Opinion
DBDCV186026527S
07-25-2019
Lucas Valinoti, PPA Michael Valinoti v. Nelson Gordon Enterprises, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): D’Andrea, Robert A., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (#122)
D’Andrea, Robert A., J.
FACTS
The plaintiff; Lucas Valinoti, a minor child, and his parent and legal guardian, Michael Valinoti (plaintiff Lucas and plaintiff Michael, respectively, or plaintiffs collectively), commenced the present action against the defendant Nelson Gordon Enterprises, Inc. d/b/a The Dive Shop Aquatic Center (defendant), located at 439 Federal Road, Brookfield, Connecticut, by way of multiple complaints, the most recent being the second amended complaint dated June 27, 2018, containing two counts, both sounding in negligence (with count one as against the defendant and count two as against Children’s Academy, Inc. of 890 Ethan Allen Highway, Ridgefield, Connecticut).
By way of background, this litigation originally arose from a fall that occurred on or about August 8, 2016. The plaintiff Lucas was attending a swim class at the defendant’s pool, The Dive Shop Aquatic Center, which was part of a joint commercial opportunity between Children’s Academy, Inc. (Children’s Academy) and the defendant, where the swim class conducted at the defendant’s pool was part of the plaintiff Lucas’ childcare program provided by Children’s Academy. The plaintiffs allege that while at the pool, supervision of the plaintiff Lucas was the exclusive responsibility of the defendant. During the swim class, the plaintiff Lucas allegedly was placed on or instructed to stand on a diving platform near the edge of the pool. While on the diving platform and without an adult spotter, the plaintiff Lucas lost his balance and struck his forehead, suffering dramatic facial trauma.
On July 10, 2018, the defendant filed an answer to the plaintiffs’ second amended complaint and raised two special defenses- the first being that the plaintiffs are barred from recovery in their entirety as a result of the execution of a liability release described more fully below, and the second being that the plaintiff Lucas was comparatively negligent.
On March 11, 2019, the defendant filed a motion for summary judgment, which was accompanied by a memorandum of law, on the grounds that the plaintiff Lucas and the plaintiff Michael both signed a valid, enforceable, specific waiver of liability prior to the incident on August 8, 2016, titled "Yearly 2016- SWIMMING LIABILITY RELEASE AND ASSUMPTION OF RISK AGREEMENT" (exculpatory agreement), and the defendant is, thus, entitled to summary judgment as a matter of law. The plaintiffs, on March 24, 2019, filed a memorandum of law in opposition as well as a cross motion for summary judgment on the defendant’s first special defense, which alleges that the plaintiffs are barred from recovery in their entirety as a result of the execution of the liability release.
DISCUSSION
"The standards governing ... a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012). "Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 729 (2013).
DEFENDANT’S POSITION
The Supreme Court of Connecticut has addressed the issue of whether a broad waiver of negligence is valid and enforceable. Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006) (Reardon); Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) (Hanks). In both Reardon and Hanks, the Supreme Court held that the specific exculpatory agreements at issue may be void against public policy if certain conditions are met, but stated that such a determination is dependent upon the totality of the circumstances of the particular case. Reardon, supra, 280 Conn. 159; Hanks, supra, 276 Conn. 330. These cases involved limited risk activities of horseback riding and snowtubing, respectively. The Supreme Court considered factors outlined in a California case, Tunkl v. Regents of the University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), specifically the factor regarding whether the contract was a contract of adhesion. The Hanks case contemplated: 1) whether the recreational activity at issue had a societal expectation that it would be reasonably safe; 2) the consideration of relieving the party with greater expertise and information concerning the dangers; and 3) the consideration of whether the contract was an adhesion contract. See Hanks, supra, 276 Conn. 331-36. In Reardon, the court also specifically found fault with the broad language of the exculpatory agreement at issue. Reardon, supra, 280 Conn. 162-64; see also Butler v. Saville, Superior Court, judicial district of New Haven, Docket No. CV-11-6023310 (July 1, 2014, Blue, J.) (58 Conn.L.Rptr. 457) (examining validity of waiver for injury sustained at fitness center).
