Sep 22 2020

Potential Enforceability of COVID-19 Waivers in Recreational Contexts in Connecticut and Surrounding States

As states across the country implement their reopening procedures and issue health and safety guidelines to businesses in light of the COVID-19 pandemic, many businesses such as gyms, and other providers of recreational activities may require patrons to sign liability releases or waivers to exculpate the provider from liability should a patron contract COVID-19 while engaging in the recreational activity sponsored by or at the provider’s facility. Liability waivers seek to immunize a recreational facility for injury and compensable damages sustained by a participant arising from participation in recreational activities. A written liability waiver is a method employed to potentially limit the facility’s potential exposure to tort claims for injuries that may be sustained while using the facility or participating in a sponsored event. It is anticipated that recreational facilities have and will expand their existing waivers to include exposure to COVID-19 absolving the provider of liability if a participant were to contract COVID-19 while engaging in the activity or from contact at the facility. There is believed to be significant health risk from contracting COVID-19, including the risk of significant illness and even death. Effectively, by requiring the execution of a waiver, the provider would be disclaiming liability for the potential exposure to COVID-19 to the participant, requiring the patron to assume all risks inherent in participating in the activity, including the risk of exposure to COVID-19, thereby providing immunity to the facility should the patron contract the virus while engaging in said activity. Although there may be legislation proposed at the state or federal level in the future which may serve to limit tort liability exposure to businesses if their patrons contract COVID-19 as a result of exposure at the business’ facilities or sponsored events, in the absence of such legislation, the potential enforceability of recreational waivers is examined pursuant to existing common law. This article does not address other legal issues which may also be raised including, but not limited to, whether a business has a legal duty to prevent or limit COVID-19 transmission amongst its patrons, what is the standard of care and was there a violation thereof, what evidence is necessary to establish causation for virus transmission and resulting harm, what are the recoverable damages, and is emotional distress arising from the fear of contracting the virus recoverable? Nor does this article address the coverage issues implicit in COVID-19 related insurance claims.

With the COVID-19 pandemic having emerged in the United States in early March of 2020, courts have not yet had the opportunity to consider whether recreational waivers are enforceable as applied to COVID-19 exposure. To date, there is also an absence of legislative authority designed to immunize businesses from COVID-19 liability including recreational businesses. This article uses existing case law governing the enforceability of traditional recreational liability waivers across Connecticut, Massachusetts, New Jersey, and New York, 1 in order to provide a prediction of how courts in those states may interpret COVID-19 liability waivers. By comparison, Connecticut has the strictest standards, generally invalidating recreational liability waivers on broad public policy grounds whereas Massachusetts has the most lenient standards, generally favoring enforceability of liability waivers. New Jersey has moderately strict standards, generally enforcing recreational liability waivers unless they contravene narrow public policy considerations. In New York, if the activity falls within the proscription of General Obligations Law § 5-326, which invalidates recreational liability waivers on public policy grounds, the waiver will be invalidated. If the activity falls outside of the statute, New York courts will engage in a public policy evaluation somewhat similar to Connecticut. For facilities that engage in activities across multiple states, comparative analysis will be necessary.

Connecticut Recreational Liability Law

Connecticut has very strict standards governing the enforcement of recreational liability waivers. With the exception of equestrian 2 sports and skiing, 3 Connecticut does not have any statute which expressly immunizes recreational facilities from liability claims by their patrons. For all other recreational activities, prior precedence serves as a guide for how the Connecticut courts will interpret liability waivers.The dispositive issue will be whether a release signed by a plaintiff indemnifying the defendant from an action brought in negligence, precludes the plaintiff from recovering damages. More specifically, the fundamental legal issue will be whether the release violates public policy. The general rule is that where a person who is of mature years and who can read and write, signs or accepts a formal written contract affecting her pecuniary interests, it is that person’s duty to read it and notice of the contents if the contract or waiver will be imputed to that person. Connecticut courts, however, have held that where a liability waiver, though clear and unambiguous, purports to release a recreational provider from potential injuries resulting from its own ordinary negligence, the waiver will be deemed unenforceable as against public policy. See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 335 (2006); Reardon v. Windswept Farms, LLC, 280 Conn. 153, 161–62 (2006).  

