2008 VT 15




Thompson v. Hi Tech Motor Sports,
Inc. (2006-523)
 
2008 VT 15
 
[Filed 08-Feb-2008]
 
NOTICE:  This
opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision
before
publication in the Vermont Reports.  Readers are requested to
notify the
Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections
may be made before
this opinion goes to press.




2008 VT 15

 

No. 2006-523

 

Shayne E. Thompson


Supreme Court


 


 


 


On Appeal from


     v.


Chittenden Superior Court


 


 


 


 


Hi Tech Motor Sports, Inc.


June Term, 2007


 


 


 


 


Ben
  W. Joseph, J.


 

 
Wanda I. Otero-Ziegler and Frank Langrock of Langrock Sperry
& Wool, LLP, Middlebury, for
  Plaintiff-Appellee.
 
John Paul Faignant and Antonin Robbason of Miller Faignant
& Behrens, P.C., Rutland, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
REIBER, C.J.   After injuring herself during a test drive on one
of defendant’s motorcycles, plaintiff sued defendant for negligence.  The trial
court granted plaintiff partial summary judgment, concluding that the release
plaintiff signed was contrary to public policy and therefore void as a matter
of law.  On interlocutory appeal, we conclude that the waiver is not void for
public policy as a matter of law, but that the exculpatory clause does not
release defendant for claims caused by its own negligence, and remand.
¶ 2.            
The following facts are undisputed for purposes of summary judgment.  In
May 2003, plaintiff went to defendant’s motorcycle dealership to test drive a motorcycle. 
Plaintiff spoke with a salesperson and indicated that although she was a
relatively new rider, she had a valid motorcycle driver’s license and had
experience riding a motorcycle with a 200cc engine.  After further discussion
with the salesperson, plaintiff signed a single-page release.[1] 
Then, as part of a group, plaintiff took a promotional test ride on a 750cc
motorcycle.  During the test ride, as plaintiff was turning, she downshifted,
but was unable to control the bike, and she hit a guardrail, injuring herself.
¶ 3.            
Plaintiff filed a suit for damages in superior court, claiming that
defendant’s agents were negligent in encouraging her to ride a bike that they
knew or should have known was too big for plaintiff and that she could not
operate safely.  Defendant filed a motion for summary judgment, claiming that
the release plaintiff signed discharged it as a matter of law from any
liability for her injuries.  Plaintiff filed a cross-motion for partial summary
judgment, arguing that the release was contrary to public policy.  The trial
court resolved both motions on the same day in single-line orders.  First, the
court denied defendant’s motion, concluding that there were “factual disputes
concerning the representations made by the defendant’s salesman.”  Second, the
court granted plaintiff’s motion for partial summary judgment, concluding
simply that “defendant’s release was void for being contrary to public policy.” 
The trial court granted defendant permission to appeal, and this Court accepted
review of the question of whether the release is void as contrary to public
policy.
¶ 4.            
On appeal, we review summary judgment using the same standard as the
trial court.  Gallipo v. City of Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177.  Under that familiar standard, summary judgment is appropriate if
there are no issues of material fact and a party is entitled to judgment as a
matter of law.  V.R.C.P. 56(c)(3); Gallipo, 2005 VT 83, ¶ 13.  “In
determining whether a genuine issue of fact exists, the nonmoving party
receives the benefit of all reasonable doubts and inferences.”  Samplid Enters.,
Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996).
¶ 5.            
Plaintiff’s motion for partial summary judgment was based on two
grounds: (1) the release was ambiguous and thus did not waive actions for
defendant’s negligence; and (2) the release was contrary to public policy,
which encourages motorcycle safety.  The trial court granted plaintiff’s motion
without discussion, so it is unclear which argument the court found
compelling.  On appeal, defendant addresses both of plaintiff’s original claims
and argues that summary judgment was incorrect because the release (1) is
unambiguous and includes suits based in negligence, and (2) does not interfere
