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When Durham, Conn., health insurance salesman Gregory D. Hanks took his three sons snow tubing at Middlefield, Conn.’s Powder Ridge ski area in February 2003, his 12-year-old bought tickets and grabbed a handful of the required waiver forms to sign. Hanks read the form, which stated the risks of tubing include “serious physical injury or death and I fully assume all risks associated with Snowtubing, even if due to the NEGLIGENCE of” Powder Ridge. Hanks’s son read the form too. “Dad, don’t sign this thing!” he said. But Hanks said he thought the language was so “patently egregious” that no court would ever enforce it. He also said that, if he’d had an attorney with him, he would have had him or her go over it. No lawyer, however, would be able to say with authority whether the release was a powerful legal contract or legally void. As it now stands, Connecticut’s law is simply too unsettled. But that may change, owing to the April 18 state Supreme Court arguments in Hanks v. Powder Ridge. On his third tubing run that day, Hanks broke his ankle as he hit carpets at the bottom of the slope and whirled into a packed snow bank. He endured repeated surgery to repair the fracture, which kept him out of work for a year, his appellate lawyer, William F. Gallagher of New Haven, Conn., told the high court. Gallagher argued to a bench made up of Justices Richard N. Palmer, Flemming L. Norcott Jr., David M. Borden, Joette Katz and Christine S. Vertefeuille. He emphasized that long-standing common-law tort principles should lead the court to rule such a waiver void as against public policy. In fall 2003, the state Supreme Court ruled in the case of another Powder Ridge snow-tubing customer injured four years earlier on the same hill. Francesca Hyson had not waived her right to sue when she signed a waiver form that did not expressly exempt Powder Ridge from its future negligence. The Hyson court specifically declined to issue an opinion on whether a contract having such express language would be enforceable to release a party from liability for its negligence. After Hyson, Powder Ridge rewrote its release form. The one Hanks signed emphasized that the ski area was expressly claiming immunity from its own negligence. In the law of premises liability, Gallagher argued, a business invitee has a duty to make sure the property is reasonably safe for the invited public. In his legal briefs, Gallagher noted that Hanks’s expert witness on snow-tube hill design found flaws. The tubes should have been slowed at the end of the run by regrading the land, not just by placing carpets to increase friction. The hard-packed snow also should have been ground to make it less icelike. Hanks’ speeding tube caught a carpet and was spun around, allegedly causing the broken foot. “If it had been his head that hit, he could be a vegetable now,” Gallagher said in an interview. Powder Ridge’s advocate, Halloran & Sage appellate attorney Laura Pascale Zaino, argued the power of contract. Because Connecticut’s authoritative law is scant, she based much of her argument on a 1963 California Supreme Court case, Tunkl v. Regents, which has a six-part formula for determining when a waiver should be unenforceable. The Tunkl case alleged medical malpractice in a wrongful-death case, and the hospital claimed its waiver’s language protected it. In weighing the level of public interest at stake, the Tunkl formula asks first whether the exemption concerns a business suitable for public regulation. Second, does the business perform an important public function? Third, is it open to the public generally? Fourth, is the service essential? Fifth, does the business have superior bargaining power, and finally, does the release place one party under the control of the other? INESCAPABLE DUTY? Zaino said Hanks and his children could have simply walked away if they didn’t like the waiver. The underlying recreational activity should allow exculpatory waivers and is entirely different from the Tunkl hospital factors, she said. “Snow tubing is not an essential public service and does not affect the public interest,” Zaino said. Furthermore, she added, competent adults who can read and write are charged with understanding what they’re doing when they sign a contract. Without enforceable liability waivers, Zaino said, “businesses such as my client’s would become extinct.” In his reply brief and his rebuttal, Gallagher made the point that a property owner who contracts with someone else to maintain the property cannot legally shift, avoid or escape the ultimate legal responsibility to keep his premises reasonably safe. Such owner accountability is based on sound public policy, he said. Thus, it would be illogical in the extreme to withdraw by waiver this otherwise inescapable duty: to protect the business “invitee” from the property owner’s negligence, Gallagher contended. Ironically, if the Hanks and his sons had been skiing, not snow tubing, the waiver would have been void in light of Connecticut’s skiing statute, which only allows a waiver of the ordinary risks of skiing — not business-owner negligence.

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