1. N. PATRICK CROOKS, J.

          This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-2002).[1] Benjamin Atkins (Atkins) appealed from an order of the circuit court, which granted summary judgment in favor of Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company (Swimwest). 308*308 Atkins filed suit for the wrongful death of his mother, Dr. Charis Wilson (Wilson), who drowned[2] while using Swimwest's lap pool. The circuit court held that the guest registration and waiver form signed by Wilson constituted a valid exculpatory provision, releasing Swimwest from liability.

          ¶ 2. We conclude that the exculpatory language in Swimwest's form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word "fault" on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for "fault," and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

I

          ¶ 3. Swimwest is mainly an instructional swimming facility located in Madison, Wisconsin. It is equipped with a lap pool that is open to both members 309*309 and visitors. On May 3, 2001,[3] Wilson, a local physician, visited Swimwest as part of a physical therapy and rehabilitation program. Upon entering the facility, Wilson was assisted at the front desk by Swimwest employee Arika Kleinert (Kleinert). Kleinert informed Wilson that because she was not a member of Swimwest, she was required to fill out a guest registration card and pay a fee before swimming.

          ¶ 4. Kleinert presented Wilson with the guest registration card. The form was preprinted on a five and one-half inch by five and one-half inch card that also contained a standardized "Waiver Release Statement." This statement appeared below the "Guest Registration," which requested the visitor's name, address, phone, reason for visit, and interest in membership. The entire card was printed in capital letters with the same size, font, and color. The waiver language printed on the card, following the registration information requested, is reproduced below:

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.

          310*310 ¶ 5. The guest registration and waiver card had just one signature and date line that appeared at the end of the "Guest Registration" and the "Waiver Release Statement." Wilson completed the requested "Guest Registration" portion and signed at the bottom of the "Waiver Release Statement" without asking Kleinert any questions.

          ¶ 6. Before entering the pool, Wilson told Dan Kittelson, Aquatic Director of Swimwest, that she did not require assistance getting into the water.[4] She was observed entering the pool by Karen Kittelson, part owner of Swimwest, and the lifeguard on duty. Karen Kittelson testified that she saw Wilson swimming the sidestroke up and down the length of the pool.

          ¶ 7. Soon after Wilson began swimming, another Swimwest employee, Elizabeth Proepper (Proepper), spotted Wilson lying motionless underwater near the bottom of the pool. Proepper alerted Karen Kittelson, who pulled Wilson from the pool and administered CPR. Wilson died at the hospital on May 4, 2001. An autopsy was performed, and drowning was listed as the official cause of death on the coroner's report.

          ¶ 8. Atkins, a minor and Wilson's only child, filed a wrongful death action against Swimwest through his guardian ad litem. Atkins' complaint alleged that Swimwest was negligent in the operation of the pool facility, particularly in the management and observation of the pool area, that procedures to safeguard against the risk of drowning were not followed, and that negligence of its employees caused Wilson's death.

          ¶ 9. The Dane County Circuit Court, the Honorable Michael N. Nowakowski presiding, granted 311*311 Swimwest's summary judgment motion and dismissed Atkins' wrongful death action. The circuit court concluded that the form Wilson signed was sufficient to absolve Swimwest of any liability for Wilson's death. The court reached its conclusion after considering whether the exculpatory clause was in contravention of public policy.

          ¶ 10. Atkins appealed the circuit court decision. The court of appeals, Judges Charles P. Dykman, Margaret J. Vergeront, and Paul B. Higginbotham, certified the appeal to this court to clarify Wisconsin law concerning the enforceability of exculpatory clauses in standard liability release forms.

II

          ¶ 11. This case involves review of whether the circuit court appropriately granted Swimwest's motion for summary judgment. In reviewing the grant of summary judgment, we apply the same methodology used by the circuit court in deciding the motion. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996); see Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994). Although the standard for our review is de novo, we benefit from the analysis of the circuit court. Yahnke v. Carson, 2000 WI 74, ¶ 10, 236 Wis. 2d 257, 613 N.W.2d 102. Wisconsin Stat. § 802.08(2) states, in relevant part, that the circuit court may appropriately grant summary judgment if evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

          ¶ 12. This case turns on the interpretation of Swimwest's guest registration and waiver form, and 312*312 whether it relieves Swimwest of liability for harm caused by its negligence. Merten v. Nathan, 108 Wis. 2d 205, 210, 321 N.W.2d 173 (1982). Wisconsin case law does not favor such agreements. Richards, 181 Wis. 2d at 1015; Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991). While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81; Merten, 108 Wis. 2d at 210-11.

          ¶ 13. Generally, exculpatory clauses have been analyzed on principles of contract law, see Dobratz, 161 Wis. 2d 502; Arnold v. Shawano County Agr. Soc'y, 111 Wis. 2d 203, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987), and on public policy grounds. See Yauger, 206 Wis. 2d 76; Richards, 181 Wis. 2d 1007; Merten, 108 Wis. 2d 205; see generally, Restatement (Second) of Contracts, § 195 (1981).[5] However, 313*313 lately the contractual analysis has not been emphasized, as many of the factors previously reviewed on a contractual basis were reached in the more recent cases, like Richards and Yauger, on public policy grounds. Yauger, 206 Wis. 2d at 86. For a contractual inquiry, we need only "look to the contract itself to consider its validity. Specifically, we examine the facts and circumstances of [the] agreement . . ." Arnold, 111 Wis. 2d at 211, to determine if it was broad enough to cover the activity at issue. If not, the analysis ends and the contract should be determined to be unenforceable in regard to such activity. If the language of the contract does cover the activity, as it does here, we then proceed to an analysis on public policy, which remains the "germane analysis" for exculpatory clauses. Yauger, 206 Wis. 2d at 86.

          ¶ 14. We generally define public policy as "`that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.'" Merten, 108 Wis. 2d at 213 (quoting Higgins v. McFarland, 196 Va. 889, 86 S.E.2d 168, 172 (1955)). In such a review of exculpatory clauses, this court "attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement." Richards, 181 Wis. 2d at 1016.[6] 314*314 For guidance on the application of these public policy principles, we examine our two most recent cases considering exculpatory contracts in Wisconsin.

