Opinion
No. CV03-048041
Filed November 15, 2006
MEMORANDUM OF DECISION
Adriana Colagiovanni, the plaintiff, claims that on July 28, 2001 she was injured as a direct result of negligence of the defendants, the New Haven Acquisition Corporation (also referred to as New England Acquisition Corporation.), the New Haven Register, LLC c/o Journal Register Company (hereinafter "N.H. Register"), and the Journal Register East, Inc. At the time of the incident, pursuant to a contractual agreement, Ms. Colagiovanni delivered New Haven Register newspapers and supplements for the defendants as an independent contractor.
The parties alternatively refer to one defendant as the New Haven Acquisition Corporation (in the Original Complaint, dated July 17, 2003; and an Appearance by the defendant dated December 7, 2004); and as the New England Acquisition Corporation (in the Answer, Special Defense and Counterclaim, dated August 26, 2005; and Revised Complaint, dated October 31, 2005).
The defendants move for summary judgment based upon the clause contained in paragraph 9 of the Independent Carrier Agreement arguing that it is an exculpatory clause that releases the defendants from all liability. The plaintiff objects to the defendants' motion claiming that the language of the clause does not explicitly relieve the defendants of liability from their negligence; and that the clause violates public policy.
The facts pertinent to the resolution of the motion are not in dispute. The plaintiff entered an Independent Carrier Agreement with the defendant, N.H. Register on May 15, 2001, pursuant to which she delivered New Haven Register newspapers, including supplements, on a newspaper delivery route furnished to her by the defendant. The plaintiff picked up the newspapers and supplements from the property owned, operated and controlled by the defendants. The plaintiff used materials and items provided to her by the defendants. While she was operating a car provided to her by the defendants, and containing newspaper supplements obtained from the defendants, on property owned, operated, controlled and maintained by the defendants, the plaintiff was injured. The plaintiff claims her injuries were caused by the defendants' negligence.
Prior to signing the Independent Carrier Agreement in 2001, the plaintiff had several days to review it. The plaintiff had previously entered similar agreements with the defendant. The plaintiff acknowledges that she read the paragraph 9 prior to signing the agreement. Paragraph 9 of the agreement provides:
The Carrier is not an employee of the Company, but is an independent contractor and, as such, shall indemnify, defend, and hold the Company free and harmless from and against any and all claims, losses, damages, and expenses, including but not limited to attorneys fees that may hereafter be asserted against the Company by the Carrier or his/her agents, or by any other person for injury or death, damage to property or any other cause arising out of acts of omissions of the carrier or his/her agents connection with the performance under this Agreement. In any and all claims against the Company, this indemnification obligation shall not be limited in any way in the amount or types or damages, compensation or benefits payable by or for the Carrier under workman's compensation acts, disability benefit acts or other employee benefit acts. (Emphasis added.)
The pertinent pleadings are a Revised Complaint asserting three counts, dated October 31, 2005; an Answer with Two Special Defenses, including one asserting the defense of Waiver; and a Counter-Claim against the plaintiff for Indemnification.
Count One alleges that the plaintiff's injuries were caused by the negligence of New England Acquisition Corporation. In Count Two of the Revised Complaint, the plaintiff alleges that her injuries were caused by the negligence of the defendant, New Haven Register. And, Count Three contains the allegation that the defendant Journal Register East's negligence caused the plaintiff's injuries.
The defendants request that judgment enter in their favor on the plaintiff's complaint and their counter-claim. They argue that, not only is the clause in Paragraph 9 properly drafted, but it also is consistent with public policy. In support of their Motion, the defendants appended a copy of the Independent Carrier Agreement; a copy of excerpts from Adriana Colagiovanni's Deposition testimony; and Wagner v Murphy Moving and Storage, Inc., a Superior Court Decision authored by Judge Booth.
