Thompson v. Hi Tech Motor Sports, Inc.

• Decision Date: 08 February 2008
• Docket Number: No. 06-523.,06-523.
• Citation: 945 A.2d 368,2008 VT 15
• Parties: Shayne E. THOMPSON v. HI TECH MOTOR SPORTS, INC.
• Court: Vermont Supreme Court

945 A.2d 368

2008 VT 15

Shayne E. THOMPSON v. HI TECH MOTOR SPORTS, INC.

No. 06-523.

Supreme Court of Vermont.

February 8, 2008.

Wanda I. Otero-Ziegler and Frank Langrock of Langrock Sperry & Wool, L.L.P., Middlebury, for Plaintiff-Appellee.

John Paul Faignant and Antonin Robbason of Miller Faignant & Behrens, P.C., Rutland, for Defendant-Appellant.

Present: REIBER, C.J., and DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. After injuring herself during a test drive on one of defendant's motorcycles, plaintiff sued defendant for negligence. The trial court granted plaintiff partial summary judgment, concluding that the release plaintiff signed was contrary to public policy and therefore void as a matter of law. On interlocutory appeal, we conclude that the waiver is not void for public policy as a matter of law, but that the exculpatory clause does not release defendant for claims caused by its own negligence, and remand.

¶ 2. The following facts are undisputed for purposes of summary judgment. In May 2003, plaintiff went to defendant's motorcycle dealership to test drive a motorcycle. Plaintiff spoke with a salesperson and indicated that although she was a relatively new rider, she had a valid motorcycle driver's license and had experience riding a motorcycle with a 200cc engine. After further discussion with the salesperson, plaintiff signed a single-page release.¹ Then, as part of a group, plaintiff took a promotional test ride on a 750cc motorcyle. During the test ride, as plaintiff was turning, she downshifted, but was unable to control the bike, and she hit a guardrail, injuring herself.

¶ 3. Plaintiff filed a suit for damages in superior court, claiming that defendant's agents were negligent in encouraging her to ride a bike that they knew or should have known was too big for plaintiff and that she could not operate safely. Defendant filed a motion for summary judgment, claiming that the release plaintiff signed discharged it as a matter of law from any liability for her injuries. Plaintiff filed a cross-motion for partial summary judgment, arguing that the release was contrary to public policy. The trial court resolved both motions on the same day in single-line orders. First, the court denied defendant's motion, concluding that there were "factual disputes concerning the representations made by the defendant's salesman." Second, the court granted plaintiffs motion for partial summary judgment, concluding simply that "defendant's release was void for being contrary to public policy." The trial court granted defendant permission to appeal, and this Court accepted review of the question of whether the release is void as contrary to public policy.

¶ 4. On appeal, we review summary judgment using the same standard as the trial court. Gallipo v. City of Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177. Under that familiar standard, summary judgment is appropriate if there are no issues of material fact and a party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3); Gallipo, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177. "In determining whether a genuine issue of fact exists, the nonmoving party receives the benefit of all reasonable doubts and inferences," Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996).

¶ 5. Plaintiffs motion for partial summary judgment was based on two grounds: (1) the release was ambiguous and thus did not waive actions for defendant's negligence; and (2) the release was contrary to public policy, which encourages motorcycle safety. The trial court granted plaintiffs motion without discussion, so it is unclear which argument the court found compelling. On appeal, defendant addresses both of plaintiffs original claims and argues that summary judgment was incorrect because the release (1) is unambiguous and includes suits based in negligence, and (2) does not interfere with any societal interest in motorcycle safety because societal expectations place responsibility for safe driving on the operator.

I.