Waiver provisions have been previously upheld, "under appropriate conditions, such as the assent of both parties." Mattegat v. Klopfenstein, 50 Conn.App. 97, 103-04, 717 A.2d 276, cert. denied, 247 Conn. 922, 722 A.2d 810 (1998). "[I]t is generally recognized that agreements exempting owners and operators of sports facilities from liability for negligence entered into with patrons of the facility are valid and enforceable against a patron." (Internal quotation marks omitted.) Slauson v. White Water Mountain Resorts of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV-99-0432460 (May 30, 2001, Jones, J.) (29 Conn.L.Rptr. 605, 606). "Courts have seemed to take two views regarding the language that must be included in a waiver agreement for the purpose of barring negligence claims against an owner of a facility or its employees. Some courts require that specific language be included alerting the patron that he or she waives any claim for injury caused by the actual negligence of the facility operator ... Other courts disagree with this view. They take the position that exculpatory agreements must be strictly construed but hold that the word ‘negligence’ need not be used; the operator of a sports facility can be protected by an agreement in which the patron releases the operator from ‘any claim.’" (Internal quotation marks omitted.) Foley v. Southington-Cheshire Community YMCAs, Inc., Superior Court, judicial district of New Britain, Docket No. CV-00-502023-S (March 28, 2002, Shortall, J.) (31 Conn.L.Rptr. 673, 673) (Foley).
"The majority of trial courts that have recently addressed this issue ... take the position that specific language, i.e., the word ‘negligence, ’ must be used to waive effectively claims for negligence against facility operators." Foley, supra, Superior Court, Docket No. CV-00-502023-S, 673-74. Trial courts have also held that "the exculpatory agreement must specifically alert the patron that he or she by signing the waiver is releasing the operator of the facility from injury caused by the operator’s own negligence ... These courts [reason] that this is the better approach because [w]hat may be common sense to judges and lawyers who are used to interpreting the ambit of legal phrases is not necessarily obvious to the nonlawyer public who by signing these agreements give up valuable rights." (Citation omitted; internal quotation marks omitted.) Id., 674. Accordingly, "[w]here the waiver does explicitly absolve the defendant from liability for its own negligence, Superior Courts have held the language contained in the waiver form is sufficient to release the facility owner from liability." Id.; see also Malin v. White Water Mountain Resorts of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. 432774 (March 16, 2001, Blue, J.) (29 Conn.L.Rptr. 374, 375) ("unless the contract ‘clearly, unequivocally, specifically, and unmistakably express[es] the parties’ intention to exculpate the [defendant] from liability resulting from its own negligence, the [contract] is insufficient for that purpose’ "); Connors v. Reel Ice, Inc., Superior Court, judicial district of Hartford, Docket No. CV-98-0579993-S (July 26, 2000, Wagner, J.T.R.) (27 Conn.L.Rptr. 610, 611) (waiver agreement making explicit references to defendant’s negligence is enforceable); Helbling v. Quinnipiac College, Superior Court, judicial district of New Haven, Docket No. CV-97-0396846-S (August 6, 1999, Jones, J.) (25 Conn.L.Rptr. 236, 236-37) (issue of material fact exists because waiver does not contain language explicitly exculpating defendant from its own negligence, and plaintiff’s affidavit avers that he understood waiver was only exculpating defendant from liability for plaintiff’s negligence); Bashura v. Strategy Plus, Inc., Superior Court, judicial district of Ansonia/Milford, Docket No. CV-95-0050871-S (November 20, 1997, Corradino, J.) (21 Conn.L.Rptr. 59, 62) (language of waiver must put plaintiff on notice that he is releasing defendant from liability for defendant’s own negligence). Courts will not, however, enforce a waiver when the plaintiff did not assent to its terms. See DiUlio v. Goulet, 2 Conn.App. 701, 703-04, 483 A.2d 1099 (1984).
According to the defendant, summary judgment should be granted because there is no genuine issue of material fact regarding the executed waiver of liability signed by both the minor plaintiff swimmer, Lucas Valinoti, and his parent and guardian, Michael Valinoti. The waiver does not violate public policy and satisfies the analysis in the Hanks, Reardon, and Butler cases. The defendant’s examination begins with consideration of the Hanks factors: 1) whether the recreational activity at issue had a societal expectation that it would be reasonably safe; 2) the consideration of relieving the party with greater expertise and information concerning the dangers; and 3) the consideration of whether the contract was an adhesion contract.
