Thompson v. Hi Tech Motor Sports, Inc.
945 A.2d 368, 183 Vt. 218, 2008 VT 15 (2008)
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Rule of Law:
A pre-injury liability release for a non-essential, recreational activity is not void as contrary to public policy, but to be enforceable against a claim of the provider's own negligence, its language must be clear and unmistakable, explicitly including negligence or using words that convey a similar specific intent.
Facts:
- In May 2003, plaintiff went to defendant's motorcycle dealership to test drive a motorcycle.
- Plaintiff informed a salesperson that she was a relatively new rider with experience only on a 200cc engine motorcycle, though she possessed a valid motorcycle license.
- The salesperson encouraged plaintiff to test ride a 750cc motorcycle.
- Before the test ride, plaintiff signed a single-page release form provided by the dealership.
- The form stated that the signatory had prior experience, a valid license, was familiar with the vehicle's operation, and understood motorcycling was inherently dangerous.
- During a group promotional test ride, while operating the 750cc motorcycle, plaintiff lost control while turning and downshifting, causing her to hit a guardrail and sustain injuries.
Procedural Posture:
- Plaintiff sued defendant for negligence in Vermont superior court (trial court).
- Defendant filed a motion for summary judgment, asserting the signed release barred the suit.
- Plaintiff filed a cross-motion for partial summary judgment, arguing the release was contrary to public policy and ambiguous.
- The trial court denied defendant's motion and granted plaintiff's partial summary judgment motion, ruling the release was 'void for being contrary to public policy.'
- The trial court granted defendant permission to file an interlocutory appeal to the Vermont Supreme Court on the public policy question.
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Issue:
Does a pre-injury liability waiver signed before a motorcycle test drive, which releases 'any claim' for injury resulting from the vehicle's 'operation' but does not explicitly mention negligence, bar a lawsuit alleging the dealership's own negligence?
Opinions:
Majority - Reiber, C.J.
No. The liability waiver does not bar a lawsuit for the dealership's own negligence because while it is not void as contrary to public policy, its language is not sufficiently clear to release claims of negligence. First, the release is not void on public policy grounds because providing motorcycle test drives is not an essential public service, and public policy, as reflected in statutes, places the responsibility for safe operation on the driver, who has control of the vehicle. This distinguishes the case from situations involving premises liability, like the ski resort in Dalury v. S-K-I, Ltd., where the owner has control over the environment. Second, the scope of the release does not cover the defendant's own negligence. Exculpatory clauses for negligence are disfavored and strictly construed. The release's broad language waiving 'any claim' resulting from 'operation' of the vehicle, when read in the context of its reference to the 'inherently dangerous' nature of motorcycling, only waives claims arising from those inherent risks, not from the dealer's separate, active negligence.
Concurring-in-part-and-dissenting-in-part - Johnson, J.
No. The waiver is unenforceable, but it should be held void as contrary to public policy, not merely on grounds of contractual interpretation. The majority's case-by-case 'totality of the circumstances' test is unpredictable and subjective. A clearer rule should be adopted: exculpatory clauses in consumer transactions are void as against public policy due to the inherent inequality in bargaining power. Businesses control the product, possess superior knowledge, and are better positioned to manage and insure against risks. Allowing vendors to disclaim liability for their own negligence undermines the fundamental tort principles of compensation, loss allocation, and deterrence. Therefore, the release should be voided entirely on public policy grounds, establishing a predictable rule for all consumer transactions.
Analysis:
This decision refines the two-step analysis for exculpatory agreements in Vermont, distinguishing between public policy validity and contractual scope. It clarifies that while waivers for non-essential recreational activities may be permissible, they face a high bar of strict construction to absolve a party of its own negligence. The ruling reinforces the legal principle that an intention to release negligence liability must be made explicit, thereby protecting consumers from ambiguous or overly broad waivers. The case highlights the ongoing judicial debate, reflected in the concurrence/dissent, over whether a categorical rule against such waivers in consumer transactions is preferable to a fact-intensive, case-by-case analysis.
