Opinion
No. CV 03 0071886
February 7, 2005
MEMORANDUM OF DECISION RE #113 MOTION FOR SUMMARY JUDGMENT
FACTS
The plaintiff; Kimberly Messier, filed a complaint dated October 21, 2003, against the defendant, Sandra Label, doing business as "Curves for Women of Plainfield" (Curves), alleging negligence. Curves is a health club in Plainfield located at 75 Lathrop Road. The cause of action arises out of an incident that occurred on or about October 23, 2001, when the plaintiff, a member of Curves, was using a running board at one of the exercise stations and fell off during her exercise program. The gravamen of the complaint is that on the date of the plaintiff's fall, Curves was in a defective, unsafe and dangerous condition because its exercise stations were not suitable for the running program intended thereon. The complaint further alleges that the fall, injuries and losses sustained by the plaintiff were caused by and due to the negligence of Curves.
On August 27, 2004, the defendant filed a motion for summary judgment on the plaintiff's complaint, accompanied by a memorandum of law and supporting evidence, on the ground that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Specifically, the defendant submitted certified deposition transcripts of testimony from the plaintiff, a copy of the Agreement and Release of Liability initialed and signed by the plaintiff and a copy of a Health History form filled out by the plaintiff. The defendant argues that the plaintiff's claims are barred by the express terms of the waiver and release of liability agreement she signed prior to the use of the defendant's fitness facility and in consideration of said use. The defendant further contends that the plaintiff's express contractual agreement to assume the risks encountered precludes her negligence claim. On October 12, 2004, the plaintiff filed a memorandum of law in opposition to the summary judgment, as well as, certified deposition transcripts of testimony from the plaintiff and a copy of the Agreement and Release of Liability initialed and signed by the plaintiff.
DISCUSSION
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 "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999), cert. denied, 261 Conn. 932, 806 A.2d 1066 (2002).
The defendant argues in her memorandum in support of her motion for summary judgment that the express terms of the waiver and release of liability agreement bars the plaintiff's claim because Connecticut courts and public policy support the enforcement of said agreements. The defendant further argues that the plaintiff's claim is precluded because she expressly agreed to assume the risk that she encountered. The plaintiff argues that she did not fully appreciate the nature and extent of the risk involved with joining Curves, and that the court should therefore not enforce the waiver and release of liability.
The Connecticut Supreme Court has established a well-settled rule that "a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides." Hyson v. White Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003). In Hyson, the plaintiff brought a cause of action against the defendant ski area operator alleging negligence. Id., 636. The plaintiff sought damages for personal injuries incurred while riding on a snowtube at the defendant's facility. Id., 638. The defendant subsequently filed a motion for summary judgment arguing that the plaintiff's claim was barred because she signed a document releasing the defendant from liability. Id., 640. The document did not "specifically [refer] to possible negligence by the defendant. Instead it referred to inherent risks involved in [snowtubing]." (Internal quotation marks omitted.) Id. As such, the Supreme Court concluded that "the release signed by the plaintiff does not release the defendant from liability, or indemnify the defendant, for injuries resulting from its negligence." Id., 637. The Supreme Court also highlighted that "[a] requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights." Id., 643.
The court further emphasized that defendant's release warranted only limited application by stating that "[a] person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing." Hyson v. White Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643.
Furthermore, the two dissenting justices in Hyson specifically expounded upon the role of release agreements when participating in recreational activities. In their dissent, the justices asserted that "as a matter of public policy . . . exculpatory clauses are appropriate in the context of recreational activities." Id., 649. The justices explained that such releases are proper in the realm of recreational activities because "[m]ost, 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 ones 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." Id., 649-50. The dissenting opinion concluded that "[w]hen 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." Id., 650.
Since the seminal case of Hyson, the Superior Court has held that releases containing conspicuous language waiving liability for negligence preclude plaintiffs from bringing negligence claims. "A release is a writing manifesting an intention to discharge another immediately, or upon the occurrence of a condition, from an existing or an asserted duty . . . As a general rule, contractual limitations on liability for negligence must be clearly set forth. General language will not suffice. Rather, an exculpatory clause must be conspicuous, readable, unmistakable, unequivocal and clear, not merely unambiguous." (Citation omitted; internal quotation marks omitted.) Brown v. Sol, Superior Court, judicial district of Litchfield, CV 02 0087487 (August 31, 2004, Pickard, J.) ( 37 Conn. L. Rptr. 758). In Brown v. Sol, the Superior Court enforced a release that was "broad in scope" when a plaintiff brought an action for injuries sustained in an accident on a race track at a driving school. Id. The court held that the release was valid because it "comports with Hyson in that it expressly provides that the defendant would be released from liability for negligence." Id.
The release contained the following language: "IN CONSIDERATION of being permitted to . . . work for . . . or being permitted to enter for any purpose any RESTRICTED AREA . . . HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants . . . track operators, track owners, officials car owners . . . any persons in any RESTRICTED AREA . . . FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE." Brown v. Sol, supra. In validating the release, the court noted that "[t]his language is patently different from the language in the release the court interpreted in Hyson." Id.
