Hanks v. Powder Ridge Restaurant Corp.

Connecticut Supreme Court · 2005 · Torts

TortsExculpatory clausesNegligencePublic policyRecreational activitiesexculpatory agreementrelease of liabilitysnowtubing

Facts

The defendants operated a commercial snowtubing facility open to the public for a fee, with only minimal age or height restrictions, and required all patrons to sign a standardized waiver as a condition of participation. The plaintiff, who had never snowtubed there before, signed the agreement for himself and four children. While snowtubing, his right foot became caught between his tube and the man-made bank of the run, causing serious injuries that required multiple surgeries. He then brought a negligence action alleging unsafe equipment, inadequate training and supervision, improper grooming and landscaping of the run, inadequate warnings, and failure to place protective materials along the sides.

Issue

First, did the waiver expressly and unambiguously purport to release the defendants from liability for their own future negligence under Hyson? Second, if so, is such an exculpatory agreement enforceable, or does it violate public policy when used by a recreational operator offering services to the public generally for a fee on a take-it-or-leave-it basis?

Rule

A party cannot be released from liability for future negligence unless the agreement expressly and unmistakably so provides in clear and understandable language. Even when a recreational release clearly covers negligence, it is unenforceable if, considering the totality of the circumstances and guided but not limited by the Tunkl factors, enforcement would adversely affect the public interest and violate public policy.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Denver, Summit Hollow Climbing Park sells day passes to the public. Before entering, every customer must sign a form stating, in bold capital letters, that the customer "RELEASES SUMMIT HOLLOW FROM ALL CLAIMS FOR PERSONAL INJURY, EVEN IF CAUSED BY THE NEGLIGENCE OF SUMMIT HOLLOW OR ITS EMPLOYEES." Nora Kim is later injured when a staff member negligently leaves a gate unlatched.

If Nora sues for negligence, which is the strongest argument about the release language itself?

Explanation. The majority held that an exculpatory clause satisfies the express-negligence requirement when it plainly and unmistakably states that it releases the drafter for its own negligence in language understandable to an ordinary person. Repeated or emphasized use of the word "negligence" is sufficient; the clause need not enumerate every negligent act.