Opinion
No. 487002
May 25, 2005
MEMORANDUM OF DECISION
The plaintiff brings this action seeking money damages for personal injuries sustained at a fitness center at her place of employment. The defendant moves for summary judgment based on a release of claims of prospective negligence it contends the plaintiff signed. The defendant states that it destroyed the release prior to notice that the plaintiff was making a claim.
The plaintiff's revised complaint alleges the following. The plaintiff was employed by the defendant, United States Surgical Corporation (U.S. Surgical). The plaintiff maintained an active membership in the fitness center which the defendant provided on its premises for its employees. On March 5, 2002, while performing an aerobic exercise at the direction of the class instructor employed by the defendant at the fitness center, the plaintiff fell while using a yoga ball. When she quickly stood up, she sustained an injury. The plaintiff alleges that her injury was caused by the negligence of the defendant, its agents, servants and employees in allowing the gymnasium floor to become dusty, unclean or slippery; in failing to remedy the dangerous and defective condition; in failing to erect proper safeguards, signs or warnings; in failing to inspect the premises; and in maintaining the gymnasium floor in these conditions.
The defendant has denied that it was negligent and has asserted two special defenses. The first special defense alleges that the plaintiff was contributorily negligent. The second special defense alleges that the plaintiff's claim is barred by a release of liability she signed when she joined the fitness center.
The defendant has moved for summary judgment based on the release it alleges the plaintiff signed. The defendant's motion presents two principal issues: (1) whether there is a genuine issue of material fact as to whether the plaintiff signed a release and (2) if she did sign a release, whether the release bars this action.
In her brief, the plaintiff also argues that the defendant could not move for summary judgment based on the release without first pleading the release as a special defense. The defendant subsequently amended its answer to add a special defense, alleging that the plaintiff signed the release, the provisions of which bar her claim. The plaintiff did not object to the amended answer adding the special defense. See Practice Book § 10-60(a)(3).
I
The first issue that must be addressed is whether there is a genuine issue of material fact as to whether the plaintiff signed the release. The plaintiff argues that "the failure to produce a copy of the very Release signed by [the plaintiff] inevitably creates a genuine issue of fact to wit, did she actually sign the subject Release to begin with?" The court disagrees.
For over 200 years, Connecticut law has recognized that a party may resort to secondary evidence to establish the existence and terms of a written instrument that no longer exists. "A party's having lost his written security hath not thereby lost his right; but may resort to the next best evidence, the nature of the case will admit of, to prove and make it out; as by a sworn copy, parol testimony, or other evidence, which goes to prove the execution and tenor of the writing . . ." Kelley v. Riggs, 2 Root (Conn.) 126, 128 (1794); see Hinsdale v. Miles, 5 Conn. 331, 334 (1824) ("The loss of a bill or note alter not the rights of the owner, but merely renders secondary evidence necessary and proper . . .").
See also General Statutes § 42a-3-309 which applies to negotiable instruments. The section provides, in part: "(a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process."
In support of its claim that the plaintiff signed the release, the defendant submitted the affidavit of Betsy Bell, the manager of the defendant's health and wellness programs. Bell was employed by the defendant prior to the March 2002 date of the plaintiff's injury. Her affidavit states that she is familiar with the process by which U.S. Surgical employees joined the fitness center. Prior to March 2002, any employee who wished to become a member of the fitness center was provided with an application packet. The employee was required to read and sign an "Agreement and Release of Liability." A member of the fitness center would review the provisions of the Agreement and Release of Liability with the employee. There were no exceptions to the rule that each employee who wished to become a member of the fitness center had to read and sign the Agreement and Release of Liability form. The plaintiff as an employee seeking membership in the fitness center, was required to sign the Agreement and Release of Liability form before she could use the fitness center. While she was an employee of U.S. Surgical, the plaintiff did use the fitness center and participated in classes at the fitness center.
Employees had to read the membership information packet, complete a health screening questionnaire, have a blood pressure reading, read and sign a participation consent form, pay the membership fee, return all signed forms, go through a "fitness initial" with the staff and have a cardkey coded for entry into the fitness center.
The agreement and release provided in relevant part:
"1. In consideration of gaining membership or being allowed to participate in the activities and programs of United States Surgical Fitness Center and to use its facilities, equipment, and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge United States Surgical and its officers, agents, employees, representatives, executors, and all others from any and all responsibilities or liability for injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above-mentioned facilities or arising out of my participation in any activities at said facility. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any of those mentioned or others acting on their behalf or in any way arising out of or connected with my participation in any activities of United States Surgical Fitness Center or the use of any equipment at United States Surgical Fitness Center.