Here, the exculpatory agreement attached as Exhibit A to the defendant’s memorandum of law specifically outlines the risks inherent with swimming and the types of harm that can be expected. A multitude of risks and injuries could occur while on a premises that allows swimming. Swimming requires levels of ability, such as but not limited to the capability of swimming in deep areas. The defendant argues that per the assumption of risk agreement, the parties impliedly agreed that the minor plaintiff had some experience swimming and being around pool areas because one of the terms was that he was "choosing to enter the water without a buddy and assume all risks." In addition, the signature of the parent and guardian, Michael, also indicates that he knew the minor plaintiff was capable of being cognizant of potential risks involved around a pool area, such as but not limited to water on the perimeter of the pool or the risks involved with diving into a pool. It was implied by the minor plaintiff’s and parent or guardian’s signatures that it was not the minor plaintiff’s first time being in a pool area or swimming. Therefore, the defendant argues, there was no discrepancy in experience and information concerning the dangers involved with swimming or being on a premises that allows swimming.
Also, the subject signers of the exculpatory agreement knew when they signed it that the "[f]acility may or may not have a lifeguard in or about the [p]remises." In addition, the liability release and assumption of risk agreement signed by the minor plaintiff and his parent and guardian provides that it was understood that if a lifeguard was present, his or her "primary responsibility may be to swimmers receiving instruction who are also using the [p]remises." The waiver of liability further provides that if the minor plaintiff were to "experience an event necessitating assistance," then the "lifeguard may provide assistance when safety of the student swimmers will not be jeopardized, but he is not obligated to provide such assistance." The analysis for holding an executed exculpatory agreement unenforceable is not satisfied.
Furthermore, the defendant contends the contract was not a contract of adhesion where one party was in a positon of superior bargaining power. Gary Gordon of Nelson Gordon Enterprises, Inc. signed an affidavit, attached to the defendant’s memorandum of law in support of its motion for summary judgment, and it attests to the fact that he witnessed when both the minor plaintiff and his parent and guardian allegedly understood the risks involved when they signed the waiver. The parent or guardian, Michael Valinoti, could have inquired about anything regarding the contents of the exculpatory agreement or the premises, but he opted not to. As such, the contract was not a contract of adhesion where one party was in a position of superior bargaining power.
The defendant claims that there are no genuine issues of material fact that the plaintiffs executed a valid, enforceable, explicit exculpatory agreement prior to August 8, 2016, and, therefore, argues that summary judgment should be granted.
PLAINTIFFS’ POSITION
According to the plaintiffs, when the plaintiff Michael signed the waiver on his son’s behalf, he was not signing to allow his four-year-old son to be unsupervised at a swimming pool. The purpose for which the plaintiff Lucas was at the defendant’s premises was to learn to swim. Inherent in that purpose is a presumption that he would be taught in a safe and age appropriate environment. The defendant’s motion for summary judgment should be denied as the exculpatory agreement does not release the defendant’s liability for failing to supervise and protect a four-year-old. The defendant argues that four-year-old plaintiff Lucas waived his right to claim negligence by plaintiff Michael’s signing a waiver, and that it does not violate public policy. "[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 backdrop of current societal expectations." (Internal quotation marks omitted.) Reardon, supra, 280 Conn. 159. The plaintiffs point out that Connecticut has set out a specific statute and regulation regarding the ratios and supervision of young children at swimming pools, citing General Statutes § 19a-80 et seq. and Regs., Conn. State Agencies § 19A-79-1a et seq. The Connecticut Supreme Court has emphasized factors, including "the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance ... and the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a ‘take it or leave it’ basis" as reasons to decline to enforce such agreements. (Internal quotation marks omitted.) Reardon, supra, 280 Conn. 160-61. Similar cases that have addressed summary judgment motions have likewise declined to enforce such exculpatory agreements in negligence claims. See, e.g., Butler v. Saville, supra, Superior Court, Docket No. CV-11-6023310-S (granting a motion for summary judgment against the special defense of waiver because "a boilerplate contractual release of a gym from responsibility for negligence is unenforceable in Connecticut for reasons of public policy"). Curiously, the defendant cites Butler in support of its argument that a general waiver for a recreational facility does not violate public policy. The case would appear to stand in opposition to the proposition that the exculpatory agreement in this case should withstand public policy scrutiny.