The defendants argue that they are entitled to judgment, presumably on all counts though they do not address how paragraph 9 applies to defendants, New England Acquisition Corporation or the Journal Register East, Inc. Further, the defendants' represented to Civil Presiding Judge, Judge Lager, that they intended their Motion to apply to their Counter-Claim, too. But, they have not yet filed any documents to so indicate.
Superior Court, judicial district of Middlesex, Docket No. CV 040103847 (March 6, 2006, Booth, J.).
The plaintiff, in her Memorandum of Law in Support of the Plaintiff's Objection to the Defendants' Motion for Summary Judgment, counters that this court must deny the defendants' motion for summary judgment. First, the plaintiff argues that the clause upon which the defendants rely is not valid because it fails to include language which expressly refers to negligence. Second, the plaintiff asserts that the clause at issue, though referred to by the defendants as an exculpatory clause is in actuality an Indemnification Agreement. Third, the plaintiff maintains that the clause at issue violates public policy. In support of her opposition to the motion for summary judgment, the plaintiff appends a dozen documents, including an affidavit from the plaintiff; a copy of the Independent Carrier Agreement; copies of eight decisions; and a copy of the Restatement of the Law Torts, (2d), section 496B.
"A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Wilson v. New Haven, 213 Conn. 277, 279 (1989). Practice Book section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545 (2003). Barragan v. Norwalk Transit District, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 980358826 (Doherty, J., January 7, 2004) (36 Conn. L. Rptr 328)." (Internal quotation marks omitted.) Ahern v. Kappalumakkel, Superior Court, judicial district of Ansonia/Milford, Docket No. CV 01-0075617 (March 9, 2004, Robinson, A. J.) ( 36 Conn. L. Rptr. 756).
"Summary judgment is particularly 'ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .' Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975)" Nagengast v. Hatch, Superior Court, judicial district of Ansonia/Milford, Docket No. CV04-0085957 (December 12, 2005, Hartmere, J.).
I.
First, the defendants argue that they are entitled to judgment because the Independent Carrier Agreement contains a clause which prohibits the plaintiff's action, a position the plaintiff opposes. Though the term "negligence" does not appear in paragraph 9 of the Independent Carrier Agreement, the defendants maintain that this absence is not determinative of their motion. The defendants argue that it is not necessary for paragraph 9 to contain the term "negligence" because it refers to "any and all claims" which clearly include negligence claims. To support their argument, the defendants improbably rely upon Byson v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), B D Assoc., Inc. v. Russell, 73 Conn.App. 66, 72-73, 807 A.2d 1001 (2002), Laudano v. General Motors Corp., 34 Conn.Sup. 684, 388 A.2d 842 (1977), Dililio v. Goulet, 2 Conn.App. 701, 704, 483 A.2d 1099 (1984); and Burkle v. Car and Truck Leasing Co., Inc., 1 Conn.App. 54, 467 A.2d 1255 (1983).
The defendant's reliance upon these cases is puzzling and perplexing because the current law in Connecticut on this issue appears clear in light of Hyson and its progeny. Whether defense counsel intended to mislead this court by citing, referring to and relying upon overruled appellate case law; whether defense counsel was merely over-zealous in positing the arguments; or whether defense counsel simply misunderstood the law is not immediately answerable and this court will not speculate.
The defendants quote the 1984 Burkle decision and the 1977 Laudano decision to support the proposition that the use of the words "any and all" and "all" leave no room for doubt or for exception. 1 Conn.App. at 57 and 34 Conn.Sup. at 688. Memorandum in Support of Motion for Summary Judgment, p. 6 and p. 7. The defendants write that "the term 'negligence' does not necessarily need to appear in the text . . . to render it properly drafted," citing B D Assoc., 73 Conn.App. at 72-73. Memorandum in Support of Motion for Summary Judgment, p. 5-6. And, the defendants argue that the contents of the Independent Carrier Agreement should be imputed against the plaintiff pursuant to Dililio v. Goulet, 2 Conn.App. at 704. Memorandum in Support of Motion for Summary Judgment, p. 7.
