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DOCKET NO: KNL-CV-21-6052805-S : SUPERIOR COURT
ANTHONY SINGE : J.D. OF NEW LONDON
v. : AT NEW LONDON
SAYBROOK POINT INN, LLC, ET AL. : APRIL 10, 2024
PLAINTIFF’S MOTION IN LIMINE RE:
PRECLUSION OF EVIDENCE OF LIABILITY WAIVER
Pursuant to Practice Book § 15-3, the Plaintiff, Anthony Singe (hereinafter “the Plaintiff”),
respectfully moves for an order precluding the Defendants, Defendants’ counsel or any other
witness from introducing evidence or testifying about the liability waiver Saybrook Point Inn
required the Plaintiff to sign in order to use a bicycle or any reference, otherwise, to a waiver of
liability. The waiver is not admissible because: (1) it violates public policy and is void; (2) it is
not binding because it is an adhesion contract which was not part of a bargained for exchange; (3)
it is so vague and ambiguous that Saybrook Point Inn, LLC’s designated person with most
knowledge testified that he does not know what it means; (4) liability waivers are not enforceable
in this case which is based on strict liability, breach of warranty, and bailment; (5) the admission
of the liability waiver would be highly prejudicial to the Plaintiff and there is no probative value
in a strict liability product liability case.
I. FACTUAL BACKGROUND
By way of brief background, Plaintiff, Anthony Singe, brought this Action against
Saybrook Point Inn, LLC (hereinafter “Saybrook Point Inn”) and Action Sports of Old Saybrook,
Inc. (hereinafter “Action Sports”) on August 5, 2021 after Plaintiff suffered an injury due to a
defect in the bicycle he was provided by Saybrook Point Inn when he was a guest. While riding
the bicycle under normal conditions, the bicycle’s chain and handle grips came off causing a loss
of control and injuries. Without the chain, the bicycle lost its ability to break. As a result of the
{C0353606-1} -1-
defective condition, Plaintiff suffered a tear to his right tricep tendon when he attempted to stop
the bicycle that no longer had any breaking mechanism or steering. Plaintiff underwent surgery to
repair the torn tendon. Plaintiff brought a lawsuit on for product liability including claims of strict
liability, breach of warranty, and bailment.
Defendant, Saybrook Point Inn, in its Answer, pleaded special defenses. See Entry. No.
103.00. In its special defenses, Saybrook Point Inn pleaded that Plaintiff waived and/or released
all claims by executing a “Release of Liability and Indemnification Agreement” (hereinafter
referred to as a “waiver”) prior to his use of the bicycle. Id. Defendant, Saybrook Point Inn,
further asserted that “Plaintiff, therefore, previously and explicitly waived and/or released the
claims set forth in his Complaint. Id.
II. LEGAL STANDARD
“The judicial authority to whom a case has been assigned for trial may in its discretion
entertain a motion in limine made by any party regarding the admission or exclusion of anticipated
evidence.” Practice Book § 15-3. “The purpose of a motion in limine is to exclude irrelevant,
inadmissible and prejudicial evidence from trial . . . A trial court should exclude evidence it would
create undue prejudice and threaten injustice if admitted.” State v. Lo Sacco, 26 Conn. App. 439,
444, 602 A.2d 589 (1992). “In determining whether evidence should be admitted, the primary
inquiry is whether it is relevant to a material issue in the case.” Ramos v. Ramos, 80 Conn. App,
276, 281 (2003). “While there is no precise test for relevancy, evidence is admissible if it tends to
establish a fact in issue . . .” (Citations omitted.) Chouinard v. Marjani, 21 Conn. App. 572, 575,
575 A.2d, 238 (1990).
“Although relevant, evidence may be excluded by the trial court if the court determines
that the prejudicial effect of the evidence outweighs the probative value . . . We have identified at
{C0353606-1} -2-
least four circumstances where the prejudicial effect of the otherwise admissible evidence may
outweigh its probative value: (1) where the facts offered may unduly arouse the jury’s emotions,
hostility, or sympathy, (2) where the proof and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main issues, (3) where the evidence offered and
the counter proof will consume an undue amount of time, and (4) where the party against whom
the evidence has been offered, having no reasonable grounds to anticipate the evidence, is unfairly
surprised and unprepared to meet it.” Potter v. Chicago Tool Company, 241 Conn. 199, 265-66,
694 A.2d 1319 (1997).
It is well established that under Connecticut law, “that contracts that violate public policy
are unenforceable.” Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 629 (2005). Axiomatically,
“the law does not favor contract provisions which relieve a person from his own negligence . . .”
(Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc.,
265 Conn. 636, 643, 829 A.2d 827 (2003). Exculpatory agreements that relieve a party of liability
should only be enforced judiciously when certain factors are present, including when an ordinary
person of reasonable intelligence would understand that by signing the agreement, he or she was
releasing the defendants from liability from their future negligence. See Hanks v. Powder Ridge
Restaurant Corp., 276 Conn. 314, 324-25, 885 A.2d 734 (2005). However, even if this factor is
present, if an agreement based on the totality of the circumstances violates public policy, then it
should not be enforced. Id. at 330. (Holding that a liability waiver at a ski area violates “public
policy underlying business invitee law and allow skiers to bear risks they have no ability or right
to control.”)
{C0353606-1} -3-
III. ARGUMENT
The Plaintiff seeks an order from this Court excluding any and all evidence or testimony
pertaining to the liability waiver that Defendant, Saybrook Point Inn, requires all guests who use
bicycles to sign. The underlying suit includes theories of strict liability, breach of warranty, and
bailment. Even if it were enforceable (which it is not) the waiver would not operate as a bar to
strict liability, breach of warranty, or bailment claims. There is no case in Connecticut which
upholds a liability waiver against such claims. The admission of such evidence would be
prejudicial, as under Connecticut law such waivers are void as against public policy.
The Connecticut Supreme Court held in Hanks v. Powder Ridge Restaurant Corp., 276
Conn. at 335, that a liability waiver at a recreational setting releasing all liability from the
recreational operator was void as it violated public policy to allow participants to bear the
responsibility of not only the inherent risks of the activity, but also any carelessness and negligence
stemming from the resorts operators. Not only are liability waivers in recreational settings
generally unenforceable, as they violate public policy, but testimony of Saybrook Point Inn
demonstrates that a reasonable person would not understand the terms of the waiver, which also
lends weight to its unenforceability. See id. Saybrook Point Inn’s person most knowledgeable,
Christopher Loader, testified at his deposition that he, himself, did not know what the terms of the
waiver meant. Deposition Transcript of C. Loader, P. 68. Lines 17-19, attached hereto as Exhibit
A is a true and accurate copy. Therefore, as the waiver is void as a matter of law, admission of any
evidence pertaining to the waiver would be irrelevant to Plaintiff’s claims, as it does not tend to
make any fact more or less probable, and further it would prejudice the Plaintiff to allow the jury
to be presented evidence or testimony regarding a legally void agreement.
{C0353606-1} -4-
As for the strict liability claim the waiver is not a valid defense to any claims of strict
liability. Under a strict liability theory, Plaintiff only needs to show that the bicycle was defective
and unreasonably dangerous at the time of the accident not that defendant was negligent or failed
to act reasonably. Defendant cannot attempt to negate this evidence with the evidence of waiver.
Connecticut General Statutes § 42a-2-316(5) governs warranties, including the implied warranty
of merchantability. Conn. Gen. Stat. § 42a-2-316(5) explicitly bars any defense in a breach of
warranty claim as it prohibits the enforceability of language in any contract that attempts to waive
the implied warranty of merchantability. Thus, the Defendant cannot attempt to use the waiver as
a method to overcome the implied warranty of merchantability. Accordingly, the evidence is
irrelevant to the strict liability count and admitting such evidence would confuse the issues for the
jury and unduly and unnecessary prejudice Plaintiff.
As demonstrated above, permitting the Defendant to introduce any evidence or testimony
related to the waiver would be unfairly prejudicial to Plaintiff and would allow irrelevant evidence
to be permitted at trial. As such, the appropriate remedy would be to preclude any evidence or
testimony pertaining to the waiver. If this Court deems this issue to be one of legal sufficiency,
then Plaintiff accordingly requests leave to move to strike the special defense from the Defendant’s
answer as it is not legally valid and should therefore be stricken. Alternatively, if this Court is
inclined to deny the Motion in Limine and permit the special defense as plaintiff’s complaint, then
Plaintiff requests that the trial be bifurcated as to the enforceability of the liability waiver, as
briefed in further detail in Plaintiff’s Motion for Bifurcation.
