Opinion
No. CV 06-5007348
February 2, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#120)
The plaintiff alleges that she was injured in the course of an exercise class, specifically a bosu cardio class, conducted at the defendants' premises. The plaintiff further alleges that she was under the instruction of an employee, agent, servant or representative of the defendants, who was conducting the class. The plaintiff's claims sound in negligence, misrepresentation, breach of contract and breach of implied covenant of good faith and fair dealing, and breach of implied contract of good faith and fair dealing.
In their amended answer and special defenses the defendants allege that the plaintiff's claims are barred by the doctrine of release and/or waiver. The defendants seek summary judgment on these defenses. It is undisputed that the plaintiff signed a membership agreement which contained a release and waiver of liability provision. The defendants maintain that the release provision is valid, enforceable, and does not violate public policy.
The membership agreement signed by the plaintiff contains the following:
Release and Waiver of Liability. I, for myself, my heirs, executors and assigns, have read and understand this waiver and have been fully informed of and acknowledge, assume, and accept the risks inherent in the use of the Center services and facilities. I voluntarily assume the risk of injury, accident, death, loss, cost or damage to my person or property which might arise from my use of the Center and I release the Center from any and all claims and liabilities resulting from the ordinary negligence of the Center and its owners, officers, employees or agents. I certify that I am in good physical health and am able to undertake and engage in the range of physical activities to which I choose to participate. I assume all responsibility for updating the Center of changes in physical and mental condition and for reporting all injuries sustained at the Center to the manager on duty at the time.
I (we) certify that I (we) have read and understand the terms on the front and back of this Agreement and agree to abide by them. I (we) also certify that I (we) have received a copy of this Agreement.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
"[T]he law does not favor contract provisions which relieve a person from his own negligence . . ." (Internal quotation marks omitted.) Reardon v. Windswept Farm, LLC, 280 Conn. 153, 159, 905 A.2d 1156 (2006). "[T]he 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 . . ." (Internal quotation marks omitted.) Roman v. Bristol, 101 Conn.App. 491, 498, 922 A.2d 310 (2007). "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 understandable 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.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 322, 885 A.2d 734 (2005). See also Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003) ("[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 . . . [when] 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.) Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 7, 931 A.2d 837 (2007).
Applying this stringent standard to the release provision at hand, the court cannot find that it is clear and unambiguous. The subject document is titled "membership agreement" and it consists of two pages. The beginning word in each paragraph is in bold. Almost all of the agreement is printed in very small type. A portion of the agreement is titled "BUYER'S RIGHT TO CANCEL." The court has taken judicial notice of the fact that Conn. Gen. Stat. § 21a-218 requires that a health club contract must contain a statement giving a buyer a right to cancel and the statement must be in ten-point bold type. The court assumes that the statutory statement contained in the subject agreement is in ten-point bold type. The balance of the agreement, including the release and waiver of liability paragraph, is not in bold type and is approximately one-half the size of the statutory statement. A magnifying glass, proscribed by Hanks, would certainly be helpful in reading the release language.
Turning to the language of the release paragraph, the only portion which would purportedly release the defendant from future liability is the following: "I voluntarily assume the risk of injury, accident, death, loss, cost or damage to my person or property which might arise from my use of the Center and I release the Center from any and all claims and liabilities resulting from the ordinary negligence of the Center and its owners, officers, employees or agents." In Hanks, the court found the release from liability agreement in that case satisfied the standards set forth in the Hyson case. However, when the release paragraph in the subject agreement is compared to the exculpatory agreement in the Hanks case, the shortcomings of the subject agreement are readily apparent. First, the Hanks agreement consists of four paragraphs, and the assumption of risk and indemnification language is emphasized. There, the term "negligence of White Water Mountain Resorts of Connecticut, Inc." appears in three separate paragraphs and the word "negligence" is capitalized.
See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 338, n. 5.
Also, paragraph 3 of the Hanks agreement contained the following: "I . . . agree that I will not sue, White Water Mountain Resorts . . . for money damages for personal injury . . . sustained by me . . . even if due to the NEGLIGENCE of White River Resorts . . ." (Emphasis in original.) The last paragraph contains the statement: "I further understand that by signing this agreement that I am giving up substantial legal rights." These provisions are a far cry from the instant agreement. Additionally, the court would note that the release here utilizes the term "ordinary negligence." The term is confusing, as it is not part of our body of law. "We have never recognized degrees of negligence as slight, ordinary, and gross in the law of torts." Matthiessen v. Vanech, 266 Conn. 822, 850 n. 10, 836 A.2d 394 (2003), quoting Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939). Although the term "ordinary negligence" is found in Black's Law Dictionary, definition of that term should not be necessary under Hanks.