with any societal interest in motorcycle safety because societal expectations
place responsibility for safe driving on the operator.  
I.
¶ 6.            
First, we consider whether the release is void as contrary to public
policy.  As we have explained in the past, evaluating whether a release from
liability contravenes public policy does not follow a strict formula because “no
single formula will reach the relevant public policy issues in every factual
context.”  Dalury v. S-K-I, Ltd., 164 Vt. 329, 333, 670 A.2d 795, 798
(1995).  Rather, we consider the totality of the circumstances and societal
expectations to determine whether sufficient public interest exists to void a
release.  Id. at 334, 670 A.2d at 798.  Although the public interest
cannot be determined through a formulaic approach, some relevant
characteristics of a public interest are the nature of the parties’
relationship, including whether the party granting exculpation is in a position
of dependency, and the type of service provided by the party seeking
exculpation, including whether the service is laden with public interest.  See Restatement
(Third) of Torts: Apportionment of Liab. § 2 cmt. e (2000); see also Tunkl
v. Regents of the Univ. of Cal., 383 P.2d 441, 445-46 (Cal. 1963) (listing
characteristics of contracts that affect a public interest).  
¶ 7.            
Although we recognize the great public need for motorcycle safety, we
conclude that the waiver of liability in this case for injuries occurring on
test drives does not contravene public policy.  We are so persuaded given the
nature of the service that defendant provides, the lack of control defendant
exercises over those test-driving its vehicles, and the absence of legislative
policy to regulate or control dealerships.
¶ 8.            
We agree with defendant that this case is distinguishable from Dalury
v. S-K-I, Ltd., wherein we concluded that a ski resort could not exculpate
itself from negligence liability through a release.  164 Vt. at 335, 670 A.2d
at 799.  In Dalury, a skier sued a ski area where he fell and was injured,
claiming that the premises was negligently designed.  We concluded that the
release was void because it contravened a strong tradition of public policy
that placed the responsibility for proper maintenance of grounds on those who
own and control the property.  Id.  We reasoned that “if defendants were
permitted to obtain broad waivers of their liability, an important incentive
for ski areas to manage risk would be removed, with the public bearing the cost
of the resulting injuries.”  Id.  We concluded that “[i]t is illogical,
in these circumstances, to undermine the public policy underlying business
invitee law and allow skiers to bear risks they have no ability or right to
control.”  Id. 
¶ 9.            
The same concerns, which prompted our decision in Dalury, are not
present here because whereas public policy places the burden of maintaining
safe premises on a landowner, public policy concerning motorcycle safety places
the burden of safe driving on the operator of the motorcycle.  In Dalury,
we emphasized that the defendant ski area had the unique opportunity and means “to
foresee and control hazards” on its premises, thus it was logical for the ski
area to bear the risk of a negligently designed or maintained ski area.  In
contrast, dealerships, like defendant, do not have the opportunity or means to
control a prospective customer’s driving capability.  Id.  Persons, who
choose to take defendant’s motorcycles out for a test ride, have the ability to
undertake precautions to avoid hazards associated with operation, unlike skiers
who “are not in a position to discover and correct risks of harm” on a ski
hill.  Id.  
¶ 10.        
The dissent finds Dalury applicable, based on its conclusion that
“[t]he property in this case may consist of motorcycles rather than ski trails,
but the principles are no less applicable.”  Post, ¶ 25.  This assertion
ignores the fact that our decision in Dalury depended in large part on “[t]he
major public policy implications . . . underlying the law of premises
liability.”  164 Vt. at 334, 670 A.2d at 799.  Dalury emphasized the
duty of care a business owner has “to make sure that its premises are in safe
and suitable condition for its customers.”  Id. (quotation omitted).  The
dissent’s attempt to equate motorcycles to ski hills fails because the strong
