2002 Conn. Super. Ct. 15816 | Conn. Super. Ct. | 2002
On February 28, 2002, the defendant filed an answer and four special defenses. On March 12. 2002, the defendant filed a counterclaim. On July 15, 2002, the plaintiff filed a motion to strike the defendant's first, second and third special defenses accompanied by a memorandum of law in support of the motion. On July 29, 2002, the defendant filed a memorandum of law in opposition to the plaintiffs motion to strike.
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp.,
The defendant's first special defense alleges that the plaintiffs action is barred by General Statutes §
The defendant argues in opposition that the purpose of the statute is to limit liability of ski resort operators for hazards inherent in the sport of skiing. It maintains that, like skiing, snow tubing is an inherently dangerous sport with risks nearly identical to those involved in skiing; the risks covered by the statute are akin to those that the plaintiff confronted.
General Statutes §
Section
The defendant cites no authority to support the proposition that snow tubers are exposed to the same inherently dangerous risks as skiers or that General Statutes §
The defendant's second special defense alleges that "[t]he plaintiffs action is barred by virtue of his execution of a waiver and release of liability. . . ." The plaintiff moves to strike the second special defense on the ground that the waiver executed by the plaintiff did not specifically release negligence. The plaintiff argues that the waiver and release from liability did not specifically release the defendant from its own negligence and the waiver is against public policy. He argues that the law does not favor exculpatory contracts because they tend to allow conduct below acceptable levels of care.
The defendant counters that the pre-accident execution of waiver and release by the plaintiff is a legally sufficient defense, and it is generally accepted that these agreements are valid and enforceable against a patron. It maintains that exculpatory agreements can be valid provided that the patron or participant is properly notified. The defendant also argues that it would be improper to hold the plaintiff unaccountable for his actions, that of signing the waiver.
"Waiver must be based on facts known, actually or constructively, at the time of the waiver." Breen v. Aetna Casualty Surety Co.,
"[A] court should be cautious about holding contract provisions unenforceable because of violations of public policy unless the public policy reasons are absolutely clear." (Internal quotation marks omitted.)Gagliardi v. World Gym Fitness, Superior Court, judicial district of New Britain, Docket No. CV 00 0500627 (July 3, 2001, Dos Santos, J.). "The Supreme Court has not yet decided whether waivers of negligence claims by CT Page 15819 adult participants in sporting events are enforceable." Foley v.Southington-Cheshire Community YMCA, Inc., Superior Court, judicial district of New Britain, Docket No. CV 00 502023 (March 28, 2002, Shortall, J.) (
"The general rule is that where a person [who is] of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so. . . ." (Internal quotation marks omitted.) Phoenix Leasing, Inc. v. Kosinski,
"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 . . . 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 CT Page 15820 `any claim.'" (Internal quotation marks omitted.) Foley v.Southington-Cheshire Community YMCA, Inc., supra,
"The majority of trial courts . . . take the position that specific language, i.e. the word `negligence' must be used to waive effectively claims for negligence against facility operators. . . . [A] waiver 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." (Citation omitted; internal quotation marks omitted.) Smith v. Connecticut Racquetball Club, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0342983 (June 3, 2002, Rush, J.).
"The court in Malin v. White Water Mountain Resorts of Connecticut,Inc., Superior Court, judicial district of New Haven, Docket No. CV 99 0432774 (March 16, 2001, Blue, J.) (
In the present case, the defendant's waiver form does not contain specific language alerting patrons like the plaintiff that the waiver releases the defendant from claims for injuries caused by its own negligence. Based on the reasoning of the courts noted above; see, e.g.,Smith v. Connecticut Racquetball Club, supra, Superior Court, Docket No. CV 97 0342983; the waiver does not impair the plaintiffs right to sue the defendant. The plaintiffs motion to strike the defendant's second special CT Page 15821 defense of pre-accident execution of a waiver and release is granted.
The defendant's third special defense alleges that the plaintiffs "injuries and damages were proximately caused by the plaintiffs contractual assumption of the risk." The plaintiff moves to strike the third special defense on the ground that assumption of the risk is not a valid defense in Connecticut as to negligence. The plaintiff argues that the defendant has not sufficiently pled its claim in this defense since it is unclear on what it is basing its claim of assumption of the risk. The plaintiff argues further that assumption of the risk based on the release from liability is invalid as to negligence and against public policy and, further, that General Statutes §
The defendant counters that contractual assumption of risk is a legally sufficient special defense that is still available in Connecticut in particular cases. The defendant further argues that the legislature through the enactment of General Statutes §
"The defense of assumption of the risk is applicable when a person knows or as a reasonable person should know that in pursuing a certain course he will expose himself to the risk of injury, comprehends or ought as a reasonable person to comprehend the nature and extent of the risk and voluntarily subjects himself to it. . . . The effect of a successful assumption of risk defense is to bar the plaintiff from any recovery." (Citation omitted; internal quotation marks omitted.) Passini v. Decker,
Although "[t]he defense of assumption of risk has been statutorily abolished in all negligence actions"; Sanders v. Officers Club ofConnecticut, Inc.,
Notwithstanding the defense available under General Statutes §
For the reasons set forth, the plaintiffs motion to strike the defendant's first, second and third special defenses is granted.
___________________ Howard F. Zoarski Judge Trial Referee
