Opinion
No. CV 02-0087487-S
June 8, 2004
MEMORANDUM OF DECISION
This matter came before the court on April 26, 2004 on the defendant Skip Barber Racing School LLC (hereinafter Skip Barber) motion for Summary Judgment, as to Counts Five and Six of the Plaintiff's second amended complaint.
The plaintiff Robert Brown, (hereinafter referred to as the plaintiff) was an instructor at the Skip Barbers racing school located at Lime Rock Race Track in Salisbury, Connecticut. In the course of his employment the plaintiff was injured by the Defendant Diane Sol, who was a student of the school. The complaint alleges, that the plaintiff was injured when a vehicle driven by the defendant Diane Sol, during a practice exercise skidded out of control and struck the plaintiff. Skip Barber moves for summary judgment as to Counts Five and Six solely based upon a release signed by the Plaintiff which Skip Barber claims releases and holds harmless Skip Barber from any claims of negligence by the plaintiff.
Pursuant to Connecticut Practice Book Section 17-49, summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law." A material fact is one that will make a difference in the outcome of the case. Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979). Summary judgment should be granted if the "moving party would be entitled to a directed verdict on the same facts." Wilson v. New Haven, 213 Conn. 277, 279-80 (1989). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Id. at 279.
"The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitled [that party] to a judgment as a matter of law." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994). "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217 (1994). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court. Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 12 (1983) In this case the plaintiff, on September 19, 2001 the day that he was injured, signed a document titled "RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT" prior to working the event taking place that day.
Paragraph two of this agreement, states in capital letters the plaintiff hereby RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing association, sanctioning organizations or any subdivision thereof, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any Restricted Area. "FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN THE DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE."
See Exhibit B attached to the motion for Summary Judgment.
In Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003), the Connecticut Supreme Court, concluded "that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides," Hyson supra at page 643. In this case the court finds the language in this release meets the standard set forth in Hyson. Prior to Hyson there were numerous Superior Court cases dealing with this question as set forth in the lengthy discussion of the issue by Judge Aurigemma, in Fischer v. Rivest, 33 Conn. L. Rptr. 119, 2002 Ct. Sup. 10318 Judicial District of New Britain Complex Litigation August 15, 2002. The release in this case specifically refers to actions based on the negligence of the releasees, not only in paragraph two, but also in paragraphs 3, 4, 5 and six.
The plaintiff in his objection to the motion for summary judgment claims the release is ambiguous for the following reasons, 1) it does not supply a comprehensible description and location of the events, 2) the time of the signing of the release, 3) a completed release that includes a description of the duties associated with the release, 4) a clear definition of the location where the release applies, 5) proof that Brown was in a "restricted area" and 6) the actual name of the entity being released. The plaintiff admits that he signed the release but postures that he did not understand what event the release referred to, and that he did not see or read the body of the release. The court finds all of these arguments unavailing. The court finds the language of the release satisfies and identifies all the areas of concern posed by the plaintiff. The general rule in our state is that where a person who is of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is the persons' duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently failed to do so, Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 654 (1998). The court finds from the plaintiff's deposition attached as Exhibit A to Skip Barber's motion that the plaintiff was an adult who had extensive prior experience with the dangers associated with automobile racing and race tracks. In fact the plaintiff signed an identical release on August 6, 2001.
In the present case the court finds the defendant has met its burden that no genuine issue of material fact exists. The waiver contains express language relieving the defendant of liability for injuries arising out of the negligence of the defendant. For the reasons stated the defendant Skip Barber's motion for summary judgment as to Counts five and six of the amended complaint is GRANTED.
Brunetti, J.