Opinion
No. CV 02 0389790 S
June 14, 2007
MEMORANDUM OF DECISION
The plaintiff, Jeffrey Mangels, filed a four-count revised amended complaint on August 5, 2003 against the defendants, Fred Yale, Jeffrey Hahn, the town of Fairfield, and the Board of Education of the town of Fairfield (Board) for injuries associated with a professional wrestling match held at Roger Ludlowe Middle School (School) in Fairfield on January 22, 2000. The plaintiff, a professional wrestler, was injured while attempting a wrestling move from the top turnbuckle of the ring onto his opponent lying on the ground outside of the ring. Specifically, the plaintiff landed directly on his knees and fractured both femurs. The plaintiff alleges negligence against all of the defendants because they: (1) failed to properly install any type of mats outside the wrestling ring; (2) failed to create, inspect and maintain a safe performing area within and outside of the ring so as to avoid injury; (3) failed to properly supervise and train the wrestlers and/or managers supervising the wrestlers; (4) failed to provide adequate staff to supervise and monitor participants; (5) failed to insure that appropriate medical professionals were available and on site; (6) knew or should have known that such a poor and unsafe condition existed and remained and failed to remedy the same; (7) failed to warn the plaintiff and other persons performing in, and in the area outside of the wrestling ring, of the dangerous and unsafe condition by installing or causing to be installed warning signs and verbally warning the plaintiff of said condition, and; (8) knew or should have known by the exercise of ordinary and reasonable care of the unsafe and dangerous condition existing in the wrestling ring.
Summary judgment was granted in favor of the town of Fairfield by the court (Gilardi, J.) on February 15, 2006. See Mangels v. Yale, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 02-038 97 90 S (Feb. 15, 2006, Gilardi, J.).
The defendants Yale and Fairfield Board of Education have filed a motion for summary judgment based on their third special defense that the plaintiff waived any and all legal claims for the injuries allegedly sustained when the plaintiff executed an agreement to do so, prior to the wrestling event. In response to this third special defense, the plaintiff has denied he executed a waiver. The waiver form that the defendants claim the plaintiff signed just prior to the commencement of wrestling event on January 22, 2000, provided as follows:
The plaintiff's deposition testimony regarding whether or not he signed a waiver is inconclusive.
In consideration of my wrestling in today's event, I, for myself my heirs, successors and assigns, waive and release any and all claims I may have against: USA Productions, Jason Joillet, Fred Yale, Fairfield Board of Education, show sponsors, for any and all injuries I may receive in today's event. By signing below, I agree to all the above to be final and binding.
The subject waiver form is a handwritten document, as opposed to a preprinted form.
The defendants argue that this contractual language is quite clear and therefore, the case is one that may be resolved by way of summary judgment as a question of law. In opposing summary judgment, the plaintiff argues that (1) special defenses, such as waiver, are not permissible grounds for the granting of summary judgment; (2) the alleged waiver is contrary to public policy and is unenforceable; and (3) the waiver is insufficient because it does not specifically waive future negligence.
I Standard of Law
The law regarding the granting of summary judgment is well-settled. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, CT Page 10553 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion." Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
II Practice Book § 17-44 Summary Judgments
Practice Book § 17-44 reads in pertinent parts as follows: In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action . . .
The decisions of the Connecticut Superior Court are almost in unanimous agreement that a motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses. Duborg v. Osborn, Superior Court, judicial district of Litchfield, Docket No. 06570 (July 5, 1995, Pickett, J.); Bond v. General Accident Insurance Company, Superior Court, judicial district of New London, No. 538646 (Sept. 4, 1998, Handy, J.) 23 Conn. L. Rptr. 181.
