By Doyice Cotten
Ronald Perry and his minor son filed suit against the Town of East Haddam after the son (Tucker) was injured while riding a scooter while attending a “Summer day camp.” (Perry v. Town of East Haddam, 2016 Conn. Super. LEXIS 1149). They alleged, among other things, negligent supervision on the part of the town and the supervisor of the program.
Defendants responded to the suit by claiming they were protected by a liability waiver and indemnification agreement signed prior to the injury. Subsequently, the defendants moved to implead the mother as a third-party defendant since the mother had voluntarily signed the agreement agreeing to indemnify the defendants for any loss due to Tucker’s involvement and participation at the camp.
Plaintiffs claimed the waiver was unenforceable as against public policy citing the Hanks Supreme Court ruling (Hanks v. Powder Ridge Restaurant Corp., 2005). Defendants claimed that ruling applied only to waivers used by private businesses – not to government entities; but provided no substantive analysis on the issue and the court declined to review it.
The court followed Hanks in addressing the issue of enforceability. The Hanks court concluded that to determine public interest, one must consider “the totality of the circumstances” in each case against the backdrop of current societal expectations; it then used the factors described first by the California Supreme Court (Tunkl v. Regents of the University of California, 1963). The factors are:
- the exculpatory 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 the public, which is often a matter of practical necessity for some members of the public;
- the party holds himself out as willing to perform this service for any member of the public who seeks it, 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 invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services;
- in exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a signatory may pay additional reasonable fees and obtain protection against negligence; and
- the person or property of the signatory, as a result of the transaction, is placed under the control of the party seeking exculpation, subject to the risk of carelessness by that party or his agents . . .
Regarding each of the six factors, this court stated:
- The court has little difficulty concluding that the operation of a children’s day camp is a type of business generally deemed suitable for public regulation because, in fact, such camps are regulated in Connecticut.
- Without question child care services are of vital importance to the public, and a matter of practical necessity for most working parents.
- … the otherwise uncontradicted evidence establishes that, at most, there was only one other limitation, namely, that participation was restricted to children in grades one through eight.
- The argument that this is a voluntary activity is the same argument that the defendants made relative to the second factor, and the court likewise finds it unpersuasive.
- It is thus apparent to the court that the exculpatory agreement is a standardized contract of adhesion that was presented to the third-party defendant on a “take it or leave it” basis.
- There is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.
The court held that all six factors militate against the enforcement of the waiver; it concluded that the waiver and indemnification is void. Hence, summary judgment for Town of East Haddam is denied. Further, the third party defendant (the mother) is not contractually bound to indemnify Town of East Haddam.
Once more a waiver fails to protect in Connecticut. Waivers are not totally banned in the state, but the bar is set so high that a waiver is very unlikely to protect.
Photo Credit: Thanks to Peter and Joyce Grace on Flickr.