The court cannot conclude that the subject agreement expressly, unambiguously and explicitly purports to release the defendants from their prospective liability for negligence as required by Hanks. However, even if the subject release language was found to be adequate, it would still be unenforceable as a violation of public policy under Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153.
In Reardon, the Court relied on its decision in Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 327, which stated: "[t]he law does not favor contract provisions which relieve a person from his own negligence . . . This is because exculpatory provisions undermine the 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 . . . 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 hear it, not to shift the risk to the weak bargainer." (Citations omitted; internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 327.
In Hanks, our Supreme Court determined whether public policy conflicted with exculpatory clauses which seek to release liability for future negligence. They held that "[a]lthough 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, [ 60 Cal.2d 92, 98-101, 383 P.2d 441, 32 Cal.Rptr 33 (1963)]. In Tunkl, the court concluded that exculpatory agreements violate public policy if they affect the public interest adversely . . . 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 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 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 bargaining 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. (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.'" (Citations omitted; internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328.
The Hanks Court also noted that in Tunkl, the court clarified that an exculpatory agreement may affect the public interest adversely even if some of the six factors are not satisfied. Relying on this clarification and recognizing the various tests employed by its sister states, our Supreme Court held that, in determining whether exculpatory agreements violate public policy, "[n]o definition of the concept of public interest can be contained within the four corners of a formula . . . 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 330.
Following its decision in Hanks, our Supreme Court went on to apply this public policy analysis to a specific exculpatory clause in Reardon. There, the court found that a release in a horseback riding agreement violated public policy and 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. 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
The Court then added: "Furthermore, 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 `[t]he 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.'" Id., 162-63. Finally, the Court noted, "[w]e are also mindful that, as evidenced by § 52-557p, recreational horseback riding is a business thought suitable for public regulation . . ." Id., 163.
The same factors which influenced the Reardon Court to invalidate the release in that case are present here. First, in both instances the defendants provided the facilities and instruction involved in the plaintiff's claims of negligence. Here, the plaintiff "was under the instruction of [the defendant's] employee." Second, the facilities and the activities were open to the general public. In this case, there appears to be no limitation in the membership agreement as to the qualifications of a potential member. Therefore, it is reasonable to assume that the defendant would make a membership available to any member of the public who seeks it. Third, the court recognizes that in Hanks, the court sought to determine which party had the greater expertise and information concerning the dangers associated with the subject activity. In using that inquiry as a part of the court's analysis here, the court notes that the plaintiff alleges she was receiving instruction from an agent of the defendant in the course of a bosu cardio class. As the party giving the instruction, it is reasonable to assume that the defendant's employee had greater expertise and information concerning the dangers, if any, associated with the activity. Therefore, it was the defendant, not the plaintiff or other members, who had the opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees.
Furthermore, like the agreement in Reardon, which was found to violate public policy under Hanks, the court finds that the subject agreement is a classic contract of adhesion. This determination is evidenced through clauses like the first paragraph of the agreement, which states: "General: The front and back pages of this Agreement represent the complete understanding between the Member and Healthtrax, Inc. No representations, written or oral, other than those contained in this Agreement are authorized or binding upon the Center." In reading this clause, as well as the whole contract, it is apparent that the subject agreement is merely a preprinted form which each customer is required to sign before being admitted as a member. Clearly, this agreement was not the result of the normal bargaining process but rather was a standard form contract prepared solely by the defendant and signed by the plaintiff, who was in a weaker position and had little choice as to its terms. In fact, the only choices members may make pertain to the length of term and the manner of payment.
Finally, it is noted that like the business of horseback riding, the business of health clubs is thought suitable for public regulation. See Conn. Gen. Stat. § 21a-216 et seq. This court is mindful of the fact that Reardon "recognized the clear public policy in favor of participation in athletics and recreational activities [such as a health club membership]." Reardon v. Windswept Farm, LLC, supra, 280 Conn. 161. In making this determination, Reardon relied upon the fact that these types of activities "constitute an important and healthy part of everyday life." Id. Thus, any exculpatory agreement which would excuse the potential negligence of the health club would seem to be in conflict with the public policy of encouraging participation in athletics and other recreational activities. In considering the totality of the circumstances in this case and in recognizing the public policy of encouraging recreational activities, the court concludes that the release provision in the membership agreement is void, as it is contrary to public policy.
For the foregoing reasons, the defendants' motion for summary judgment is denied.
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