public policy of premises liability in Dalury has no parallel in the
area of motorcycle test riding.  Another critical distinction is that there is
no claim here that the product offered by defendant was in any way defective. 
The motorcycle operated well; it was driver error that caused the accident.
¶ 11.        
Furthermore, we conclude that in undertaking to retail motorcycles by
providing test drives, defendant is neither “performing a service of great
importance to the public, which is often a matter of practical necessity for
some members of the public,” nor holding itself “out as willing to perform this
service for any member of the public who seeks it.”  Tunkl, 383 P.2d at
445.  Motorcycle dealerships do not provide a public service, which is a
necessity for some members of the public.  See Jones v. Dressel, 623
P.2d 370, 377 (Colo. 1981) (concluding that flight service for parachute
jumping was not a matter of public interest); Mann v. Wetter, 785 P.2d
1064, 1066-67 (Or. Ct. App. 1989) (holding that diving school did not provide
an essential public service); Blide v. Rainier Mountaineering, Inc., 636
P.2d 492, 493 (Wash. Ct. App. 1982) (holding that mountaineering does not implicate
the public interest).  In addition, unlike the ski area in Dalury that
advertised to and invited all members of the general public, even those with no
experience, defendant made no representation that it was making its motorcycles
available to all members of the public or that it was providing training in the
proper use of motorcycles.  Defendant allowed only those persons who attested
in a signed release that they were properly licensed with a motorcycle
endorsement and had sufficient relevant experience and training to take defendant’s
bikes for a test ride.  
¶ 12.        
In reply, plaintiff argues that if the release is upheld, this will (1)
provide a disincentive for dealers to conduct test rides safely; and (2)
contravene legislative intent to promote motorcycle safety.  We are not
persuaded.  First, rather than encouraging all persons to drive their vehicles,
including those with no experience, defendant requires prospective drivers to
attest, in the release, that they have “prior experience with operation” of the
relevant vehicle, have a valid license with the relevant endorsement, have
examined the vehicle and are familiar with the vehicle’s operation.  Furthermore,
as explained above, during the test drive the prospective buyer, not the
dealer, has control of the motorcycle.  It is logical to place the incentive
for safe driving on the party who has actual control of the vehicle. 
¶ 13.        
Second, there is no existing public policy, as evidenced through
legislative enactment, which strives to promote motorcycle safety through
regulation either of motorcycle dealerships in general or their test-drive practices
in particular.  Although motorcycle safety is an important public concern and
motorcycle use is highly regulated, the motorcycle-safety statutes focus on the
driver’s responsibilities to be properly trained, to follow correct driving
techniques and to wear appropriate equipment.  See 23 V.S.A. §§ 617 (requiring
applicants for a motorcycle license to obtain a special motorcycle endorsement
through an examination and skills test), 733 (authorizing the Department of
Motor Vehicles to establish standards for motorcycle training programs), 1114 (listing
proper riding positions), 1115 (listing methods of proper driving), 1256 (requiring
riders to wear a helmet).  Given this focus, we conclude that public policy, in
general and as expressed through statute, does not prevent a motorcycle dealership
from limiting its liability for injuries sustained during a test ride.  See Moore
v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001) (concluding that
the release plaintiff signed to participate in an ATV safety class was not void
for public policy in part because the Legislature chose not to regulate ATV
course operators in the same way as other industries); Jones, 623 P.2d
at 377 (concluding that exculpatory contract the plaintiff signed before
participating in a parachute jump was not void for public policy where
commercial carrier safety regulations did not apply because it was a commercial
flight); Mann, 785 P.2d at 1066 (holding that there were no public
policy considerations to prevent a diving school from limiting liability for