WHEREFORE, the Plaintiff respectfully requests that this Court preclude the Defendants
from presenting evidence or testimony regarding the void liability waiver signed by Plaintiff at the
time he obtained the defective bicycle from Saybrook Point Inn.
{C0353606-1} -5-
THE PLAINTIFF,
ANTHONY SINGE
By: /s/ 401137
Bruce H. Raymond
McGIVNEY, KLUGER, CLARK &
INTOCCIA, P.C.
20 Church Street, Suite 780
Hartford, CT 06103
(860) 404-3000
Juris No. 423896
{C0353606-1} -6-
CERTIFICATION
This is to certify that a copy of the foregoing was mailed, via electronic mail, facsimile
and/or first-class postage, on this 10th day of April, 2024, to the following counsel and pro se
parties of record as follows:
Megan E. Bryson, Esq.
Kaufman, Borgeest & Ryan, LLP
1010 Washington Boulevard, 7th Floor
Stamford, CT 06901
mbryson@kbrlaw.com
Misty Rae Percifield, Esq.
Brian Christopher Powell, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker
1010 Washington Boulevard, Suite 603
Misty.Percifield@wilsonelser.com
/s/ 401137
Bruce H. Raymond
{C0353606-1} -7-
EXHIBIT A
CHRISTOPHER LOADER October 25, 2023
ANTHONY SINGE V. SAYBROOK POINT INN, LLC 68
1 party having a connection to the releasor's use of the
2 equipment due to any cause whatsoever including the
3 negligence or other unintentional misconduct of the
4 releasees. Can you tell us what that means?
5 MS. BRYSON: Objection and you are asking a
6 fact witness to provide a legal interpretation of
7 a document.
8 MR. RAYMOND: Well, this is what you have
9 your guests sign, isn't it. So I want to know if
10 he knows what it means.
11 BY MR. RAYMOND:
12 Q. Do you know what it means?
13 A. I am just rereading it. Give me one second,
14 I am sorry.
15 Q. Take your time.
16 A. I don't want to guess here.
17 Q. If you don't know what it means, you can just
18 tell me that.
19 A. I don't know, I am sorry.
20 Q. Do you expect that your guests know what this
21 means when they read it?
22 MS. BRYSON: Objection to form.
23 THE WITNESS: I wouldn't know.
24 BY MR. RAYMOND:
25 Q. Have you as a manager and the person with
ESQUIRE 800.211.DEPO (3376)
EsquireSolutions.com
Preview
DOCKET NO: KNL-CV-21-6052805-S : SUPERIOR COURT ANTHONY SINGE : J.D. OF NEW LONDON v. : AT NEW LONDON SAYBROOK POINT INN, LLC, ET AL. : APRIL 10, 2024 PLAINTIFF’S MOTION IN LIMINE RE: PRECLUSION OF EVIDENCE OF LIABILITY WAIVER Pursuant to Practice Book § 15-3, the Plaintiff, Anthony Singe (hereinafter “the Plaintiff”), respectfully moves for an order precluding the Defendants, Defendants’ counsel or any other witness from introducing evidence or testifying about the liability waiver Saybrook Point Inn required the Plaintiff to sign in order to use a bicycle or any reference, otherwise, to a waiver of liability. The waiver is not admissible because: (1) it violates public policy and is void; (2) it is not binding because it is an adhesion contract which was not part of a bargained for exchange; (3) it is so vague and ambiguous that Saybrook Point Inn, LLC’s designated person with most knowledge testified that he does not know what it means; (4) liability waivers are not enforceable in this case which is based on strict liability, breach of warranty, and bailment; (5) the admission of the liability waiver would be highly prejudicial to the Plaintiff and there is no probative value in a strict liability product liability case. I. FACTUAL BACKGROUND By way of brief background, Plaintiff, Anthony Singe, brought this Action against Saybrook Point Inn, LLC (hereinafter “Saybrook Point Inn”) and Action Sports of Old Saybrook, Inc. (hereinafter “Action Sports”) on August 5, 2021 after Plaintiff suffered an injury due to a defect in the bicycle he was provided by Saybrook Point Inn when he was a guest. While riding the bicycle under normal conditions, the bicycle’s chain and handle grips came off causing a loss of control and injuries. Without the chain, the bicycle lost its ability to break. As a result of the {C0353606-1} -1- defective condition, Plaintiff suffered a tear to his right tricep tendon when he attempted to stop the bicycle that no longer had any breaking mechanism or steering. Plaintiff underwent surgery to repair the torn tendon. Plaintiff brought a lawsuit on for product liability including claims of strict liability, breach of warranty, and bailment. Defendant, Saybrook Point Inn, in its Answer, pleaded special defenses. See Entry. No. 103.00. In its special