Supreme Court of
905 A. 2d 1156
Oct. 3, 2006
Summary of the
thrown when horse
bucked during a riding lesson at defendant’s farm.
The lower court granted the defendant’s motion (2005 WL 896018)
for summary judgment saying the release barred recovery.
This court exercised it power to transfer
the case from the appellate court and reverses saying that a release
prospective liability in this instance was against public policy as all
experience was on the side of the party benefiting from the release. Horseback riding is among the recreational
activities in which public policy may void a release.
The court did not reach the Plaintiff’s original issue that the
release was ambiguous.
Text of the Case
The dispositive issue in
this appeal is whether a release signed by the plaintiff, Jessica
indemnifying the defendants, Windswept Farm, LLC, and its owners,
Raymond and Mona Raymond, from an action brought in negligence,
plaintiff from recovering damages. More
specifically, the question before this court is whether the release
the plaintiff violates public policy pursuant to our holding in Hanks
Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005). The plaintiff appeals
plaintiff appealed from the judgment of the trial court to the
Court. We then transferred the appeal
to this court pursuant to General Statutes §
51-199(c) and Practice Book §
from the judgment of the
trial court granting the defendants' motion for summary judgment. The plaintiff claims that:
(1) the trial court incorrectly concluded
that the release signed by the plaintiff was clear and unambiguous; and (2) in light of this court's holding in Hanks,
the release violates public policy.
stated, in Hanks this court dealt with an issue left unresolved
holding in Hyson v. White Water Mountain Resorts of Connecticut,
265 Conn. 636, 643, 829 A.2d 827 (2003), wherein we did not have the
opportunity to pass upon the question of whether the enforcement of a
drafted agreement that purports to release a party from liability for
prospective negligence is contrary to public policy.
In particular, in Hanks we concluded that an otherwise
well drafted, clear and unambiguous exculpatory agreement, purporting
release a defendant from its prospective liability for ordinary
nonetheless violated public policy and was therefore unenforceable. Hanks
Powder Ridge Restaurant Corp., supra, 276 Conn. at 326, 885 A.2d
734. That decision was issued during the
of the present appeal, which led us to order supplemental briefing by
parties regarding whether the trial court's judgment should be
reversed in light of our decision in Hanks.
We conclude that our
holding in Hanks controls the present case and, therefore, that
release signed by the plaintiff was invalid.
Accordingly, we reverse the judgment of the trial court.
brought this personal injury action against the
defendants alleging negligence. The
defendants moved for summary judgment, arguing that the release signed
plaintiff was clear and unambiguous, and thus satisfied the standard
court set forth in Hyson v. White Water
Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d
(2003), which provided that "a party cannot be released from liability
injuries resulting from its future negligence in the absence of
language that expressly
so provides." The trial court
agreed that the plaintiff had signed a well drafted waiver of liability
defendants' favor, granted the defendants' motion for summary judgment,
rendered judgment thereon. This appeal
The following facts
are relevant to our analysis of the
plaintiff's claims. The defendants are
in the business of providing horseback riding lessons to the general
public. In October, 2002, the plaintiff
came to the defendants' property and requested a horseback riding
lesson. As a condition to riding one of
defendants' horses, the plaintiff was required by the defendants to
release and indemnity agreement (release).
The release was printed on a single page and consisted of three
"Warning" portion of the release provided as follows: "Pursuant
to Connecticut General Statutes §
52-577p, [now § 52-557p] a
person engaged in recreational activities assumes the risk and
for any injury to his person or property arising out of the hazards
equestrian sports, unless the injury was proximately caused by the
of the person providing the horse or horses to the individual engaged
equestrian activities or the failure to guard or warn against a
condition, use, structure or activity by the person provided the horse
horses or his agents or employees."
"RELEASE" portion of the release provided in relevant part: "For, and in consideration of, the
privilege to participate in an equine activity at Windswept Farm this
receipt and sufficiency of which is hereby acknowledged, the
agrees to release, discharge and acquit WINDSWEPT FARM, its owners,
stockholders, officers, directors, employees, agents, and servants from
all claims, demands, sums of money, actions, rights, causes of action,
liabilities and obligations of any kind or nature whatsoever, including
ordinary negligence, which I may have had or now have or claim to
or hereafter may have, or assert to have, which arise out of, or is in
manner whatsoever directly or indirectly, connected with or related to
my participation in the equine
activity on this
date...." (Emphasis added.)
