Opinion
No. CV 00-0438800 S
October 9, 2003
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The plaintiff administrator, commenced this action by way of complaint dated April 18, 2000, bringing an action for injuries suffered by the decedent, which resulted in her death. Thereafter, the plaintiff filed a revised complaint. The injuries were sustained as a result of an accident wherein the decedent was a passenger in a powered parachute, assembled and manufactured, in part, by the defendant Six Chuter, Inc. The defendant, Six Chuter Inc., pursuant to Practice Book § 17-44 has filed a motion for summary judgment arguing that the decedent signed an Indemnity Agreement and Release of Liability, that specifically released the defendant from liability caused by its own negligence, and that the "release," constitutes a complete defense to the plaintiff's claim.
The revised complaint dated June 21, 2001 contains two counts. The first count alleges negligence as to defendant Labreque. The second count against the defendant Six Chuter, Inc. alleges product liability. The first count was withdrawn on September 11, 2001. The motion for summary judgment applies only to the remaining second count sounding in product liability against Six Chuter, Inc. The plaintiff bases his complaint against Six Chuter on its alleged negligence in the design and manufacture of the parachute; its failure to warn of its dangers; and its failure to properly train instructors in the use of the product.
The court first reviews the standards of law applicable to summary judgments. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
A summary of the plaintiff's allegations, indicates that on or about July 27, 1999, the decedent was a passenger in an "ultra lite powered parachute" manufactured, designed and or marketed by Six Chuter. The powered parachute was being operated by the co-defendant, Daniel Labreque. The decedent at that time was being instructed by Labreque on how to fly and control the powered parachute. Labreque had represented to the decedent that he was qualified to instruct her, and that the parachute was safe for use by two persons. He allegedly also told the decedent that the location used for the flight was safe and that the weather conditions were acceptable. Labreque possessed a certification from defendant, Six Chuter that he was a qualified trainer or flight instructor for the powered parachute. Shortly after the flight commenced, Labreque lost control of the powered parachute which then crashed in a nearby field. The crash resulted in fatal injuries to the decedent.
The decedent had signed a document titled "Acknowledgment of Risks of Hazards, Waivers, or Rights, Release and Indemnity Agreement" at Labrecque's house on the day of the flight, immediately prior to leaving for the field where the flight was to occur. A review of Labrecque's deposition testimony reveals that the decedent had a basic understanding that the "release" relieved Labrecque of any fault. In signing the release, the decedent acknowledged that she had inspected the "land facilities," where the flight would take place, but this inspection did not occur until a subsequent time when she and Labrecque arrived at the field. While this physical inspection did take place subsequent to the signing, it was prior to the fatal flight of the powered parachute. There is no claim that after the decedent inspected the facilities that she found them unsatisfactory, and the inspection did not deter her from commencing the fatal flight.
The "release agreement" sets forth in detail the risks involved with participation in power parachute activities and warns that the activity is "subject to mishaps, injury or possibly death." The release agreement specifically states that by signing the agreement the decedent was giving up valuable legal rights in the event she was injured and attempted to sue someone or "otherwise make a claim for those injuries." The agreement states in relevant part:
I hereby forever Release and Discharge, Chuting Star, Inc., Daniel Labrecque and Six Chuter Corporation . . . from any and all liabilities, claims, demands, or causes of action that I may hereinafter have for injuries or damages arising out of my participation in Power Parachute activities, including but not limited to losses, CAUSED BY PASSIVE OR ACTIVE NEGLIGENCE OF THE RELEASED PARTIES or hidden, latent, or obvious defect with the equipment sold or used. I further agree that I WILL NOT SUE OR MAKE CLAIM AGAINST THE RELEASED PARTIES for damages or losses . . . I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs . . . CAUSED BY THE PASSIVE OR ACTIVE NEGLIGENCE OF THE RELEASED PARTIES.
Besides the language of the release agreement quoted above, the entire agreement contains similar language releasing the defendants' active or passive negligence in four different paragraphs. Each time such language appears it is in bold type. The release consists of five pages with eleven paragraphs. After reading each paragraph the decedent was required to sign her initials. At the very end of the release agreement form the following language appears in bold type.
