Opinion
No. CV 03 0090988
August 27, 2004
MEMORANDUM OF DECISION
The plaintiffs in this action, Ellen Ehrenreich and Mark Ehrenreich as personal representatives of the estate of Emily Ehrenreich (decedent), have alleged that the defendant, Mohawk Mountain Ski Area, Inc., negligently and/or recklessly left a mobile snow-making gun that was not being used, and that was not padded, on the traveled portion of a ski trail without warning skiers. The plaintiffs' decedent collided with the snow-making gun and received serious injuries that resulted in her death.
The defendant alleged six special defenses in its answer to the plaintiffs' amended complaint filed on August 7, 2003. The defendant's first special defense alleges that the plaintiffs' decedent assumed the risk pursuant to Connecticut General Statutes § 29-212; the second defense alleges that the decedent expressly assumed the risk when she purchased/used the defendant's lift ticket; and the fifth special defense alleges that the second count of the plaintiffs' amended complaint fails to state a claim for reckless or wanton misconduct.
The only defenses relevant to this memo are the first, second and fifth. The plaintiffs did not move to strike the fourth or sixth special defenses and argument relating to the motion to strike the third special defense was heard by Judge Bryant on July 19, 2004.
The plaintiffs' amended complaint alleges two counts: one count for negligence and a second count for reckless or wanton misconduct. The defendant claims that the first and second special defenses are applicable to all counts of the complaint while the fifth defense only applies to the second count.
On February 9, 2004, the plaintiffs filed a motion to strike the defendant's first, second, third, and fifth special defenses on the basis that they fail to allege sufficient facts. In accordance with Practice Book § 10-42, the plaintiffs filed a memorandum in support of its motion to strike, and the defendant timely filed a memorandum in opposition.
"A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). "In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." Barasso v. Rear Still Hill Road, LLC, supra, 64 Conn.App. 13.
I
In its first special defense, the defendant pleads as follows: "The plaintiffs' claims are barred because the plaintiffs' decedent, Emily Ehrenreich, primarily assumed the risk of and legal responsibility for her injuries in accordance with Conn. Gen. Stat. § 29-212."
Connecticut General Statutes § 29-212 provides in relevant part that "[e]ach skier shall assume the risk of and legal responsibility for any injury to his person . . . arising out of hazards inherent in the sport of skiing, unless the injury was proximately caused by the negligent operation of the ski area . . ."
The plaintiffs argue that the motion to strike the first special defense should be granted because § 29-212 is inapplicable since it has not been alleged that the plaintiffs' decedent was injured as a result of a hazard inherent in the sport of skiing. Relying on Vogel v. Mohawk Mountain Ski Area, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 01 0343914 (July 25, 2002, Radcliffe, J.) ( 32 Conn. L. Rptr. 615), the defendant argues in opposition that the motion to strike the first special defense should be denied because the defense includes direct language from § 29-212. The defendant further argues that it is entitled to prove, at trial, that the decedent died as a result of an inherent risk of skiing.
In Vogel v. Mohawk Mountain Ski Area, Inc., supra, Superior Court, Docket No. CV 01 0343914, the plaintiff moved to strike the defendant's § 29-212 special defense and the court denied the motion, concluding that the defense was proper because it included language directly from the statute and alleged that the plaintiff was injured from a hazard inherent in the sport of skiing. The defendant in the present case did not directly refer to a hazard listed in § 29-212, nor did it allege facts indicating that the plaintiff's injuries resulted from a inherent hazard of skiing. Because the defendant did not allege any facts relating to how the decedent was injured, the only facts the court has to consider are those alleged in the plaintiff's complaint.
Specifically, the special defense alleged that the plaintiff "assumed the risk of boarding the chair lift without proper knowledge of procedures, or without having read certain instructions posted at the base of the ski lift." Vogel v. Mohawk Mountain Ski Area, Inc., supra, Superior Court, Docket No. CV 01 0343914.
Our Supreme Court discussed § 29-212 in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 683, 849 A.2d 813 (2004), concluding that "the most reasonable interpretation of § 29-212 is that a skier has not assumed the risk of injury associated with the sport of skiing when such risk negligently has been created by a ski area operator or when, in the exercise of due care, the operator could have taken steps to minimize such a risk and unreasonably failed to do so." The court further stated that, pursuant to § 29-212, "a skier assumes the risk of those hazards over which an operator has no control or over which an operator cannot reasonably act so as to ameliorate the potentiality of harm . . ." Id., 687. Additionally, the court noted that a snow-covered tree stump is an inherent risk, while a tractor parked on a ski trail is not. "[F]or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense. For those hazards which are not an innate part of the sport of skiing, or over which an operator can act reasonably to eliminate or minimize the potential for harm, operators owe a duty of reasonable care." Id., 696.
The defendant in the present case has merely asserted a legal conclusion and has not alleged any facts regarding how the decedent was injured. The facts alleged by the plaintiff indicate that the plaintiff was injured when she collided with a mobile, snow-making gun that was negligently left on the ski trail by the defendant. It is submitted that because the plaintiff alleged that the defendant had control over the snow-making gun and could have taken precautions to reduce the risk of harm, and because the defendant in the present case has not alleged facts showing that the decedent was injured as a result of an inherent risk of skiing, the first special defense is legally insufficient and the motion to strike should be granted.
In Potts v. White Water Mountain Resorts of Connecticut, Superior Court, judicial district of New London, Docket No. 550961 (August 24, 2001, McLachlan, J.) ( 30 Conn. L. Rptr. 301), the court granted a motion to strike the defendant's special defense based on § 29-212, noting that the plaintiff's claim was based upon the defendant's negligence and "§ 29-212 does not apply where the injury was proximately caused by the negligent operation of the ski area." (Internal quotation marks omitted.)