its own negligence).  
¶ 14.        
Plaintiff also contends that case law supports her position, citing Fortson
v. McClellan, 508 S.E.2d 549 (N.C. Ct. App. 1998).  In Fortson, the
North Carolina Court of Appeals concluded that a waiver signed in conjunction
with a motorcycle safety course was void for public policy, explaining:
Important public safety interests are
present both in the instruction and use of motorcycles because both those
receiving instruction in the proper use of motorcycles and the general
traveling population are at risk from negligent training in the use of
motorcycles.  Trainees, unfamiliar with motorcycles, are particularly
vulnerable to hazards associated with improper or negligent training. 
Id. at 552.  We find the present case readily
distinguishable because Fortson focuses on the strong legislative policy
of providing proper instruction during a motorcycle-safety class.  As the court
explained in Fortson, once the defendant “entered into the business of
instructing the public in motorcycle safety, the defendant [could not], by
contract, dispense with the duty to instruct with reasonable safety.”  Id. at 554.  Even if we accepted that motorcycle instructors could not exculpate
themselves from negligence liability, cf. Petersen v. Sorensen, 118 Wash. App. 1027, 2003 WL 22040908, *5 (2003) (holding that motorcycle training course is
not a matter of public necessity and release does not violate public policy), this
situation is much different, and the policy concerns relevant in Fortson
do not apply here.  Defendant did not undertake to instruct plaintiff in proper
motorcycle operation.  In fact, defendant’s release specified that plaintiff
was already aware of how to safely operate a motorcycle.  Allowing plaintiff to
take a motorcycle for a test ride, after she attested that she had the relevant
experience and training, does not implicate a public interest sufficient to
void the release on public policy grounds.
¶ 15.        
The dissent advocates for adoption of a general rule that exculpatory
agreements in the consumer context are always contrary to public policy.  In
support, the dissent cites the inherent disparity in bargaining power in
consumer transactions, basic tort principles placing loss on the responsible
party and a need to provide predictability in our decisions.  We decline to
adopt such a broad rule.  The tort principles the dissent relies upon are not
the only legal principles involved in this case.  As another court observed, “[p]reinjury
releases from liability for one’s negligence pit two bedrock legal concepts
against one another: the right to order one’s relationship with another by
contract and the obligation to answer in damages when one injures another by
breaching a duty of care.”  Rothstein v. Snowbird Corp., 2007 UT 96, ¶
6, __ P.3d __.  While we agree that consistency is important, we are not
convinced that “freedom to contract should always yield to the right to recover
damages on the basis of another’s fault.”  Berry v. Greater Park City Co.,
2007 UT 87, ¶ 11, 171 P.3d 442.  We reaffirm our rule that public policy issues
are fact-dependent and “must be made considering the totality of the
circumstances of any given case against the backdrop of current societal
expectations.”  Dalury, 164 Vt. at 334, 670 A.2d at 798 (quotation
omitted).  Disparity in bargaining power is a factor to be considered in this
equation, but it is one element and this fact alone is not determinative,
especially when the provided service is not essential in nature.  See Tunkl,
383 P.2d at 445.
II.
¶ 16.        
Having concluded that the release is not void on its face for public
policy reasons, we consider the scope of the release to determine if it covers
actions for defendant’s ordinary negligence.  See Moore, 36 P.3d at 633
(concluding that although release did not violate public policy, the scope of
the release did not include liability for general negligence).  Plaintiff
concedes that she read and signed defendant’s release, which states, in
relevant part:
The undersigned
waives any claim that he/she may have now or in the future against
Land-Air, its employees, agents, officers, directors and shareholders for
injury to him/her self as a result of his/her operation or the operation by
some other person of a motorized vehicle owned by or under the control of
Land-Air.
 