I HAVE CAREFULLY READ THIS AGREEMENT AND RELEASE OF LIABILITY. I FULLY UNDERSTAND ITS CONTENTS AND SIGN IT OF MY OWN FREE WILL. I have had ample opportunity to have this legal document reviewed by an attorney prior to signing it.
Following this paragraph the decedent signed her full signature on the release agreement on July 27, 1999. The decedent's signing of the agreement was witnessed by Paul DaSilva on the same date.
The plaintiff claims that there is a genuine issue of material fact as to whether the decedent's consent to a "release of liability" was informed and voluntary. The court disagrees. The decedent was over the age of twenty-one. The face of the agreement shows that she placed her initials after each of the paragraphs and signed her full signature before a witness on the last page. The document is replete with warnings of danger and the possibility of injury and even death. These warnings, as well, as the release of liability warnings for active or passive negligence of the defendants, are in bold type with upper case letters. There is no evidence that the decedent could not read or write and that she was not of mature years. "The general rule is that where a person of mature years and who can read and write signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it and notice of its contents will be imputed to him if he negligently fails to do so." (Internal quotation marks and citations omitted.) DiUlio v. Goulet, 2 Conn. App. 701, 483 A.2d 1099 (1984).
Agreements releasing owners and operators of sports facilities from liability for negligence have generally been held enforceable against a patron. Bashura v. Strategy Plus, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. 050871 (November 20, 1997) (Corradino, J.) ( 21 Conn. L. Rptr. 59); see also Connors v. Reel Ice, Inc., Superior Court, judicial district of Hartford, Docket No. 579993 (July 24, 2000) (Wagner, J.) ( 27 Conn. L. Rptr. 610) (language in the waiver specifically releases the parties from injuries or death caused by their own negligence). The court also takes guidance from the holding of the Connecticut Supreme Court in Hyson v. White Water Mountain Resorts, 265 Conn. 636 (2003), which was officially released on September 2, 2003.
In Hyson, the plaintiff, claiming that the defendant ski area operator was negligent, sought to recover damages for personal injuries she sustained while riding on a snow tube at the defendants facility. The defendant filed a motion for summary judgment on the ground that the plaintiff was precluded from recovery for her injuries because she had signed a document purporting to release the defendant from liability. The trial court granted that motion and rendered judgment for the defendant, from which the plaintiff appealed. The Supreme Court, thereafter, held that the trial court improperly granted the defendant's motion for summary judgment because the release signed by the plaintiff did not expressly provide that the plaintiff was releasing the defendant from liability for the defendants future negligence and, therefore, did not preclude the plaintiff from recovering for injuries sustained as a result of the defendant's negligence; because a person of ordinary intelligence reasonably could believe that, by signing a release that does not expressly refer to the negligence of the party seeking the release, he or she is releasing that party from liability only for injuries caused by dangers inherent in the activity that is the subject of the release. The court reasoned that a party cannot be relieved of liability for damages resulting from its future negligence in the absence of language that expressly so provides.
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 [a]ll 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.
(Internal quotation marks omitted.) Id. at 640.
In reversing the trial court's granting of the motion for summary judgment the court stated:
[W]e conclude that the better rule is that a party cannot be released from liability for injuries resulting from its fixture negligence in the absence of language that expressly so provides. 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. 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.
Id. at 643
Unlike the release and indemnity agreement in Hyson v. White Water Mountain Resorts, supra, 265 Conn. 636, the release and indemnity agreement in the present case contains multiple and specific references to the release of active or passive negligence by the defendants. This language employed in the release agreement was sufficient to inform the decedent not only of the inherent dangers associated with power parachuting, but it was more than sufficient to give the decedent prior warning that she was not only releasing the defendants from "liability," but was also releasing them from any acts of active or passive negligence of their own.
The court notes Justice Norcott's dissent in Hyson, in which Justice Borden joined. The dissent would impose a less exacting language standard than that required by the majority in Hyson in order to make a release enforceable. However, the release agreement in the present case meets the more exacting standard required by the majority opinion written by Chief Justice Sullivan, and accordingly the motion for summary judgment filed by the defendant Six Chuter, Inc., is hereby granted.
THE COURT
By: Arnold, J.