defenses, Saybrook Point Inn pleaded that Plaintiff waived and/or released all claims by executing a “Release of Liability and Indemnification Agreement” (hereinafter referred to as a “waiver”) prior to his use of the bicycle. Id. Defendant, Saybrook Point Inn, further asserted that “Plaintiff, therefore, previously and explicitly waived and/or released the claims set forth in his Complaint. Id. II. LEGAL STANDARD “The judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence.” Practice Book § 15-3. “The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial . . . A trial court should exclude evidence it would create undue prejudice and threaten injustice if admitted.” State v. Lo Sacco, 26 Conn. App. 439, 444, 602 A.2d 589 (1992). “In determining whether evidence should be admitted, the primary inquiry is whether it is relevant to a material issue in the case.” Ramos v. Ramos, 80 Conn. App, 276, 281 (2003). “While there is no precise test for relevancy, evidence is admissible if it tends to establish a fact in issue . . .” (Citations omitted.) Chouinard v. Marjani, 21 Conn. App. 572, 575, 575 A.2d, 238 (1990). “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs the probative value . . . We have identified at {C0353606-1} -2- least four circumstances where the prejudicial effect of the otherwise admissible evidence may outweigh its probative value: (1) where the facts offered may unduly arouse the jury’s emotions, hostility, or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counter proof will consume an undue amount of time, and (4) where the party against whom the evidence has been offered, having no reasonable grounds to anticipate the evidence, is unfairly surprised and unprepared to meet it.” Potter v. Chicago Tool Company, 241 Conn. 199, 265-66, 694 A.2d 1319 (1997). It is well established that under Connecticut law, “that contracts that violate public policy are unenforceable.” Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 629 (2005). Axiomatically, “the law does not favor contract provisions which relieve a person from his own negligence . . .” (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003). Exculpatory agreements that relieve a party of liability should only be enforced judiciously when certain factors are present, including when an ordinary person of reasonable intelligence would understand that by signing the agreement, he or she was releasing the defendants from liability from their future negligence. See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 324-25, 885 A.2d 734 (2005). However, even if this factor is present, if an agreement based on the totality of the circumstances violates public policy, then it should not be enforced. Id. at 330. (Holding that a liability waiver at a ski area violates “public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.”) {C0353606-1} -3- III. ARGUMENT The Plaintiff seeks an order from this Court excluding any and all evidence or testimony pertaining to the liability waiver that Defendant, Saybrook Point Inn, requires all guests who use bicycles to sign. The underlying suit includes theories of strict liability, breach of warranty, and bailment. Even if it were enforceable (which it is not) the waiver would not operate as a bar to strict liability, breach of warranty, or bailment claims. There is no case in Connecticut which upholds a liability waiver against such claims. The admission of such evidence would be prejudicial, as under Connecticut law such waivers are void as against public policy. The Connecticut Supreme Court held in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. at 335, that a liability waiver at a recreational setting releasing all liability from the recreational operator was void as it violated public policy to allow participants to bear the responsibility of not only the inherent risks of the activity, but also any carelessness and negligence stemming from the resorts operators. Not only are liability waivers in recreational settings generally unenforceable, as they violate public policy, but testimony of Saybrook Point Inn demonstrates that a reasonable person would not understand the terms of the waiver, which also lends weight to its unenforceability. See id. Saybrook Point Inn’s person most knowledgeable, Christopher Loader, testified at his deposition that he, himself, did not know what the terms of the waiver meant. Deposition Transcript of C. Loader, P. 