Opinion
No. FST CV 08-5009675 S
October 22, 2010
Memorandum of Decision
In this case the plaintiff claims that she was severely injured on June 1, 2008, when she was kicked by a horse named "Ridley" which was owned by defendant, Michele Leasure ("Leasure"). At that time Leasure and her horse were participating in the Wilton Pony Club Trials, an event sponsored by defendants, The Wilton Pony Club and The United States Pony Club. The event was held on Millstone Farm in Wilton, a property owned by defendant Millstone Properties, LLC. The plaintiff attended the event at the invitation of Leasure. At the time she was kicked she was in the process of washing Ridley with water and a sponge at Leasure's request.
The plaintiff's third amended complaint alleges that Leasure was aware that Ridley had dangerous and vicious propensities to attack without provocation. Her complaint alleges causes of action against Leasure based on negligence. The second, third and fourth counts of the plaintiff's complaint make allegations regarding the conduct of defendants Wilton Pony Club, United States Pony Club, and Millstone Properties respectively. The plaintiff alleges that each of them: 1) failed to perform due diligence to make certain that vicious animals, such as Ridley, were excluded from participation in events they sponsored; 2) violated safety rules and regulations pertaining to equine events; 3) failed to have in place appropriate injury response plans; and 4) failed to restrict dogs from the site and otherwise failed to keep the site safe.
Defendants Wilton Pony Club, United States Pony Club, and Millstone Properties filed a cross-claim against defendant Leasure alleging that in agreements she signed when entering the event, she agreed to indemnify them and hold them harmless from any claims and to defend them from any and all claims, including those asserted by the plaintiff. In their amended cross-complaint, dated May 24, 2010, defendants Wilton Pony Club, United States Pony Club, and Millstone Properties refer to three separate agreements. Paragraph 5 of the cross-complaint refers to a "WPC Horse Trials Entry Form 2008." Paragraph 6 refers to a "Release of Liability, Assumption of the Risk and Indemnity Agreement" between defendant Millstone Properties and defendant Leasure. Paragraph 7 refers to a "General Activity Release, Assumption of the Risk, Waiver or Liability, and Indemnity Agreement for USPC Non-members." Paragraph 10 states that the agreements were attached "as Exhibit A." No copies of the agreements were attached to the cross-complaint. However, copies of the agreements were attached to a prior amended answer and cross-complaint dated May 20, 2010.
Presently at issue is defendant Leasure's motion to strike the cross-complaint filed by defendants Wilton Pony Club, United States Pony Club, and Millstone Properties. In that motion defendant Leasure argues that the indemnification of each of her agreements with the other defendants are void and unenforceable in that they violate the public policy of this state. Defendant Leasure relies on the cases of Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153 (2006).
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006).
In her motion to strike, defendant Leasure quotes certain provisions of the various agreements with the other defendants which she claims are unenforceable. In their objection to the motion to strike defendants Wilton Pony Club, United States Pony Club, and Millstone Properties argue that the provisions of their respective agreements are enforceable. In their brief in opposition to the motion to strike, the defendants do not take issue with the provisions of the agreements quoted in defendant Leasure's motion, nor do they quote any additional provisions of those agreements which they claim that the court should consider. The court heard oral argument on the motion to strike on October 12, 2010. During that argument counsel for both sides did not differentiate between the provisions of the various agreements and treated them as if their language was identical. In fact, each of the agreements are quite different with respect to the language employed and the scope of the indemnification undertaken by defendant Leasure.
The relevant provision of the agreement between defendant Leasure ("Rider") and defendant Millstone Properties, LLC, ("Owner"), reads as follows:
Rider agrees to INDEMNIFY and DEFEND EACH OWNER RELATED PARTY against, and hold each of them harmless from, any and all claims, causes of action, damages, judgments, costs or expenses, including attorneys fees, which in any way arises from Rider's, including any Guest's, use of, or presence upon, the Property or the use of any facilities operated by an Owner Related Party, including liability for any Owner Related party's own negligence, either active or passive.
Under the terms of the agreement "Owner Related Parties" includes defendant Millstone Properties, LLC, "and its/their successors, assigns, representatives, officers, directors, members, managers, employees, affiliates, volunteers, and agents." The court does not have any basis to determine whether either defendant Wilton Pony Club or defendant United States Pony Club would be considered an "Owner Related Party" under the provisions of that agreement.
The relevant portion of the agreement between defendant Leasure and defendant United States Pony Club provides:
I AGREE to indemnify (that is, to pay any losses, damages, or costs incurred by) the USPC and the USPC activity and to hold them harmless with respect to claims for harm to me or my horse, or for claims made by others for harm caused by me or my horse in the USPC activity.
The benefit of this provision would appear to extend solely to defendant United States Pony Club.
