CONNECTICUT
Likelihood of Enforcement: Low
A. Pre-Injury Liability Waivers
Connecticut law “does not favor contract provisions which relieve a person from his own negligence.” Hyson v. White Water Mountain Resorts of Conn., Inc., 829 A.2d 827, 831 (Conn. 2003) (citation omitted). Connecticut will enforce a liability waiver if the waiver is unambiguous and enforcement would not violate Connecticut’s public policy, but the standard for meeting these requirements is high. Id.
An exculpatory clause is enforceable only if it “expressly and unambiguously purports to release the defendants from prospective liability for negligence” and the language is drafted such that “an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence.” Hanks v. Powder Ridge Rest. Corp., 885 A.2d 734, 740 (Conn. 2005). Unlike many other states, Connecticut courts will not find that a contract unambiguously exculpates the defendant from liability for negligence unless it explicitly uses the term negligence. Hyson, 829 A.2d at 831 (“[A] party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.”).
Additionally, Connecticut courts can—and frequently do—conclude that a carefully drafted liability waiver is unenforceable because it violates public policy. See Brown v. Soh, 909 A.2d 43, 48 (Conn. 2006). While courts must consider the “totality of the circumstances” to determine whether a liability waive violates public policy, they are “guided” by the factors outlined by the California Supreme Court in Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963). Id. In Brown v. Soh, the Connecticut Supreme Court explained that courts should consider:
“whether: (1) the exculpatory agreement concerns a business of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) the party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; (5) in exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a signatory may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of the signatory, as a result of the transaction, is placed under the control of the party seeking exculpation, subject to the risk of carelessness by that party or his agents.”
Id. An exculpatory clause can violate public policy “even if some of these factors are not satisfied.” Id. Further, courts can consider additional factors “that may be relevant given the factual circumstances of the case and current societal expectations.” Hanks, 855 A.2d at 744.
Under this standard, exculpatory provisions will be enforced if they are used “to allocate a predictable risk between two commercial entities of equal bargaining power, and the provision was not an attempt to limit liability for personal injuries.” Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 989 A.2d 1075, 1082 (Conn. App. 2010) (enforcing indemnification clause in horse breeding contract). However, the Connecticut Supreme Court has held that “exculpatory agreements in the employment context violate Connecticut public policy” because (1) workplace safety is subject to public regulation, (2) employees are at a bargaining disadvantage because of the “economic compulsion facing those in search of employment,” (3) the contract was a “standardized adhesion contract,” and (4) employers have significant control over their employees. Brown v. Soh, 909 A.2d at 49-50.
Connecticut courts often refuse to enforce pre-injury liability waivers for voluntary recreational activities due to public policy concerns. Hanks, 885 A.2d at 747 (reasoning that “voluntary recreational activities . . . constitute an important and healthy part of everyday life” and the operators of such activities may have a “bargaining advantage” over their customers). To evaluate liability waivers for recreational activities, Connecticut courts have considered whether the activity’s operator makes the activity available “to the public generally, regardless of prior . . . experience,” such that “a reasonable person would presume that [the business was] offering a recreational activity that the whole family could enjoy safely.” Id. at 744; accord Reardon v. Windswept Farm, LLC, 905 A.2d 1156, 1161 (2006) (pointing out that a horseback riding facility “routinely had patrons of varying ability levels,” even though the plaintiff was an experienced rider).
Courts have also attempted to determine whether the customer “[is] under the care and control” of the recreational activity’s operator. Hanks, 855 A.2d at 744 (noting that the defendants “designed and maintained the snowtubing run” and “provided the plaintiff with the requisite snowtubing supplies”); accord Reardon, 904 A.2d at 1161. Courts do not want to place the burden of evaluating and minimizing risk on the party that lacks the “knowledge, experience and authority” to do so and therefore remove any incentive to maintain safe conditions. Hanks, 855 A.2d at 744. Finally, Connecticut courts are skeptical of liability waivers in adhesion contracts, particularly those which are presented to the customer on a “take it or leave it basis” after they have already arrived at the activity ready to participate. Id. at 746; accord Reardon, 904 A.2d at 1162.
Since Connecticut does not recognize degrees of negligence, there is no general rule that contracts cannot release a party from liability for gross negligence. Hanks, 885 A.2d at 748.
B. Liability Waivers Signed by Parents on Behalf of Minor Children
The Connecticut Supreme Court has never decided whether parents can sign pre-injury liability waivers on behalf of their minor children. At least two Connecticut Superior Court judges have enforced such liability waivers. See Saccente v. LaFlamme, No. CV0100756730, 2003 WL 21716586, at *4 (Conn. Super. Ct. July 11, 2003) (enforcing liability waiver signed on behalf of child in exchange for horseback riding lessons); Fischer v. Rivest, No. X03CV000509627S, 2002 WL 31126288, at *11 (Conn. Super. Ct. Aug. 15, 2002) (enforcing liability waiver that parent signed on behalf of minor child before ice hockey game).
At the same time, several other Connecticut Superior Court judges have reached the exact opposite conclusion. See Fedor v. MauwehuCouncil, Boy Scouts of Am., Inc., 143 A.2d 466, 468 (Conn. Super. Ct. 1958) (“[I]t is doubtful that either the mother or father of this minor plaintiff had the power or authority to waive his rights against the defendant arising out of acts of negligence on the part of the defendant”); Howroyd v. Clifford, No. CV 96056331S, 1997 WL 535246, at *1 (Conn. Super. Ct. Aug. 6, 1997) (“[T]he law does not favor waivers executed by minors or adults on behalf of minors”); Ehrenrich v. Mohawk Mountain Ski Area, No. CV030090988, 2004 WL 3090681, at *1 (Conn. Super. Ct. Dec. 2, 2004) (“[I]t is well established that a parent cannot waive the rights of a child to recover from another for that other person’s own negligence”); cf. Keeney v. Mystic Valley Hunt, No. 562120, 2003 WL 22792318, at *3 (Conn. Super. Ct. Nov. 13, 2003) (declining to enforce clause requiring parents to indemnify defendant for child’s injuries because “[t]his is precisely the type of scenario that the parental immunity doctrine is designed to prevent”).
Last updated 03/2022
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.