Inherent risks are those risks that are inherent in the activity, or beyond the control of the recreational area operator and cannot be minimized by the operator’s exercise of reasonable care. The risks inherent in each type of recreation activity will necessarily vary, and some recreational activities are inherently more dangerous than others. As a threshold consideration, the courts examine the extent to which the defendant controls the activity. Where in exchange for a fee, the patron was permitted access to the defendant’s facilities and equipment; and the patron was under the care and control of the defendants, Connecticut courts conclude that the patron was subject to the risk of the defendant’s carelessness. Where the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an enjoyable, but reasonably safe experience and when the plaintiff lacked the knowledge, experience, and authority whether to know, much less ensure that, the defendant’s premises and equipment were maintained in a reasonably safe condition, Connecticut courts have concluded that the waiver agreement negatively affected the public interest and, therefore, deemed the waiver unenforceable. This rule, however, does not extend to risks that are inherent in the activity, as risks that are innate to various activities are beyond the control of the recreational operator and cannot be minimized by the operator’s exercise of reasonable care. Hanks, 276 Conn. at 336 n.12.

In Hanks, supra, the Connecticut Supreme Court articulated for the first time an extensive public policy analysis which weighs against enforcement of recreational liability waivers. The court concluded 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.” Id. at 330. These factors include: (a) considerations whether the release pertains to a business thought suitable to public regulation; (b) whether the party performing the service holds itself out as making the activity available for any member of the public who seeks it; and (c) whether the provider of the activity exercises superior bargaining power and confronts the public with a standard contract of adhesion. Reardon, supra, 280 Conn. at 159–60. Regarding the last point, nearly all liability waivers are contracts of adhesion because the participant does not have an opportunity to negotiate the terms and conditions—the release or waiver is presented on a take it or leave it basis. Adhesion contracts are strongly disfavored under Connecticut law, especially where the activity is highly encouraged by state public policy, which includes recreation activities. Thus, Connecticut courts routinely strike down liability waivers on public policy grounds because they are adhesion contracts, with participation conditioned on accepting the waiver and release terms and conditions as presented.

The Connecticut Supreme Court in Hanks, supra, further articulated several public policy considerations which weigh in favor of limiting the enforceability of recreational waivers. Where there is virtually, unrestricted access to the public to partake in the activity, “a reasonable person would presume that [the operators] were offering a recreational activity that the whole family could enjoy safely,” Hanks, 276 Conn. at 330, which weighs against the enforcement of a waiver that excuses the provider from negligence claims. Moreover, patrons are generally considered to be under the care and control of the operators. Participation is conditioned on an economic transaction and the operators have the knowledge, experience, and ability to identify and guard against risk. See id. Thus, Connecticut courts appear to closely scrutinize liability waivers for family or youth-oriented activities invalidating the waivers on public policy grounds.  

Where defendants acknowledge that they were responsible for providing their patrons with qualified instructors, as well as properly maintained working equipment and a safe environment for carrying out the activities, the courts are especially inclined to void liability waivers. Where the business operators were aware, and were in a position continually to gather more information regarding any hidden dangers associated with the recreational activity, the strengths of the various instructors, and the condition of the facility’s equipment and grounds, the courts have held that the defendants are the party with greater expertise and information concerning the dangers associated with activities conducted at their facility and the courts have reasoned that the business should not be relieved from potential claims of negligence surrounding an alleged failure to administer properly the activity. Therefore, the courts have almost uniformly held that businesses cannot avoid liability by the use of a recreational waiver agreement. It is anticipated that arguments may be fashioned by a participant claiming COVID-19 exposure, namely, that the business is the best position to provide and enforce health and sanitation standards in its facilities and programs.