The defendant’s reliance on Hanks is both curious and misplaced, because in that case, the Supreme Court reversed the trial court’s grant of summary judgment in favor of the defendants after analyzing: "The plaintiff, in exchange for a fee, was permitted access to the defendants’ snowtubing runs and was provided with snowtubing gear. As a result of this transaction, the plaintiff was under the care and control of the defendants and, thus, was subject to the risk of the defendants’ carelessness ... Accordingly, the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an exciting, but reasonably safe, snowtubing experience." Hanks, supra, 276 Conn. 331. In analyzing the facts in this case, it must be similarly considered whether plaintiff Michael understood that by signing a waiver for his four-year-old son’s swim lessons, he was releasing the defendant to leave his son free to roam around an unsupervised swimming and diving area. Moreover, it should be considered by the court whether the plaintiff Michael had no expectation that his son- who was at the defendant’s pool to learn to swim- would be allowed to jump from a diving platform without being supervised or spotted. To follow the language in Hanks, Lucas’ dad had voluntarily relinquished supervision of his son with the reasonable expectation of an exciting, but reasonably safe, swim lesson. The logical conclusion, is that in signing the exculpatory agreement, plaintiff Michael cannot be considered to have waived all supervision and protection of his four-year-old son.
To allow exculpatory agreements for instances such as this would create a bad public policy where swim facilities, such as the defendant’s, may evade responsibility for the safety and supervision of children. While not immediately relevant to this motion, it is interesting to consider that a court ruling that allowed the defendant to waive any responsibility for children at the pool would likely hurt its business. What parent would agree to sign an exculpatory agreement that had the practical effect of relieving the swim facility of any responsibility or duty to supervise young children around a pool? The defendant would likely find its swim classes empty.
For the same reasons, the court should deny the defendant’s motion for summary judgment, the plaintiffs argue that it should similarly grant the plaintiffs’ cross motion for summary judgment as to the defendant’s first special defense. The court is aware that "[a]s a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). If the court is satisfied that the exculpatory agreement is not operable, then it should be similarly satisfied that there is no question that the special defense fails. Accordingly, Practice Book § 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." That is the case here and the court should grant summary judgment on the plaintiffs’ cross motion for summary judgment as to the defendant’s first special defense.
ANALYSIS
The first analysis required of this court, as articulated by the Connecticut Supreme Court, is whether an ordinary person of reasonable intelligence would understand that, by signing the exculpatory agreement, he or she was releasing the defendant from liability for its future negligence. This court so concludes. Next, the analysis must turn on "whether the enforcement of a well drafted exculpatory agreement purporting to release a[n] ... operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy." Hanks, supra, 276 Conn. 326. For the reasons stated below, the court finds that it does, and therefore, the defendant’s motion for summary judgment is denied and the plaintiffs’ cross motion for summary judgment on the defendant’s first special defense is granted.
In Hanks, the Connecticut Supreme Court stated that "[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; id., 96-98; 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.’ Id., 98-101. The court clarified that an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied. Id., 101." (Footnote omitted.) Hanks, supra, 276 Conn. 328.
A factual comparison of the Hanks case and this matter demonstrates significant similarities. In Hanks, the Supreme Court stated that "[t]he defendants are in the business of providing snowtubing services to the public generally, regardless of prior snowtubing experience ... Given the virtually unrestricted access of the public ... a reasonable person would presume that the defendants were offering a recreational activity that the whole family could enjoy safely ...
"[T]he societal expectation that family oriented recreational activities will be reasonably safe is even more important where ... patrons are under the care and control of the recreational operator as a result of an economic transaction. The plaintiff, in exchange for a fee, was permitted access to the defendants’ snowtubing runs ... As a result of this transaction, the plaintiff was under the care and control of the defendants and, thus, was subject to the risk of the defendants’ carelessness ... Accordingly, the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an exciting, but reasonably safe, snowtubing experience.