(Emphasis added.)  Although the release does not include
the word negligence, defendant contends that the release unambiguously includes
“any claim,” and consequently applies to negligence claims as a matter of law. 
We disagree.
¶ 17.        
As with other contract provisions, we interpret those limiting tort
liability based on the language of the writing, and where that language is
clear, we must implement the intent and understanding of the parties.  Colgan
v. Agway, Inc., 150 Vt. 373, 375, 553 A.2d 143, 145 (1988).  At the same
time, we have cautioned that contractual exclusions of negligence liability are
traditionally disfavored, and thus their interpretation requires more exacting
judicial scrutiny.  Id.  In applying this heightened judicial scrutiny,
we strictly construe an exculpatory agreement against the party relying on it. 
  Id.  We have explained that “[t]he most effective way for parties to
express an intention to release one party from liability flowing from that
party’s own negligence is to provide explicitly that claims based in negligence
are included in the release.”  Id. at 376, 553 A.2d at 146.  Although
this language is not essential, in its absence there must be words that convey
a similar intent.  See Douglass v. Skiing Standards, Inc., 142 Vt. 634, 637, 459 A.2d 97, 98 (1983) (concluding as a matter of law that the waiver the
plaintiff signed to enter a skiing competition released the defendants from
liability for negligence even though the agreement did not use the word “negligence”).[2]
¶ 18.        
In Colgan v. Agway, Inc., we concluded that a waiver in the
parties’ construction contract did not cover claims for the builder’s
negligence.  150 Vt. at 375, 553 A.2d at 145.  Our decision was grounded on the
wording and organization of the parties’ contract.  The exculpatory language the
defendant relied on was embedded in a paragraph entitled “One Year Limited
Warranty,” and focused solely on liability for workmanship and materials.  Id. at 377, 553 A.2d at 146.  In addition, although the contract used particular
language in other areas to describe the parties’ respective obligations, the
contract did not employ the word negligence.  We concluded that “[g]iven the
manner in which the remainder of the contract is drafted, it defies both logic
and common sense that the parties would intend to release the seller from all
liability arising out of defective design of the structure by tacking broad
exculpatory language to the end of a limited warranty clause.”  Id. 
¶ 19.        
Just as the organization of the parties’ contract in Colgan
persuaded us that it did not cover negligence claims, we conclude that this
release does not exculpate defendant from liability arising out of its own
negligence.  Defendant correctly notes that the release contains broad language
purporting to release any claim.  The question is whether this general clause
is specific enough to release defendant from liability, given that when a party
wishes to exculpate itself from negligence liability “a greater degree
of clarity is necessary to make the exculpatory clause effective than would be
required for other types of contract provisions.”  Id. at 375, 553 A.2d
at 145.  The opening paragraph of the release recites that operating a
motorcycle is inherently dangerous and that operation may result in injury. 
The release then waives “any claim” resulting from the operation.  Based on
this language, we conclude that the release waived claims for injuries
resulting from dangers inherent to riding a motorcycle, not for those resulting
from defendant’s negligence.  Although plaintiff waived claims for injuries
resulting from dangers inherent in riding a motorcycle, the release did not cover
claims for injury resulting from defendant’s alleged negligent representations
to plaintiff.  See Sirek v. Fairfield Snowbowl, Inc., 800 P.2d 1291,
1295 (Ariz. Ct. App. 1990) (concluding that language in a release for ski
rental alerted renter to “the dangers inherent in skiing,” but did not alert
renter that she was also releasing ski area for “its own negligence in
selecting appropriate skis or property setting the bindings”); Turnbough v.
Ladner, 754 So. 2d 467, 469 (Miss. 2000) (holding that release that participant
in scuba diving class signed waived claims associated with risks inherent in
sport, but did not waive right to recover for instructor’s failure to follow
accepted safety standards).
¶ 20.        
This interpretation is supported by the Alaska Supreme Court’s decision
in Moore v. Hartley Motors Inc., 36 P.3d at 633, which involved a
similarly worded release.  In Moore, the plaintiff signed a release
before beginning an ATV instruction class.  After noting that the release did
not contain the word negligence, the court observed that the release’s “opening
sentences refer only to unavoidable and inherent risks of ATV riding, and nothing
in its ensuing language suggests an intent to release [the defendants] from
liability for acts of negligence unrelated to those inherent risks.”  36 P.3d
at 633.  The court concluded that the plaintiff released the defendants “only
from liability arising from the inherent risks of ATV riding and ordinary
negligence associated with those inherent risks.”  Id.; see Powell v.
Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct.
App. 1998) (holding that exculpatory clause in release plaintiff signed as part
of a health club membership agreement was not specific enough to release club
from negligence liability); O’Connell v. Walt Disney World Co., 413 So.
2d 444, 447 (Fla. Dist. Ct. App. 1982) (finding release not specific enough to
bar recovery for injuries from amusement park’s negligence during a horseback
ride).  But see Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704,
711-12 (Wyo. 1987) (holding that release unambiguously released defendants from
negligence liability, even though the release did not include the word
negligence because there was “no other rational purpose for which” the
exculpatory language could have been intended).  Similarly, we conclude that
plaintiff released defendant from liability associated with the inherent
dangers of riding a motorcycle but did not release defendant from injuries
caused by its own negligence.
Remanded for further proceedings
consistent with this opinion.
 