In our estimation, the enforcement of a COVID-19 liability waiver in Connecticut for recreational activities will likely favor the participant rather than the provider. Courts in Connecticut may be unwilling to enforce a liability waiver that purports to relieve a recreational providers, such as gyms and voluntary sports leagues that cater to the general public for three compelling reasons. First, liability waivers are considered contracts of adhesion requiring the participant to waive claims against the provider for the provider’s own negligence, which is generally disfavored especially in the context of recreational activities that families tend to engage in. Second, the provider exercises control over the recreational activity and its facilities, and it is in the best position to mitigate against the risk of disease transmission, because it has control over sanitation practices and how its facility is used and operated and it can limit access. Third, if a fee is charged for participation, the provider is profiting from the activity and has an incentive to provide a safe environment for public use. The courts are likely to conclude that if the provider is shielded from liability, then there is a disincentive for the provider to engage in risk mitigation which on public policy grounds is disfavored.

There remains a possibility that Connecticut courts may view the risk of potential contraction of COVID-19 as an “inherent risk” of recreational participation for which the provider may be shielded from liability. Should the courts reach this conclusion, their analysis will likely be predicated on the belief that the community as a whole is exposed to the risk of COVID-19 transmission, even when appropriate safeguards are adhered to by a business. Under those circumstances where the recreational provider did not engage in conduct which exacerbated potential spreading of the virus and did not act in contravention of establish public health guidelines, the courts may hold that COVID-19 liability waivers are enforceable.

The best practice for recreational providers would be to clearly and unambiguously identify that the participant is waiving his or her rights to bring a negligence claim against the recreational facility as it relates to contracting COVID-19 because there is an inherent community-based risk in participation in all recreational activities regardless of risk mitigation. The provider should also follow all public health guidelines relating to sanitation and social distancing and implement practices which are reasonably designed to decrease the potential spread of COVID-19. If the provider can demonstrate that it was acting reasonably and carefully, but there remained a risk of transmittal of the virus nevertheless, it is more inclined to persuade a court that the risk of acquiring the virus is an inherent risk that cannot be avoided despite the facilities’ risk mitigation practices. Further, if the liability waiver is deemed unenforceable, and a negligence claim is permissible, the recreational provider should be prepared with evidence that it acted reasonably and appropriately with respect to its safety precautions by strictly following public health standards to establish that there was no violation of the standard of care. Expert testimony will likely buttress the defense.

Massachusetts Waiver Liability Law

Massachusetts law is generally very lenient and its public policy favors the enforcement of liability releases, provided it only purports to release the recreation provider from its own ordinary negligence. See Sharon v. City of Newton, 437 Mass. 99, 105 (2002); see also Cormier v. Central Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 289 (1993) (“An agreement . . . placing the risk of negligently caused injury on a person as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of [Massachusetts].”); Lee v. Allied Sports Associated, Inc., 349 Mass. 544, 550 (1965) (“[T]here is no rule of general application that a person cannot contract for exemption from liability for his negligence and that of his agents and servants.”); Zavras v. Capeway Motorcycles Club, Inc., 44 Mass. App. Ct. 17, 18 (1997). Absent fraud or duress, Massachusetts courts will not invalidate a recreational liability waiver merely because it must be signed as a condition to participate in the activity. Cormier, 416 Mass. at 288–89.

As noted, Massachusetts courts will only hold recreational liability waivers valid insofar as they purport to release a provider from its own ordinary negligence. See Zavras, 44 Mass. App. Ct. at 18–19. Generally, where a release attempts to contract away the provider’s potential liability for injuries resulting from its own gross negligence, recklessness, or statutorily-imposed duties, courts in this state will find such waivers void as against public policy. Id.; Continental Corp. v. Gowdy, 283 Mass. 204, 222 (1933). Notably, Massachusetts courts, unlike Connecticut, will not necessarily invalidate liability waivers simply because they resemble standard adhesion contracts, presented to potential participants on a “take it or leave it” basis, which they nearly always are. See Minassian v. Ogden Suffolk Downs, Inc., 400 Mass. 490, 492 (1987); Hunter v. Skate III, 1999 Mass. App. Div. 274, *2 (1999).