In her opposition to the Motion for Summary Judgment, the plaintiff refers to and relies upon the holding in the Connecticut Supreme Court opinion in Hyson v. Whitewater Mountain Resorts of Conn., Inc., the seminal case on the requirements for an exculpatory clause. That holding set forth the requirement that, in order to be considered valid, an exculpatory clause must contain explicit reference to negligence. The plaintiff also correctly notes that the Hyson decision was issued after the other Appellate Court decisions cited and relied upon by the defendants and therefore, Hyson overruled previous contrary holdings on this issue. Memorandum of Law in Support of the Plaintiff's Objection to the Defendants' Motion for Summary Judgment, p. 5-10.
In Hyson v. Whitewater Mountain Resorts, the court concluded that "a party cannot be released from liability for injuries resulting from its negligence in the absence of language that expressly so provides . . . [because] [a] requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights." Id. at 643. Therefore, in order for an exculpatory clause to validly release the defendant, it must contain specific reference to the term negligence. In so concluding, the Hyson court explicitly refused to adopt the reasoning articulated by the appellate court in B D Associates, Inc., which had held that there was no need for the contract to contain the term "negligence" as long as the language of the provision was clear and unambiguous. The Hyson court majority's refusal to adopt the reasoning in B D Assoc. was one of the reasons articulated as a basis for the dissent. Hyson at 645-47, (Dissent, Norcott, J. "I find the reasoning employed by the Appellate court in B D Assoc., Inc., persuasive and would adopt it herein").
Subsequent Connecticut caselaw confirms that the Hyson rule is to be strictly applied when determining whether or not exculpatory/indemnity clauses release a defendant from liability in negligence claims. Hanks v. Powder Ridge Rest., 276 Conn. 314, 326, 885 A.2d 734 (2005) (The Connecticut Supreme court "conclude[d] that the trial court properly determined that the agreement [which explicitly referred to negligence] . . . expressly purports to release the defendants from liability for their future negligence and, accordingly, satisfies the standard set forth by this court in Hyson."); Zides v. Quinnipiac University, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02-0470131 (February 7, 2006, Corradino, J.) ( 40 Conn. L. Rptr. 745) (Rejecting the defendant's argument that the Hyson ruling "was limited to [a particular] class of defendants," the court denied the motion for summary judgment because the release in that case did not expressly refer to negligence.); Nagengast v. Hatch, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 04-0085957 (December 12, 2005, Hartmere, J.) (Applying the ruling in Hyson to the owners and operators of a gymnastics school, the court found that the waiver was not sufficient because it did not "specifically state that the plaintiff is releasing the defendant from liability for its own negligence."); Corso v. United States Surgical Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. 487002 (May 25, 2005, Levin, J.) (The court concluded that, pursuant to the holding in Hyson, the defendant fitness center was entitled to judgment, because the release contained a specific reference to negligence.); and Smith Craft Real Estate Corp. v. Handex of Connecticut, Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 03-082188 (May 19, 2005, Ronan, J.T.R.) (The court denied the motion for partial summary judgment because the agreements at issue did not specifically refer to negligence, though they referred to consequential, indirect or incidental damages arising from the defendant's services).
The defendants in Zides "argue that somehow the fact that a ski resort was involved is important and that the applicability of Hyson remains unresolved in other contexts." Id. Rejecting this argument the court (Corradino, J.) referred explicitly to the Hyson ruling which was that "we conclude that the better rule is that party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides. Id., p. 643." Zides decision quoting Hyson.
It is clear that explicit reference to negligence is required to render valid an agreement releasing a party from liability for his/her own negligence. Paragraph 9 in the Independent Carrier Agreement makes no specific reference to negligence. Therefore, it is not sufficient to protect the defendants from liability for their own negligence. Accordingly, the defendants are not entitled to judgment based upon paragraph 9 of the Independent Carrier Agreement and the motion for summary judgment must be denied. CT Page 21183
II.