 
                                                                                               
______________________________
                                                                                               
Chief
Justice

 

 
¶ 21.        
JOHNSON, J., concurring and dissenting.  Although I concur
in the majority’s conclusion that the law forbids enforcement of the liability waiver
in question, I disagree with its reasoning.  To be sure, we have long held that
provisions of this nature must be narrowly construed to ensure that they
reflect the unmistakable intent of the parties, and this is ample and adequate
protection in a commercial context where the parties generally enjoy equal
bargaining strength.  In a consumer transaction, however, the balance is invariably
unequal; the seller controls the product or service, enjoys a decided advantage
in knowledge and experience, and retains the opportunity and wherewithal to
spread the risk of injury in the event of a mishap.  In such circumstances,
allowing the vendor to renounce its own negligence at the expense of the
consumer threatens the principles that underlie our traditional tort system
and, I would submit, the safety and welfare of the citizens of this State. 
Accordingly, contrary to the majority, I would hold that the waiver is contrary
to public policy and therefore void and unenforceable.
¶ 22.        
It is commonplace today to observe, as Justice Holmes recognized more
than a century ago, that the common law principles that courts develop and
apply on a daily basis through the litigation process are “in fact at bottom
the result of more or less definitely understood views of public policy.”
 O.W. Holmes, Jr., The Common Law 32 (Mark. D. Howe, ed. 1963) (emphasis
added).  The real challenge, of course, lies in deciding precisely what
public policy—”the community common sense and common conscience,” as this Court
once described it—abides in any given case.  Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586, 588 (1986) (quotation omitted).  For even while acknowledging
the influence that “inherited instincts, traditional beliefs and acquired
convictions” inevitably exert in the judicial process, Justice Cardozo—that
other great common law jurist—also cautioned that courts must be “slow to
substitute their own varying views of policy” for “settled institutions . . .
and practices, which have taken root and flourished.” Messersmith v. Am.
Fid. Co., 133 N.E. 432, 433 (N.Y. 1921); see B.N. Cardozo, The Nature of
the Judicial Process 12-13 (1921); Rothstein v. Snowbird Corp., 2007
UT 96, ¶ 10, ___ P.3d ___ (holding skier’s waiver of ski area’s own negligence
void as against public policy, and noting the “protean” quality of public
policy determinations and risk of inconsistent and subjective decisionmaking). 
The case before us offers a textbook illustration of the dilemma: how is a
court to determine the social importance of a particular activity for purposes
of voiding or upholding a vendor’s contractual waiver of its own negligence
without, consciously or unconsciously, importing subjective considerations
relating to its own experience, sympathies, and values?  Stated differently,
how, in analyzing such provisions, can we achieve both of the fundamental goals
of the common law: fairness to the parties, and stable and predictable rules of
law to guide future cases?  
¶ 23.        
We have set forth a number of factors in our earlier decisions to guide
the public-policy determination, yet we have also stressed that “no single
formula will reach the relevant policy considerations in every factual context”
and that “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.”  Dalury v. S-K-I, Ltd., 164 Vt. 329, 333-34, 670 A.2d
795, 798 (1995) (quotation omitted).  Thus, the very malleability of the
factors on which a court may focus guarantees, to some extent, the persistence
of the problem.  And the issue is no less acute in a decision to uphold a
release than in one to strike it down.  Here, for example, the majority
concludes that public policy does not void a standard-form release that
defendant motorcycle dealer required of plaintiff as a condition to test drive
its vehicle.  In so holding, the majority cites three basic considerations: the
“nature of the service that defendant provides, the lack of control defendant
exercises over those test-driving its vehicles, and the absence of legislative
policy to regulate or control dealerships.”  Ante, ¶ 7.  Yet, viewed
from a slightly different perspective, these concerns can be seen to support
precisely the opposite conclusion.   
¶ 24.        
It is true, as the majority observes, that motorcycle dealers do not
provide an essential public service.  In Dalury, however, we
specifically considered and rejected this requirement as applied to a ski
resort, observing that the resort invited skiers of all levels of ability to
buy lift tickets and ski its trails, and that “when a substantial number of
such sales take place as a result of the seller’s general invitation to the
public to utilize the facilities and services in question, a legitimate public
interest arises.” 164 Vt. at 334, 670 A.2d at 799.  How is defendant here any
different?  Its business is selling motorcycles to the general public, and to
this end, defendant obviously advertises and promotes its product.  Indeed,
although the facts here are not well developed, it appears to be undisputed
that plaintiff responded to a publicly advertised promotional test ride of a
particularly high-power model among defendant’s motorcycles.  The majority
suggests that the promotion was quite restrictive because the form release that
plaintiff was required to sign as a condition of participation provided that she
“had prior experience with the operation of a motorcycle/ATV/watercraft,” had a
valid operator’s license with a motorcycle endorsement, and was “familiar” with
its operation.  I would submit, however, that while these requirements may have
narrowed somewhat the pool of consumers eligible for the test ride, the provisions
still allowed the participation of thousands of potential riders with widely
differing levels of “experience” and “familiarity” with the motorcycle in
question.   
¶ 25.        
The majority also focuses on the fact that, in Dalury, the
defendant owned and controlled the property while here defendant could not “control
a prospective customer’s driving capability.”  Ante, ¶ 9.  With respect,
this argument appears to fundamentally confuse the issue.  Although the
consumer here is alleged to have been negligent herself, the question is
whether the dealer may be absolved from liability for its own negligence, not
the consumer’s.  In Dalury, we held that the defendants were in the best
position to “foresee and control hazards” on its ski slopes, to “guard against
the negligence of [their] agents and employees,” and to “insure against risks.”
164 Vt. at 335, 670 A.2d at 799.  In addition, we noted that enforcing the
waiver would remove “an important incentive” for risk management “with the
public bearing the cost of the resulting injuries.”  Id.  The property
in this case may consist of motorcycles rather than ski trails, but the
principles are no less applicable.  Defendant owns and controls its
motorcycles, and its knowledge and expertise allows it to “foresee and control”
hazards arising from its own conduct.  It is plainly in the best
position to ensure that its salespersons are properly trained and instructed to
avoid the negligent entrustment of one its motorcycles to a person with
insufficient skill and experience to control the vehicle, and to insure against
the risk of injury in the event of negligence.  Holding to the contrary removes
the incentive to exercise such care.  Thus understood, these pertinent
considerations militate against enforcement of the release in this case as
contrary to the public interest.[3] 

