By Doyice Cotten
Kate Licata took six young girls to Rock Climb Fairfield, LLC for a birthday rock climbing event. Licata signed a waiver (and agreement to indemnify Rock Climb for any loss) on behalf of each girl, including Emma Cannon, the minor who was injured. The waiver was to be signed by the parent or legal guardian, but Licata was neither parent nor guardian of Cannon. Cannon sued Rock Climb for negligence in failure to adequately supervise. This case (Cannon v. Rock Climb Fairfield, LLC, 2020) resulted; it addressed the issue of the legality of the waiver in Connecticut and the effect of the agreement to indemnify signed by Licata.
Connecticut waiver law was discussed in detail including the Hanks v Powder Ridge and the Reardon v. Windswept Farm supreme court cases. The court ruled that “there is a reasonable expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability, will be reasonably safe.” Further, the court pointed out that there was no opportunity to bargain, and ultimately failed to uphold the waiver. For more detail, go to Cannon v. Rock Climb Fairfield. [The case has detailed reasoning by the supreme court regarding Connecticut waiver law.]
The court next addressed the issue of whether Licata must indemnify Rock Climb for loss resulting from Rock Climb’s negligence. After all, the defendant, Licata, misled Rock Climb that she was qualified to sign the waiver. The court discussed in detail the Hanks and Reardon decisions in considering a motion by Licata for summary judgment regarding the contractual indemnification claim and the common law indemnification claim. After arguments, the court agreed with Licata that if the signing of the waiver was invalid because she was not a parent or guardian, then it stands to reason that the waiver itself was invalid. Thus, the court granted Licata’s motion for summary judgment regarding Licata’s contractual indemnification.
As to the common-law indemnification claim, the court explained that to hold a third party liable to indemnify one tortfeasor for damages awarded against it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that:
(1) the third party against whom indemnification is sought was negligent;
(2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm;
(3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and
(4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.
Licata’s argument pointed out that she did not control the situation. This court noted that control is an essential element in common law indemnification and granted Licata’s motion for summary judgment as to the common-law indemnification claim.
Risk Management Take-away
Keep in mind that state law differs from state to state. In Connecticut, this waiver probably would not be enforced regardless of who signed it. Connecticut courts enforce very few waivers. Courts in other states might well enforce the indemnity agreement against the signing patron (Licata) because it is an agreement between two adult parties and does not put the interests (or award) of the minor at risk.
Readers from every state might be interested in the discussion of the Hanks and Reardon cases. The reader might want to tighten up the risk management program after reading the reasoning of the Connecticut court.
Photo Credit: Thanks to Daniel Bago .