The court could also justify granting the motion to strike the first special defense on the basis that "[a] motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) CT Page 12851 Fort Trumbull Conservancy LLC v. Alves, supra, 262 Conn. 498. For further information, see discussion relating to the defendant's fifth special defense.
II
The defendant's second special defense states that "[t]he plaintiffs' claims are barred because the plaintiffs' decedent, Emily Ehrenreich, as purchaser and/or user of a Mohawk Mountain lift ticket expressly agreed as follows:
CONTRACT
As purchaser/user of this ticket, I recognize that snow sports have inherent risks participants must assume. These include variations in weather, snow cover terrain, naturally occurring manmade obstacles, snowmaking grooming equipment. Falls collisions do occur injuries may result. I assume all risk of injury or loss/damage to property and agree not to sue. I agree to be in control read heed posted signs. This ticket is sold pursuant to sections 29-212, 29-213, 29-214 of the CT General Statutes. By purchase, I accept the hazards of the sport contract that claims arising from the use of this ticket be governed by CT laws the exclusive jurisdiction thereof will be in CT state or federal courts.
She therefore assumed the risk and legal responsibility for any injury arising out of the hazards inherent in the sport of skiing, and agreed not to sue Mohawk Mountain if injured while skiing."
The plaintiffs argue that the motion to strike the second special defense should be granted because the defendant has not alleged how the plaintiff was injured and/or killed. Specifically, the plaintiffs claim that because they have alleged that the decedent's injuries resulted from the defendant's negligent operation of its ski area and/or reckless misconduct, and there have been no allegations that the decedent was injured from an inherent risk of skiing, the second defense is insufficient. In addition, the plaintiffs claim that the language of the alleged lift ticket contract is too vague to constitute a waiver under Hyson v. White Water Mountain Resorts of Connecticut, 265 Conn. 636, 829 A.2d 827 (2003).
In Hyson, the court held 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 v. White Water Mountain Resorts of Connecticut, supra, 265 Conn. 643.
The defendant argues that the motion to strike should be denied because the lift ticket contract states that the decedent agreed not to sue for injuries caused by inherent risks of skiing in accordance with § 29-212. The defendant further contends that the plaintiffs cannot deprive it of its rights under § 29-212 merely by alleging negligence.
The second special defense seeks to relieve the defendant from the duty owed to the decedent as a patron of its business. See Vogel v. Mohawk Mountain Ski Area, Inc., supra, Superior Court, Docket No. CV 01 0343914. Although "ticket contracts" are not invalid per se, contract provisions that attempt to relieve a party from the consequences of its own negligence are not favored by the law. Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 413, 446 A.2d 799 (1982). Such contracts are particularly disfavored when used by a professional service provider in the course of its business with the general public. Mattegat v. Klopfenstein, 50 Conn.App. 97, 103-04, 717 A.2d 276 (1998).
Vogel involved a plaintiff who was injured while exiting a ski lift. Vogel v. Mohawk Mountain Ski Area, Inc., supra, Superior Court, Docket No. CV 01 0343914. The defendant in Vogel raised the lift ticket language as a defense. The court struck the defense, concluding that a defendant cannot avoid or minimize the duty owed to a business invitee with a preprinted disclaimer that does not expressly absolve responsibility for negligent conduct. Id.
The defendant in Vogel is the same defendant in the present case.
The court notes that in Everett v. Whitewater Mountain Resort, Inc., Superior Court, judicial district of Hartford, Docket No. CV 99 0589207 (September 17, 1999, Booth, J.), a motion to strike a special defense based on a "ticket contract" was denied because the court determined that it was properly raised as a defense and whether the contract is enforceable should be decided when more evidence has been gathered. However, this decision was rendered prior to the Hyson case, which explicitly requires that a waiver include express language to absolve a defendant from liability for negligence. See Hyson v. White Water Mountain Resorts of Connecticut, supra, 265 Conn. 643.
In the present case, there have been no allegations that the lift ticket was signed or initialed by the decedent or her uncle, nor has it been alleged that the language printed on the ticket was explained to the decedent before she entered the ski trails. The ticket language does not expressly absolve the defendant from negligent conduct as required by Hyson. Thus, it is submitted that the second special defense is legally insufficient and the motion to strike should be granted.
The court notes that the decedent was a minor at the time the lift ticket was purchased.
III
Lastly, the defendant's fifth special defense alleges that "[t]he Second Count fails to state a legally sufficient cause of action for reckless or wanton misconduct."
It should be noted that, rather than asserting a special defense claiming that a portion of a complaint is legally insufficient, the proper method for challenging the sufficiency of a complaint is to make a motion to strike. Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).
The plaintiffs claim that this is not a proper defense because it does not contain a supporting legal theory or factual basis. In response, the defendant argues that the defense is proper because the second count of the amended complaint merely restates the negligence allegations from count one and labels them as "reckless or wanton" and that additional facts showing recklessness are required.
"The fact that in a special defense one must plead facts which are consistent with the allegations of the complaint does not relieve the defendants of the duty of providing the plaintiff with a plain and concise statement of the material facts on which they rely. It does not enable the defendants to incorporate the factual claims of the plaintiff without stating them . . . Thus [where] no information is provided as to what actions or lack thereof the defendants rely on, a motion to strike is properly granted." (Internal quotation marks omitted.) Treschitta v. Goebel, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 040408363 (June 10, 2004, Dewey, J.); see also Zdanis v. Sekeret, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084641 (July 24, 2002, Moraghan, J.T.R.).
In the present case, the defendant has merely asserted a legal conclusion that the second count fails to state a cause of action, and have failed to allege supporting facts. "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Thus, it is submitted that the plaintiffs' motion to strike the defendant's fifth special defense should be granted.
Bozzuto, J.