Opinion
No. CV01-00756730
July 11, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (129)
This negligence action is brought by the minor plaintiff, Courtney Saccente, by her mother, Stephanie Saccente, against the defendants, Edmund LaFlamme Sr., the estate of Sandra LaFlamme, and Emer Coyne, doing business as Legend Farm. On April 29, 1999, the plaintiff was participating in a horseback-riding lesson at Legend Farm given by an agent or employee of the defendants. The plaintiff alleges that an agent or employee of the defendants carried a hose across the riding ring where the lesson was taking place and left the hose there. The plaintiff alleges that the hose obstructed the path of the horse the plaintiff was riding and the horse tripped over the hose causing the horse to be startled and to gallop off at a high rate of speed. This caused the plaintiff to fall from the horse resulting in her injuries. The defendants were allowed to implead and file a third-party complaint against the plaintiff's father, Carl J. Saccente, Jr. The third-party complaint alleges that as part of the consideration for providing riding lessons to Courtney Saccente, Carl J. Saccente, Jr. agreed to indemnify and hold harmless the defendants from any and all loss by reason of liability for damages because of bodily injuries arising from the use of horses, equipment or the facility and from any liability that they may incur arising out of the plaintiff's claim in this action.
In a prior decision in this matter, the court denied the third-party defendant's, Carl Saccente, Jr.'s, motion for summary judgment and granted the defendants/third-party plaintiffs' motion for summary judgment against the third-party defendant, Carl J. Saccente, Jr., as to liability only. Memorandum of Decision Re: Motions for Summary Judgment (120 and 121) (November 14, 2002) ( 33 Conn.L.Rptr. 490). The defendants have now moved for summary judgment as to the plaintiff's complaint in its entirety. The defendants claim that they are entitled to summary judgment based on their claim that "both the minor plaintiff and her father, prior to the minor plaintiff's participation in the horse riding lessons and in consideration for said participation, signed two valid and enforceable releases and hold harmless agreements that preclude the plaintiffs' negligence claims."
The standards for granting summary judgment are well settled. "`Pursuant to Practice Book § 17-49, 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. Such questions of law are subject to plenary appellate review.' (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). In deciding whether the trial court properly determined that there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party. B D Associates, Inc. v. Russell, 73 Conn. App. 66, 69, 807 A.2d 1001 (2002); Yancey v. Connecticut Life Casualty Ins. Co., 68 Conn. App. 556, 558, 791 A.2d 719 (2002)." Faigel v. Fairfield University, 75 Conn. App. 37, 39-40, 815 A.2d 140 (2003).
The defendants allege that both the minor plaintiff, Courtney Saccente, and her father, Carl J. Saccente, Jr., signed a hold harmless and indemnity agreement as well as an assumption of the risk and general release. In support of their claims they submit two documents: 1) "Agreement to Pay All Fees, Costs, Damages, etc. and to Self-Insure" and 2) "Assumption of Risk and General Release." The "Agreement to Pay All Fees, Costs, Damages, etc. and to Self-Insure" provides "I/we hereby agree to assume all responsibility and risk from my/our use of horsed (sic), equipment, premises and facilities, and further agree to indemnify and save harmless Emer Coyne, Sandra LaFlamme, any officers, agents, employees, or servants against any and all loss or expense, including legal fees and costs, by reasons of liability imposed by law upon Emer Coyne, Sandra LaFlamme, any officers, agents, employees or servants for damages because of bodily injuries, including death or because of property damage sustained, accidentally or otherwise, by any persons, including the understand (sic) arising out of or in consequence of the use of horses or equipment or the use of or presence on the premises, whether such injuries to persons or damage to property are due or claimed to be due to any negligence of Emer Coyne, Sandra LaFlamme, any officers, agents, employees, independent contractors or servants, or any other person." The "Assumption of Risk and General Release" provides: "I understand that riding horses can be a dangerous sport. I recognize the inherent risks of injury involved in riding programs, horse farm activities, horse shows, etc. I hereby assume all the risks and dangers and, further, I voluntarily release and will hold harmless Emer Coyne, Sandra LaFlamme, all agents, and employees from all actions, causes of actions, suits, and any and all claims, demands, and liabilities whatsoever, both in law and equity, which I may acquire against Emer Coyne, Sandra LaFlamme and/or any officers, agents, and employees in connection with any activity. I agree to indemnify and hold harmless Emer Coyne, Sandra LaFlamme, all officers, and agents on account of any such claim. The terms hereof shall be binding on my executors, heirs, administrator, and assigns, and shall serve as an assumption of risk and general release for all members of my family including my minor children and/or wards participating in any such activities." Both documents are signed by Courtney Saccente and Carl J. Saccente, Jr.
