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Just like two years ago, the snowy slopes of a Middlefield, Conn., ski resort emerged as a battlefield for significant principles of contract and tort law last week. But this time, the state Supreme Court, in a razor-thin victory for an injured snow tuber, left no room for recreational facilities to maneuver their way around future liability for their own negligence. In the court’s 2003 ruling in Hyson v. White Water Mountain Resorts, it hinted, but did not rule, that the resort’s snow-tubing waiver of future negligence could be valid — if the wording was crystal clear. White Water’s Powder Ridge Ski Area subsequently clarified its form to say, “I understand that there are inherent risks involved in snowtubing, including the risk of serious physical injury or death and I fully assume all risks associated with Snowtubing, even if due to the NEGLIGENCE of [White Water/Powder Ridge].” Patron Gregory Hanks signed the revised release before seriously injuring his foot in a snow-tube run. A trial judge ruled that, under Hyson, Hanks signed away his right to sue for negligence. But in a Nov. 29 ruling on Hanks’ appeal, a sharply divided state Supreme Court, sitting en banc, concluded it would violate public policy if patrons could waive future negligence on the part of the resort operator. The decision brings snow tubing in line with skiing and snowboarding, covered by C.G.S. �29-212. That statute makes skiing participants assume the risk of injury inherent in the sport, but not the risk of operator negligence. Chief Justice William J. Sullivan, writing for a bare majority of four, noted the resort’s snow tubing was open to anyone over the age of 6 and 44 inches tall. “[A] reasonable person,” Sullivan wrote, “would presume [Powder Ridge was] offering a recreational activity that the whole family could enjoy safely.” Justice Flemming L. Norcott Jr., joined by Justices David M. Borden and Richard N. Palmer, dissented on the grounds that snow tubing is simply voluntary recreation that is dispensable. The dissent disagreed with the majority view that Hanks placed himself under the control of Powder Ridge or that the resort had a decisive bargaining advantage. Sports law author Gil B. Fried, who teaches at the University of New Haven, said he was shocked by the majority ruling in Hanks and predicted it will open a Pandora’s box of problems. “In the past, one of the benefits of the waiver was that, even if it did not stand up to judicial scrutiny, it often scared people to the point that they would not want to pursue an action,” said Fried, of counsel to Hartford’s Sabia & Hartley. “Now we’ve lost that as a potentially valuable tool.” Hanks’ attorney is William F. Gallagher, of the Gallagher Law Firm in New Haven, Conn. He predicted some lawmakers may attempt to reverse the effect of Hanks through new legislation. “Nevertheless, it’s a good decision,” he said. “Contracts that limit responsibility for negligence are disfavored, for good reason.” Laura Pascal Zaino and John B. Farley, of Hartford, Conn.-based Halloran & Sage, defended Powder Ridge. Farley said, “Most other states give people the option to waive the right to sue for negligence, and because the incidence of injury in these activities is so much higher, operators find that these releases are essential.”

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