(Please initial ______________)
"2.1 understand and am aware that strength, flexibility, and aerobic exercise, including the use of equipment, is a potentially hazardous activity. I also understand that fitness activities involve a risk of injury and even death and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death."
(Please initial ____________________)
Date __________________ Signature ___________________
The plaintiff has not filed her own affidavit in opposition to the defendant's motion. The plaintiff's attorney has filed an affidavit in addition to copies of correspondence stating that she notified the defendant of the claim in January 2003. Although a release was referred to in correspondence by the defendant's attorney, a copy of a release signed by the plaintiff was never provided by the defendant nor was a copy contained in the plaintiff's personnel file.
An affidavit by a party's attorney should ordinarily not be used to oppose a summary judgment motion. Farrell v. Farrell, 182 Conn. 34, 37 n. 2, 438 A.2d 415 (1980). Here, however, the affidavit of the plaintiff's attorney relates to formal matters, such as the sending and receipt of correspondence, about which there is no contest. Under these circumstances, the affidavit is not improper. Rules of Professional Conduct 3.7(a)(1); State v. Thompson, 20 Conn.App. 290, 294, 567 A.2d 837 (1989).
The defendant filed a reply memorandum in support of its motion and also submitted a second affidavit by Bell. The second affidavit states that after an employee completed the Agreement and Release of Liability form, it was retained at the fitness center. In January 2003, before the fitness center was aware of a claim being filed by the plaintiff, the fitness center purged its records in regard to terminated employees and destroyed all records relating to these employees, including those of the plaintiff.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . [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 nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380 [now § 17-45]." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The defendant has adduced evidence through Bell's affidavits that the plaintiff signed the release prior to using the fitness center. The affidavit of the plaintiff's attorney, together with the documents attached to it, may raise a question as to whether that release was destroyed in early January 2003, before she put the defendant on notice of the plaintiff's claim, or after that time. However, the plaintiff's affidavit does not raise an issue of material fact. "It is not enough that one opposing a motion for a summary judgment claims that there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). "A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Id., 379.
Whether the defendant destroyed the release before or after the plaintiff's attorney put it on notice of the plaintiff's claim is not a material fact. There is no evidence controverting the fact that the plaintiff signed the release nor is there evidence controverting the terms of that release. To oppose the motion for summary judgment successfully, the plaintiff was required to recite specific facts in accordance with Practice Book §§ 17-45 and 17-46, which contradicted those stated in the defendant's affidavits and documents. Farrell v. Farrell, 182 Conn. 34, 39-40, 438 A.2d 415 (1980). Since the plaintiff has failed to do so, there is no genuine issue that the plaintiff executed the release nor any issue as to the terms of that release. Although there is no genuine issue that the plaintiff executed the release, the court must determine whether the release bars this action.
II
"The law does not favor contract provisions which relieve a person from his own negligence . . . Such provisions, however, have been upheld under proper circumstances . . . [T]he law's reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . ." (Citations omitted; internal quotation marks omitted.) BD Associates, Inc. v. Russell, 73 Conn.App. 66, 72, 807 A.2d 1001 (2002).
"Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . ." (Internal quotation marks omitted.) Id.
"By and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included . . . That does not mean that the word `negligence' must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear . . ." (Internal quotation marks omitted.) Id., 72-73.
Subsequent to the decision in BD Associates, Inc., the Connecticut Supreme Court stated 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, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003) The court did "not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable." Id., 640. The court cited cases from other jurisdictions which did hold that for an agreement to exculpate a party from its own negligence, the agreement must expressly state that it does so. Id., 641-42. The agreement before the court, however, did not contain language releasing the defendant from liability resulting from its negligence. Id., 640.
The plaintiff argues that "to the extent that the Supreme Court itself is equivocal on the issue of the effect of a Release on liability, then any resolution is far from clear cut. Hyson v. White Water Mountain Resorts, 265 Conn. 636, 643, n. 11, 829 A.2d 827 (2003)." The court finds no support for the plaintiff's argument, particularly when applied to the language of the Agreement and Release of Liability, nor has the plaintiff adequately briefed this issue.
The release signed by the plaintiff plainly and unambiguously released the defendant, as well as "its officers, agents, employees, representatives, executors and all others from any and all responsibilities or liability for injuries or damages resulting from my participation" at the fitness center. It then explicitly "release[d]" the defendant and the others mentioned "from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission" of the defendant. Since the agreement signed by the plaintiff expressly released the defendant from liability for injuries to the plaintiff resulting from defendant's future negligence, the release is a defense to the plaintiff's action.
See footnote 4.
There is no genuine issue of material fact; the defendant is entitled to judgment as a matter of law. The defendant's motion for summary judgment is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court