          ¶ 15. In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: "First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed." Yauger, 206 Wis. 2d at 84. Yauger involved a wrongful death action against the owner of a ski hill area. The claim, brought by the parents of a girl who fatally collided with the concrete base of a chair lift tower while skiing, alleged that the defendant negligently failed to pad the lift tower. The defendant filed for summary judgment, relying on the exculpatory provision contained in the family ski pass signed by the girl's father. The waiver read, in part: "`There are certain inherent risks in skiing and that we agree to hold Hidden Valley Ski Area/Skiing Enterprises Inc. harmless on account of any injury incurred by me or my Family member on the Hidden Valley Ski Area premises.'" Id. at 79.

          ¶ 16. In applying the two factors, the court in Yauger held that the release was void as against public policy. First, this court held that the release was not 315*315 clear because it failed to include language "expressly indicating Michael Yauger's intent to release Hidden Valley from its own negligence." Id. at 84. Without any mention of the word "negligence," and the ambiguity of the phrase "inherent risks of skiing," the court held that Yauger was not adequately informed of the rights he was waiving. In regard to the second factor, this court held that the form, in its entirety, did not fully communicate to Yauger its nature and significance, because it served the dual purposes of an application for a season pass and a release of liability. Id. at 87. Furthermore, the waiver was not conspicuous. It was one of five paragraphs on the form and did not require a separate signature. Id.

          ¶ 17. In Richards, the court adopted a slightly different approach to determining the enforceability of exculpatory contracts. Richards involved the wife of a truck driver signing a "Passenger Authorization" release form issued by her husband's employer. The form claimed to waive liability for "intentional, reckless, and negligent conduct." She brought suit to recover for injuries she suffered while riding in her husband's truck as a passenger. We used a combination of factors to determine that the exculpatory language was contrary to public policy. Richards, 181 Wis. 2d at 1017. The first factor was that the contract served two purposes, neither of which was clearly identified or distinguished. Second, the court held that the release was broad and all-inclusive. Finally, there was little or no opportunity to negotiate or bargain over the contract. Id. at 1011.

          ¶ 18. Applying the factors from Yauger and Richards, we hold that Swimwest's exculpatory clause is in 316*316 violation of public policy.[7] First, this exculpatory waiver, which uses the word "fault," is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86; Richards, 181 Wis. 2d at 1017-18. Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver's nature and significance. Yauger, 206 Wis. 2d at 86-87. Third, there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019.[8] Under this framework, the waiver in question is unenforceable as against public policy.

          ¶ 19. In addressing the first factor, we find the waiver's broadness raises questions about its meaning and demonstrates its one-sidedness. Id. at 1018. The language chosen by Swimwest is not clear and could potentially bar any claim arising under any scenario. 317*317 The waiver begins: "I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT. . . ." This language never makes clear what type of acts the word "fault" encompasses. Although Swimwest alleges that negligence is synonymous with fault, we find that fault is susceptible to a broader interpretation. Fault is currently defined as "[a]n error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement." Black's Law Dictionary 623 (7th ed. 1999). This definition is broad enough to cover a reckless or an intentional act. A waiver of liability for an intentional act would clearly place the exculpatory clause in violation of public policy. Merten, 108 Wis. 2d at 212; Restatement (Second) of Contracts § 195(1) (1981). We again emphasize that exculpatory language must be strictly construed against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81.

          ¶ 20. If Swimwest wanted to make clear that the signer is releasing it from negligent acts, it could have included the word "negligence" in the waiver. While this court has never specifically required exculpatory clauses to include the word "negligence," we have stated that "we consider that it would be very helpful for such contracts to set forth in clear and express terms that the party signing it is releasing others for their negligent acts. . . ." Dobratz, 161 Wis. 2d at 525.

          ¶ 21. Likewise, the broadness of the exculpatory language makes it difficult to ascertain exactly what was within Wilson's or Swimwest's contemplation. We have consistently held that "[o]nly if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable." Id. at 520 (citing Arnold, 111 318*318 Wis. 2d at 213). For example, in Arnold, we voided an exculpatory clause, because the accident that occurred was not within the contemplation of the parties when they signed the agreement. The case involved a waiver signed by a racecar driver, whereby he agreed not to hold liable the race promoter, the racing association, the track operator, the landowner, and any other driver in the race for injuries arising from the race. The plaintiff was severely injured after he crashed his car, and the rescue personnel sprayed chemicals into his burning car. The fumes that the spray created were toxic and caused the driver severe brain damage. In rendering the exculpatory language unenforceable, we held that "an issue of material fact exists as to whether the risk of negligent rescue operations was within the contemplation of the parties at the time the exculpatory contract was executed." Arnold, 111 Wis. 2d at 212.

          ¶ 22. Like the plaintiff in Arnold, Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

          ¶ 23. Here, the guest registration and waiver form does not provide adequate notice of the waiver's nature and significance. See Yauger, 206 Wis. 2d at 84. In this case, the form provided by Swimwest served two purposes. It was both a "Guest Registration" application and a "Waiver Release Statement." Just as in Richards and Yauger, the exculpatory language appeared to be part of, or a requirement for, a larger registration form. In Yauger, for example, the plaintiff signed a one-page document that served as an application for a season ski 319*319 pass and also contained a release of liability. Yauger, 206 Wis. 2d at 87. The waiver in this case could have been a separate document, providing Wilson with more adequate notice of what she was signing. Also, a separate signature line could have been provided, but was not. "Identifying and distinguishing clearly between those two contractual arrangements could have provided important protection against a signatory's inadvertent agreement to the release." Richards, 181 Wis. 2d at 1017.

          ¶ 24. Another problem with the form was that there was nothing conspicuous about the paragraph containing the "Waiver Release Statement." See Yauger, 206 Wis. 2d at 87. "The form, looked at in its entirety, must be such that a reviewing court can say with certainty that the signer was fully aware of the nature and the significance of the document being signed." Id. at 88. Here, the entire form was printed on one card, with the same size, font, and color. The fact that the release statement is in capital letters is irrelevant since all of the words on the guest registration were also in capital letters. Furthermore, the only place to sign the form was at the very end. This supports the conclusion that the waiver was not distinguishable enough.

          ¶ 25. We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The 320*320 form itself must provide an opportunity to bargain. See Richards, 181 Wis. 2d at 1019.

          ¶ 26. We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer's truck. The court invalidated the contract, in part, because she "simply had to adhere to the terms of the written form." Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest.[9] We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy.