The relevant portion of the agreement between defendant Leasure and defendant Wilton Pony Club provides:
"I understand that this is a high risk sport and I am participating at my own risk. I hereby assume this risk and further do hereby release and hold harmless Wilton Pony Club, the Organizing Committee, judges, officials, their officers, agents, employees, volunteers, host of this horse trial and the owners of any property on which the trial is held, from all liability for negligence resulting in accidents, damage, injury or illness to myself and to my property, including the horse(s) with which I will compete at this trial."
This provision would appear to be designed to protect defendants Wilton Pony Club and Millstone Properties (as "the owners of any property on which the trail is held") from liability to defendant Leasure. The agreement does not contain any provisions requiring defendant Leasure to indemnify, defend or hold harmless any party from any liability to third parties (including the plaintiff). Moreover, the agreement does not provide any benefit to defendant United States Pony Club.
Defendant Leasure claims that any agreements to indemnify, defend and hold the other defendants harmless violate the public policy of this state under Hanks, supra and Reardon, supra. In Hanks, the Supreme Court held that the operator of a winter sports resort could not avoid liability to a patron injured while snowtubing at the resort under the terms of a pre-injury release, which purported to bar any claims against the operator including claims arising out of the operator's own negligence. The court held that, in the context of the case, such prospective releases violated public policy.
The court noted that "[n]o definition of the concept of public interest [may] be contained within the four corners of a formula" and that "[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the background of societal expectations." (Internal quotation marks omitted) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 330. In its decision, the court was guided by a decision of the Supreme Court of California in Tunkl v. Regents of the University of California, 60 Cal.2d 92 (1963) which identified six factors relevant to the determination of whether exculpatory agreements violate public policy. Those factors including "[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, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform the 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 bargaining strength against any member of the public who seeks his service. [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. [6] Finally, as a result of the transaction, the person 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." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328.
In applying the Tunkl factors to the case before it, the court noted, in particular, that the defendant did not publicize the requirement of signing the release, thus leaving a patron with the "dilemma" of either foregoing a day of recreation or signing the release. The court also stressed that the defendant did not offer its patrons the choice of paying a higher fee in lieu of signing the prospective release.
In Reardon, the court applied the rationale of Hanks to a plaintiff who sued for injuries sustained when she was thrown from a horse which had been provided to her by the defendant while she was engaged in a riding lesson. The court found that exculpatory agreements signed by the plaintiff could not be enforced by the defendant to prevent the plaintiff from bringing an action to collect damages based on allegations of the defendant's negligence. The court stated: "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." Reardon v. Windswept Farm, LLC, supra, 280 Conn. 161.
Although horseback riding was not among the recreational activities listed in Hanks, the court rejected the defendant's claim that the inherent dangers of a bucking horse somehow excluded horseback riding from the holding of Hanks. However, contrary to the claim in defendant Leasure's brief, the court in Reardon, did not rule that indemnification agreements entered into with regard to equestrian activities are unenforceable as a matter of law.
Neither Hanks nor Reardon involved attempts to enforce indemnification agreements. Both of them dealt with agreements which purported to exculpate operators of recreation facilities from liability to patrons injured while participating in recreational activities. In this case, the plaintiff was not a participant in such activities, she was a guest of defendant Leasure. The plaintiff did not sign any of the agreements relied on by defendants Wilton Pony Club, United States Pony Club, and Millstone Properties. Those defendants do not seek to avoid the plaintiff's claims against them; instead they seek to enforce defendant Leasure's undertaking to indemnify, defend and hold them harmless.
In her memorandum in support of her motion to strike, defendant Leasure does not cite any cases which extend the holdings of Hanks and Reardon to indemnification agreements. However, even in the absence of such a holding, the court agrees that the same analysis which the Supreme Court applied to exculpatory agreements between parties of unequal bargaining power would also apply to the validity of indemnification agreements between such parties.
In her memorandum in support of her motion to strike, defendant Leasure claims that the court in Reardon, "made special mention of how an indemnification agreement is an impermissible attempt to expand the scope of Conn. Gen. Stat. § 52-557p." Although the plaintiff in Reardon signed both a release agreement and an indemnity agreement, no issues concerning the indemnity agreement were before the court.
The Supreme Court's analysis in both Hanks and Reardon was driven by the circumstances surrounding the parties at the time of the execution of the exculpatory agreements. In this case, the cross-complaint does not set forth a sufficient factual basis to determine that agreements signed by defendant Leasure are enforceable. The relationship between the defendants, their respective bargaining power and the nature of the event in which defendant Leasure and Ridley were participating are all unclear. Under these circumstances the court cannot find that the agreements are unenforceable under Hanks and Reardon. That determination must be made either at trial or, less likely, on a motion for summary judgment which provides the court with an adequate factual basis for ruling on the validity of the various agreements. Accordingly, the motion to strike filed by defendant Leasure is denied.