The defendants argue that the agreements are enforceable and bar the plaintiff's claim. The court in its previous decision upheld the agreements as enforceable against Carl Saccente, Jr. The court held that the agreements were clear that they served to release the defendants from even their own negligence and that the agreements were not against public policy. The court will not reiterate the reasons for its conclusions here but incorporates the rationale of its November 14, 2002 decision into this memorandum.
In opposition to the present motion for summary judgment, the plaintiff argues further that it was not the intent of Carl Saccente, Jr. to release the defendants from liability for their own negligence. The plaintiff submits Carl Saccente's affidavit to support this claim, in which he avers: "I was never informed, nor did I have any intent to waive any negligence on the part of the horse farm" and "Had I been informed that I may be giving up my minor daughter's right to recover from the defendant's negligence, I would not have signed the agreement." Yet in his deposition he stated that he had read the release and hold harmless agreements before he signed then and he knew their purpose was to release the defendants from any damages.
"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 [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 and citations omitted). Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 654, 707 A.2d 314 (1998). The "Agreement to Pay all Fees, Costs, Damages, etc. and to Self Insure" states at the top "Important — Read Carefully Do Not Sign Unless You Fully Understand." The agreement specifically states that: "I/we hereby agree to assume all responsibility and risk from my/our use of horsed (sic), equipment, premises and facilities, and further agree to indemnity and save harmless Emer Coyne, Sandra LaFlamme, any officers, agents, employees, or servants against any and all loss or expense, including legal fees and costs, by reasons of liability imposed by law upon Emer Coyne, Sandra LaFlamme, any officers, agents, employees or servants for damages because of bodily injuries, including death or because of property damage sustained, accidentally or otherwise, by any persons, including the understand (sic) arising out of or in consequence of the use of horses or equipment or the use of or presence on the premises, whether such injuries to persons or damage to property are due or claimed to be due to any negligence of Emer Coyne, Sandra LaFlamme, any officers, agents, employees, independent contractors or servants, or any other person." (Emphasis added.) The Assumption of the Risk and General Release is also headed with the Notice "Important — Read Carefully Do Not Sign Unless You Fully Understand." That document also states that it is "binding on my executors, heirs, administrator, and assigns, and shall serve as an assumption of risk and general release for all members of my family including my minor children and/or wards participating in any such activities." The plaintiff cannot now seek to raise an issue of fact in order to defeat the defendants' motion for summary judgment by simply supplying a self-serving statement which contradicts the affiant's own deposition testimony as well as the clear language of the documents. See Rodriguez v. Massalski, Judicial District of New Britain at New Britain, Docket No. CV 00 0504550, (July 2, 2001, Shapiro, J.) ("Affidavits containing self-serving and unsubstantiated allegations need not be viewed as persuasive by the court"), citing 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 568, 636 A.2d 1377 (1994).
In opposition to the motion for summary judgment, the plaintiff also claims that there is a genuine issue of material fact as to whether a release and hold harmless agreement is enforceable against a minor. The plaintiff claims, quoting Addario v. Sandquist, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 960391759 (March 25, 1998, DeMayo, J.T.R.) ( 21 Conn.L.Rptr. 501), that it is well settled that a child who enters into a contract may elect to avoid the legal relations created by the contract. However, there the court found that the contract was entered into by the minor on his own and for himself. Similarly, in Blancato v. Feldspar Corporation, 203 Conn. 34, 52 A.2d 1235 (1987), cited by the plaintiff the court allowed a minor to avoid an employment contract but only where he had been illegally employed in violation of the child labor laws. In Wells v. Radville, 112 Conn. 459, 465, 153 A. 154 (1931), the court held that "[t]he contract implied by the Compensation Act, that both parties agree to accept its benefits and be bound thereby in lieu of any other remedy, being a contract implied by the law for the mutual protection and benefit of both, there seems no logical reason why a minor should not be bound and subject to this implied contract just as much as a person of full age and sui juris." Thus in proper circumstances a minor may enter into a binding contract. In any event, the issue here is not the same as the cases cited above since the contracts here were entered into not only by the minor but also by the minor's parent on his own behalf as well as on behalf of his child.