          ¶ 27. All of the factors discussed lead us to conclude that the exculpatory clause in the Swimwest form violates public policy, and, therefore, is unenforceable.

III

          ¶ 28. The final issue we address is whether Atkins is permitted to bring a wrongful death claim against Swimwest. Under Wisconsin law, a wrongful death action may be brought under such circumstances "as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. . . ." Wis. Stat. § 895.03.[10]

          321*321 ¶ 29. As the son of Wilson, Atkins was a proper claimant for a wrongful death claim against Swimwest, pursuant to Wis. Stat. § 895.04.[11] However, because the circuit court determined that Wilson would have been barred from bringing suit, the court consequently determined that Atkins was also barred. While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646, 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.

IV

          ¶ 30. In summary, we conclude that the exculpatory language in Swimwest's form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word "fault" on the form did not make clear to Wilson that she was releasing others 322*322 from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for "fault," and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

          By the Court. — The decision of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

¶ 31. PATIENCE DRAKE ROGGENSACK, J. (concurring).

          While I agree with the mandate to reverse and remand this matter, I write separately for two reasons: (1) because the court paints with too broad a brush when it strikes down the waiver due to its conclusion that Swimwest Family Fitness Center did not give Charis Wilson the opportunity to bargain on the terms of the release, without explaining that while the opportunity to bargain is desirable, it is not a separate component that may be dispositive of a waiver's validity, and (2) because whether Wilson contemplated the possibility of her own death when she signed the waiver of liability is a question of fact that we should not decide on appeal.

          ¶ 32. In the absence of legislation that prohibits them, waivers of liability, also known as exculpatory contracts, generally have been upheld. Arnold v. Shawano County Agric. Soc'y, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983). However, exculpatory contracts, 323*323 such as the one Wilson signed to obtain the opportunity to swim in the Swimwest pool, are not favored in the law. Id.

          ¶ 33. When an exculpatory contract is reviewed by a court upon a claim that the contract violates public policy, there is a tension that is always present. On one hand, the court must consider the right to contract freely in the management of one's affairs without government interference, and on the other hand, the court must consider that the shifting of responsibility for a tortfeasor's negligent acts may tend to permit more negligent conduct. Id. at 209, n.2. We have balanced this tension by consistently requiring that exculpatory contracts contain two components in order to survive a public policy challenge: (1) a description that "clearly, unambiguously, and unmistakably inform[s the signer] of the rights he [or she is] waiving," Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 86, 557 N.W.2d 60 (1996), and (2) a description that "clearly and unequivocally communicate[s] to the signer the nature and significance of the document being signed." Id. at 86-87. In regard to these components, releases that serve two purposes and those that are not conspicuously labeled have been held to be insufficient to draw the signer's attention to the fact that he is waiving liability for other parties' negligence, as well as his own. Richards v. Richards, 181 Wis. 2d 1007, 1017, 513 N.W.2d 118 (1994). And a release that is so broad as to be interpreted to shift liability for a tortfeasor's conduct under all possible circumstances, including reckless and intentional conduct, and for all possible injuries, catastrophic as well as minor, will not be upheld. Id. at 1017-18.

          ¶ 34. In Richards, we also identified a third consideration that may be examined when exculpatory 324*324 contracts are reviewed: Whether the injured party has had an opportunity to bargain in regard to the breadth of the release. Id. at 1019. However, contrary to our discussion of the two components set out above, which previous cases had evaluated, we offered no citation to precedent that would establish that the lack of an opportunity to bargain is a component necessary to a valid exculpatory contract. Instead, we linked the lack of an opportunity to bargain to the component requiring releases to clearly state the circumstances and scope of injuries contemplated in order to inform the signer of the rights that he or she is waiving. Id. at 1019-20.

          ¶ 35. In a more recent decision where we invalidated a waiver because it "failed to clearly, unambiguously, and unmistakably inform [the signer] of the rights he was waiving," Yauger, 206 Wis. 2d at 86, and failed to "clearly and unequivocally communicate to the signer the nature and significance of the document being signed," id. at 86-87, we also explained:

We need not address the third ground articulated in Richards, i.e., standardized agreement which offers little or no opportunity for negotiation or free and voluntary bargaining, inasmuch as either of the above principles was sufficient to void this contract.

          Id. at 87 n.1. In so explaining that a lack of either of the two necessary components set out at pages 86-87 of our decision was sufficient to set aside an exculpatory contract, we chose not to establish as a third and necessary component of a public policy analysis a requirement that there be an opportunity to bargain on the terms of the release. Rather, the lack of an opportunity to bargain was a fact that a court could consider in evaluating the totality of the circumstances surrounding the execution of a waiver.

          325*325 ¶ 36. It is against this background that the majority opinion strikes down the contract between Wilson and Swimwest, while concluding that one of the infirmities leading to invalidation is that Wilson was not given an opportunity to bargain about the terms of the release. Majority op., ¶ 18. It also opines that, "[b]ecause all of the factors listed in [earlier] cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause." Id., ¶ 18 n.7. In so doing, it adds the lack of an opportunity to bargain as a component of the public policy analysis, rather as reasoning used to determine whether the release was overly broad, as we employed it in Richards. It also implies that the lack of an opportunity to bargain could be sufficient to invalidate a release when it asserts, "The form itself must provide an opportunity to bargain." Majority op., ¶ 25. This is an unnecessary broadening of the law that heretofore has set the framework for the analysis of an exculpatory contract on public policy grounds.

          ¶ 37. My concern may seem like a minor matter, but it is very important in a practical sense. For example, the reception desk of a recreational facility is not always staffed by the owner of the facility, but rather, it may be staffed by an employee, as was the case here. It would be unrealistic to require that an employee be authorized to "bargain" about the terms of a release of liability, and it would be unrealistic that an owner always be present at the facility. Additionally, what give and take has to occur in order that there be an actual opportunity to bargain? What if a potential swimmer does not want to waive any potential claims for liability, but the owner is able to afford insurance only for catastrophic injuries, does the owner have the right to say that the person cannot swim in his pool? 326*326 Those are only a few of the questions that could arise. Accordingly, I would not employ the opportunity to bargain in any way other than in an attempt to determine if the language in the release described the circumstances for which potential liability claims were being waived.

          ¶ 38. Additionally, in holding that the opportunity to bargain is a component of a contractual waiver, the court has effectively removed the ability of most businesses that operate paid recreational facilities to limit any type of liability by contract. In my view, this will result in an increase in lawsuits and in fewer swimming and other paid recreational facilities for Wisconsin citizens to enjoy, a result that does not further the public good.