The defendants, arguing that the release from liability is properly drafted, also argue that enforcement of the provision is consistent public policy. In support of this position, the defendants note that five of the six Tunkl factors "inure in the Register's favor." Memorandum of Law in Support of Motion for Summary Judgment, p. 11. The Tunkl factors were adopted as guides in the seminal Connecticut court case on public policy, Hanks v. Powder Ridge Rest., 276 Conn. 314 (205). The plaintiff counters that when the court considers the "totality of the circumstances," as it is required to do by Hanks, it must conclude that enforcement of paragraph 9 in this case would contravene public policy. Memorandum of Law in Support of the Plaintiff's Objection to the Defendants' Motion for Summary Judgment. p. 21.This court has already concluded that the language in the Agreement is inadequate, as a matter of law, to release the defendant from liability in this action. However, even if paragraph 9 had contained a valid release, this court would have still denied the motion for summary judgment because enforcement of such a release would violate public policy.
In order to address the matter of public policy this court must include reference to the following additional facts. The plaintiff is a native of Argentina. Her first language is Spanish. The plaintiff began working for the defendants as an independent contractor in 1995. From the time she began working for the defendants to the time she was injured, she signed Independent Carrier Agreements approximately every two years. Approximately every two years the plaintiff received an Independent Carrier Agreement with instructions to sign and return it. The plaintiff did not believe that she had an opportunity to negotiate the terms of the Agreement. The plaintiff did not think that the Independent Contractor Agreement she signed would preclude her from bringing a negligence claim against the defendants for their negligence. The plaintiff believes that paragraph 9 of the Agreement pertains to instances in which her negligence causes injury.
The plaintiff relied upon the income she derived from her job as an Independent Contractor to pay her personal family expenses. She delivered newspapers to nearly 300 customers for the defendants. The plaintiff was required to pick up the newspapers and supplements at the place designated and controlled by the defendants. The plaintiff used a canvas cart provided to her by the defendants. The plaintiff was required to pick up the newspapers and supplements from the defendants' property to take them to her car. Additionally, because the plaintiff was not, technically, an employee of the defendants, she is not entitled to receive Workers' Compensation for her injuries, even though she was injured while working pursuant to a contract with the defendant.
There are instances in which it is appropriate and in line with public policy to enforce contractual agreements which relieve one party of liability to another for injuries resulting from the party's own negligence. However, Connecticut has a long history of requiring courts to carefully scrutinize such contracts. See e.g., Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006) ("[T]he law does not favor contract provisions which relieve a person from his own negligence . . . Hyson v. White Water Mountain Resorts of Conn., Inc. . . ."); Vogel v. Mohawk Mountain Ski Area, Inc., Superior Court, judicial district of Danbury, Docket No. CV 01-0343914 (July 25, 2002, Radcliffe, J.) ( 32 Conn. L. Rptr. 615). ("Although not invalid per se the law does not favor contract provisions which seek to relieve a party from the consequences of his own negligence. Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 413 (1982).")
Exculpatory provisions, in general, undermine the public policy considerations governing our tort system. "[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. An equally compelling function of the tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer." (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). Thus, it is consistent with public policy "to posit the risk of negligence upon the actor" and, if this policy is to be abandoned, "it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not shift the risk to the weak bargainer." Tunkl v. Regents of the Univ. of Cal., 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963). Hank v. Powder Ridge Rest., 276 Conn. 314, 327, 885 A.2d 734 (2005).
A well drafted exculpatory agreement releasing a party from liability should not be enforced if it violates public policy. See, Hanks, supra. "[C]ontracts that violate public policy are unenforceable." Id. at 327, quoting Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999). A violation of public policy adversely affects the public interest. Hanks, supra, 329. The determination of what constitutes public interest requires the court to consider the "totality of the circumstances" against the backdrop of "current societal expectations." Hanks, supra, at 330. Though the Tunkl factors may be resorted to as a guide, those factors do not limit the factors that this court should consider. Id. at 330.