"INDEMNITY AGREEMENT" portion of the release provided in relevant
part: "The undersigned represents
and warrants that he/she has read and understood the above-captioned
It is undisputed
that the plaintiff signed and dated the release
prior to commencing her horseback riding lesson with the defendants. Similarly, it is undisputed that the
plaintiff identified herself on the release as an "[e]xperienced
[r]ider" and as someone who had "[r]idden [horses] frequently"
several years earlier.
Subsequent to the
plaintiff signing the release provided by the
defendants, the defendants paired the plaintiff with one of the horses
their stables and with one of the instructors in their employ. During the course of the plaintiff's
horseback riding lesson, the horse provided by the defendants became
bucked back and forth suddenly and without warning, and threw the
the ground, causing her serious injuries.
The plaintiff brought an
action in August, 2003, alleging that she had been injured due to the
defendants' negligence. In particular,
the plaintiff alleged that her injuries were caused by the
recklessness and negligence of the defendants" including, among other
things, that (1) the "defendants failed to ensure that the horse on
[she] was placed was an appropriate horse commensurate with [the
skill and experience"; (2) the
"defendants failed to prevent, warn or protect the plaintiff from the
of a fall"; (3) the "defendants
knew of the horse's propensity to buck yet failed to warn [the
the same"; and (4) the
"defendants failed properly to hire and train their riding instructor
...." In their answer, the
defendants raised a special defense, namely, that "[t]he plaintiff
assumed the risk and legal responsibility for any injury to her person
General Statutes [§ ]52-557p,"
"Warning" section of the release mirrors General Statutes § 52-557p, which provides: "Each
person engaged in recreational
equestrian activities shall assume the risk and legal responsibility
injury to his person or property arising out of the hazards inherent in
equestrian sports, unless the injury was proximately caused by the
of the person providing the horse or horses to the individual engaged
recreational equestrian activities or the failure to guard or warn
dangerous condition, use, structure or activity by the person providing
horse or horses or his agents or employees."
and that "[t]he
plaintiff's claims [were] barred [due to the fact] that she signed a
waiver/release of all claims in favor of the defendants."
The plaintiff makes
two claims on appeal. First, the plaintiff
claims that the release
of all claims "includ[ing] 'ordinary negligence' " set forth in the
release was ambiguous when read together with the "Warning" section
printed above it, which, tracking §
52-557p, did not exempt from liability injuries "proximately
caused by the
the person providing the horse or horses to the individual engaged in
equestrian activities ...."
Second, pursuant to our order for supplemental briefing, the
claims that the release is void as a matter of public policy in light
court's decision in Hanks v. Powder Ridge Restaurant Corp.,
Conn. at 314, 885 A.2d 734. We agree
with the plaintiff that our decision in Hanks controls the
case. Accordingly, we need not consider
the plaintiff's claim that the trial court incorrectly concluded that
release signed by the plaintiff was clear and unambiguous.
assuming that the standards identified in Hanks have been
we conclude in the present case, it is irrelevant whether the
release of liability was clearly and unambiguously drafted and,
also invalid pursuant to our holding in Hyson v. White Water
Resorts of Connecticut, Inc., supra, 265 Conn. at 643, 829 A.2d
provided that "a party cannot be released from liability for injuries
resulting from its future negligence in the absence of language that
We begin with the
appropriate standard of review.
"Practice Book § 17-49
provides that summary judgment shall be rendered forthwith if the
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
law. In deciding a motion for summary
judgment, the trial court must view the evidence in the light most
the nonmoving party.... The party moving for summary judgment has the
showing the absence of any genuine issue of material fact and that the
is, therefore, entitled to judgment as a matter of law.... The test is
the party moving for summary judgment would be entitled to a directed
on the same facts.... Our review of the trial court's decision to grant
defendant's motion for summary judgment is plenary."
(Citations omitted; internal quotation marks
omitted.) Leisure Resort Technology,
Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785
In light of our
holding in Hanks, we cannot conclude that
the defendants are entitled to a judgment in their favor as a matter of
law. Put another way, our reasoning in Hanks
requires that we invalidate the release signed by the plaintiff; thus, several genuine issues of material
fact surrounding the defendants' potential negligence remain in dispute.
As previously noted,
in Hanks, we concluded that the
enforcement of a well drafted exculpatory agreement that releases a
a recreational activity from prospective liability for personal
sustained as a result of the provider's negligence may violate public
certain conditions are met. Hanks v.
Powder Ridge Restaurant Corp.,
supra, 276 Conn. at 326, 885 A.2d 734.