Similarly, the trial court validated a release despite the plaintiff's contention that the signing of the document was not informed and voluntary. DiMaggio v. Labreque, Superior Court, judicial district of New Haven, CV 00 0438800 (October 9, 2003, Arnold, J.) ( 35 Conn. L. Rptr. 640). The court in DiMaggio v. Labreque held that the decedent's consent to a release of liability that she signed before suffering fatal injuries from a skydiving accident was informed and voluntary. In a negligence action brought by the administrator of the decedent's estate, the court assessed that there was valid consent because the decedent was over the age of twenty-one and "she placed her initials after each of the paragraphs and signed her full signature before a witness on the last page." Id. The court further explained that "[t]he general rule is that where a person of mature years and who can read and write signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it and notice of its contents will be imputed to him if he negligently fails to do so." (Internal quotation marks omitted.) Id. The court also emphasized that "[a]greements releasing owners and operators of sports facilities from liability for negligence have generally been held enforceable against a patron." Id.
Moreover, the United States District Court for the District of Connecticut recently discussed the Hyson holding and subsequent Superior Court decisions that enforced releases of liability for sports facility owners. Delk v. Go Vertical Inc., 303 F.Sup.2d 94 (D.Conn. 2004). The court poignantly acknowledged that "[n]otwithstanding this uncertainty in state supreme court jurisprudence, state trial courts have been strikingly consistent in upholding as valid and enforceable agreements exempting owners and operators of sports facilities from liability for negligence entered into with patrons of the facility." (Internal quotation marks omitted.) Id., 102. The court went on to determine that "[o]nly waivers that do not satisfy the strict language requirements set forth by the Connecticut Supreme Court in Hyson have been deemed unenforceable with respect to negligence suits brought against sports facilities by their patrons." Id., 103. As such, the court validated a release precluding a patron of a rock climbing gym from bringing a negligence action against the facility by concluding that "[i]n light of the dicta in Hyson and the weight of Connecticut trial court precedent, this court holds that the waiver is valid and enforceable." Id.
In the present case, the court will grant the defendant's motion for summary judgment because the defendant has met her burden of establishing the absence of any genuine issue of material fact and the defendant is entitled to judgment as a matter of law. Based on the reasoning set-forth by the Connecticut Supreme Court and subsequent trial court decisions that illuminate the Hyson ruling, the court will enforce the defendant's waiver and release of liability. The release at issue contains express language that was absent from the release in Hyson. In the present case, the defendant's waiver and release of liability agreement explicitly states that patrons would release Curves for liabilities resulting from "participation in all activities . . . including negligence by Curves® representatives." The defendant's release specifically refers to negligence, thereby adhering to the rule delineated in Hyson that prevents a party from waiving liability for "its future negligence in the absence of language that expressly so provides." Hyson v. White Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643. Furthermore, the defendant's waiver and release of liability agreement contains conspicuous language similar to that found in releases enforced by the trial court in light of the Hyson decision. By inserting unambiguous language waiving negligence liability, the defendant's release comports with recent trial court decisions and the Hyson holding.
The defendant's release of liability agreement states in relevant part: "In consideration for being allowed to participate in the activities and programs for Curves for Women® and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge Curves International Inc., Curves for Women®, and their officers, agents, employees, representatives, executors, and all others (Curves® representatives) from any and all responsibilities or liabilities from injuries or damages arriving out of or connected with my attendance at Curves for Women®, my participation in all activities, my use of equipment or machinery, or any act or omission, including negligence by Curves® representatives."
The defendant's waiver and release of liability agreement is enforceable based on the well-settled rule that where an individual of mature age signs a contract, it is his duty to read it because "notice of its contents will be imputed to him if he negligently fails to do so." DiMaggio v. Labreque, supra, Superior Court, CV 00 0438800. Similar to the plaintiff in DiMaggio v. Labreque, the plaintiff in the present case is over the age of minority, read the document, placed her initials at the and of each paragraph end signed the last page of said document, as evidenced by the Agreement and Release of Liability submitted by both parties. As such, notice the contents of the contract will be imputed to the plaintiff because she had the opportunity to fully read the waiver and refuse to sign it if she had any concerns with said contents.
Moreover, the defendant's release is valid because Connecticut courts have repeatedly enforced release of liability agreements in the context of recreational activities. See Brown v. Sol, supra, Superior Court, CV 02 0087487; DiMaggio v. Labreque, supra, Superior Court, CV 00 0438800; Delk v. Go Vertical, Inc., supra, 303 F.Sup.2d 103. In the present case, the plaintiff was partaking in a recreational activity because she was utilizing the exercise equipment at a physical fitness facility. Based trial court decisions post- Hyson, it is proper to enforce release of liability agreements pertaining to recreational activities because said activities are voluntary and ordinarily for the plaintiff's enjoyment. The court, therefore, will enforce this defendant's waiver and release of liability agreement because the plaintiff participated in a recreational activity, namely, exercising at a gym facility.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment as to the plaintiff's complaint.
Riley, J.