The Massachusetts Supreme Judicial Court has provided guidance on the types of public policy determinations it will consider. Provided that the release clearly and unambiguously indicates that they intend to exculpate the provider from liability for its ordinary negligence, participants cannot argue they are void as against public policy. Sharon, 437 Mass. at 103. Where liability waivers are a condition to participation in voluntary activities, rather than compelled or essential activities, courts will generally find there is no violation of public policy. Id. at 105–07. Though minors are permitted to repudiate contracts—releases included—signed on their behalf by their parents, courts generally will not declare these releases void as against public policy where the parent’s decision to sign was in consideration of the minor’s best interests. Id. at 107–09. Moreover, Massachusetts public policy encourages athletic activities for minors, and liability releases are considered consistent with that policy because it allows providers, like public schools, to continue to offer athletic activities for minors without fear of financial burden of litigation. Id. at 109–10.

Compared to Connecticut, in Massachusetts, it is more likely that COVID-19 waivers will be deemed enforceable given its very lenient standard, provided such waivers are clear and unambiguous and only purport to exculpate recreation providers from ordinary negligence in connection with COVID-19 risks. Moreover, Massachusetts is significantly more lenient than Connecticut on the enforcement of adhesion contracts, including recreational liability agreements. Thus, requiring participants to sign COVID-19 waivers as a condition for participation in recreational activities will not necessarily render the release void as against public policy in Massachusetts. Facilities, however, are not protected from claims arising from the provider’s potential liability for injuries resulting from its own gross negligence or recklessness.

The best practice for recreational providers in Massachusetts would be to clearly and unambiguously identify that the participant is waiving his rights to bring a negligence claim against the recreational facility as it relates to contracting COVID-19 because there is a community-based risk inherent in participation in all recreational activities regardless of risk mitigation. The provider should also follow all public health guidelines relating to sanitation and social distancing and implement practices which are reasonably designed to decrease the potential spread of COVID-19, thus mitigating against a claim of gross negligence or recklessness.

New Jersey Waiver Liability Law

New Jersey law is moderately strict with respect to its enforcement of liability waivers. In general, New Jersey courts will enforce liability waivers if: (1) they do not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) they do not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable. Gershon v. Regency Driving Ctr., Inc., 368 N.J. Super. 237, 248 (App. Div. 2004). New Jersey courts will scrutinize these agreements closely and will likely void the waivers as against public policy if they purport to release a provider from liability for intentional or reckless conduct or from statutorily-imposed duties. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 303 (2010); Hojnowski v. Vans Skate Park, 187 N.J. 323, 332–33 (2006). Similar to Connecticut, New Jersey law provides that recreational providers will not be liable for injuries sustained as a result of an activity’s “inherent risks” so long as the provider acts with reasonable care to not exacerbate those risks. See Hojnowski, 187 N.J. at 340–41. Moreover, the waivers must be clear and unambiguous in the representation that the party signing the waiver is giving up legal rights to sue and is relieving the provider of liability for its own ordinary negligence. Stelluti, 203 N.J. at 304–05.

However, the New Jersey Supreme Court has noted several key public policy considerations in addressing liability waiver enforceability. Waivers signed by a minor child’s parent on his or her behalf releasing the minor’s potential future tort claims as a condition of participation in commercial, recreational activities are void as against public policy, namely, the parens patriae doctrine.5 Hojnowski, 187 N.J. at 322–33. By contrast, in the context of gyms and health clubs, liability waivers are not voidable as against public policy where the participant voluntarily chooses to assume inherent risks with strenuous exercise and equipment. Stelluti, 203 N.J. at 313. Moreover, the courts have noted that public policy does not require a “per se ban” against the enforcement of liability waivers based on the fact that the provider owes some common law duty to the participant. Id. at 306. At a minimum, recreational providers owe a duty to their business invitees to keep their premises in a reasonably safe condition, free from defects it knows or should know about. Id. at 311–12. Furthermore, New Jersey courts will generally not invalidate these waivers on public policy grounds even though they are adhesion contracts where there are no “procedural deficiencies”; e.g., where the courts determines there was no unequal bargaining power. See id. at 300–02 (noting that the plaintiff was free to take her business to a different gym if she was unsatisfied with the waiver’s terms or find some alternative form of exercise).

