Carabello v. Conn. Valley Fit. Cen., No. Cv 92 050 81 42 (Jan. 21, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff claims damages for injuries sustained while she was exercising at the defendant's fitness facility. In the first count, she alleges that the defendants breached their contract to develop an exercise program designed to the plaintiff's specific needs. In the second count, she alleges that the defendants were negligent in their supervision of plaintiff's exercise program.

Defendants move for summary judgment on the ground that plaintiff's membership agreement included a waiver of defendant's liability for injuries sustained while plaintiff was exercising in defendant's facilities. Defendants cite the language of the waiver in their memorandum of law, but while they refer to an "attached" copy of the contract, it is not in the court file and has not been offered in court.

A motion for summary judgment shall be supported by such documents as may be appropriate. . ." Practice Book 380. Defendants supported their motion with deposition transcript excerpts which establish only that the plaintiff signed an agreement. While plaintiff filed a copy of the front side of the agreement, the claimed "waiver" provision is not included. In her affidavit, plaintiff states that she understood that the contract did not waive her right to bring negligence and breach of contract actions, and that "[n]othing in the language of the waiver led me to believe that I was giving up this right." CT Page 320

On these submissions, we are unable to find such an absence of genuine issues relative to the language of the waiver, and whether or not such a waiver would release the defendants from liability for negligence and breach of contract as to justify granting the motion. Motion for summary judgment is denied.

Wagner, J.