Opinion
No. CV04 400 32 18
January 29, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #106
On October 27, 2004, the plaintiffs, Charles Lavin, Pauline Lavin, and Mark Lavin, filed a one-count complaint against the defendant, Absolute Tank Removal. This action arises out of alleged damages sustained after Absolute Tank Removal performed services under an agreement with the plaintiffs to remove an out of service underground fuel oil tank and remediate oil-contaminated soil.
The plaintiffs' complaint alleges that Absolute Tank Removal was negligent in performing the tank removal and soil remediation. On December 19, 2005, Absolute Tank Removal filed a motion for summary judgment as to the plaintiffs' negligence count, on the grounds that the hold harmless agreement between the parties in the original contract bars the plaintiffs' count. Absolute Tank Removal filed a memorandum of law in support of the motion.
"[T]he moving party for 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, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). In support of its motion for summary judgment, Absolute Tank Removal argues that the hold harmless agreement in the original contract between the parties bars a negligence count against Absolute Tank Removal based on the ordinary meaning of the contract language.
"[T]here exists widespread support in other jurisdictions for a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly . . . [T]he law does not favor contract provisions which relieve a person from his own negligence . . . [T]he better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 319-20, 885 A.2d 734 (2005); see Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 641-43, 829 A.2d 827 (2003). "A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost." Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643.
The Hanks court applied an exacting standard to determine that a hold harmless agreement between the operators of a snowtubing facility and its patrons released the operators of the facility from future negligence. See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 324. The court in Hanks pointed out that the agreement at issue referred to the term "negligence" three times. Id. Hyson also dealt with the alleged negligence of a snowtube operator. Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 637. Hyson, however, ruled that the snowtubing facility's agreement with its patrons did not "specifically refer to possible negligence by the defendant." Id., 640. The Hyson court accordingly reversed the trial court's granting of the defendant's motion for summary judgment based on the purported release of liability. Id., 644.
The contract between the plaintiffs and Absolute Tank Removal in the present dispute does not expressly relieve Absolute Tank Removal from future negligence. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 322. The language used in the agreement between the plaintiffs and Absolute Tank Removal reads, in part: "In the prosecution of the excavating, we will take reasonable precautions to avoid damage or injury to underground structures or utilities. You agree to hold Absolute Tank Removal harmless and pay for any damages to underground utilities or structures which are not called to our attention or are in different locations previously marked out." The language of the agreement in Hyson, which failed to expressly relieve the defendant of liability for future negligence, similarly "states that the plaintiff agrees to hold harmless and indemnify [the defendant] for loss or damage, including any loss or injuries that result from damages related to the use of a snowtube or lift." (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640. Judging by the standards of Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 319-20, and Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 641-43, the word "harmless" is not an explicit reference to negligence. The language in the present agreement is thus insufficient to prevent the plaintiffs "from inadvertently relinquishing valuable legal rights." Hyson White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643.
Exculpatory agreements may also violate public policy. See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326. For example, when defendants provide horseback riding lessons, "the enforcement of an exculpatory agreement in [the defendants' favor] from liability for ordinary negligence violates public policy and is not in the public interest." Reardon v. Windswept Farm, LLC, 280 Conn. 153, 161, 905 A.2d 1156 (2006).
"[T]he Hyson rule is to be strictly applied when determining whether or not exculpatory indemnity clauses release a defendant from liability in negligence claims." Colagiovanni v. New Haven Aquisition Corp., Superior Court, judicial district of New Haven, Docket No. CV 03 048041 (November 15, 2006, Robinson, J.) [ 42 Conn. L. Rptr. 423]. Hyson's ruling regarding the enforceability of exculpation clauses "was not limited to [snowtube operators]." Zides v. Quinnipiac University, Superior Court, judicial district of New Haven, Docket No. CV 02 0470131 (February 7, 2006, Corradino, J.) [ 40 Conn. L. Rptr. 745]. "There is . . . widespread support in other jurisdictions for a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly." (Emphasis added.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 641-42. The Hyson court refers to Restatement (2d) Contracts, § 195, comment b to support its ruling. Id., 642. This section of the Restatement states: "[L]anguage inserted by a party in an agreement for the purpose of exempting him from liability for negligent conduct is scrutinized with particular care and a court may require specific and conspicuous reference to negligence under the general principle that language is interpreted against the draftsman." (Emphasis added; internal quotation marks omitted.) Id., 642. There is no qualification [in this section] for particular types of defendants." Zides v. Quinnipiac University, supra, Superior Court, Docket No. CV 02 0470131. Hyson, in footnote 8, refers to several cases outside of Connecticut that deal with exculpation clauses outside the snowtube operator context. Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 642 n. 8. These cases adopt similar rules concerning explicit reference to "negligence." Id. "The cases cited in that footnote involve waiver clauses attempted to be enforced by a tanning salon . . . injury to an employee at a construction site . . . [and a] claim against [a] real estate broker for property loss." Zides v. Quinnipiac University, supra, Superior Court, Docket No. CV 02 0470131. "[A] waiver agreement [was also] not enforced where [there was] was no reference to negligence in [a] suit for injuries allegedly sustained at [a] dental clinic." Id.
