Camelback Ski Resort, 30 D.&C.3d 579, 581 (Monroe Cty. 1984). An exculpatory clause is defined as “a contractual provision relieving a party from any liability resulting from a negligent or wrongful act.” Black’s Law Dictionary, 240 (Pocket ed. 1996).

In similar cases, our court has upheld that [HN5] the release language on the back of the ticket constitutes a valid waiver of liability. See generally, Venn v. Shawnee Mountain Ski Area, 5109 Civil 2002 (Monroe Cty. 2004) (Vican, P.J.); King v. Resorts USA Inc. d/b/a Rank Anhert, 8937 Civil [*7] 2001 (Monroe Cty. 2003) (O’Brien, J.); Catanna v. Camelback Ski Corp, 1340 Civil 1992 (Monroe Cty. 2001) (O’Brien, J.); Lee v. Camelback Ski Corp. a/k/a Camelback Ski Area, 8324 Civil 2001 (Monroe Cty. 2002) (Miller, J.); and Nisbett v. Camelback Ski Corp., 2226 Civil 1992 (Monroe Cty. 1996) (Miller, J.). We have held that [HN6] if an exculpatory agreement meets the four-prong test set forth in Zimmer, then the agreement is valid and enforceable.

In the instant case, we believe that the release does not violate any public policy. First, it is between private parties and relates to their private affairs. Second, we [**422] find that it is not a contract of adhesion, the language on the release is clear that if the person is not willing to acknowledge the risks and agree not to sue, he/she should not go snow tubing. (Release P 5.) Mazza was not required to enter into the contract, but she did so voluntarily in order to snow tube at the facility. The language contained on the release is conspicuous and expresses the intent of the parties with the requisite particularity. Furthermore, Mazza’s decision to go snow tubing was an activity which is not essential to plaintiff’s [*8] personal or economic well-being but was purely a recreational activity. See Kotovsky, supra at 447, 603 A.2d at 665. [HN7] An activity is purely recreational if it is not essential to one’s personal or economic well-being. Kotovsky, supra at 447, 603 A.2d at 665. (citation omitted)

Plaintiffs argue that we must deny defendant’s motion because the language contained in the release did not specifically exculpate itself from liability relating to the design of the facility and the lift mechanism. We do not agree. The release specifically set forth that there are many inherent dangers involved in snow tubing. The release specifically identifies the use of the snow tubing lift or tow. Further, Mazza signed the release which specifically sets forth that, even if it is contended that any such injury as caused by the negligence or other improper conduct on the part of Ski Shawnee Inc., she agrees to release and not sue defendant. Moreover, we are not bound by the holding in Martin v. Montage Mountain, 46 D.&C.4th 225 (Lackawanna Cty. 2000), the case cited by plaintiffs. The Martin case involved a [**423] plaintiff who signed a release which was specific [*9] that he would not sue for damages related to the use of a snow tube or lift. Id. at 230. Instantly, we believe that the release was clear that Mazza would not sue for any injuries resulting while using any of the snow tubing facilities or from any injuries sustained while present at the facilities.

For these reasons, we find that judgment on the pleadings may be entered due to the lack of disputed issues of fact and defendant is entitled to judgment as a matter of law. Accordingly, we entered judgment on the pleadings in favor of defendant.

ORDER

And now, June 29, 2005, upon consideration of defendant’s motion for judgment on the pleadings and any response thereto, it is hereby ordered and decreed that defendant Ski Shawnee Inc.’s motion for judgment on the pleadings is hereby granted and judgment is entered in favor of defendant, Ski Shawnee Inc., and against plaintiffs, Jean Mazza and Mark Mazza.

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