Based on existing law, COVID-19 waivers in the recreational context are likely to be enforced in New Jersey, provided, that they are clear and unambiguous that they are releasing the recreation provider from its own ordinary negligence related to COVID-19, especially if exposure is deemed an inherent risk. Nevertheless, providers should ensure they take reasonable steps and ordinary care to reduce any potential spread of COVID-19. The primary challenge to enforcement of these waivers involves waivers signed on behalf of minors, because under Hojnowski, such waivers signed for minors by their parents are deemed facially invalid as against public policy. Thus, activities involving minors pose greater challenges to liability waiver enforcement assuming Hojnowski is extended to COVID-19 transmission risk.

The best practice for recreational providers in New Jersey would be to clearly and unambiguously identify that the participant is waiving his or her rights to bring a negligence claim against the recreational facility as it relates to contracting COVID-19 because there is an inherent community based risk involved in participation in all recreational activities regardless of risk mitigation. The provider should also follow all public health guidelines relating to sanitation and social distancing and implement practices which are reasonably designed to decrease the potential spread of COVID-19. With respect to minors, a waiver will likely be deemed invalid, therefore, the provider should be prepared with evidence to demonstrate that it was acting reasonably and carefully, to overcome a negligence claim because its risk mitigation practices were appropriate and strictly complied with public health guidelines.

New York Waiver Liability Law

New York’s General Obligations Law § 5-326 governs recreational liability waivers and provides in pertinent part:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

(Emphasis added). N.Y. Gen. Oblig. Law § 5-326 (McKinney). Accordingly, as a threshold matter, recreational liability waivers are deemed unenforceable pursuant to a statutory edict in New York.

New York’s case law provides insight into how this statute is interpreted by the courts and to whom it is applied.6 Generally, for those circumstances where the statute does not plainly apply, the analysis focuses on: (1) whether the provider or facility was for “recreation” as opposed to instruction, and (2) whether the participant paid a fee for use or “tuition.” For waivers that do not fall within the statute’s purview, the waiver will be enforced unless contrary to public policy or the claim arises from gross negligence or recklessness. See Gross v. Sweet, 49 N.Y.2d 102, 106 (1979). The language in the waivers must be clear and unambiguous, indicating plainly and precisely that the liability limitation extends to the provider’s ordinary negligence.

Where a facility’s primary purpose is recreational and instruction is offered as an “ancillary” service, New York courts generally hold that a waiver falls within the statute and strike the waiver as invalid. See, e.g., Debell v. Wellbridge Club Management, Inc., 40 A.D.3d 248, 249 (App. Div. 2007) (holding that liability waiver did not bar plaintiff from suit where spa’s primary purpose was recreation and plaintiff was injured during instruction period provided as ancillary service); Bacciocchi v. Ranch Parachute Club, Ltd., 273 A.D.2d 173, 175 (App. Div. 2000) (noting in “mixed-use” facility cases, the distinguishing factor is whether the defendant is in the business of recreation or instruction). C.f. Jones v. Smoke Tree Farm, 161 A.D.3d 1590, 1591 (App. Div. 2018) (holding a liability waiver valid because horseback riding facility was primarily instructional with recreation an ancillary function). In determining whether a facility is “recreational” or “instructional” and thus exempted by the statute, courts have considered, inter alia, the organization’s name, certificate of incorporation or similar document, its statement of purpose, and whether the money it charges is tuition or a fee for use of the facility. Lemoine v. Cornell University, 2 A.D.3d 1017, 1019 (App. Div. 2003).

The New York courts narrowly distinguish between those operations in which a plaintiff paid a “fee” or “tuition” as a condition of participation, determining that “fees” are actually tuition if the activity is some form of instructional course rather than a one-time fee or recurring fee. See, e.g., id. at 1020 (holding that “fee” paid for instructional rock climbing class was actually tuition); Brookner v. New York Roadrunners Club, Inc., 51 A.D.3d 841, 842 (App. Div. 2008) (concluding that fee paid by plaintiff to participate in marathon was not a fee for admission allowing him use the public roadway and, thus, the activity did not fall with the scope of the statute); Debell, 40 A.D.3d at 250 (monthly members’ fees charged by the club was a “fee” within the meaning of the statute).

