Question 1. The following is an edited excerpt from a case from Connecticut. Read the excerpt and answer the question which follows. You are not to look up the case and read the court’s opinion, and are on your honor not to do so.
The record reveals the following factual and procedural history. The defendants operate a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On February 16, 2003, the plaintiff brought his three children and another child to Powder Ridge to snowtube. Neither the plaintiff nor the four children had ever snowtubed at Powder Ridge, but the snowtubing run was open to the public generally, regardless of prior snowtubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. Further, in order to snowtube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability” (agreement). The plaintiff read and signed the agreement on behalf of himself and the four children. While snowtubing, the plaintiff’s right foot became caught between his snowtube and the man-made bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair.
Thereafter, the plaintiff filed the present negligence action against the defendants. Specifically, the plaintiff alleges that the defendants negligently caused his injuries by: (1) permitting the plaintiff “to ride in a snow tube that was not of sufficient size to ensure his safety while on the snow tubing run”; (2) “fail[ing] to properly train, supervise, control or otherwise instruct the operators of the snow tubing run in the proper way to run the snow tubing course to ensure the safety of the patrons, such as the plaintiff”; (3) “fail[ing] to properly groom the snow tubing run so as to direct patrons. . . such as the plaintiff away from the sidewalls of [the] run”; (4) “plac[ing] carpet at the end of the snow tubing run which had the tendency to cause the snow tubes to come to an abrupt halt, spin or otherwise change direction”; (5) “fail[ing] to properly landscape the snow tubing run so as to provide an adequate up slope at the end of the run to properly and safely slow snow tubing patrons such as the plaintiff”; (6) “fail[ing] to place warning signs on said snow tubing run to warn patrons such as the plaintiff of the danger of colliding with the side wall of [the] snow tubing run”; and (7) “fail[ing] to place hay bales or other similar materials on the sides of the snow tubing run in order to direct patrons such as the plaintiff away from the sidewalls of [the] run.”
The defendants, in their answer to the complaint, denied the plaintiff’s allegations of negligence and asserted two special defenses. Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Thereafter, the defendants moved for summary judgment, claiming that the agreement barred the plaintiff’s negligence claim as a matter of law. The trial court agreed and rendered summary judgment in favor of the defendants. Specifically, the trial court determined that the plaintiff, by signing the agreement, unambiguously had released the defendants from liability for their allegedly negligent conduct.
The plaintiff now claims on appeal that the agreement is unenforceable because it violates public policy. Specifically, the plaintiff contends that a recreational operator cannot, consistent with public policy, release itself from liability for its own negligent conduct where, as in the present case, the operator offers its services to the public generally, for a fee, and requires patrons to sign a standardized exculpatory agreement as a condition of participation.
Armed with your newly minted degree from St. Leo, you are miraculously appointed an appellate judge in Connecticut. Please write the opinion of the court. Specifically, address whether the “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability” (agreement) is a valid contract which should be enforced.
Dr. Byer is a dentist. Her dental offices are located in one wing of a house in which she and her family reside. On nights and weekends Dr. Byer and her family use the dental office waiting room as their family room (watching television, playing games, reading, conversation).
Dr. Byer wanted a new couch for the waiting room/family room. She noticed the following newspaper advertisement for a forthcoming sale at Interior Design: “Weekend sale. 25% off selected floor items.” Because of the advertisement, she visited Interior Design and was greeted there by Seline, a salesperson at the store.
Dr. Byer found a style of couch (“Occidental”) that she liked for the waiting room/family room. A large tag attached to the couch read: “Regular price $1,600. Sale price $1,200.” When it sells the Occidental for $1,600, Interior Design makes a $600 profit.
While she liked the style of the Occidental, Dr. Byer didn’t care for the fabric on the floor model. On a nearby fabric display stand she found two fabrics in which the couch could be upholstered by special order, but she wanted to take the two fabric samples with her to see how they would look in the waiting room/family room. She said to Seline: “I’m going on a two week vacation. Would it be possible for me to reserve the couch now, take the fabric samples for a few weeks, choose a fabric, and order the couch at the sale price when I come back?” Seline said: “We could do that if you want. Let’s go to the main desk.” The two of them then walked to the store’s main desk. In a binder entitled “Fabric checkout”, kept at the main desk, Seline wrote the name and number of the two fabric samples and Dr. Byer’s name, address, and telephone number. Dr. Byer signed her name next to this information. Without any further relevant conversation about the couch, Dr. Byer left with the two fabric samples.
The next morning, in a journal that Seline kept in her own personal desk at Interior Design, Seline wrote Dr. Byer’s name, address, and telephone number accompanied by the notation “Occidental, 25% off, special order when customer chooses fabric.” Next to that language she drew a smiling face (☺), something that she frequently used when leaving notes for her fellow salespersons who called her “smiley.”
A month later Dr. Byer returned to Interior Design and walked up to Seline, who didn’t immediately recognize Dr. Byer. Dr. Byer reintroduced herself and said: “I’m sorry for taking longer than I expected, but I finally chose one of these two fabrics.” Seline then said: “Good, but if you want to order the couch I’m afraid that it is going to be $1,600. I forgot that the sale price didn’t apply to special order items. But we still have the couch on the floor and even though the sale is over I can still sell that one to you at the sale price.” Dr. Byer responded: “I’m sorry that you forgot, but I expect to get the couch for $1,200 with the fabric that I’ve chosen. I passed up a similar couch for $1,300 at another store because I was going to get a couch here.”
Seline refused. Dr. Byer left. She found the identical couch elsewhere, with the fabric she liked, and bought it for $1,500. She sued Interior Design in small claims court for breach of contract.
Who should prevail and why?