Our statutes allow a minor to enter into other types of binding agreements as well. For example, a minor may consent to the termination of his parental rights, General Statutes § 17a-112 (a); contract to establish a bank account, General Statutes § 36a-297; and a minor of fifteen or more may contract for life, health and accident insurance, General Statutes § 38a-284.
The plaintiff cites Fedor v. Mauwehu Council, 21 Conn. Sup. 38, 143 A.2d 466 (1958), for the proposition that a parent has no authority to waive his minor child's rights against a defendant arising out of the defendant's own negligence. But the court noted that there low-income families desiring to give their sons the opportunity to participate in Boy Scout camp had no choice but to sign the waiver. The plaintiff here obviously had the right to refuse to sign the waivers and seek horseback riding lessons elsewhere, or, not at all.
The defendants cite a number of more recent Superior Court decisions which have upheld similar waivers and releases as those at issue here. Fischer v. Rivest, Superior Court, complex litigation docket of New Britain, Docket No. X03 CV 00 0509627 (August 15, 2002, Aurigemma, J.) ( 33 Conn.L.Rptr. 119); Salvatore v. 5D's, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 99 0153131 (February 20, 2001, Doherty, J.) ( 28 Conn.L.Rptr. 714); Connors v. Real Ice, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0579993 (July 24, 2000, Wagner, J.T.R.) ( 27 Conn.L.Rptr. 610); Vimini v. Informational Display Technology, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0340470 (October 31, 1997, Skolnick, J.) ( 20 Conn.L.Rptr. 552); Howroyd v. Clifford, Superior Court, judicial district of Hartford (August 6, 1997, Sullivan, J.) ( 20 Conn.L.Rptr. 214); and Lombardo v. Maguire Group, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 96 077767 (June 6, 1997, Arena, J.). However, these cases involve waivers and releases by adults except for Fischer and Howroyd, which involve waivers and releases signed by minors and their parents. The court in Howroyd did not discuss whether a parent can waive a minor's rights against a person for his own negligence. The court in Fischer did discuss this issue extensively. There the court, citing Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367, 370 (1998), stated: "The Zivich Court also held that parents have the authority to enter into these types of binding agreements on behalf of their minor children. Id. The court noted that the law empowers a parent to make many important life choices for his or her children. In rendering its decision, the court specifically refused to equate a pre-injury release with a post-injury release, which some courts have found unenforceable. Id. The court explained that `a parent who signs a release before her child participates in a recreational activity . . . has no financial motivation to sign the release'; is unlikely to maliciously sign such a release in deliberate derogation of her child's best interest; and is less vulnerable to coercion and fraud than a parent in the position of disposing of a child's existing claim. Id." The court went on to note that the Colorado Court of Appeals in Cooper v. US Ski Assn., 32 P.3d 502 (Colo.App.Ct. Aug. 17, 2000), adopted the rationale of Zivich and upheld the release by a parent of claims of her minor child for possible future injuries. As the Fischer court notes, the Cooper decision "upheld the parental release on the basis of the fundamental right of parents under the due process clause to make decisions concerning the care, custody, and control of their children. Id., citing, Troxel v. Granville, 120 S.Ct. 2054 (2000)." The Colorado Supreme Court later reversed the Court of Appeals' decision in Cooper, Cooper v. The Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002), and agreed with the Washington Supreme Court's decision in Scott v. Pacific West Mt. Resort, 119 Wash. 484, 834 P.2d 6 (1992), and the Utah Supreme Court's decision in Hawkins v. Peart, 2001 Ut. 94, 37 P.3d 1062 (2001), cited by the plaintiff, and held that a parent cannot release a minor child's prospective claim for negligence.