The Hanks court identified the Tunkl factors, which guide but do not control the analysis, as: (1) the agreement concerns a business of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public; (3) the party holds himself out as willing to perform this service for any member of the public who seeks it; (4) the party invoking the exculpation possesses a decisive advantage of bargaining power strength against any member of the public who seeks his services; (5) in exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) as a result of the transaction, the person is placed under the control of the seller, subject to the risk of carelessness by the seller or his agent. Id. at 328.
In Hanks the plaintiff sought to recover damages for injuries she sustained while snowtubing at a recreational facility which provided snowtubing services to the public. The plaintiff signed a release which explicitly released the defendants from liability for the defendants' negligence. Because the language of the release explicitly referred to the negligence of the defendant, the Supreme Court considered, as an issue of first impression, whether enforcement of the release would violate public policy. The Court observed that review of such releases must be strict because "[t]he law does not favor contract provisions which relieve a person from his own negligence . . ." Id. at 327. In Hanks, the Supreme Court concluded that enforcement of the waiver would violate public policy, even though a majority of the Tunkl factors inured to the benefit of the defendants. Id. at 331-36.
"Applying the six Tunkl factors to the sport of snow-tubing, I note that the first, second, fourth, and sixth factors support the defendants . . . while the third and fifth factors support the plaintiff." Hanks, dissent (Norcott, J.) at 341.
The court concluded that there is a "societal expectation that family oriented recreational activities will be reasonably safe . . ." Id. at 331. The court also found that the defendant designed and maintained the run upon which the plaintiff was injured; controlled the steepness of the incline; controlled the snow conditions; controlled methods of slowing down; provided supplies; and controlled the size and quality of the tube. Id. The court further noted that the plaintiff voluntarily relinquished control; lacked the knowledge, experience and authority of the defendants; and was not on equal footing in bargaining when agreeing to the standard adhesion contract that she signed.
Given the strict scrutiny with which this court must examine the clause, the issue for this court to decide is whether enforcement at paragraph 9 would violate public policy in this case. Generally speaking, "exculpatory agreements are 'almost universally rejected in the employment context, where exculpatory agreements exempting an employer from all liability for negligence toward his employees [are] void as against public policy.' (Internal quotation marks omitted.) Bunia v. Knight Ridder, 544 N.W.2d 60, 63 (Minn.App. 1996)." Brown v. Soh, (SC 17364), (Officially Released November 14, 2006).
During the period between oral argument and the release of this memorandum of decision, the Connecticut Supreme Court extended the applicability of the Hanks ruling to the employment context in Brown v. Soh et al. The plaintiff in Brown was an employee of the defendant, Skip Barber Racing School, a racing school. The trial court granted the defendants' motions for summary judgment based upon the explicit language in the release from liability. The plaintiff appealed. The Supreme Court stated that "[w]hen we apply the factors that guide us, we conclude that exculpatory agreements in the employment context violate Connecticut public policy." Id. First, the court noted "that workplace safety and compensation for workplace injuries are areas subject to public regulation." Id. The court also noted that ". . . an employer possesses a decisive advantage of bargaining strength against the plaintiff employee. Considering the economic compulsion facing those in search of employment . . . [t]o suppose that [a] plaintiff . . . had any bargaining power whatsoever defies reality . . ." (Citations omitted.) Id. It was also "highly significant, that, in exercising this superior bargaining power, the racing school confronted the plaintiff with a standardized adhesion contract of exculpation." Id. "Another important consideration . . . is whether the signatory will be under the control of the person seeking exculpation from negligence and subject to the risk of that person's carelessness." Id.
This court believes that the holding in Brown v. Soh is directly applicable to the instant case. Though the Brown decision held that it would violate public policy to enforce an exculpatory clause in an employment context, this court believes that the same reasoning applies in this case even though the plaintiff, a newspaper carrier, is technically an independent carrier. Though there is no Connecticut court case directly on point, involving an independent contractor and exculpatory agreements, in Brown v. Soh the Connecticut Supreme Court heavily relied upon a Minnesota decision which did involve an independent contractor who worked as a newspaper carrier, Bunia v. Knight Ridder, 544 N.W.2d 60, 63 (Minn.App. 1996).
