Brown v. Soh, 17364.

Decision Date14 November 2006
Docket NumberNo. 17364.,17364.
CourtConnecticut Supreme Court
PartiesRobert J. BROWN et al., v. Diane SOH et al.

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909 A.2d 43
280 Conn. 494
Robert J. BROWN et al.,
v.
Diane SOH et al.
No. 17364.
Supreme Court of Connecticut.
Argued May 16, 2006.
Decided November 14, 2006.

Page 44

Steven D. Ecker, Hartford, with whom, on the brief, were George C. Jepsen and Michael A. Stratton, New Haven, for the appellant (named plaintiff).

Peter A. Kelly, with whom was J. Michael Sulzbach, New Haven, for the appellee (named defendant).

J. Michael Sulzbach, New Haven, for the appellees (defendant David J. Fenn et al.).

BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

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BORDEN, J.


The principal issue in this appeal is 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 concluded that the claim is precluded as a matter of law and rendered summary judgment in favor of the defendants. We disagree with that conclusion and, accordingly, reverse the judgment of the trial court.

The plaintiffs, Robert J. Brown and Denise A. Brown, sought damages from the defendants, Diane Soh, David J. Fenn, DaimlerChrysler Corporation, the Skip Barber Racing School, LLC, and the Skip Barber Racing School, Inc. (racing school),1 for injuries that the plaintiff2 sustained while employed by the racing school. After the trial court, Brunetti, J., granted the racing school's motion for summary judgment on two counts of the operative complaint, the remaining defendants, Soh, Fenn, and DaimlerChrysler Corporation, moved for summary judgment as well. In August, 2004, the trial court, Pickard, J., granted their motions for summary judgment and rendered judgment thereon. The plaintiff appealed to the Appellate Court from the judgment of the trial court rendered in favor of Soh, Fenn, and DaimlerChrysler Corporation,3 and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

The record reveals the following facts and procedural history. On September 19, 2001, the racing school offered to the public a one day advanced driving class focused on accident avoidance and prevention. Soh was a student in the class, and the plaintiff and Fenn were employed by the racing school as driving instructors. The driving took place in a restricted area and everyone who entered the area, including the plaintiff, was required by the racing school to sign a document entitled "Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement" (exculpatory agreement). In the exculpatory agreement, the plaintiff acknowledged the dangerous nature of the activities in which he was about to participate, assumed full responsibility for any risk of injury, and covenanted not to seek recovery

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from those involved.4

During the final exercise of the day, Soh was driving a Dodge sedan owned by the DaimlerChrysler Corporation. Fenn was in the passenger seat, acting as her instructor. The plaintiff had been assigned to wave a checkered flag during the exercise and was therefore working in the restricted area near the driving course when the car driven by Soh struck him, causing serious injuries.

In May, 2002, the plaintiff brought this action against the defendants, seeking compensation for damages relating to the plaintiff's injuries. In May, 2003, the trial court granted the plaintiff's motion to cite in the racing school. The plaintiff then amended the complaint to add counts five through eight against the racing school. Thereafter, the racing school moved for summary judgment on counts five and six of the operative complaint, contending that the exculpatory agreement signed by the plaintiff prior to beginning work as an instructor on the day of the accident precluded him from seeking compensation for the injuries that allegedly had been caused by the racing school's negligence. The trial court granted the motion on June 8, 2004, concluding that the exculpatory agreement, which expressly referred to negligence actions several times, satisfied the specificity of notice requirement established by this court in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 644, 829 A.2d 827 (2003). In so holding, the trial court also noted that the plaintiff's deposition, attached as an exhibit to the summary judgment motion, demonstrated that he was an adult with extensive experience with the dangers associated with racing and race tracks and had signed a similar agreement in August, 2001.

The remaining defendants thereafter moved for summary judgment, contending that the agreement signed by the plaintiff precluded negligence claims against them as well. The trial court considered the motions jointly and granted them on August 31, 2004. The court concluded that the exculpatory agreement satisfied the specificity requirement set forth by this

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court in Hyson, and rejected the plaintiff's claim that the defendants could not rely on the exculpatory agreement because it failed to specify them by name. The court further concluded that the lack of consideration to the plaintiff from each of the remaining defendants did not invalidate the exculpatory agreement. The trial court rendered judgment accordingly, and this appeal followed.

The plaintiff claims on appeal that the trial court improperly concluded that: (1) an exculpatory agreement prospectively releasing an employer and others from liability for negligence causing injury to an employee does not violate the public policy of Connecticut; (2) the reference in the agreement to covered "event[s]" had the requisite specificity to effectuate a waiver; and (3) Connecticut law does not deem all form contracts that prospectively waive negligence claims to be unenforceable on public policy grounds. The defendants respond that the plaintiff cannot challenge the trial court's conclusion that the exculpatory agreement precluded actions in negligence against them as well as the racing school because the plaintiff did not appeal from the trial court's summary judgment rendered in favor of the racing school, which was based upon the validity of the exculpatory agreement. The defendants also contend that the agreement did not violate Connecticut public policy.

Prior to oral argument, this court, sua sponte, ordered the parties to file supplemental briefs regarding the impact of Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 326, 885 A.2d 734 (2005). The plaintiff claims that reversal of the trial court's decision is a logical necessity in light of our decision in Hanks. The defendants respond that our decision in Hanks concerned exculpatory contracts signed by unwitting public users of commercial recreational services and that the public policy concerns expressed in that context do not militate against enforcement of an exculpatory agreement signed by an employee who is hired on the basis of his or her professional expertise for a brief and specific event that exposes the expert to certain risk with which the professional is fully familiar. We agree with the plaintiff that Hanks controls this case and, accordingly, we conclude that the defendants were not entitled to judgment in their favor as a matter of law.

As a preliminary matter, we set forth the applicable standard of review. "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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court's decision to grant the defendant[s'] motion for summary judgment is plenary." (Internal quotation marks omitted.) Cantonbury Heights Condominium Assn. v. Local Land Development, LLC, 273 Conn. 724, 733, 873 A.2d 898 (2005). Moreover, we note that "whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review." (Internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn.App. 235, 245, 866 A.2d 629 (2005),

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quoting 17A Am. Jur. 2d 312, Contracts § 327 (2004).

It is well established that "contracts that violate public policy are unenforceable." Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999). In Hanks, this court concluded 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 backdrop of current societal expectations." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 330, 885 A.2d 734. Our analysis is guided by certain factors, first described by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 98-101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963) (Tunkl factors), such as whether: (1) the exculpatory 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...

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