          ¶ 39. Exculpatory contracts may be invalidated on a contractual basis, as well as on a public policy basis, if the injury that occurred was not within the contemplation of the parties when the agreement was signed. Arnold, 111 Wis. 2d at 211. As we have explained, "Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed." Id. We have also explained that the determination of what risks the parties to the contract intended to include in the release are questions of fact for the jury. Id. at 212.

          ¶ 40. An overly broad and generally stated release that may prevent the formation of a valid contract because there was no meeting of the minds by the contracting parties presents a question similar to that presented by a failure to establish the components necessary to a public policy analysis. However, under a contract analysis, the question presents as a fact question, unless the facts are undisputed and capable of only 327*327 one interpretation, see Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 466-67, 449 N.W.2d 35 (1989), and in a public policy analysis the question presents as a question of law, Richards, 181 Wis. 2d at 1011. The foundations are so similar that we have cited to cases that were decided under a contract-type analysis as support for a decision based on public policy. See, e.g., id. at 1015-16 (a policy-based decision, citing Dobratz v. Thomson, 161 Wis. 2d 502, 520, 468 N.W.2d 654 (1991), a contract-based decision).

          ¶ 41. Here, the contract-formation question presented is whether Wilson contemplated the possibility of her own death when she signed the release. The record provides that she was a swimmer and that the part of the pool in which she was swimming was only about four feet deep. Therefore, if she tired of swimming, all she had to do to keep from sinking below the water's surface was to stand up. Additionally, statements in the coroner's report included in the record, which repeated findings from the autopsy, relate that although Wilson's cause of death is listed as "drowning," she did not die from the aspiration of water into her lungs, as one would expect when breathing continues after a person is submerged under water. The physician who conducted the autopsy labeled this phenomenon a "dry drowning." Although he did not assign any specific finding, such as a heart attack, as the cause of Wilson's failing to breathe, several possibilities were mentioned. Accordingly, there may have been medical circumstances that contributed to Wilson's death that had nothing to do with her being submerged in a swimming pool when she was found unconscious. This presents the court with material factual questions about what risks Wilson contemplated when she signed the release. In my view, there must first be a finding of what caused 328*328 Wilson's death before a court can evaluate whether she could have agreed to waive that cause. This cannot be decided on summary judgment.

          ¶ 42. Furthermore, the majority opinion does not decide that as a matter of law Wilson could not have contemplated the possibility of her own death when she signed the release. Therefore, I would send the case back to the circuit court for determinations of what caused Wilson to stop breathing and whether Wilson and Swimwest intended the release to cover that catastrophic event. In my view, until it is known why Wilson stopped breathing, it will not be possible to determine whether she contemplated that event when she signed the waiver of liability. If the injury-causing event is found to be one that Wilson did not contemplate, the waiver she signed will have no effect on liability for her death.

          ¶ 43. For the reasons set forth above, I respectfully concur.

¶ 44. JON P. WILCOX, J. (dissenting).

          I dissent. While I certainly do not believe that all exculpatory agreements should be upheld, the majority opinion will render it virtually impossible to enforce any exculpatory agreement in Wisconsin. The majority concludes that the agreement in this case is unenforceable as against public policy for three reasons: 1) the agreement is overly broad; 2) the agreement serves two purposes; and 3) there was no opportunity for the signer to bargain or negotiate over the exculpatory language. Majority op., ¶ 18. These factors originate from this court's decision in Richards v. Richards, 181 Wis. 2d 1007, 1017-19, 513 N.W.2d 118 (1994). I disagree with the majority's application of factors one and two and while I am bound to accept the legitimacy of 329*329 the third factor, I question the manner in which the third factor is applied in this case. Further, the majority fails to articulate a clear test as to what types of exculpatory agreements are enforceable in this state. The majority applies the above three factors in such a fashion so as to leave little possibility that any exculpatory agreement could be enforceable in this state.

          45. The law governing the enforceability of exculpatory agreements in Wisconsin has been anything but consistent and this court has, through its various articulations of standards applicable to such agreements, failed to ever adhere to a consistent test for determining their validity. While parties wishing to execute such agreements certainly have a plethora of cases explaining when such agreements are not enforceable, our jurisprudence has not provided a beacon for litigants to successfully navigate the rocky waters of this area of the law.

          ¶ 46. The last time this court had the opportunity to examine the validity of exculpatory agreements in Wisconsin, we noted that our previous cases had used a variety of tests to evaluate the legitimacy of such agreements. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81-83, 557 N.W.2d 60 (1996). We explained that although our past cases had not adhered to a single test, they all had a single common thread tying them together: "[t]hese cases, in different ways, involved an exculpatory clause that failed to disclose to the signers exactly what rights they were waiving." Id. at 81. After analyzing our prior jurisprudence, including Richards, this court distilled a two-part test governing the legitimacy of exculpatory agreements:

While the law grudgingly accepts the proposition that people may contract away their liability right to recovery for negligently caused injuries, the document 330*330 must clearly, unambiguously, and unmistakably express this intention. Furthermore, the document when looked at in its entirety must clearly and unequivocally communicate the nature and significance of the waiver.

          Id. at 88-89. The majority in this case reverts back to the test used in Richards while ignoring the lessons of Yauger.

          ¶ 47. Before analyzing the exculpatory agreement, it is important to set forth precisely the nature and contents of the agreement and consider the form on which it appears as a whole.[1] The agreement in question is contained on an index card that is five and one-half inches by five and one-half inches. The card reads:

GUEST REGISTRATION NAME_______________________________________________ ADDRESS____________________________________________ CITY______________________STATE____________________ ZIP______________ HOME PHONE_______________________ REASON FOR VISIT___________________________________ HOW DID YOU HEAR OF SWIM WEST?_____________________ ___________________________________________________ I WOULD LIKE MEMBERSHIP INFORMATION? YES____ NO____ DATE____________________________

331*331 WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILIY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.

SIGNED DATE

That is the entirety of the agreement at question in this case.

          ¶ 48. The first reason the majority provides for striking down the exculpatory agreement contained on this card is: "this exculpatory waiver, which uses the word `fault,' is overly broad and all-inclusive." Majority op., ¶ 18. The majority reasons that the language is ambiguous, could potentially cover a variety of claims, does not include the word "negligence," and states that it is unclear whether the risk of drowning was within the signer's contemplation. Majority op., ¶¶ 19-22.