Importantly, like the parties in the instant matter, the parties in Bunia v. Knight Ridder were a newspaper carrier who was an independent contractor and not an employee and a newspaper publisher. In Bunia v. Knight Ridder, the Minnesota Appellate Court concluded that an exculpatory clause signed by an independent contractor — newspaper carrier and a newspaper publisher was void as against public policy. Id. The Minnesota Appellate court concluded that although the plaintiff was not, technically, an employee "when she agreed to the clause at issue here, Bunia was in circumstances nearly identical to that of an employee." Id. at 63. In Minnesota "where the defendant and the plaintiff are employer and employee, and the [assumption of risk] agreement relates to injury to the employee in the course of his employment, the courts are generally agreed that it will not be given effect. The bases for such a result usually is stated to be the disparity in bargaining power and the economic necessity which forces the employee to accept the employers terms . . ." Id. The Bunia Court noted that the law generally treats independent contractors differently from employees, but that "the disparity in bargaining power between Bunia, the newspaper carrier, and the Pioneer Press, a major newspaper publisher, is comparable to — if not greater than — that of most employers and employees." Id. Noting the plaintiffs "need to obtain a source of income — albeit as an independent contractor — is parallel to that of an employee," the court found that Bunia could not have willingly contracted away her rights. "Bunia contracted for a consideration (income) that was essential, not discretionary, to her, and she assented to the exculpatory clause from a position of inferior bargaining power. Her contractual assumption of risk was thus invalid." Id. at 63.
Like the fact pattern in Bunia, the instant case does not involve the classic employer-employee relationship. The defendants repeatedly emphasized this distinction between the classic employer-employee context and the one in this case, in their arguments. However, though technically different, there are elements of the employer/employee relationship which mirror exactly, those between the plaintiff and the defendants in the present case. For this reason, the holding in Brown, and Bunia are instructive and applicable.
Considering all the relevant factors, including the required strict scrutiny of such agreements, and the fact that enforcement of the agreement would preclude the plaintiff, completely, from receiving compensation for injuries she sustained while working for the defendant, this court concludes that enforcement of an exculpatory clause in this case would violate public policy.
The plaintiff and the defendants were not equal, in terms of bargaining position. While the defendants argue that the plaintiff could have refused to sign the Agreement, and thus elected not to work for the defendants as an Independent Contractor, they do not dispute that the plaintiff needed the job, economically, or that the plaintiff was not in any position to negotiate the terms of the Agreement. There may be cases in which an independent contractor has the economic and professional standing to have equal bargaining power with the one with whom he/she contracts. However, as a matter of fact and a matter of law, the newspaper carrier in this case did not have equal bargaining power with the defendants. As our Connecticut Supreme Court observed in Brown "it would ignore reality to conclude that the plaintiff wielded the same bargaining power to determine the terms of the exculpatory agreement . . . He had nearly zero bargaining power with respect to the negotiation . . . and in order to participate in the activity, [the plaintiff] was required to assume the risk of the defendant's negligence." Brown, supra. Further, the contract before this court is a classic contract of adhesion which provided no opportunity for meaningful negotiation.
Additionally, the defendants created the conditions under which the plaintiff was required to work and exercised exclusive control over the premises upon which the plaintiff was required to pick up the newspapers and the supplements. The defendants selected and provided the cart upon which the plaintiff was required to transport the newspaper supplements. And, the plaintiff is not eligible for workers' compensation because she is not an employee.
Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants' negligence under these circumstances would violate public policy, even if the language of the agreement explicitly expressed both parties' willingness to do so.
For the foregoing reasons, this court denies the defendant's motion for summary judgment.
CT Page 21189