Will a Connecticut court enforce a release or exculpatory clause against the drafter's own negligence?
Two hurdles. First, a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides (Hyson, where the release did not release the defendant from liability for injuries resulting from its negligence and the judgment of the trial court was reversed). Second, even a well-drafted release may be unenforceable as against public policy: in Hanks the court held that enforcing an agreement that expressly released a snowtube operator from prospective liability for personal injuries caused by its negligence violated public policy, applying a totality-of-the-circumstances analysis guided, but not limited, by the Tunkl factors and informed by any other relevant factors and current societal expectations.
The trap
Drafting the word 'negligence' into the release (the Hanks form used it three times, in capitals) satisfies Hyson but does not answer Hanks: the court found the agreement violated public policy and, in a footnote, collected seven reasons, among them that the operator invited the public generally regardless of snowtubing ability, that patrons were under its care and control as a result of an economic transaction, that the operator and not the patron had the knowledge, experience and authority to keep the runs and equipment reasonably safe, that it was better placed to insure against its own negligence and spread the cost, that upholding the agreement would remove its incentive to maintain a reasonably safe environment with the public bearing the cost, that the agreement was 'a standardized adhesion contract, offered to snowtubers on a “take it or leave it” basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee', and that the court could not say the defendants 'had no bargaining advantage under these circumstances' (the footnote's recapitulation puts it as 'the defendants had superior bargaining authority'). Hanks states in a footnote that its conclusion does not extend to the risks inherent in the activity. These cases concern personal-injury releases in recreational settings; a negotiated commercial cap on contract damages was not addressed by Hyson or Hanks and is not stated here.
11 authorities
- case265 Conn. 636Hyson v. White Water Mountain Resorts of Connecticut, Inc.Conn.decided 2003read it at the source ↗
The words that state the rule
In keeping with the well established principle, however, that “[t]he law does not favor contract provisions which relieve a person from his own negligence”; Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 413 , 446 A.2d 799 (1982); we conclude that the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.
The words that state the rule
We conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence.
The words that state the rule
We next address the issue we explicitly left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640 , namely, whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy. We conclude that it does and, accordingly, reverse the judgment of the trial court.
The words that state the rule
Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.
The words that state the rule
we conclude today that the agreement at issue in this case violates public policy, not solely because of the volume of public participation, but because: (1) the defendants invite the public generally to snowtube at their facility, regardless of snowtubing ability; (2) snowtubers are under the care and control of the defendants as a result of an economic transaction; (3) the defendants, not recreational snowtubers, have the knowledge, experience and authority to maintain the snowtubing runs in reasonably safe condition, to determine whether the snowtubing equipment is adequate and reasonably safe, and to guard against the negligence of its employees and agents; (4) the defendants are in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons; (5) if we were to uphold the present agreement under the facts of this case, the defendants would be permitted to obtain broad waivers of their liability and the incentive for them to maintain a reasonably safe snowtubing environment would be removed, with the public bearing the cost; (6) the agreement at issue is a standardized adhesion contract, offered to snowtubers on a “take it or leave it” basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee; and (7) the defendants had superior bargaining authority.
The words that state the rule
We clarify that our conclusion does not extend to the risks inherent in the activity of snowtubing.
The words that state the rule
Moreover, the agreement refers to the negligence of the defendants three times and uses capital letters to emphasize the term “negligence.” Accordingly, we conclude that an ordinary person of reasonable intelligence would understand that, by signing the *325 agreement, he or she was releasing the defendants from liability for their future negligence.
- case265 Conn. 636Hyson v. White Water Mountain Resorts of Connecticut, Inc.Conn.decided 2003read it at the source ↗
The words that state the rule
We conclude that the release signed by the plaintiff does not release the defendant from liability, or indemnify the defendant, for injuries resulting from its negligence. Accordingly, we reverse the judgment of the trial court.
The words that state the rule
Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a “take it or leave it” basis.
The words that state the rule
Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him the option of procuring protection against negligence at an additional reasonable cost.
The words that state the rule
We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances. For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because *336 it violates public policy.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.