The cases holding that a parent cannot release a minor child's prospective claim for negligence all rely on policy gleaned from state statutes, which provide significant procedural protections for minors in the post-injury claim context. In Scott v. Pacific West Mt. Resort, supra, 834 P.2d 11, the court found that under Washington law, parents may not settle or release a child's claim without prior court approval. Similarly, in Cooper v. The Aspen Skiing Co., supra, 48 P.3d 1229 n. 9, the court pointed out that under Colorado law, a parent has no authority, merely because of the parental relation, to waive or settle claims by or against the child. This rule applies to the waiver or settlement of the child's right of action for a personal injury or other tort. Finally, in Hawkins v. Peart, supra, 37 P.3d 1066, the court found that under Utah's probate code, a parent may act as a minor's conservator to settle a minor's cause of action, "not as a matter of right, but only when appointed by the court."
The court knows of no Connecticut law, and the plaintiff has cited none, which affords such specific protections for minors. To the contrary, General Statutes § 45a-631 (b) specifically provides that: "A release given by both parents or by the parent who has legal custody of a minor or by the guardian or spouse shall, if the amount does not exceed ten thousand dollars in value, be valid and binding upon the minor." Thus, under Connecticut law, a parent can settle a post-injury claim by a minor without Probate Court approval if the amount of the settlement is less than ten thousand dollars. Accordingly, the policy arguments set forth in the cases, with respect to the law in other jurisdictions, is unavailing to the plaintiff.
This court agrees with the Fischer court's position that parents have the authority to execute the types of releases at issue here on behalf of their children. As the Colorado Court of Appeals stated in Cooper v. US Ski Assn., 32 P.3d 502, 507 (Colo.App.Ct. Aug. 17, 2000): "The United States Supreme Court has recently reaffirmed that parents have a fundamental right under the Due Process Clause to make decisions concerning the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 120, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Supreme Court has also recognized that: `The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.' Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101, 118 (1979). The trial court here, in determining that Colorado should allow parents to release the pre-injury claims of their children, reasoned as follows:. `Thousands of such releases are signed each year by parents enrolling their children in almost every kind of school and recreational activity. Parents in executing or not executing such releases make conscious choices on behalf of their children concerning risks and benefits of participation in a program that may involve risk. Those decisions are individual and based upon circumstances of each family and activity. Those are proper parental choices on behalf of their children which should not be ignored. So long as the decision is voluntary and informed, it should be given the same dignity as decisions regarding schooling, medical treatment and religious education.' We agree with this reasoning and find that it comports with the fundamental liberty interest of parents in the rearing of their children. See Troxel v. Granville, supra."
Similarly our Supreme Court has acknowledged that: "the status of parents' interest in the care, custody and control of their children, as `perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.' Troxel v. Granville, supra, 530 U.S. 65. Building on a long line of cases acknowledging the fundamental right of parents to raise their children as they see fit, Troxel teaches that courts must presume that `fit parents act in the best interests of their children,' and that `so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.' Id., 68-69. Moreover, Troxel confirms that among those interests lying at the core of a parent's right to care for his or her own children is the right to control their associations. Id. The essence of parenthood is the companionship of the child and the right to make decisions regarding his or her care, control, education, health, religion and association. Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct 625, 67 L.Ed. 1042 (1923) (noting that liberty interest includes rights of parents to establish home, bring up children and control education). Furthermore, Troxel confirms that the family integrity is the core element upon which modern civilization is founded and that the safeguarding of familial bonds is an innate concomitant of the protective status accorded the family as a societal institution. Troxel v. Granville, supra, 65-66." Roth v. Weston, 259 Conn. 202, 216-17, 789 A.2d 431 (2002). In light of a parent's right to make major decisions regarding the welfare of his child, the ability of a parent to execute a release on behalf of his child is clearly not contrary to public policy. See also, Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 372-73, 696 N.E.2d 201 (1998).