In general, we noted that "[t]he law does not favor contract
provisions which relieve a person from his own negligence .... This is
exculpatory provisions undermine the policy considerations governing
system ... [which include] compensation of innocent parties, shifting
to responsible parties or distributing it among appropriate entities,
deterrence of wrongful conduct ...."
(Citation omitted; internal
quotation marks omitted.) Id., at 327,
885 A.2d 734. Moreover, we recognized
that "it is consistent with public policy to posit the risk of
upon the actor and, if this policy is to be abandoned, it has generally
allow or require that the risk shift to another party better or equally
bear it, not to shift the risk to the weak bargainer."
(Internal quotation marks omitted.) Id.
assessing the public policy implications of a
particular release or waiver of liability, we concluded that "[n]o
definition of the concept of public interest [may] be contained within
corners of a formula," and that "[t]he ultimate determination of what
constitutes the public interest must be made considering the totality
circumstances of any given case against the backdrop of current
expectations." (Internal quotation
marks omitted.) Id., at 330, 885 A.2d
734. Our *160 analysis in Hanks
was also guided, though not limited, by the factors articulated by the
Supreme Court of California in
v. Regents of the University of California, 60 Cal.2d 92, 98-101,
441, 32 Cal.Rptr. 33 (1963),
complete list of factors identified by the Supreme Court of California
follows: " [The agreement]
concerns a business of a type generally thought suitable for public
regulation.  The party seeking
exculpation is engaged in performing a service of great importance to
public, which is often a matter of practical necessity for some members
public.  The party holds himself out
as willing to perform this service for any member of the public who
or at least for any member coming within certain established standards.  As a result of the essential nature of
the service, in the economic setting of the transaction, the party
exculpation possesses a decisive advantage of bargaining strength
member of the public who seeks his services.
 In exercising a superior bargaining power the party
confronts the public with a
adhesion contract of exculpation, and makes no provision whereby a
may pay additional reasonable fees and obtain protection against
negligence.  Finally, as a result of
the transaction, the person or property of the purchaser is placed
control of the seller, subject to the risk of carelessness by the
seller or his
agents." Tunkl v. Regents of
the University of California, supra, 60 Cal.2d at 98-101, 32
383 P.2d 441.
which include, among
other things, a consideration as to whether
the release pertains to a business thought suitable for public
whether the party performing the service holds himself out as making
available to any member of the public who seeks it, and whether the
the activity exercises superior bargaining power and confronts the
a standard contract of adhesion.
In the context of
snowtubing, which was the recreational activity
at issue in Hanks, we placed
particular emphasis on: (1) the
societal expectation that family oriented activities will be reasonably
safe; (2) the illogic of relieving the
party with greater expertise and information concerning the dangers
with the activity from the burden of proper maintenance of the
run; and (3) the fact that the release
at issue was a standardized adhesion contract, lacking equal bargaining
between the parties, and offered to the plaintiff on a " 'take it or
it' " basis. Hanks v. Powder
Ridge Restaurant Corp., supra, 276 Conn. at 331-34, 885 A.2d 734. Moreover, we recognized the clear public
policy in favor of participation in athletics and recreational
activities. Id., at 335, 885 A.2d 734
recreational activities, such as snowtubing, skiing, basketball,
football, racquetball, karate, ice skating, swimming, volleyball or
yoga, are pursued by
majority of the population and constitute an important and healthy part
We conclude that,
based on our
decision in Hanks, the totality of the circumstances
recreational activity of horseback riding and instruction that was
the defendants demonstrates that the enforcement of an exculpatory
their favor from liability for ordinary negligence violates public
is not in the public interest. First, similar to the situation at issue
the defendants in the present case provided the facilities, the
and the equipment for their patrons to engage in a popular recreational
activity, and the recreational facilities were open to the general
regardless of an individual's ability level.
Indeed, the defendants acknowledged that, although the release
riders to indicate their experience level, it also anticipated a range
skills from between "[n]ever ridden" to "[e]xperienced
[r]ider," and that the facility routinely had patrons of varying
levels. Accordingly, there is a
reasonable societal expectation that a recreational activity that is
control of the provider and is open to all individuals, regardless of
experience or ability level, will be reasonably safe.