Enforcement of COVID-19 waivers in New York will be challenging for recreational providers that plainly come within the statute’s purview, gyms being a notable example. Even if providers take the necessary steps to make the waiver plainly clear, it is exculpating the provider from ordinary negligence associated with COVID-19 transmission, and such waivers are likely to be deemed void as against public policy. However, COVID-19 waiver enforcement fares better for recreational providers who are primarily “instructional” and where a fee is charged, that “fee” is actually tuition. As such, unless the New York legislature or a court declares an exception to COVID-19 liability waivers, public policy will generally void liability waivers across different recreational providers.

The best practice for recreational providers in New York would be to clearly and unambiguously identify that the participant is waiving his or her rights to bring a negligence claim against the recreational facility as it relates to contracting COVID-19 because there is an inherent community-based risk in participation in all recreational activities regardless of risk mitigation. The provider should also follow all public health guidelines relating to sanitation and social distancing and implement practices which are reasonably designed to decrease the potential spread of COVID-19. If the provider can demonstrate that it was acting reasonably and carefully, but there remained a risk of transmittal of the virus nevertheless, it is more inclined to convince the court that the risk of acquiring the virus is an inherent risk that cannot be avoided despite the facilities’ risk mitigation practices.

Conclusion

As recreational providers increasingly implement COVID-19 liability waivers to mitigate their potential liability should a patron contract the virus, litigation aimed at voiding these waivers will likely increase. A survey of existing case law in Connecticut, Massachusetts, New Jersey, and New York reveals that courts have not yet addressed the enforceability of these waivers. Litigants will be forced to rely on existing case law to balance the imposition of contracts of adhesion and public policy considerations encouraging recreational activities without exculpating the provider from liability for its own negligence particularly if it did not adhere to public health guidelines. As public policy grounds tend to be the main considerations, the courts will evaluate public policy considerations in assessing whether to uphold a waiver. Courts will balance their state’s public policy considerations with the risks of contracting COVID-19 in the community, not just recreational activities. The courts may seek to protect recreational providers from costly litigation, in an already harsh economic climate, assuming the states do not enact legislation to limit COVID-19 liability to businesses including recreational providers. However, with the risk of serious health complication including death from COVID-19 exposure, courts will be sympathetic to a plaintiff seeking recovery especially when a facility did not take appropriate and did not follow recommended safety and sanitation guidelines and procedures.

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Rhode Island has very little case law regarding traditional recreational liability waivers to provide any guidance about how courts in that state would likely interpret them. Therefore, this article does not evaluate the enforceability of waiver in Rhode Island.

“Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees.” Conn. Gen. Stat. § 52-557p.

(a) For the purposes of this section: (1) “Skier” includes any person who is using a ski area for the purpose of skiing or who is on the skiable terrain of a ski area as a spectator or otherwise, but does not include (A) any person using a snow tube provided by a ski area operator, and (B) any person who is a spectator while in a designated spectator area during any event; (2) “Skiing” means sliding downhill or jumping on snow or ice using skis, a snowboard, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain, but does not include snow tubing operations provided by a ski area operator; and (3) “Ski area operator” means a person who owns or controls the operation of a ski area and such person's agents and employees.

(b) Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (2) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

(c) The provisions of this section shall not apply in any case in which it is determined that a claimant's injury was not caused by a hazard inherent in the sport of skiing. Conn. Gen. Stat. § 29-212. If an activity is considered inherently dangerous like sky diving, parachuting, or other similarly highly dangerous activities, liability waivers are deemed enforceable.

If an activity is considered inherently dangerous like sky diving, parachuting, or other similarly highly dangerous activities, liability waivers are deemed enforceable.  

5 Parens patriae refers to the “state in its capacity as provider of protection to those unable to care for themselves.”

The statute is clear as to certain categories of recreational providers but the cases address other activities such as skydiving schools, rock climbing classes, and motorcycle riding schools.

 

 

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