VALLONE v. DONNA, 49 Mass. App. Ct. 330 (2000)

729 N.E.2d 648

No. 98-P-1299.Appeals Court of Massachusetts. Berkshire.March 8, 2000.
June 6, 2000.

Present: PORADA, DREBEN, DUFFLY, JJ.

Release. Contract, Release from liability. State Building Code. Waiver. Public Policy.

Any duty of the owners of an ice skating rink, arising under the State Building Code and regulations promulgated thereunder, to maintain the facility in a safe condition did not give rise to liability for alleged negligent maintenance of the ice surface or failure to warn of the alleged defective condition, and a valid release of liability for ordinary negligence signed by a plaintiff who had been injured on the ice was not void as against public policy. [331-333]

ivil action commenced in the Superior Court Department on October 8, 1997.

The case was heard by C. Brian McDonald, J., on a motion for summary judgment.

The case was submitted on briefs.

William J. Doyle, Jr., for the plaintiff.

Paul M. Vrabel James R. Loughman for the defendants.

PORADA, J.

The plaintiff broke his leg on January 5, 1997, while skating at an ice skating rink owned by the Boys’ and Girls’ Club of Pittsfield, Inc. (club). He then filed a complaint in the Superior Court against the defendants as officers and employees of the club[2] to recover for his injuries, claiming that the defendants’ negligent maintenance of the ice surface and failure to warn him of its defective condition resulted in his injuries. The defendants filed a motion for summary judgment on the ground that a release executed by the plaintiff barred this

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action.[3] A Superior Court judge ruled that the release was valid and entered judgment for the defendants from which the plaintiff has appealed. We affirm.

“As a general proposition, releases of liability for ordinary negligence are valid.” Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 608 n. 2 (1989). See Cormier v Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 288 (1993). However, a release may not shield a defendant from responsibility for violation of a statutory duty. Henry v Mansfield Beauty Academy, Inc., 353 Mass. 507, 511 (1968) Gonsalves v. Commonwealth, supra
at 609 n. 2. In this case, the plaintiff argues that the release does not bar his action because the defendants had a statutory duty under the State Building Code (code) to maintain the ice skating rink in a safe condition, 780 Code Mass. Regs. § 104.1 (1990), and the release is void as against public policy.

Under G.L.c. 143, § 3A, the State Building Code is applicable and enforceable in every municipality in Massachusetts. Under its provisions, an “owner” shall be responsible for maintaining all “buildings” and “structures” in a “safe and sanitary condition.” 780 Code Mass. Regs. §§ 104.1 104.2 (1990). An owner is defined as “[e]very person[4] who alone or jointly or severally with others (a) has legal title to any building or structure; or (b) has care, charge, or control of any building or structure in any capacity including but not limited to agent . . . of the estate of the holder of legal title. . . .” 780 Code

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Mass. Regs. § 201.0 (1990). In this case, there is no dispute that the rink was owned and under the control of the club and that the defendant Donna was its president; the defendant Crosier, its executive director, and the defendant Martin,[5]
its employee. Because of their respective capacities in the club and the breadth of the code’s definition of “owner,” it would appear that each of the defendants arguably qualifies as an “owner” of the rink under the code.

We also assume, without deciding, that an ice skating rink meets the definition of a building or structure under the code.[6] That said, however, we do not believe that the regulation applies to the circumstances of this case. The intent of the code is to “insure public safety, health and welfare insofar as they are affected by building construction through structural strength, adequate egress facilities, sanitary conditions, equipment, light and ventilation and fire safety . . . .” 780 Code Mass. Regs. § 100.4 (1990). In this case, the plaintiff claims that his injury was due to a soft spot in the ice surface which we view as unrelated to the structural components of the rink and outside the scope of the code’s enumerated objectives. Consequently, the defendants are not precluded from relying upon the waiver to shield them from liability, for the waiver does not “do violence to the public policy underlying the [code’s] enactment.” Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 378 (1990), quoting from Spence v. Reeder, 382 Mass. 398, 413 (1981). See Matteo v Livingstone, 40 Mass. App. Ct. 658, 661 (1996) (“violation of a [building code] regulation is

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relevant to the question of negligence only if the risk that materialized was within the contemplation of the regulation”).

We also reject the plaintiff’s argument that the waiver per se is against public policy. We have repeatedly recognized that, at least in the case of ordinary negligence, the “allocation [of] risk by agreement is not contrary to public policy.” Cormier v Central Mass. Chapter of the Natl. Safety Council, 416 Mass. at 289 n. 1. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 18 (1997).

Judgment affirmed.

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