          ¶ 49. "Fault," as understood by a layperson, is defined as "[a] mistake; an error" or "[r]esponsibility for a mistake or an offense; culpability." The American Heritage Dictionary of the English Language 665 (3d ed. 1992). Thus, the clear meaning of the first clause in the waiver is that the signer agrees to assume all liability for herself, without regard to who is responsible for any mistake leading to an injury. This language plainly covers negligent conduct. The fact that the legal definition of "fault" covers reckless and intentional acts, majority op., ¶ 19, is not dispositive. As the majority 332*332 correctly indicates, waivers may not be enforced to prevent liability for reckless or intentional conduct. Id. However, neither reckless nor intentional conduct is at issue in this case. The fact that the waiver may be unenforceable as to other tortious acts is not germane; the relevant inquiry is whether "the exculpatory clause . . . fail[s] to disclose to the signers exactly what rights they were waiving[,]" and whether the agreement unambiguously and unmistakably covers the tortious act at issue. Yauger, 206 Wis. 2d at 81, 86.

          ¶ 50. When read in context of the remaining language of the waiver release statement, the meaning of the first sentence, containing the word "fault," becomes even clearer. See Folkman v. Quamme, 2003 WI 116, ¶ 28 n.11, ¶ 29, 264 Wis. 2d 617, 665 N.W.2d 857 (words and phrases of a contract are to be read in context of the contract's other language in determining ambiguity). The second sentence of the waiver provides: "I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER." Thus, when the first two sentences of the waiver are read together in context, an ordinary reader would understand that she is agreeing to hold Swimwest harmless for any injuries she suffers while at Swimwest that are due to mistakes or errors for which Swimwest is responsible. In other words, a layperson would understand that the waiver applies to any negligent acts of Swimwest or its employees.

          ¶ 51. However, the majority argues that the decedent would not have contemplated the injury that occurred, majority op., ¶ 22, and focuses on the fact that the agreement does not contain the word "negligence." 333*333 Majority op., ¶ 20. The decedent in this case went to a facility called "Swimwest" in order to swim laps as part of her physical therapy. Majority op., ¶ 3. She took her time to read the waiver and then signed it. Id., ¶¶ 5, 25. Yet, the majority somehow concludes that the decedent did not contemplate the risk of drowning. Regardless of whatever other activities the waiver may or may not cover, it is almost inconceivable that a reasonable person would not understand that, at a minimum, a waiver at an aquatic facility would cover the risk of drowning. What else would such a waiver cover if not the risk of drowning?

          ¶ 52. Must a business list in the waiver each and every conceivable form of negligence that may result in injury to a patron? The majority opinion would seem to so indicate. Majority op., ¶ 22 ("Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty."). Listing the myriad of ways in which the proprietor or its agents could be negligent would be unduly burdensome to a business and would necessitate a waiver that is much more than one page in length. Such a waiver, in addition to being quite lengthy, would certainly not be easy to read or understand.

          ¶ 53. In Yauger, this court cited with approval guidelines originally developed for the Uniform Commercial Code that govern warranty disclaimers. Yauger, 206 Wis. 2d at 87 n.2. One of the guidelines is that "the language of the negligence waiver should be readable. . . . and should not be written in legal jargon." Id. (quoting Stephanie J. Greer & Hurlie H. Collier, The Conspicuousness Requirement: Litigating and Drafting Contractual Indemnity Provisions in Texas After Dresser Industries, Inc. v. Page Petroleum, Inc., 35 S. Tex. L. Rev. 243, 265-70, Apr. 1994). By focusing on the 334*334 absence of a legal term of art in the waiver— "negligence"—and the fact that the waiver did not precisely mention the exact negligent act leading to injury in this case, the majority's rationale runs afoul of the principle that waivers should be easy to read and should not contain legal jargon.

          ¶ 54. Next, the majority concludes that the waiver does not provide "adequate notice of the waiver's nature and significance" because it serves two purposes. Majority op., ¶ 23. The majority states that as in Richards and Yauger, the exculpatory language here is part of a larger registration form. Majority op., ¶ 23. However, the waiver in this case is part of a simple five and one-half inch by five and one-half inch index card. The only part of the card containing contiguous complete sentences is the waiver. The remainder of the form is comprised of mere blank lines for the reader to fill in his or her contact information.

          ¶ 55. Thus, the waiver is the only part of the form for a patron to read. The form of the waiver in this case stands in stark contrast to the waiver in Yauger, which was "one paragraph in a form containing five separate paragraphs" that did not stand out from the other language. Yauger, 206 Wis. 2d at 87. Here, the exculpatory language is the only language on the form to be read. This is not a case where the exculpatory language is located in fine print at the end of a multi-page document or even a case where the waiver is located in the midst of several paragraphs on a single page form. Aside from the blanks for contact information, the waiver is the form.

          ¶ 56. While the top portion of the card does contain blanks for the signer to supply his or her contact information, such information would seem to be a necessary part of the waiver itself, as if injury did occur, 335*335 it seems logical that the facility would be in need of the injured patron's contact information. The fact that the top portion of the card is entitled "GUEST REGISTRATION" does not somehow alter the inherent nature of the form. Indeed, one of the guidelines cited in Yauger is that the waiver should be separately labeled to distinguish it from other parts of the agreement. Yauger, 206 Wis. 2d at 87 n.2.

          ¶ 57. The majority also stresses that there is not a separate signature line for the waiver. Majority op., ¶ 23. However, the signature line on the form is located directly under the exculpatory language, unlike the waiver in Richards, 181 Wis. 2d at 1013. One has to wonder why there would need to be a separate signature line under the blank lines in the top portion of the form.

          ¶ 58. The exculpatory language in this case satisfies the guidelines cited in Yauger, 206 Wis. 2d at 87 n.2. The waiver is conspicuous, as it is the only "paragraph" on the form. The waiver is set off from the remainder of the form in a separately titled section. The waiver is easy to locate. The waiver appears directly above a signature line and the waiver is the only portion of the document requiring a signature. The heading before the waiver is not misleading. The waiver itself is written in plain, easy to read language and does not contain an abundance of legal jargon. The waiver is written in large print. In other words, there is no doubt that the waiver is conspicuous and informs the signer of its nature and significance.