68. Lines 17-19, attached hereto as Exhibit A is a true and accurate copy. Therefore, as the waiver is void as a matter of law, admission of any evidence pertaining to the waiver would be irrelevant to Plaintiff’s claims, as it does not tend to make any fact more or less probable, and further it would prejudice the Plaintiff to allow the jury to be presented evidence or testimony regarding a legally void agreement. {C0353606-1} -4- As for the strict liability claim the waiver is not a valid defense to any claims of strict liability. Under a strict liability theory, Plaintiff only needs to show that the bicycle was defective and unreasonably dangerous at the time of the accident not that defendant was negligent or failed to act reasonably. Defendant cannot attempt to negate this evidence with the evidence of waiver. Connecticut General Statutes § 42a-2-316(5) governs warranties, including the implied warranty of merchantability. Conn. Gen. Stat. § 42a-2-316(5) explicitly bars any defense in a breach of warranty claim as it prohibits the enforceability of language in any contract that attempts to waive the implied warranty of merchantability. Thus, the Defendant cannot attempt to use the waiver as a method to overcome the implied warranty of merchantability. Accordingly, the evidence is irrelevant to the strict liability count and admitting such evidence would confuse the issues for the jury and unduly and unnecessary prejudice Plaintiff. As demonstrated above, permitting the Defendant to introduce any evidence or testimony related to the waiver would be unfairly prejudicial to Plaintiff and would allow irrelevant evidence to be permitted at trial. As such, the appropriate remedy would be to preclude any evidence or testimony pertaining to the waiver. If this Court deems this issue to be one of legal sufficiency, then Plaintiff accordingly requests leave to move to strike the special defense from the Defendant’s answer as it is not legally valid and should therefore be stricken. Alternatively, if this Court is inclined to deny the Motion in Limine and permit the special defense as plaintiff’s complaint, then Plaintiff requests that the trial be bifurcated as to the enforceability of the liability waiver, as briefed in further detail in Plaintiff’s Motion for Bifurcation. WHEREFORE, the Plaintiff respectfully requests that this Court preclude the Defendants from presenting evidence or testimony regarding the void liability waiver signed by Plaintiff at the time he obtained the defective bicycle from Saybrook Point Inn. {C0353606-1} -5- THE PLAINTIFF, ANTHONY SINGE By: /s/ 401137 Bruce H. Raymond McGIVNEY, KLUGER, CLARK & INTOCCIA, P.C. 20 Church Street, Suite 780 Hartford, CT 06103 (860) 404-3000 Juris No. 423896 {C0353606-1} -6- CERTIFICATION This is to certify that a copy of the foregoing was mailed, via electronic mail, facsimile and/or first-class postage, on this 10th day of April, 2024, to the following counsel and pro se parties of record as follows: Megan E. Bryson, Esq. Kaufman, Borgeest & Ryan, LLP 1010 Washington Boulevard, 7th Floor Stamford, CT 06901 mbryson@kbrlaw.com Misty Rae Percifield, Esq. Brian Christopher Powell, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker 1010 Washington Boulevard, Suite 603 Misty.Percifield@wilsonelser.com /s/ 401137 Bruce H. Raymond {C0353606-1} -7- EXHIBIT A CHRISTOPHER LOADER October 25, 2023 ANTHONY SINGE V. SAYBROOK POINT INN, LLC 68 1 party having a connection to the releasor's use of the 2 equipment due to any cause whatsoever including the 3 negligence or other unintentional misconduct of the 4 releasees. Can you tell us what that means? 5 MS. BRYSON: Objection and you are asking a 6 fact witness to provide a legal interpretation of 7 a document. 8 MR. RAYMOND: Well, this is what you have 9 your guests sign, isn't it. So I want to know if 10 he knows what it means. 11 BY MR. RAYMOND: 12 Q. Do you know what it means? 13 A. I am just rereading it. Give me one second, 14 I am sorry. 15 Q. Take your time. 16 A. I don't want to guess here. 17 Q. If you don't know what it means, you can just 18 tell me that. 19 A. I don't know, I am sorry. 20 Q. Do you expect that your guests know what this 21 means when they read it? 22 MS. BRYSON: Objection to form. 23 THE WITNESS: I wouldn't know. 24 BY MR. RAYMOND: 25 Q. Have you as a manager and the person with ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com