Additionally, in the
present case, as in Hanks, the
plaintiff "lacked the knowledge, experience and authority to discern
whether, much less ensure that, the
defendants' [facilities or equipment] were maintained in a reasonably
condition." Hanks v. Powder
Ridge Restaurant Corp., supra,
276 Conn. at 331, 885 A.2d 734.
Specifically, although the plaintiff characterized herself as an
experienced rider, she was in no greater position then the average
to assess all the safety issues connected with the defendants'
enterprise. To the contrary, it was the
the plaintiff or the other customers, who had the "expertise and
opportunity to foresee and control hazards, and to guard against the
of their agents and employees. They
alone [could] properly maintain and inspect their premises, and train
employees in risk management."
(Internal quotation marks omitted.)
Id., at 331-32, 885 A.2d 734. In
particular, the defendants acknowledged that they were responsible for
providing their patrons with safe horses, qualified instructors, as
properly maintained working equipment and riding surfaces. In the
carrying out these duties, the defendants were aware, and were in a
continually to gather more information, regarding any hidden dangers
with the recreational activity including the temperaments of the
horses, the strengths of the various riding instructors, and the
the facility's equipment and grounds.
As we concluded in Hanks, it is illogical to relieve the
defendants, as the party with greater expertise and information
dangers associated with engaging in horseback riding at their facility,
from potential claims of
negligence surrounding an
alleged failure to administer properly the activity.
that we view the release as it applies to all customers, not solely
plaintiff, who happened to have significant riding experience, albeit
years prior to the date of her accident.
release that the plaintiff signed broadly
indemnifying the defendants from liability for damages resulting from
defendants' own negligence was a classic contract of adhesion of the
this court found to be in violation of public policy in Hanks. Specifically, we have noted that "[t]he
most salient feature [*163 of adhesion contracts] is that they
subject to the normal bargaining processes of ordinary contracts," and
that they tend to involve a "standard form contract prepared by one
to be signed by the party in a weaker position, [usually] a consumer,
little choice about the terms ...." (Internal quotation marks omitted.)
Id., at 333, 885 A.2d 734. In the present case, signing the release
the defendants was required as a condition of the plaintiff's
the horseback riding lesson, there was no opportunity for negotiation
plaintiff, and if she was unsatisfied with the terms of the release,
option was to not participate in the activity.
As in Hanks, therefore, the plaintiff
had nearly zero bargaining power with respect to the negotiation of the
and in order to participate in the activity, she was required to assume
risk of the defendants' negligence.
This condition of participation violates the stated public
policy of our
tort system because the plaintiff was required to bear an additional
despite her status as a patron who was not in a position to foresee or
the alleged negligent conduct that she was confronted with, or manage
spread the risk more effectively then the defendants.
We are also mindful
that, as evidenced by § 52-557p,
recreational horseback riding is a
business thought suitable for public regulation, but that the
stopped short of requiring participants to bear the very risk that the
defendants now seek to pass on to the plaintiff by way of a mandatory
release. In particular, the legislature
has prescribed that "[e]ach person engaged in recreational equestrian
activities shall assume the risk and legal responsibility for any
injury to his
person or property arising out of the hazards inherent in
unless the injury was proximately caused by the negligence of the
providing the horse or horses to the individual ...."
Emphasis added.) General Statutes §
52-557p; see footnote 6 of this
opinion. This language establishes that
the plaintiff assumed the risk for certain injuries when riding at the
defendants' facility due to the nature of horseback riding as an
that an operator of such a
still be liable for injuries caused by its own negligence. For the
previously discussed, we conclude that the defendants' attempt
extend the plaintiff's assumption of risk one step beyond that
the legislature in § 52-557p violates
the public policy of the state and, therefore, is invalid.
contend that the plaintiff's only claim before the trial court was that
release was ambiguous, and that the plaintiff otherwise conceded the
enforceability, thereby failing to preserve for appeal the issue of
release violated public policy.
part of the defendants' motion for summary judgment, and in an effort
clarify the plaintiff's case, the trial court asked the plaintiff
the release were found to be clear and unambiguous, would it be
Court: You are not trying to claim that
it's not possible under Connecticut law for a person in the defendants'
position to present an effective
to a horse rider and then to rely upon it to avoid liability, are you?
Counsel]: Absolutely not, Your
Court: Okay. Then ... so that what we
have to do is to determine whether this is a sufficient release. That's the only issue before us.
Counsel]: Absolutely, Your
Honor." (Emphasis added.)
Put another way,
the defendants contend that the issue before the
trial court was only whether the addition of the "warning" language
to the release as a whole resulted in contradictory language, and that
regardless of our decision in Hanks, we still must decide the
articulated by the trial court. We
We recognize that
this court is
not "bound to consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial."