"Moreover, the plaintiff lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ snowtubing runs were maintained in a reasonably safe condition ... [The] [d]efendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the costs of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.
"If the defendants were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk would be removed, with the public bearing the cost of the resulting injuries ... It is illogical, in these circumstances, to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control. (Citations omitted.) [Dalury v. S-K-I, Ltd., 164 Vt. 329, 335, 670 A.2d 795 (1995)]. The concerns expressed by the court in Dalury are equally applicable to the context of snowtubing, and we agree that it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control." (Footnotes omitted; internal quotation marks omitted.) Hanks, supra, 276 Conn. 330-32.
Taking the text above, and substituting "swimming" or relevant other terms for "snowtubing" to make a comparison, we can see striking similarities and little differences between the two cases (emphasis added). "The defendant is in the business of providing swimming services to the public generally, regardless of prior swimming experience ... Given the virtually unrestricted access of the public (plaintiff Lucas participating as part of child care) ... a reasonable person would presume that the defendant was offering a recreational activity that the plaintiff Lucas, i.e., children in child care could enjoy safely.
"[T]he societal expectation that children oriented recreational activities will be reasonably safe is even more important where ... children are under the care and control of the recreational operator as a result of an economic transaction. The plaintiff Lucas, in exchange for a fee, was permitted access to the defendant’s swimming pool and diving platforms ... As a result of this transaction, the plaintiff Lucas was under the care and control of the defendant and, thus, was subject to the risk of the defendant’s carelessness ... Accordingly, the plaintiffs voluntarily relinquished control to the defendant with the reasonable expectation of an exciting, but reasonably safe, swimming and diving experience.
"Moreover, the plaintiff Lucas (a four-year-old child) lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendant’s swimming pool and diving platforms were maintained (or adequately supervised) in a reasonably safe condition ... [The] [d]efendant, not recreational child swimmers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of its agents and employees. It alone can properly maintain and inspect its swimming pool and diving platforms, and train its employees in risk management. It alone can insure against risks and effectively spread the costs of insurance among their thousands of customers. Children swimmers, as part of child care, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the swimming pool owner’s negligence.
"If the defendant were permitted to obtain broad waivers of its liability, an important incentive for swimming pools to manage risk would be removed, with the public (including children in child care) bearing the cost of the resulting injuries ... It is illogical, in these circumstances, to undermine the public policy underlying business invitee law and allow swimmers to bear risks they have no ability or right to control ... The concerns expressed by the court in Dalury are equally applicable to the context of swimming, and we agree that it is illogical to permit children swimmers, and the public generally, to bear the costs of risks that they have no ability or right to control." (Citation omitted; emphasis added.) Similar expectations, similar control, similar risk, and similar outcomes. The more important aspect that makes this analysis even more significant in this matter is that in this case, plaintiff Michael was not present to watch his son; the plaintiff Lucas was participating in a childcare activity, outside the watchful eye of his father.
Next the court analyzed the exculpatory agreement itself. This exculpatory agreement was a standard, pre-printed form drafted by the defendant that only required the insertion of names, dates, and signatures, a nearly identical format to that in Hanks. In Hanks, the court stated that "the agreement at issue was a standardized adhesion contract offered to the plaintiff on a ‘take it or leave it’ basis. The ‘most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.’ Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988); see also Black’s Law Dictionary (7th Ed. 1999) (defining adhesion contract as ‘[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’). Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him the option of procuring protection against negligence at an additional reasonable cost. See Restatement (Third), Torts, Apportionment of Liability § 2, comment (e), p. 21 (2000) (factor relevant to enforcement of contractual limit on liability is ‘whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reasonable, additional fee’). Moreover, the defendants did not inform prospective snowtubers prior to their arrival at [the defendants’ snowtubing facility] that they would have to waive important common-law rights as a condition of participation. Thus, the plaintiff, who traveled to [the defendant’s facility] in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants’ proffered waiver of prospective liability or forgoing completely the opportunity to snowtube [there]. Under the present factual circumstances, it would ignore reality to conclude that the plaintiff wielded the same bargaining power as the defendants.
