A state court judge in Connecticut has declined to apply a “liberal” interpretation to a preinjury waiver, and found that a negligence lawsuit against a ski area operator can continue.
The impetus for the case was an incident that occurred on January 13, 2003, when Alexandra Laliberte, the daughter of co-plaintiff Suzanne Bull, sustained serious injury to her left leg while engaged in ski practice, as a member of the Glastonbury High School varsity ski team.
The practice took place at the White Water Mountain Resorts, Inc., the defendant. The injury occurred when Laliberte struck a snow-making machine, which was inadequately identified and positioned upon a portion of a ski trail or slope.
Central to the action was the fact that the plaintiffs knowingly and voluntarily signed an anticipatory release of liability absolving the defendant from any claims by the plaintiffs resulting from participation in the ski team practices or events at the defendant’s ski facility, even if such “injury is caused by the negligence” of the defendant. “It is uncontroverted that, if this waiver is enforceable, it would exonerate the defendant from the liability on the plaintiffs’ claims,” wrote the court.
The court first addressed the movant’s contention that § 29-212 exempts the defendant from liability.
“Section 29-212 must be examined in conjunction with § 29-211 because these related provisions ‘form a consistent, rational whole,’” wrote the court, citing Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 681, 849 A.2d 813 (2004).
“These statutes were enacted to delineate the respective responsibilities of the skier and the ski area operator. Id., 682. Section 29-212 enumerates a non-exhaustive list of risks inherent in the sport of skiing for which ski area operators bear no responsibility if injury ensues. Id. Section 29-211, on the other hand, imposes specified duties upon ski area operators. Id., 681.
“Subsection 29-211(2) obligates the operator to mark conspicuously the location of snow- making devices that are placed on a trail or slope. A review of the pleadings and documents submitted discloses that a genuine factual dispute exists as to whether the particular device which Laliberte struck was sited on a ski trail or slope. Consequently, summary judgment is unavailable on this ground.”
The court then moved on to the “enforceability of the preinjury release,” which “poses a more difficult question.
“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration. Fischer v. Rivest, Superior Court, New Britain J.D. Complex Litigation, dn. X05-CV00-509627, 33 Conn. L. Rptr. 119 (August 15, 2002), Aurigemma, J.”
The court then noted that the release was signed by the plaintiffs “knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution. Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.
“The statutes regarding skiing and ski area operations, General Statutes §§ 29-211 through 29-214 are silent as to whether waiver of the duties imposed on ski area operators are permitted or forbidden.”
The court then turned to case law — Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003), in which the state’s high court “held that a preinjury waiver, which omitted express reference to negligence was insufficient to absolve the ski area operator, the same defendant as in the present case, from liability for negligence. Id., 643. The majority explicitly stated that its decision ventured no opinion regarding the viability of an anticipatory release should it include the missing language. Id., 640 and 643, fn. 11. Despite this disclaimer, the Hyson case, supra, does provide some guidance bearing on the issue before this court because the majority reiterated the proposition that a preinjury release from liability for negligent acts ‘is scrutinized with particular care.’ Id., 642.
“The two dissenting justices in Hyson, supra, indicated that such preinjury releases are valid despite the absence of the use of a form of the word negligence expressly. Id., 649. Implicit in the dissenters’ position is that such waiver is possible as to violations of the duties imposed by § 29-211.”
The instant court, however, was unwilling “to harvest precedential value on this issue from that dissent because the precise claim of unenforceability raised in the present case was never raised in Hyson, supra.”
It then noted a Connecticut case” closer to the facts of the present one” — Fedor v. Mauwehu Council, 21 Conn.Sup. 38, 143 A.2d 466 (1958).
In that case, the trial court “granted a demurrer to a special defense based on a written waiver signed by the injured boy’s father, which waiver purported to release a boy scout camp from liability.
“The court stated that ‘parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.’ Id., 39.”
Furthermore, “on the national level, some jurisdictions invalidate recreational activity releases if the negligent conduct contravenes public policy as embodied in statutorily imposed duties while other jurisdictions recognize the enforceability of such preinjury waivers. See 54 A.L.R.5th 513 (2004), §§ 5[a] and [b].
“In McCarthy v. National Association for Stock Car Auto Racing, 48 N.J. 539, 226 A.2d 713 (1967), the New Jersey Supreme Court affirmed a trial court’s invalidation of a preinjury release in a case where the plaintiff was allegedly harmed by the defendants’ failure to comply with a state regulation governing the placement of fuel lines in racing cars. That court stated that the ‘prescribed safety requirements may not be contracted away, for if they could be, the salient protective purposes of the legislation would largely be nullified.’ Id. 54. “
“… The West Virginia Supreme Court reached a similar result in Murphy v. American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991). West Virginia has a statutory scheme regarding the division of responsibility for harm resulting from the risks of whitewater rafting. That scheme immunizes commercial rafting operators from liability for risks inherent in that activity but ‘imposes in general terms certain statutory duties upon commercial whitewater outfitters.’ Id., 317. A rafter suffered injuries when the outfitter‘s employee attempted to use one raft to dislodge another which was hung up on some rocks. Id., 313-14. That Court concluded ‘when a statute imposes a standard of care, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable.’ Id., 318. The West Virginia Supreme Court also observed that that state’s skiing statutes were very similar to their whitewater rafting legislation. Id., 317.
“These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member. The court finds this reasoning persuasive.”
Common Law Negligence v. Statutory Negligence
The court continued: “Common law negligence is a breach of a duty to exercise reasonable care with respect to another when confronting a particularized and individualized set of surrounding circumstances which may never arise again. A party is entitled to contract away the right to hold the releasee responsible for careless conduct peculiar to the releasor’s situation.
“On the other hand, statutory negligence is based on deviation from a legislatively mandated course of conduct which governs a generalized set of circumstances. The statutory rule applies in every case in which those generic circumstances may exist and where the injured party falls within the class the statute was designed to protect. Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965). The doctrine of statutory negligence applies to create liability regardless of whether the defendant acted with reasonable prudence. Jacobs v. Swift & Co., 141 Conn. 276, 279, 105 A.2d 658 (1954).
“If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.
“Given our Supreme Court’s reluctance to afford liberal recognition to preinjury waivers and the need to prevent the undermining of statutorily defined duties, the court holds as a matter of law, that the plaintiffs’ release in this case is unenforceable to defeat the claims of a violation of § 29-211.”
Laliberte v. White Water Mountain Resorts; Super. Ct. Conn.; 2004 Conn. Super. LEXIS 2194; 8/2/16