          ¶ 59. Yet, the majority concludes that the waiver "was not distinguishable enough." Majority op., ¶ 24. Apparently, the waiver would have been distinguishable if it appeared on a separate card, or if the form was multicolored and had but one more signature line, or if 336*336 Swimwest had not utilized capital letters when asking for contact information. Id., ¶¶ 23-24. This type of analysis elevates form over substance and fails to consider the form on which the exculpatory clause appears as whole.

          ¶ 60. The majority states that it is clarifying the law in Wisconsin concerning exculpatory clauses. Majority op., ¶ 10. However, its application of these first two factors has done just the opposite. In Yauger we stated that a waiver appearing on a form with other language should be conspicuously labeled, set apart, and should stand out from the rest of the form. Yauger, 206 Wis. 2d at 87 & n.2. Here, this was done. Yet, the majority uses the very fact that the "Waiver Release Statement" is labeled separately from the "Guest Registration" portion to conclude that the form serves two purposes and thus does not provide adequate notice of the significance and nature of the waiver. Majority op., ¶ 23. In Yauger, we suggested that a waiver should be easy to read and should not be written in legalese. Yauger, 206 Wis. 2d at 87 & n.2. Yet, the majority faults Swimwest for not utilizing a legal term of art— "negligence"—in its waiver, and for not listing the precise act of negligence that allegedly occurred in this case. Majority op., ¶¶ 20, 22.

          ¶ 61. Further, as close reading of Yauger indicates, a document "serving two purposes" is not in and of itself questionable. Rather, the concern arises that the signer may not be aware of the nature and significance of the waiver when a document serves two purposes and the waiver is not conspicuous. Yauger, 206 Wis. 2d at 86-88. This concern is not present here because the waiver is conspicuous and, read in context, clearly indicates what is being waived. Thus, the fact 337*337 that the form on which it appears arguably serves two purposes should not be dispositive.

          ¶ 62. Finally, the majority concludes that the waiver is not valid because "there was no opportunity for Wilson to bargain over the exculpatory language[.]" Majority op., ¶ 25. This "bargaining" requirement originated in Richards, 181 Wis. 2d at 1019-20, and was not based on any existing case law. The "bargaining" requirement was not utilized in Yauger. The dissent in Richards, which I joined, indicated that this requirement was not based on existing law and discussed the inherent problems with such a requirement. Richards, 181 Wis. 2d at 1035-43 (Day, J., dissenting). In particular, the dissent in Richards queried:

[W]hat does it mean to "negotiate" in this context, and how would [a] company ensure that the negotiations were "equal"? Are we to assess the competency of [the plaintiff] to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? . . . Or is it suggested that the company must appoint someone to help [the plaintiff] draft a counter-proposal? Must the company then negotiate—in good faith, of course—about which terms of its own release it might be willing to drop in "negotiations"? And what if, despite very skilled and fair negotiations on both sides, [the plaintiff] nevertheless agrees to accept the full release.

Richards, 181 Wis. 2d at 1041 (Day, J., dissenting).

          ¶ 63. It is entirely impractical to require "bargaining" in this context. Almost all releases are printed on standardized forms and are a condition precedent to the use of recreational facilities. Such releases are utilized by aquatic facilities, athletic clubs, ski resorts, canoeing and rafting outfits, and other high-risk ventures such as skydiving and bungee jumping. Many of these businesses 338*338 are small firms whose continued existence is based on high customer volume. Must the owner of such business, or other person with the authority to negotiate, be present at the desk of such facility during all hours of operation? Must the proprietor employ a full-time attorney whose duties include negotiating with every person in the long line of skiers waiting to brave the slopes? These businesses would grind to a halt under such practices or, at the very least, face long lines of angry customers.

          ¶ 64. The reality is that there is almost never an opportunity to "bargain" over exculpatory clauses, as the majority describes it. Rarely do ordinary consumers in today's fast-paced global economy have an "opportunity" to bargain over any of the terms of a contract (other than perhaps the price), as the majority describes "bargaining." The only meaningful "bargaining" tool that an ordinary consumer possesses is his or her choice to frequent another business.

          ¶ 65. While Richards has not been overruled and I am bound to accept the lack of the "opportunity to bargain" as a legitimate factor in the analysis of exculpatory agreements, the use of the "bargaining" factor in this case is particularly troublesome in light of the majority's refusal to set forth a workable standard describing what would satisfy the "opportunity to bargain" requirement and its failure to decide whether a single objectionable factor is sufficient to render an exculpatory clause invalid. Majority op., ¶ 18 n. 7. Richards, which utilized the "bargaining" test, noted that no one factor alone was sufficient to invalidate an exculpatory agreement. Richards, 181 Wis. 2d at 1011. Yauger, which did not discuss the bargaining factor, came to the opposite conclusion and held the presence 339*339 of one factor was sufficient to invalidate an exculpatory clause. Yauger, 206 Wis. 2d at 87 n.1.

          ¶ 66. The majority fails to resolve this dispute and leaves open the possibility that even an exculpatory clause that is expertly drafted, conspicuous, and appears on a separate document may be invalidated merely because the signer had no "opportunity to bargain." As such, the majority places the legitimacy of all exculpatory agreements in doubt. If this court wishes to invalidate all exculpatory clauses, then it should so hold, rather than burdening businesses with confusing requirements that are impossible or unlikely to be met in any case.

          ¶ 67. Individuals have a right to know what the law is so that they may conduct their affairs in an orderly fashion. The majority has failed to articulate a clear, useable test that will provide meaningful guidance to those wishing to execute exculpatory agreements. Because the majority fails to articulate such a test, fails to apply the first two factors in accordance with the guidelines set forth in Yauger, and leaves open the possibility that the lack of an "opportunity to bargain" alone is sufficient to invalidate an exculpatory agreement, I respectfully dissent.

          340*340

          [1] Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § (Rule) 809.61 states, in relevant part: "The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion."

          [2] Wilson was found unconscious at the bottom of Swimwest's lap pool. Swimwest employees pulled her from the pool and immediately administered CPR. Wilson was then transported by ambulance to University Hospital, where she died the next day, May 4, 2001. An autopsy revealed that death was caused by an Anoxic Brain Injury, the result of drowning.