Practice Book § 60-5;
see also Pestey v. Cushman, 259 Conn.
345, 372-74, 788 A.2d 496 (2002).
Additionally, as a general rule, "[a] party cannot present a
to the trial court on one theory and then ask a reversal in the
on another." (Internal quotation
marks omitted.) Sorrentino v. All
Seasons Services, Inc., 245 Conn. 756, 770, 717 A.2d 150 (1998). This court, however, has the discretion to
act, sua sponte, on grounds not directly raised by the parties. See Burton v. Browd, 258 Conn. 566,
569, 783 A.2d 457 (2001). That is
exactly what we did in the present case when, in light of our decision
we ordered the parties to brief the issue of whether the release was
void as a
matter of public policy. In sum, because Hanks
issue previously unaddressed, and because the parties had the
brief the case's impact, we
the interest in the uniform application of the plainly governing law
our consideration of a claim beyond the narrow issue that was before
Finally, the defendants
that horseback riding is somehow different from snowtubing and,
the defendants' release does not violate public policy.
In particular, the defendants note that
horseback riding is not one of the recreational activities that we
identified by name in Hanks v. Powder Ridge Restaurant Corp.,
Conn. at 335, 885 A.2d 734, and that, unlike in Hanks, which
injury caused by a defective snowtube run, in the present case the
was injured when the horse she was riding bucked and threw her to the
The defendants claim that this distinction is significant because they
characterize a bucking horse as a risk that is inherent to horseback
general. We are not persuaded.
The list of
recreational activities that we identified in Hanks
was meant to be illustrative, not exhaustive.
See id. Indeed, it would be
impossible for us to identify all of the recreational activities
the Hanks decision.
are mindful that contrary to the defendants' argument, our courts
have referenced horseback riding as a recreational activity. See Conway v. Wilton, 238 Conn. 653,
668, 680 A.2d 242 (1996) (state legislator commenting on necessity of
"maintaining land that could very well serve for ... horseback riding
for many other recreational activities");
Miskimen v. Biber, 85 Conn.App. 615, 620, 858 A.2d 806
("[t]he excess land is also used for ... horseback riding and other
recreational activities"), cert. denied, 272 Conn. 916, 866 A.2d 1287
(2005). Moreover, our characterization
of snowtubing as a recreational activity;
see Hanks v. Powder Ridge Restaurant Corp., supra, 276
330, 885 A.2d 734; does not, in and of
itself, dictate our public
Additionally, as previously discussed in
circumstances surrounding the defendants' horseback riding business and
signing of the release by the plaintiff bear many similarities to the
circumstances present in Hanks.
In particular, the defendants' horseback riding business was
open to the
general public regardless of skill level, the plaintiff was ill
discern whether she had been paired negligently with her horse and
commensurate with her skill level, the defendants controlled which
instructor were assigned to the plaintiff, and the defendants' release
constituted a classic contract of adhesion.
fact that there are certain risks that are
inherent to horseback riding as a recreational activity, as the
recognized in § 52-557p, one of which
may be that horses move unexpectedly, does not change the fact that an
operator's negligence may contribute greatly to that risk.
For example, the defendants' may have
negligently paired the plaintiff with an inappropriate horse given the
of time since she last had ridden or negligently paired the plaintiff
instructor who had not properly been trained on how to handle the horse
question. Both of these scenarios present factual questions that, at
reveal that the defendants' negligence, and not an inherent risk of the
activity, was to blame for the plaintiff's injuries.
as aptly noted at oral argument before this court, the
plaintiff does not challenge the fact that there were risks inherent in
activity of horseback riding that she otherwise was prepared to assume.
she challenges the defendants' claimed indemnity from the alleged
carelessness of the stable operator and its employees to whom she
safety. Indeed, the inherent
unpredictability of a horse is something that the legislature already
considered in providing to an operator of a horseback riding facility a
to a claim of negligence pursuant
assumption of risk doctrine codified in §
52-557p. This protection granted
by the legislature, however, does not permit the operator to avoid
entirely for its negligence or that of its employees. Accordingly, on
of our decision in Hanks, as well as the circumstances of the
case, we are unable to conclude that the recreational activity of
horseback riding is so
different from snowtubing that the release in this case should be
enforced as a
matter of law.
The judgment is
reversed and the case is remanded to the trial
court with direction to deny the defendants' motion for summary
for further proceedings according to law.
In this opinion
KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.
I agree with the majority that this court's holding in Hanks
Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005),
the present case.