The defendants' motion and supporting documents do not remove from dispute, facts relevant to determining whether they are entitled to judgment as a matter of law on the complaint itself, as the special defense of waiver has been denied by the plaintiff. Where a motion for summary judgment shows that there are no facts in dispute with respect not only to the special defenses but also an underlying complaint, summary judgment may be appropriate. Most Superior Court judges who have considered the issue, however, have concluded that a motion for summary judgment solely as to special defenses is procedurally improper." Lehman Bros. Bank, FSB v. Bridges, Superior Court judicial district of Stamford-Norwalk at Stamford, No. CV 04-0200206S (Aug. 14, 2006, Jennings, J.) 41 Conn. L. Rptr. 821; Verderame v. Anderson Sunnyside Farm Ass'n., Superior Court, judicial district of New Haven at New Haven, No. CV97 0406638 S (May 1, 2003, Arnold, J.); Smith v. National Grange Mutual Ins. Co., No. CV95-0250908S, Superior Court, judicial district of New Haven at Meriden (August 29, 1996, Silbert, J.) 17 Conn. L. Rptr. 522; see also, Bycoski v. Gagne, Superior Court, judicial district of Tolland, at Rockville, Docket No. 52555 (August 18, 1994, Hammer, J.) 12 Conn. L. Rptr. 433; Ney v. Branch, Superior Court, judicial district of New Haven at New Haven, Docket No. 0368932 (September 27, 1995, Hodgson, J.). "Judgments are rendered on complaints or counterclaims, or on specific counts or counterclaims, but there is no provision under Connecticut practice for a `judgment' to be entered on a special defense." (Citation and internal quotation marks omitted.) Rogers v. Daley Development Co., Inc., Superior Court, judicial district of Litchfield, No. 047304 (Dec. 19, 1990, Pickett, J.). The motion for summary judgment premised on the special defense of waiver is procedurally improper.
III The Waiver
In Connecticut, any agreement intending to exculpate a party for its own negligence must state so expressly to be upheld. Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003). "[U]nless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for its own negligent acts." Id. at 643. The law does not favor contract provisions which relieves a person from his own negligence because exculpatory provisions undermine the policy considerations governing our tort system. Reardon v. Windswept Farm, LLC, 280 Conn. 153-55, 159, 905 A.2d 1156 (2006).
The court agrees with the plaintiff that the language used in the release at issue does not release the defendant from liability for claims arising from its negligence. The handwritten waiver form signed by the plaintiff does not specifically refer to possible negligence by the defendant. Hyson v. White Water Mountain Resorts, supra, 265 Conn. 640. "[T]he 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. at 643. The plaintiff and others of ordinary intelligence reasonably could believe that, by signing this waiver, he or she was releasing the defendants only from liability for damages caused by dangers inherent in the activity of wrestling. Id. "A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost." Id.
Because the release signed by the plaintiff in the present case did not expressly provide that, by signing it, he released the defendant from liability for damages resulting from its negligence, the motion for summary judgment based on the alleged waiver is denied.
In denying the motion for summary judgment, the court notes the decision in Brown v. Soh, 280 Conn. 494, 909 A.2d 43 (2006). The principal issue in Brown v. Soh, supra, was whether an employee's negligence claim is precluded when he or she has signed an exculpatory agreement prospectively releasing the employer and other specified groups from liability for negligent acts that cause injury to the employee. The trial court had concluded that the claim is precluded as a matter of law and rendered summary judgment in favor of the defendants. Our Supreme Court disagreed with that conclusion and, accordingly, reversed the judgment of the trial court. Id. at 496. The Supreme Court determined that exculpatory agreements in the employment context violate Connecticut public policy. Id. at 503-06. "Where a standard form adhesion contract is presented and signed without opportunity to negotiate, the relative experience of an employee, which might allow him or her to negotiate well, should not affect the analysis. Exculpatory agreements must be viewed as applied to the potential class of signatories, many of whom may not be of comparable experience. (Internal citations omitted.) Id. at 507.
Brown v. Soh, supra, is distinguishable from the present case in that it involved an employer-employee relationship rather than an independent contractor such as this. The plaintiff requests that this court adopt the reasoning in Brown v. Soh and apply it to the instant case. This court refuses to do so. Whether the public policy concerns underlying the decision in Brown v. Soh are to be applied to matters concerning independent contractors is a question properly reserved to our Supreme Court. Additionally, even if the court were to venture forth to determine the merits of applying the principles of Brown v. Soh, supra, to the present case, the court has insufficient information to make a determination regarding the presence of genuine issues of material fact regarding such matters as (1) the amount of control either party had over the other; (2) the advantages or disadvantages either party had in bargaining power or negotiations regarding the alleged waiver; and (3) the amount of control the respective parties had regarding the risks that caused the alleged harm to the plaintiff.
In his argument contained in his memorandum of law, the plaintiff refers to himself as an independent contractor. The court has made no independent determination or finding regarding his status in ruling on this motion.
IV Conclusion
Accordingly, for the reasons set forth herein, the motion for summary judgment based on the grounds of waiver is hereby denied. THE COURT