As the Fischer court notes, releases signed by parents on behalf of their minor children have been upheld by other courts as well. The Court of Appeals of California in Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990), upheld a release signed by the fifteen-year-old plaintiff and her father. Hohe has been followed in Aaris v. Las Virgenes Unified School District, 64 Cal.App.4th 1112, 75 Cal.Rptr.2d 801 (1998) and Randas v. YMCA of Metropolitan Los Angeles, 17 Cal.App.4th 158, 21 Cal.Rptr.2d 245 (1993).
Similarly, in Brooks v. Timberline Tours, Inc., 941 F. Sup. 959 (D.Colo. 1996), the United States District Court for the District of Colorado upheld the enforceability of a release signed by a parent on behalf of his minor child. More recently, in Sharon v. City of Newton, 437 Mass. 99, 108-09, 769 N.E.2d 738 (2002), the Supreme Court of Massachusetts held a release executed by a parent permitting his child to engage in cheerleading was enforceable against the child. The court stated: "The purpose of the policy permitting minors to void their contracts is `to afford protection to minors from their own improvidence and want of sound judgment.' Frye v. Yasi, 327 Mass. 724, 728 (1951). This purpose comports with common sense and experience and is not defeated by permitting parents to exercise their own providence and sound judgment on behalf of their minor children. Parham v. J.R., 442 U.S. 584, 602 (1979) (`The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions'). See 1 W. Blackstone Commentaries 452 (9th ed. 1783) (minor's consent to marriage void unless accompanied by parental consent; one of many means by which parents can protect children `from the snares of artful and designing persons'). Moreover, our law presumes that fit parents act in furtherance of the welfare and best interests of their children, Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587-89 (1981); Sayre v. Aisner, 51 Mass. App. 794, 799 n. 8 (2001), and with respect to matters relating to their care, custody, and upbringing have a fundamental right to make those decisions for them. See Parham v. J.R., supra at 603 (parents can and must make judgments and decisions regarding risks to their children). In the instant case, Merav's father signed the release in his capacity as parent because he wanted his child to benefit from participating in cheerleading, as she had done for four previous seasons. He made an important family decision cognizant of the risk of physical injury to his child and the financial risk to the family as a whole. In the circumstance of a voluntary, nonessential activity, we will not disturb this parental judgment. This comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts."
In recognition of the liberty interest of parents to make important decisions which affect the well being of their children and the principle that fit parents will act in the best interests of their children in making those decisions, the Connecticut legislature has found it appropriate to allow a parent to waive a claim for educational support for a child (General Statutes § 46b-56c); to allow a child's confession to be admitted into evidence if his parent was present and had been advised of the child's rights (General Statutes § 46b-137); to permit a parent to consent to the body piercing of his unemancipated minor child (General Statutes § 19a-92g); to permit a parent to consent to the marriage of a child between the ages of 16 and 18 (General Statutes § 46b-30); to permit a parent to educate his child at home or in a private school and refuse special education services (General Statutes § 10-184a); and to permit a parent to consent to the withdrawal of his 16- or 17-year-old child from school (General Statutes § 10-184).
The decision here by her father to let the minor plaintiff waive her claims against the defendants in exchange for horseback riding lessons at their farm is consistent with the rights and responsibilities regarding a child possessed by a parent and recognized by the legislature and cannot be said to be against public policy. The plaintiff's father made a conscious decision on the behalf of his child to go to the defendants' farm for the purpose of obtaining horseback riding lessons for her. This was obviously an independent voluntary decision made upon what he viewed as her best interests. He read the waiver and releases before he signed them and was aware of their provisions advising him that "riding horses can be a dangerous sport" and of "the inherent risks of injury involved in riding programs, horse farm activities, horse shows, etc." He chose, on behalf of himself and his daughter, and with knowledge of the risks, to "assume all responsibility and risk" and to "voluntarily release and . . . hold harmless" the defendants. Based on the rationale of the court in Fischer, and the cases cited therein, the court finds that the waiver and releases signed here are enforceable against the plaintiff. Since they provide that the plaintiff releases and holds harmless the defendants from all suits, and any and all claims, demands, and liabilities whatsoever, both in law and equity, which she has against them, the plaintiff cannot pursue her claim against the defendants. Therefore the defendants' motion for summary judgment is granted.
Scholl, J.