          [3] The actual form signed by Wilson is dated May 2, 2001. The complaint, coroner's report, and Arika Kleinert's affidavit all indicate, however, that Wilson signed the form and was found unconscious in the pool on May 3, 2001. The parties have presumed that the date on the form was incorrect.

          [4] It was established in Atkins' affidavit that Wilson knew how to swim prior to May 3, 2001.

          [5] Restatement (Second) of Contracts § 195 states, in relevant part:

(1) A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.

(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if:

(a) the term exempts an employer from liability to an employee for injury in the course of his employment;

(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or

(c) the other party is similarly a member of a class protected against the class to which the first party belongs.

(3) A term exempting a seller of a product from his special tort liability for physical harm to a user or consumer is unenforceable on grounds of public policy unless the term is fairly bargained for and is consistent with the policy underlying that liability.

          [6] The basic principles of contract and tort law as applied to exculpatory provisions were made clear in Richards v. Richards, 181 Wis. 2d 1007, 1016, 513 N.W.2d 118 (1994):

The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the "prophylactic" purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Id. (citing Merten v. Nathan, 108 Wis. 2d 205, 211-12, 321 N.W.2d 173).

          [7] We acknowledge that Yauger v. Skiing Enters., Inc.,, 206 Wis. 2d 76, 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat'l Tractor Pullers Ass'n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, "the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement." Id. On the other hand, in Richards, the court stated that "none of these factors alone would necessarily have warranted invalidation of the exculpatory contract." Richards, 181 Wis. 2d at 1020; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.

          [8] According to the court in Yauger, it did not address this factor from Richards because both of the factors it had already addressed were sufficient to void the exculpatory clause in question. Yauger, 206 Wis. 2d 76, 86 n.1.

          [9] In Karen Kittelson's deposition, she states: "You have to pay the fee and sign the waiver. You are not allowed to use the facility unless you sign the waiver."

          [10] Wisconsin Stat. § 895.03 states, in relevant part:

Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

          [11] Wisconsin Stat. § 895.04(1) states, in relevant part: "An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs."

          [1] A copy of the agreement is attached as an exhibit at the end of this dissent.

SULLIVAN, C.J.

          This appeal[2] arises out of a complaint filed by the plaintiff, Gregory D. Hanks, against the defendants, Powder Ridge Restaurant Corporation and White Water Mountain Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, seeking compensatory damages for injuries the plaintiff sustained while snowtubing at the defendants' facility. The trial court rendered summary judgment in favor of the defendants, concluding that this court's decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003), precluded the plaintiff's negligence claim as a matter of law. We reverse the judgment of the trial court.

          The record reveals the following factual and procedural history. The defendants operate a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On February 16, 2003, the plaintiff brought his three children and another child to Powder Ridge to snowtube. Neither the plaintiff nor the four children had ever snowtubed at Powder Ridge, but the snowtubing run was open to the public generally, regardless of prior snowtubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. Further, in order to snowtube at Powder Ridge, patrons were required to sign a "Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability" (agreement). The plaintiff read and signed the agreement on behalf of himself and the four children. While snowtubing, the plaintiff's right foot became caught between his snowtube and the man-made bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair.

          Thereafter, the plaintiff filed the present negligence action against the defendants. Specifically, the plaintiff alleges that the defendants negligently caused his injuries by: (1) permitting the plaintiff "to ride in a snow tube that was not of sufficient size to ensure his safety while on the snow tubing run"; (2) "fail[ing] to properly train, supervise, control or otherwise instruct the operators of the snow tubing run in the proper way to run the snow tubing course to ensure the safety of the patrons, such as the plaintiff"; (3) "fail[ing] to properly groom the snow tubing run so as to direct patrons . . . such as the plaintiff away from the sidewalls of [the] run"; (4) "plac[ing] carpet at the end of the snow tubing run which had the tendency to cause the snow tubes to come to an abrupt halt, spin or otherwise change direction"; (5) "fail[ing] to properly landscape the snow tubing run so as to provide an adequate up slope at the end of the run to properly and safely slow snow tubing patrons such as the plaintiff"; (6) "fail[ing] to place warning signs on said snow tubing run to warn patrons such as the plaintiff of the danger of colliding with the side wall of [the] snow tubing run"; and (7) "fail[ing] to place hay bales or other similar materials on the sides of the snow tubing run in order to direct patrons such as the plaintiff away from the sidewalls of [the] run."

          737*737 The defendants, in their answer to the complaint, denied the plaintiff's allegations of negligence and asserted two special defenses. Specifically, the defendants alleged that the plaintiff's injuries were caused by his own negligence and that the agreement relieved the defendants of liability, "even if the accident was due to the negligence of the defendants." Thereafter, the defendants moved for summary judgment, claiming that the agreement barred the plaintiff's negligence claim as a matter of law. The trial court agreed and rendered summary judgment in favor of the defendants. Specifically, the trial court determined, pursuant to our decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 640-44, 829 A.2d 827, that the plaintiff, by signing the agreement, unambiguously had released the defendants from liability for their allegedly negligent conduct. Thereafter, the plaintiff moved to reargue the motion for summary judgment. The trial court denied the plaintiff's motion and this appeal followed.

          The plaintiff raises two claims on appeal. First, the plaintiff claims that the trial court improperly concluded that the agreement clearly and expressly releases the defendants from liability for negligence. Specifically, the plaintiff contends that a person of ordinary intelligence reasonably would not have believed that, by signing the agreement, he or she was releasing the defendants from liability for personal injuries caused by negligence and, therefore, pursuant to Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 643, 829 A.2d 827, the agreement does not bar the plaintiff's negligence claim. Second, the plaintiff claims that the agreement is unenforceable because it violates public policy. Specifically, the plaintiff contends that a recreational operator cannot, consistent with public policy, release itself from liability for its own negligent conduct where, as in the present case, the operator offers its services to the public generally, for a fee, and requires patrons to sign a standardized exculpatory agreement as a condition of participation. We disagree with the plaintiff's first claim, but agree with his second claim.

          Before reaching the substance of the plaintiff's claims on appeal, we review this court's decision in Hyson. The plaintiff in Hyson was injured while snowtubing at Powder Ridge and, thereafter, filed a complaint against the defendant, White Water Mountain Resorts of Connecticut, Inc., alleging that the defendant's negligence proximately had caused her injuries.[3] Id., at 637-39, 829 A.2d 827. Prior to snowtubing at Powder Ridge, the plaintiff had signed an exculpatory agreement entitled "RELEASE FROM LIABILITY." Id., at 638 and n. 3, 829 A.2d 827. The issue presented in Hyson was whether the exculpatory agreement released the defendant from liability for its negligent conduct and, consequently, barred the plaintiff's negligence claims as a matter of law. Id., at 640, 829 A.2d 827. We concluded that it did not. Id.