"The defendants contend, nevertheless, that they did not have superior bargaining power because, unlike an essential public service, [s]nowtubing is a voluntary activity and the plaintiff could have just as easily decided not to participate.’ We acknowledge that snowtubing is a voluntary activity, but we do not agree that there can never be a disparity of bargaining power in the context of voluntary or elective activities. See [Dalury v. S-K-I, Ltd., supra, 164 Vt. 335] (’[w]hile interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that implicate public concerns’). Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga, are pursued by the vast majority of the population and constitute an important and healthy part of everyday life. Indeed, this court has previously recognized the public policy interest of promoting vigorous participation in such activities. See, e.g., [Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 702, 849 A.2d 813 (2004)] (important public policy interest in encouraging vigorous participation in skiing); Jaworski v. Kiernan, 241 Conn. 399, 409, 696 A.2d 332 (1997) (important public policy interest in promoting vigorous participation in soccer). In the present case, the defendants held themselves out as a provider of a healthy, fun, family activity. After the plaintiff and his family arrived at [the defendant’s snowtubing facility] eager to participate in the activity, however, the defendants informed the plaintiff that, not only would they be immune from claims arising from the inherent risks of the activity, but they would not be responsible for injuries resulting from their own carelessness and negligence in the operation of the snowtubing facility. We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances.
"For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because it violates public policy. Accordingly, the trial court improperly rendered summary judgment in favor of the defendants." (Footnotes omitted.) Hanks, supra, 276 Conn. 333-36.
Taking the text above and again substituting "swimming" or relevant other terms for "snowtubing," we can again see striking similarities and little differences. (Emphasis added.) The relevant analysis indicates, "Not only were the plaintiffs unable to negotiate the terms of the agreement, but the defendant also did not offer him (or his father) the option of procuring protection against negligence at an additional reasonable cost [as the plaintiff Lucas was participating as part of his child care program .] ... Moreover, [there was no evidence that ] the defendant informed prospective swimmers prior to their arrival at the defendant’s pool that they would have to waive important common-law rights as a condition of participation. Thus, the plaintiff Lucas, who traveled to the defendant’s pool as part of childcare in anticipation of swimming that day, was faced with the dilemma of either signing the defendant’s proffered waiver of prospective liability or forgoing completely the opportunity to swim at the defendant’s pool as part of his childcare program . Under the present factual circumstances, it would ignore reality to conclude that the plaintiffs (a four-year-old child and his father) wielded the same bargaining power as the defendant.
"The defendant contends, nevertheless, that the signature of the parent indicates that the four-year-old minor child is cognizant of potential risks involved in diving into the pool area and the child agreed to participate in the voluntary activity . [The court] acknowledge[s] that swimming is a voluntary activity, but ... [does] not agree that there can never be a disparity of bargaining power in the context of voluntary or elective activities. Voluntary recreational activities, such as ... swimming ... are pursued by the vast majority of the population and constitute an important and healthy part of everyday life. Indeed, this court has previously recognized the public policy interest of promoting vigorous participation in such activities ... In the present case, the defendant held itself out as a provider of a swimming activity for children in childcare . After the plaintiffs became aware that childcare would make use of the pool, plaintiff Lucas became eager to participate in the activity, however, the defendant informed the plaintiffs that, not only would they be immune from claims arising from the inherent risks of the activity, but they would not be responsible for injuries resulting from their own carelessness and negligence in the operation of the swimming pool facility. [The court] recognize[s] that the plaintiffs had the option of walking away. [However, the plaintiff Lucas was part of a childcare group. His inability to participate if the exculpatory agreement was not signed would have created an awkward, if not impossible, situation for the childcare supervisors who would have had no activity for the plaintiff Lucas .] [This court] cannot say ... that the defendant had no bargaining advantage under these circumstances.
"For the foregoing reasons, [the court] conclude[s] that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because it violates public policy." (Citations omitted; emphasis added.)
CONCLUSION
Based on the reasoning discussed previously, the exculpatory agreement is void as it is against public policy, and the defendant’s motion for summary judgment is denied. Based on the same reasoning, the plaintiffs’ cross motion on the defendant’s first special defense is granted.