Negligence Disclaimers in Hazardous Recreational Activities
| Publication year | 2021 |
| Pages | 356 |
68 CBJ 356. NEGLIGENCE DISCLAIMERS IN HAZARDOUS RECREATIONAL ACTIVITIES
It's the adrenaline rush. They want it and they'll do almost anything to get it. To many thrill seekers, nothing compares to the exhilaration received from taunting death for sport. Bungee jumping, parachuting, downhill skiing and scuba diving are but a few ways in which the "adrenaline junkie" tests his mortality. The extreme thrill seeker faces the prospect of serious injury or death and some are injured or killed. In the wake of such injuries or death, the thrill seeker or someone acting on behalf of the thrill seeker may initiate a lawsuit in an attempt to recover damages.
Unfortunately for the thrill seeker, recreational businesses try to avoid liability by requiring a participant to sign a disclaimer. The disclaimer is typically incorporated into a contractual agreement concerning the provided services and/or equipment.(fn1) Agreements which specifically absolve proprietors from liability for negligence during hazardous recreational activities have been enforced by courts outside of Connecticut. (fn2) In states which enforce the negligence disclaimers, only when the misconduct of proprietors is willful or wanton are the proprietors of a recreational business unable to shield themselves with a contractual disclaimer.(fn3)
There is no published decision from a Connecticut court directly addressing whether the use of a negligence disclaimer bars liability for negligence in hazardous recreational activities
although many cases discuss closely related issues.(fn4) In general, negligence disclaimers are not looked upon favorably.(fn5) They are narrowly construed and strictly scrutinized against the preparer.(fn6) Connecticut courts will invalidate the negligence disclaimers when the disclaimers involve duties imposed by statute, law, public policy, or public interest.(fn7) Typically, a duty existing under public policy involves a service which is suitable for public regulation, such as an electric utility.(fn8) Examples of services in which the public interest requires invalidation of negligence disclaimers include: medical care, common carriers, innkeepers, bailments, and services which are ultra-hazardous or whose operators are strictly liable.'(fn9)
Connecticut courts, in situations not involving duties imposed by statute, law, public policy or public interest, have adopted a case-by-case approach when faced with challenges to
the validity of disclaimers.(fn10) This approach is supported by language in cases which have invalidated the releases in question.(fn11) The basis for enforcement is the parties' unfettered right to voluntarily contract with another provided there is proper notification of the restrictive provisions.(fn12) While Connecticut courts have recognized that agreements exempting parties from liability for their own negligence may be valid in some circumstances, the specific circumstances and elements on which a negligence disclaimer should be validated in Connecticut have not yet been determined.(fn13)
Similarly, the Connecticut legislature has also declared that hold harmless clauses are unenforceable as contrary to public policy in certain construction contracts.(fn14) Furthermore, in situations -where disclaimers are disfavored, there is a statutorily declared presumption of unenforceability.(fn15) The Connecticut legislature, like the courts, has not categorically denounced disclaimers.(fn16) The Connecticut legislature, like the courts, has also not spoken on the specific circumstances and elements required for enforceability of disclaimers in hazardous recreational activities. It appears that the legislature has also adopted a case-by-case approach similar to that taken by the courts.(fn17)
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Because of these mixed messages from the courts and the legislature on the enforceability of disclaimers, the determination of whether circumstances exist to warrant enforceability of a disclaimer of liability in hazardous recreational activities must be decided on a case-by-case basis.(fn18) A case-by-case approach permits better resolution of the factual issues prior to
determining the enforceability of a disclaimer.(fn19)
Jurisdictions outside of Connecticut have set forth the elements for addressing the validity of negligence disclaimers executed in conjunction with hazardous recreational activities. The following three elements are generally employed in deciding whether a negligence disclaimer can be upheld: 1) Whether the service contracted for involves the performance of a duty imposed by law, public policy or public interest.(fn20) The courts in these jurisdictions have distinguished between activities that are considered essential and nonessential.(fn21) Whether the intent of the parties to shift the risk of negligence is shown by clear, unambiguous and unmistakable language in the agreement.(fn22) 3) Whether the circumstances surrounding the execution of the agreement indicate it was an adhesion contract or a valid agreement, fairly entered into between the parties.(fn23)
In order to determine if a negligence disclaimer is valid, the court considering it must first determine whether the service provided involves a public interest, touches public policy or public necessity, or is suitable for public regulation.(fn24) The factors to examine include: (1) whether it is an enterprise of a type generally thought suitable for public regulation; (2) whether the party seeking exculpation is engaged in performing a service of great importance to the public, often a matter of practical necessity for some members of the public; or (3) as a result of the transaction, the person or property of the purchaser is placed under the control of the seller.(fn25) If the party holds himself out as willing to perform a service for a special sector of the public, then those services may be considered unsuitable for such agreements.(fn26)
In general, any service of great importance which is a necessity for some or all members of the public will be considered unsuitable' for agreements disclaiming negligence.(fn27) As a result of this unsuitability, agreements shifting the risk of negligence will be held invalid where the services provided involve the performance of a duty imposed by law or where the public interest requires performance.(fn28) Yet, private voluntary agreements in which one party, for a...
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