¶ 26.        
Indeed, viewed from a slighter broader perspective, one is left to
wonder how, in its essentials, the situation here is any different from any
other consumer transaction.  If the defendant here had negligently repaired the
motorcycle’s brakes, resulting in injury to the plaintiff, a clearer release
might well have withstood the majority’s scrutiny but, surely its enforcement
would represent a retreat from the policies that underlie our tort system.  For
“at bottom,” as Holmes put it, we are a society committed to certain
fundamental legal principles: compensation of innocent parties; placement of
the loss on the parties responsible; and deterrence of wrongful conduct. See,
e.g., Hanks v. Powder Ridge Rest. Corp., 885 A.2d 734, 742 (Conn. 2005) (describing the fundamental purposes of our tort system).  Therefore, when we do
choose to abandon these policies, as Justice Tobriner observed, “it has
generally been to allow or require that the risk shift to another party better
or equally able to bear it, not to shift the risk to the weak bargainer.”  Tunkl
v. Regents of Univ. of Cal., 383 P.2d 441, 447 (Cal. 1963). 
¶ 27.        
Viewed through the prism of these bedrock principles, nearly all of our
decisions in this area may thus be seen as focusing less on the nature of the
particular activity at issue than on the essential status and relationship of
the participants.  Where we have upheld hold-harmless clauses it has generally
been in the context of arms-length transactions between commercial parties of
relatively equal bargaining strength.  See Hart v. Amour, 172 Vt. 588,
590, 776 A.2d 420, 424 (2001) (upholding hold-harmless indemnification
agreement where it “represent[ed] an arms-length commercial transaction between
a business and a commercial lessor”); Hamelin v. Simpson Paper Co., 167
Vt. 17, 21, 702 A.2d 86, 89 (1997) (upholding hold-harmless clause in
commercial contract to provide professional security services where the
contract “reflect[ed] an arms-length business deal” dividing the risks and
responsibilities); Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc.,
163 Vt. 433, 437-38, 658 A.2d 31, 34 (1995) (upholding contractual waiver of
personal injury claims in commercial lease between landlord and  business lessee);
Furlon v. Haystack Mountain Ski Area, 136 Vt. 266, 270, 388 A. 2d 403,
405 (1978) (upholding contractual assumption-of-risk clause between ski resort
and ski lift manufacturer). While acknowledging that such provisions are
generally disfavored, we have held that public policy concerns are not the
predominant concern absent a disparity in contractual bargaining power between
the parties.  See, e.g., Hart, 172 Vt. at 590, 776 A.2d at 424 (finding
no public-policy bar to the enforcement of a hold-harmless clause absent
evidence “that there was any disparity in bargaining power between these
commercial parties”); Hamelin, 167 Vt. at 21, 702 A.2d at 89 (noting
that “[t]he considerations of public policy that motivated us in Dalury,
such as unequal bargaining power, fairness, and the benefits of risk-spreading,
are not present here”); Furlon, 136 Vt. at 269, 388 A.2d at 405
(observing that our decision was “not here moved by . . . considerations
of public policy” absent a “disparity in bargaining power” between the parties).
 In the commercial context, simply ensuring that the waiver in question was of
sufficient clarity to reflect the unmistakable intent of the parties serves as
a sufficient safeguard.  
¶ 28.        
In contrast, those decisions where a waiver has been held to contravene
public policy have invariably involved consumer transactions in which the
defendant vendor is better positioned to foresee and guard against the risks
attendant upon its product or service than the purchaser, and considerations of
“unequal bargaining power, fairness, and the benefits of risk-spreading”
militate against absolving the defendant of its own negligence at the expense
of the relatively innocent consumer.  Hamelin, 167 Vt. at 21, 702 A.2d
at 89.  It is a short step from this perception to a recognition that these
same policy concerns inhere in virtually every consumer transaction, and
thus should operate as a bar to enforcement regardless of the particular nature
of the business.  A comprehensive holding to this effect would further serve
the public interest by replacing the inherent uncertainty of the current
case-by-case approach, discussed earlier, with a uniform and predictable rule
of law.  Of course, there may be cases where the consumer is negligent, having
voluntarily engaged in conduct that was unreasonable in light of his or her own
knowledge or experience, as defendant here has alleged.  But this does not
warrant a policy of allowing the vendor to avoid virtually all responsibility
for its own misconduct, where its control of the product and attendant
risks could have prevented the harm altogether.
¶ 29.        
In voiding all contractual releases from
liability for personal injury in all cases the Supreme Court of Virginia has
stated that to permit one contracting party to put the other “at the mercy of
its own misconduct . . . can never be lawfully done where an enlightened system
of jurisprudence prevails.  Public policy forbids it . . . .” 
Hiett v. Lake Barcroft Cmty. Ass’n, 418 S.E.2d 894, 896 (Va. 1992) (quotation omitted) (quoted in Dalury, 164 Vt. at 333, 670 A.2d at 798). 
We need not go so far as the Virginia court to recognize that, in the consumer
context at least, such provisions should not be enforced under “an enlightened
system of jurisprudence.”  I would hold, therefore, that the release in this
case was contrary to the fundamental public policy of Vermont, and affirm the
judgment on that basis.  
 