¶ 6. First, we consider whether the release is void as contrary to public policy. As we' have explained in the past, evaluating whether a release from liability contravenes public policy does not follow a strict formula because "no single formula will reach the relevant public policy issues in every factual context." Dalury v. S-K-I, Ltd., 164 Vt. 329, 333, 670 A.2d 795, 798 (1995). Rather, we consider the totality of the circumstances and societal expectations to determine whether sufficient public interest exists to void a release. Id. at 334, 670 A.2d at 798. Although the public interest cannot be determined through a formulaic approach, some relevant characteristics of a public interest are the nature of the parties' relationship, including whether the party granting exculpation is in a position of dependency, and the type of service provided by the party seeking exculpation, including whether the service is laden with public interest. See Restatement (Third) of Torts: Apportionment of Liab. § 2 cmt. e (2000); see also Tunkl v. Regents of Univ. of Cal, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 445-46 (1963) (listing characteristics of contracts that affect a public interest).

¶ 7. Although we recognize the great public need for motorcycle safety, we conclude that the waiver of liability in this case for injuries occurring on test drives does not contravene public policy. We are so persuaded given the nature of the service that defendant provides, the lack of control defendant exercises over those test-driving its vehicles, and the absence of legislative policy to regulate or control dealerships.

¶ 8. We agree with defendant that this case is distinguishable from Dalury v. S-K-I, Ltd., wherein we concluded that a ski resort could not exculpate itself from negligence liability through a release. 164 Vt. at 335, 670 A.2d at 799. In Dalury, a skier sued a ski area where he fell and was injured, claiming that the premises was negligently designed. We concluded that the release was void because it contravened a strong tradition of public policy that placed the responsibility for proper maintenance of grounds on those who own and control the property. Id. We reasoned that "if 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." Id. We concluded that "[i]t 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." Id.

¶ 9. The same concerns, which prompted our decision in Dalury, are not present here because whereas public policy places the burden of maintaining safe premises on a landowner, public policy concerning motorcycle safety places the burden of safe driving on the operator of the motorcycle. In Dalury, we emphasized that the defendant ski area had the unique opportunity and means "to foresee and control hazards" on its premises, thus it was logical for the ski area to bear the risk of a negligently designed or maintained ski area. In contrast, dealerships, like defendant, do not have the opportunity or means to control a prospective customer's driving capability. Id. Persons, who choose to take defendant's motorcycles out for a test ride, have the ability to undertake precautions to avoid hazards associated with operation, unlike skiers who "are not in a position to discover and correct risks of harm" on a ski hill. Id.

¶ 10. The dissent finds Dalury applicable, based on its conclusion that "[t]he property in this case may consist of motorcycles rather than ski trails, but the principles are no less applicable." Post, ¶ 25. This assertion ignores the fact that our decision in Dalury depended in large part on "[t]he major public policy implications ... underlying the law of premises liability." 164 Vt. at 334, 670 A.2d at 799. Dalury emphasized the duty of care a business owner has "to make sure that its premises are in safe and suitable condition for its customers." Id. (quotation omitted). The dissent's attempt to equate motorcycles to ski hills fails because the strong public policy of premises liability in Dalury has no parallel in the area of motorcycle test riding. Another critical distinction is that there is no claim here that the product offered by defendant was in any way defective. The motorcycle operated well; it was driver error that caused the accident.

¶ 11. Furthermore, we conclude that in undertaking to retail motorcycles by providing test drives, defendant is neither "performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public," nor holding itself "out as willing to perform this service for any member of the public who seeks it." Tunkl, 32 Cal.Rptr. 33, 383 P.2d at 445. Motorcycle dealerships do not provide a public service, which is a necessity for some members of the public. See Jones v. Dressel, 623 P.2d 370, 377 (Colo.1981) (concluding that flight service for parachute jumping was not a matter of public interest); Mann v. Wetter, 100 Or.App. 184, 785 P.2d 1064, 1066-67 (1990) (holding that diving school did not provide an essential public service); Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 636 P.2d 492, 493 (1981) (holding that mountaineering does not implicate the public interest). In addition, unlike the ski area in Dalury that advertised to and invited all members of the general public, even those with no experience, defendant made no representation that it was making its motorcycles available to all members of the public or that it was providing training in the proper use of motorcycles. Defendant allowed only those persons who attested in a signed release that they were properly licensed with a motorcycle endorsement and had...