Reardon v. Windswept Farm, LLC

• Decision Date: 03 October 2006
• Docket Number: No. 17506.,17506.
• Citation: 905 A.2d 1156,280 Conn. 153
• Court: Connecticut Supreme Court
• Parties: Jessica REARDON v. WINDSWEPT FARM, LLC, et al.

Page 1156

905 A.2d 1156

280 Conn. 153

Jessica REARDON v. WINDSWEPT FARM, LLC, et al.

No. 17506.

Supreme Court of Connecticut.

Argued May 16, 2006.

Decided October 3, 2006.

Jeffrey I. Carton, with whom, on the brief, was Robert J. Levine, White Plains, NY, for the appellant (plaintiff).

John C. Turner, Jr., Bridgeport, for the appellees (defendants).

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

BORDEN, J.

The dispositive issue in this appeal is whether a release signed by the plaintiff, Jessica Reardon, indemnifying the defendants, Windswept Farm, LLC, and its owners, William Raymond and Mona Raymond, from an action brought in negligence, precludes the plaintiff from recovering damages. More specifically, the question before this court is whether the release signed by the plaintiff violates public policy pursuant to our holding in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005). The plaintiff appeals¹ from the judgment of the trial court granting the defendants' motion for summary judgment. The plaintiff claims that: (1) the trial court incorrectly concluded that the release signed by the plaintiff was clear and unambiguous; and (2) in light of this court's holding in Hanks, the release violates public policy.² We conclude that our holding in Hanks controls the present case and, therefore, that the release signed by the plaintiff was invalid. Accordingly, we reverse the judgment of the trial court.

The plaintiff brought this personal injury action against the defendants alleging negligence. The defendants moved for summary judgment, arguing that the release signed by the plaintiff was clear and unambiguous, and thus satisfied the standard that this court set forth in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003), which provided that "a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides." The trial court agreed that the plaintiff had signed a well drafted waiver of liability in the defendants' favor, granted the defendants' motion for summary judgment, and rendered judgment thereon. This appeal followed.

The following facts are relevant to our analysis of the plaintiff's claims. The defendants are in the business of providing horseback riding lessons to the general public. In October, 2002, the plaintiff came to the defendants' property and requested a horseback riding lesson. As a condition to riding one of the defendants' horses, the plaintiff was required by the defendants to sign a release and indemnity agreement (release). The release was printed on a single page and consisted of three sections entitled, "Warning,"³ "RELEASE,"⁴ and "INDEMNITY AGREEMENT."⁵ It is undisputed that the plaintiff signed and dated the release prior to commencing her horseback riding lesson with the defendants. Similarly, it is undisputed that the plaintiff identified herself on the release as an "[e]xperienced [r]ider" and as someone who had "[r]idden [horses] frequently" several years earlier.

Subsequent to the plaintiff signing the release provided by the defendants, the defendants paired the plaintiff with one of the horses from their stables and with one of the instructors in their employ. During the course of the plaintiff's horseback riding lesson, the horse provided by the defendants became excited, bucked back and forth suddenly and without warning, and threw the plaintiff to the ground, causing her serious injuries.

The plaintiff brought an action in August, 2003, alleging that she had been injured due to the defendants' negligence. In particular, the plaintiff alleged that her injuries were caused by the "carelessness, recklessness and negligence of the defendants" including, among other things, that (1) the "defendants failed to ensure that the horse on which [she] was placed was an appropriate horse commensurate with [the plaintiff's] skill and experience"; (2) the "defendants failed to prevent, warn or protect the plaintiff from the risk of a fall"; (3) the "defendants knew of the horse's propensity to buck yet failed to warn [the plaintiff] of the same"; and (4) the "defendants failed properly to hire and train their riding instructor ...." In their answer, the defendants raised a special defense, namely, that "[t]he plaintiff [had] assumed the risk and legal responsibility for any injury to her person per ... General Statutes [§]52-557p,"⁶ and that "[t]he plaintiff's claims [were] barred [due to the fact] that she signed a waiver/release of all claims in favor of the defendants."

The plaintiff makes two claims on appeal. First, the plaintiff claims that the release of all claims "includ[ing] `ordinary negligence'" set forth in the release was ambiguous when read together with the "Warning" section printed above it, which, tracking § 52-557p, did not exempt from liability injuries "proximately caused by the negligence of the person providing the horse or horses to the individual engaged in the equestrian activities ...." Second, pursuant to our order for supplemental briefing, the plaintiff claims that the release is void as a matter of public policy in light of this court's decision in Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 314, 885 A.2d 734. We agree with the plaintiff that our decision in Hanks controls the present case. Accordingly, we need not consider the plaintiff's claim that the trial court incorrectly concluded that the release signed by the plaintiff was clear and unambiguous.⁷

We begin with the appropriate 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. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).

In light of our holding in Hanks, we cannot conclude that the defendants are entitled to a judgment in their favor as a matter of law. Put another way, our reasoning in Hanks requires that we invalidate the release signed by the plaintiff; thus, several genuine issues of material fact surrounding the defendants' potential negligence remain in dispute.

As previously noted, in Hanks, we concluded that the enforcement of a well drafted exculpatory agreement that releases a provider of a recreational activity from prospective liability for personal injuries sustained as a result of the provider's negligence may violate public policy if certain conditions are met. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 326, 885 A.2d 734. In general, we noted that "[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 ... [which include] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct ...." (Citation omitted; internal quotation marks omitted.) Id., at 327, 885 A.2d 734. Moreover, we recognized that "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 bear it, not to shift the risk to the weak bargainer." (Internal quotation marks omitted.) Id.

Additionally, when assessing the public policy implications of a particular release or waiver of liability, we concluded 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 backdrop of current societal expectations." (Internal quotation marks omitted.) Id., at 330, 885 A.2d 734. Our analysis in Hanks was also guided, though not limited, by the factors articulated 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),⁸ which include, among other things, a consideration as to whether the release pertains to a business thought suitable for public regulation, whether the party performing the service holds himself out as making the activity available to any member of the public who seeks it, and whether the provider of the activity exercises superior bargaining power and confronts the public with a standard contract of adhesion.

In the context of snowtubing, which was the recreational activity at issue in Hanks, we placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) 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. Hanks v....