Although the parent of a teen injured at Brownstone Exploration & Discovery Park in 2016 signed a liability waiver, Cramer & Anderson Partner Chris Sochacki has surmounted the waiver’s requirement that any claim resulting from an injury go to arbitration, allowing a pending lawsuit against the water park to proceed.
On May 6, U.S. District Court Judge Alvin Thompson struck down Brownstone counsel’s attempt to stay the lawsuit based on a provision in the liability waiver stating that if guests are injured, those signing the waivers agree that all claims must be first arbitrated by a panel of three for the sole purpose of determining whether the claimed injuries were the result of the “inherent risks” associated with the activities in which they are engaged. If so, the claim is barred. Under Connecticut law, adventure parks, ski slopes, and other recreation facilities, are not liable for injuries resulting from activity associated with inherent risks.
After Attorney Sochacki filed the lawsuit in 2018, Brownstone counsel moved to enforce the liability waiver signed by patrons to gain entrance into the park. The waiver/arbitration provision at issue in the case specifically released the facility from all injuries arising out of inherent risks of participation. However, while the waiver did not define “inherent risks,” it stated that claims considered related to “inherent risks” of the activities/programs included those injuries arising from instructions given to patrons while using the attractions/programs available.
“It was a lengthy back-and-forth argument, but we prevailed in striking down the waiver/arbitration provision. We can now proceed with our action,” Attorney Sochacki told colleagues, underscoring the potential for analyzing and addressing the seemingly prohibitive provisions of liability waivers.
“We had several arguments why we believed the waiver/arbitration provision should fail. But the one the judge focused on was our argument that the scope of ‘inherent risk’ to include instruction provided was overly broad and an effort by the facility to contract away liability for its own negligence in the act of providing proper instructions and guidance to its guests on how to use the attractions. We argued, therefore, that it rendered the contractual provision legally void and unconscionable,” said Attorney Sochacki, who is being assisted in the case by Associate Eric Larson. He played a substantial role in the legal research and drafting of the successful brief.
A liability waiver “cannot protect a recreational facility from
its own negligent acts”
The firm’s highly-experienced Personal Injury lawyers have studied liability waivers and their effect, with Attorney Larson noting “waivers cannot protect a recreational facility from its own negligent acts” in a website post he wrote about liability waivers in advance of the 2018-19 skiing season.
In July 2016, the New Hampshire teen was injured at Brownstone on an inflatable iceberg climbing wall that floated on top of a water feature.
The teen suffered a dislocated right knee, torn ligaments, trauma and soft tissue damage to her lower back, and pain, suffering and emotional distress, including anxiety and depression, according to the lawsuit, filed in July 2018. The lawsuit also says of the injured teen, “She has endured and will continue to endure for an indefinite period of time, great mental and physical pain and suffering.”
The lawsuit argues the teen’s injuries resulted from “negligent operation of a specific attraction … negligent supervision of the number of guests allowed on the specific attraction, and inadequate warning, instruction, or enforcement of proper use of the specific attraction on the Defendant’s property.”
“The inflatable iceberg climbing wall apparatus was located a considerable distance away from the nearest lifeguard, was used by an excessive number of guests simultaneously, and was allowed to be used in a manner outside of the safety requirements for such an attraction,” the lawsuit says, also stating, “At all relevant times to this action, the inflatable iceberg climbing wall apparatus was in an unsafe, dangerous, or defective condition which created an unreasonable risk of harm to users thereof, including the Plaintiff.”
Injuries ’caused by the negligence
or carelessness of the Defendant’
The lawsuit also argues “the Plaintiff’s injuries, damages and losses were proximately caused by the negligence or carelessness of the Defendant, its agents, servants, or employees, in one or more of the following aspects:
- … the Defendant knew, or in the exercise of reasonable care should have known, that the inflatable iceberg climbing wall apparatus created an unreasonable risk of harm to the patrons of the facility, including the Plaintiff
- … the Defendant failed to properly advise or instruct the patrons of the facility, including the Plaintiff, in the safe and proper manner to use the inflatable iceberg climbing wall apparatus;
- … the Defendant failed to warn the Plaintiff of the unsafe, dangerous, or defective condition of the inflatable iceberg climbing wall apparatus;
- …. the Defendant failed to properly oversee the manner in which other patrons used the inflatable iceberg climbing wall apparatus thereby creating a foreseeable risk of injury to the users thereof, including the Plaintiff;
- … the Defendant failed to reasonably limit the number of patrons that could use the inflatable iceberg climbing wall apparatus simultaneously;
- … the Defendant failed to properly supervise, train, monitor, control, oversee, instruct, or evaluate its employees on how to safely operate or utilize the inflatable iceberg climbing wall apparatus;
- … the Defendant failed to have an adequate number of staff supervising the use of, and conduct on, the inflatable iceberg climbing wall apparatus, such that the conduct of invitees could not be controlled and properly supervised.
The lawsuit seeks more than $75,000 in damages and a jury trial.
About Attorney Sochacki
Partner Chris Sochacki’s civil litigation practice focuses on helping people who have been wronged or injured, including personal injury, product liability, construction defects and medical malpractice, professional malpractice, workers’ compensation claims, and more.
He was named Best Personal Injury Lawyer in the Waterbury Republican-American newspaper’s 2018 Reader’s Choice Awards. Also in 2018, the Connecticut Law Tribune named Attorney Sochacki a Distinguished Leader among Connecticut attorneys as part of its annual statewide Professional Excellence Awards.
~ About Cramer & Anderson ~
Serving clients from six offices in western Connecticut, Cramer & Anderson has a hometown sensibility, a strong regional presence, and a worldly outlook in Practice Areas extending from Personal Injury and Divorce & Family Law to Immigration, Municipal Law, Land Use Law, Real Estate, Workers’ Comp and much more.
The flagship office is located on the Green in New Milford. Additional offices are located in Danbury, Litchfield, Kent, and Washington Depot, and the firm has a new office in Ridgefield, serving Fairfield County. For more information, see the website at crameranderson.com or call the New Milford office at (860) 355-2631.