Of particular relevance to the present dispute is a Texas Supreme Court holding concerning a damage suit for injury to an oil well. Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, rehearing overruled, 853 S.W.2d 505 (Tex. 1993). In that case, one defendant contracted with the plaintiff to perform log tests on the 11,000 foot well, while a second defendant contracted with the plaintiff to remove equipment from the well. Id., 506-07. Both the defendants argued that their respective contracts with the plaintiff "insulated them from liability for their own negligence." Id., 507.
The present dispute similarly involves damages arising out of the removal of an underground fuel oil tank, and a defense based on a contractual release from liability for future negligence. The Texas Supreme Court in Dresser held "that the fair notice requirements of conspicuousness and the express negligence doctrine apply to both indemnity agreements and to releases" in the context of oil well work. Id., 509. This case provides persuasive support for applying Hyson's ruling regarding express reference to negligence in non-recreational activity contexts.
Exculpatory agreements in other non-recreational activity contexts have also received unfavorable treatment. Brown v. Soh, 280 Conn. 494, 503, 909 A.2d 43 (2006) (ruling that exculpatory agreements in the employment context violate Connecticut public policy); Beaulieu v. Public Storage, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 5000596 (August 3, 2006, Keller, J.)[41 Conn. L. Rptr. 772] (denying the defendants' motion for summary judgment based on a limitation of liability in a self-storage rental unit agreement).
Because the language in the agreement between the plaintiffs and Absolute Tank Removal lacks the definitiveness required by Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 322, the intent of the parties cannot be ascertained as a matter of law. Absolute Tank Removal has therefore not met its burden of establishing material facts, and the plaintiffs need not provide evidence contradicting Absolute Tank Removal's evidence. Disputed questions of fact concerning the intent of the parties regarding the contract, as well as the alleged negligence of Absolute Tank Removal, remain to be resolved.
As previously mentioned, exculpatory provisions may be held invalid on public policy grounds. See Reardon v. Windswept Farm, LLC, 280 Conn. 153, 159, 905 A.2d 1156 (2006) (ruling "that the enforcement of a well drafted exculpatory agreement that releases a provider of a recreational activity from prospective liability for personal injuries sustained as a result of the provider's negligence may violate public policy if certain conditions are met.") "[W]hen assessing the public policy implications of a particular release or waiver of liability, we concluded that [n]o definition of the concept of public interest [may] be contained within the four corners of a formula, and that [t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations." (Internal quotation marks omitted.) Id.
If the hold harmless agreement between the plaintiffs and Absolute Tank Removal violates public policy, then "genuine issues of material fact surrounding the [defendant's] potential negligence remain in dispute." Id. The public policy reasons for invalidating an exculpatory provision may apply with particular force in the context of underground fuel oil tank removal, which may serve the public interest of environmental protection. See Lipshie v. George M. Taylor Son, Inc., 265 Conn. 173, 176, 828 A.2d 110 (2003); Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 676-78, 825 A.2d 210 (2003); Merrimack Mutual Fire Insurance Co. v. Thames Insurance Co., Superior Court, judicial district of Danbury, Docket No. CV 03 0348873 (May 19, 2005, Shay, J.); 50 Day Street Associates v. Norwalk Housing Authority, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0191396 (May 17, 2005, Adams, J.). In the present case, however, the language of the agreement itself is insufficient to preclude a negligence claim against Absolute Tank Removal as a matter of law, and is thus dispositive of this motion. Therefore, the public policy implications of the exculpatory agreement need not be addressed here.
For the foregoing reasons, the defendant's motion for summary judgment is denied.
OWENS, J.T.R.