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In a strong dissent, Connecticut Supreme Court Justice Flemming L. Norcott Jr. chastised the majority for “ambiguous rule making” that would have “grievous consequences” for recreational activity establishments. An en banc panel of the state Supreme Court last week moved closer to explaining what a recreational release needs to say to be effective, in the appeal of a snow tube injury case against Powder Ridge in Middlefield, Conn. A four-justice majority of the court came tantalizingly close to holding a patron of the ski resort could validly sign away the right to sue for negligence, if the release language was clear. Instead, it ruled that the Powder Ridge release at issue was ineffective to shield the resort from liability because it didn’t say in so many words that the signer was giving up the right to sue for negligence. The decision in Francesca Hyson v. White Water Resorts of Connecticut Inc. is to be officially released Sept. 2. The case involves a snow-tubing patron who fell off what she describes as a “cliff,” but what the resort characterizes as a mogul or berm. The plaintiff alleged injuries to her arm. At trial, the ski resort invoked Hyson’s signed release and won summary judgment. But on appeal, Chief Justice William J. Sullivan sent the case back to the trial level, ruling that the release language does not bar claims for negligence. “[W]e do not reach the issue of whether a well-drafted agreement purporting to have such an effect would be enforceable,” he added for the majority. Without using the word “negligence,” the release Hyson signed said she understood that there are inherent risks involved in snow-tubing. It listed variations in snow, steepness and terrain, ice, moguls, rocks, trees, cables, snowmaking equipment and other natural or man-made obstacles. “All of the inherent risks of SNOWTUBING present the risk of serious and/or fatal injury,” it stated. Hyson agreed to “hold harmless and indemnify” the resort for any resulting loss, damage or injuries. The majority reasoned that the release sounded as if the signer “was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snow tubing.” Citing the longstanding disfavor of contract provisions that relieve a person from his or her own negligence, the court concluded “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.” Sullivan was joined by justices Richard N. Palmer, Christine S. Vertefeuille and Peter T. Zarella. Justice Joette Katz, without saying more, concurred separately. In a strong dissent, Norcott, joined by Justice David M. Borden, chastised the majority for “ambiguous rule making” that would have “grievous consequences” for recreational activity establishments. Norcott, who in his spare time exchanges his judicial robe for a sports referee’s stripes, wrote that exculpatory releases are appropriate for recreational activities. As a matter of public policy, he noted, they are voluntary and optional. People participate for “exercise, to experience a rush of adrenaline, and to engage their competitive nature. These activities, while surely increasing one’s enjoyment of life, cannot be considered so essential as to override the ability of two parties to contract about the allocation of the risks involved.” Norcott cited the state appellate court’s 2002 decision in B&D Associates v. Russell, a commercial-lease case in which risk of loss “for any reason” was deemed validly shifted to the tenant. The B&D case stated that it is not necessary for the word “negligence” to appear in the exculpatory agreement, if words conveying the same concept are used in a clear and unambiguous manner. Norcott wrote that the release signed by Hyson fully informed her that she was releasing White Water Resorts from all liability, and should have been deemed legally effective. No amicus curiae briefs were filed in the case. William F. Gallagher, of New Haven’s Gallagher & Calistro, said: “It’s one thing to limit liability, in certain ways. But it’s quite another to exempt yourself from all liability.” Jeffrey A. Rozen of New Haven represented the plaintiff and Christopher M. Vossler, of Hartford’s Howd & Ludorf, represented the defendant. “I’m disappointed with the result, but quite pleased by the analysis of the dissenters; Justices Norcott and Borden got it right,” Vossler said last week. The Connecticut Trial Lawyers Association asked to file an amicus brief, Vossler said, but the request came late in the process and was denied. Vossler, whose firm represents three different Connecticut ski areas, said the outlook is promising for a court decision that spells out how to write a legally binding waiver of all claims, including negligence. “I think that if the right case comes along with the right language, we’ll try again,” he said, “and hopefully we’ll get a different result.”

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