___________________________________
Associate Justice         
 


[1] 
The release read, in relevant part: 
 
  The undersigned
hereby acknowledges that he/she has had prior experience with the operation of
a motorcycle . . . , has a valid motor vehicle operator’s license with a
motorcycle endorsement . . . , and that he/she has examined the
vehicle to be test driven, and is familiar with its operation.  He/she
understands that the operation of this vehicle is inherently dangerous.  He/she
understands that the operation of this vehicle may result in serious injury or
even death and accepts these risks in test driving a Land-Air vehicle. . . .  
 
  The undersigned
waives any claim that he/she may have now or in the future against Land-Air,
its employees, agents, officers, directors and shareholders for injury to
him/her self as a result of his/her operation or the operation by some other
person of a motorized vehicle owned by or under the control of Land-Air.


[2] 
We reach a different result than in Douglass, where we concluded that
the release waived negligence claims even though it did not employ the word
“negligence.”  142 Vt. at 637, 459 A.2d at 98.  The release in Douglass
was more detailed, specifying that it was “ ‘to release, hold harmless and
forever discharge [defendants] from any and all claims, demands, liability,
right or causes of action of whatsoever kind of [sic] nature which [plaintiff]
may have, arising from or in any way connected with, any injuries, losses,
damages, suffering . . . which’ he might sustain.”  142 Vt. at 637, 455 A.2d at
98 (alterations in original).  Whereas, here, plaintiff agreed to waive “any
claim that [she] may have now or in the future . . . for injury to [her]self as
a result of [her] operation . . . of a motorized vehicle.”  The language in Douglass
was much more specific in describing two key points: the types of claims—“all
claims, demands, liability, right or causes of action of whatsoever kind”
versus “any claim”; and the causal requirement for the injury—“in any way
connected with” any injury versus resulting from plaintiff’s operation in this
case.


[3] 
The motor vehicle statutes cited by the majority may focus on the driver’s
responsibility to drive safely, but they do not in any way undermine
defendant’s separate and concurrent duty to exercise care in the control of its
product.


