Hyson v. White Water Mountain Resorts of Connecticut, Inc.

• Decision Date: 02 September 2003
• Docket Number: (SC 16773).
• Parties: FRANCESCA HYSON v. WHITE WATER MOUNTAIN RESORTS OF CONNECTICUT, INC.
• Court: Connecticut Supreme Court

265 Conn. 636

829 A.2d 827

FRANCESCA HYSON v. WHITE WATER MOUNTAIN RESORTS OF CONNECTICUT, INC.

(SC 16773).

Supreme Court of Connecticut.

Argued March 13, 2003.

Officially released September 2, 2003.

Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.¹

Jeffrey A. Rozen, for the appellant (plaintiff).

Christopher M. Vossler, with whom, on the brief, were Beatrice S. Jordan and Alexandria L. Bufford, for the appellee (defendant).

Opinion

SULLIVAN, C. J.

The dispositive issue in this appeal is whether a document entitled "RELEASE FROM LIABILITY" and signed by the plaintiff, Francesca Hyson, precludes her from recovering damages in this negligence action against the defendant, White Water Mountain Resorts of Connecticut, Inc., for personal injuries sustained by the plaintiff while she was snowtubing at a facility operated by the defendant. On the basis of the release, the defendant filed a motion for summary judgment. The trial court granted the motion and rendered judgment for the defendant, and the plaintiff appealed.² We conclude that the release signed by the plaintiff does not release the defendant from liability, or indemnify the defendant, for injuries resulting from its negligence. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. At all times relevant to this appeal, the defendant operated a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On January 30, 1999, the plaintiff, in her capacity as patron and invitee of the defendant at Powder Ridge, was snowtubing on a hill designated and maintained by the defendant for that purpose on an inner tube provided by the defendant.

Prior to using the defendant's facilities, the plaintiff signed the putative release at issue.³ In her amended complaint, the plaintiff alleged that she had suffered injuries to her hand and wrist when her inner tube failed to stop at the bottom of the hill but, instead, continued over a "cliff."⁴ The plaintiff further alleged that her injuries had resulted from the defendant's negligence. Specifically, she claimed that the defendant: (1) permitted the slope at the bottom of the hill to be excessively slippery; (2) failed to maintain an adequate barrier at the bottom of the hill designed to stop patrons; (3) failed to stop inner tubes as they reached the bottom of the hill; and (4) failed to post any signs warning patrons of dangerous conditions at the bottom of the hill, namely, that the bottom of the hill ended in a cliff, below which the ground was rocky and hard.

The defendant denied having negligently caused injury to the plaintiff and asserted as special defenses that the plaintiff's claims were barred because she had signed the release, that she had assumed the risk of injury contractually, that any injuries to the plaintiff had been caused by her own negligence, and that her claims were barred by General Statutes § 29-212.⁵ In addition, the defendant filed a counterclaim alleging that, by signing the release, the plaintiff had incurred a contractual obligation to hold the defendant harmless and to indemnify it for any damages resulting from her use of its facilities, including personal injuries to herself. Accordingly, the defendant claims that, in the event of a judgment in favor of the plaintiff, she would be obligated to indemnify it to the extent of any such judgment.

On the basis of the plaintiff's release, the defendant filed its motion for summary judgment, which the trial court granted. We now reverse the judgment of the trial court.

The plaintiff asserts that the release does not prevent her recovery for two reasons. First, she maintains that the release does not relieve the defendant of liability for its negligence because negligence is not expressly mentioned in the document. Second, she contends that the enforcement of an agreement that purports to release a party from liability for its prospective negligence is contrary to public policy, without regard to the language used. Because we agree with the plaintiff that the language used in the release at issue does not release the defendant from liability for claims arising from its negligence, we do not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable.

We note first that the release signed by the plaintiff does not specifically refer to possible negligence by the defendant. Instead, it refers to "inherent and other risks involved in snowtubing," provides examples of some such risks, none of which refers to possible negligence, and states that "all of the inherent risks of snowtubing present the risk of serious and/or fatal injury." Following this language, the release states that the plaintiff agrees "to hold harmless and indemnify the defendant for loss or damage, including any loss or injuries that result from damages related to the use of a snowtube or lift." See footnote 3 of this opinion.

Neither this court nor the Appellate Court⁶ has had occasion to determine whether an agreement purporting to release or indemnify the proprietor of a recreational facility or service prospectively may be applied to damages arising from that party's negligence in the absence of express language so indicating.⁷ There is, however, widespread support in other jurisdictions for a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly.⁸ See 2 Restatement (Second), Contracts § 195, comment (b) (1981) ("language inserted by a party in an agreement for the purpose of exempting him from liability for negligent conduct is scrutinized with particular care and a court may require specific and conspicuous reference to negligence under the general principle that language is interpreted against the draftsman"); 1 E. Farnsworth, Contracts (2d Ed. 1998) § 4.29a, p. 587 ("courts have often found exculpatory clauses couched in general language insufficient to bar claims for liability for negligence"); but see 1 E. Farnsworth, supra, § 4.29a, pp. 587-88 ("not all courts have been so demanding").⁹

Indemnification agreements give rise to the same issues and are interpreted in a similar fashion.¹⁰ Thus, although "in many jurisdictions a written contract of indemnity will not be construed to indemnify against the indemnitee's own negligence unless there is a clear expression of that intention, and then the contract is strictly construed ... a specific reference to negligence of the indemnitee is not always required." 41 Am. Jur. 2d, Indemnity § 20 (1995). In keeping with the well established principle, however, that "the law does not favor contract provisions which relieve a person from his own negligence"; Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 413, 446 A.2d 799 (1982); we conclude that the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.¹¹ The release signed in the present case illustrates the need for such a rule. 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. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost.¹²

Because the release signed by the plaintiff in the present case did not expressly provide that, by signing it, she released the defendant from liability for damages resulting from its negligence, the trial court improperly granted the defendant's motion for summary judgment.

The judgment is reversed and the case is remanded to the trial court for further proceedings according to law.

In this opinion PALMER, VERTEFEUILLE and ZARELLA, Js., concurred.

KATZ, J., concurring.

I concur in the result.

NORCOTT, J., with whom BORDEN, J., joins, dissenting.

In the present case, the majority concludes that "a party cannot be released from liability for damages resulting from its future negligence in the absence of language that expressly so provides." Put differently, the majority concludes that, unless an exculpatory clause explicitly states that the signatory is releasing all claims sounding in negligence, the release will not be enforceable.¹ Because I believe that the release signed by the plaintiff, Francesca Hyson, fully informed her that she was releasing the defendant, White Water Mountain Resorts of Connecticut, Inc., of all liability arising out of her participation in the snowtubing operated by the defendant, and because I believe that the majority opinion will have grievous consequences in our state, particularly within the context of recreational activities, I disagree. Accordingly, I respectfully dissent.

To begin, although the issue of whether a release of liability must specifically state that the signatory is releasing any claim sounding in negligence has not been addressed by this court, the Appellate Court has had the opportunity to analyze the issue. In B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 67, 807 A.2d 1001 (2002),² the plaintiff commercial tenant brought an action sounding in negligence against the defendant landlord for losses the plaintiff had incurred as a result of a fire. Thereafter, the defendant moved for summary judgment, claiming that a provision in the parties' lease released him from all liability. Id., 68. The lease in that case provided that the tenant bore the risk of loss and that the tenant would not hold the landlord...