          In arriving at this conclusion, we noted that there exists "widespread support in other jurisdictions for a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly"; id., at 641-42, 829 A.2d 827; and that this court previously had acknowledged "the well established principle . . . that `[t]he law does not favor contract provisions which relieve a person from his own negligence . . . .'" Id., at 643, 829 A.2d 738*738 827. Accordingly, we determined that "the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides." Id. This rule "prevents individuals from inadvertently relinquishing valuable legal rights" and "does not impose . . . significant cost[s]" on entities seeking to exculpate themselves from liability for future negligence. Id. Examining the exculpatory agreement at issue in Hyson, we observed that "the release signed by the plaintiff [did] not specifically refer to possible negligence by the defendant" but, instead, only referred to "inherent and other risks involved in [snowtubing] . . . ."[4] (Internal quotation marks omitted.) Id., at 640, 829 A.2d 827. Thus, "[a] person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing." Id., at 643, 829 A.2d 827. Accordingly, we concluded that the exculpatory agreement did not expressly release the defendants from liability for future negligence and, therefore, did not bar the plaintiff's claims. Consequently, we declined to decide whether a well drafted exculpatory agreement expressly releasing a defendant from prospective liability for future negligence could be enforced consistent with public policy. See id., at 640, 829 A.2d 827 ("we do not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable"); id., at 643 n. 11, 829 A.2d 827 ("we do not decide today whether a contract having such express language would be enforceable to release a party from liability for its negligence").

          As an initial matter, we set forth the appropriate standard of review. "[T]he standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005).

739*739 I

          We first address the plaintiff's claim that the agreement does not expressly release the defendants from liability for personal injuries incurred as a result of their own negligence as required by Hyson. Specifically, the plaintiff maintains that an ordinary person of reasonable intelligence would not understand that, by signing the agreement, he or she was releasing the defendants from liability for future negligence. We disagree.

          "[T]he law does not favor contract provisions which relieve a person from his own negligence. . . ." Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 643, 829 A.2d 827. "[T]he law's reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . . .

          "Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon . . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . . ." (Internal quotation marks omitted.) B & D Associates, Inc. v. Russell, 73 Conn.App. 66, 72, 807 A.2d 1001 (2002), quoting Gross v. Sweet, 49 N.Y.2d 102, 107-108, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979); see also Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 643, 829 A.2d 827 ("a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides"). "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 559-60, 849 A.2d 368 (2004).

          The agreement[5] at issue in the present case provides in relevant part: "I understand 740*740 that there are inherent risks involved in snowtubing, including the risk of serious physical injury or death and I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants] . . . including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like . . . . I . . . agree I will defend, indemnify and hold harmless [the defendants]. . . from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of [the defendants]. . . . I . . . hereby release, and agree that I will not sue [the defendants] . . . for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of [the defendants] . . . ." (Emphasis in original.)

          We conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence. The agreement explicitly provides that the snowtuber "fully assume[s] all risks associated with [s]nowtubing, even if due to the NEGLIGENCE" of the defendants. (Emphasis in original.) Moreover, the agreement refers to the negligence of the defendants three times and uses capital letters to emphasize the term "negligence." Accordingly, we conclude that an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence.[6]

          741*741 The plaintiff claims, however, that the agreement does not expressly release the defendants from liability for their prospective negligence because the agreement "define[s] the word `negligence' solely by reference to inherent [risks] of the activity." We disagree. The agreement states that the snowtuber "fully assume[s] all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]" and provides a nonexhaustive list of such risks. (Emphasis in original.) We acknowledge that some of the risks listed arguably can be characterized as inherent risks because they are innate to the activity, "are beyond the control of the [recreational] area operator and cannot be minimized by the operator's exercise of reasonable care." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, 849 A.2d 813 (2004). Other risks listed in the agreement, for example, "lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions" are not inherent risks. The recreational operator has control over safety devices, warnings and instructions, and can ensure their adequacy through the exercise of reasonable care. Thus, a snowtuber who, by virtue of signing the present agreement, assumes the risk of inadequate safety devices, warnings or instructions, necessarily assumes the risk of the recreational operator's negligence.

          We conclude that the trial court properly determined that the agreement in the present matter expressly purports to release the defendants from liability for their future negligence and, accordingly, satisfies the standard set forth by this court in Hyson.

II

          We next address the issue we explicitly left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 640, 829 A.2d 827, namely, whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator's negligent conduct violates public policy. We 742*742 conclude that it does and, accordingly, reverse the judgment of the trial court.

          Although it is well established "that parties are free to contract for whatever terms on which they may agree"; (internal quotation marks omitted) Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997); it is equally well established "that contracts that violate public policy are unenforceable." Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999). "[T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review." (Internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn.App. 235, 245, 866 A.2d 629 (2005), citing 17A Am. Jur. 2d 312, Contracts § 327 (2004).

          As previously noted, "[t]he 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., supra, 265 Conn. at 643, 829 A.2d 827. This is because exculpatory provisions undermine the policy considerations governing our tort system. "[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. . . . An equally compelling function of the tort system is the prophylactic factor of preventing future harm . . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer." (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). Thus, it is consistent with public policy "to posit the risk of negligence upon the actor" and, if this policy is to be abandoned, "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 the University of California, 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963).

          Although this court previously has not addressed the enforceability of a release of liability for future negligence, the issue has been addressed by many of our sister states. A frequently cited standard for determining whether exculpatory agreements violate public policy was set forth by the Supreme Court of California in Tunkl v. Regents of the University of California, supra, 60 Cal.2d at 98-101, 32 Cal.Rptr. 33, 383 P.2d 441. In Tunkl, the court concluded that exculpatory agreements violate public policy if they affect the public interest adversely; id., at 96-98, 32 Cal.Rptr. 33, 383 P.2d 441; and identified six factors (Tunkl factors) relevant to this determination: "[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a 743*743 superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents." Id., at 98-101, 32 Cal.Rptr. 33, 383 P.2d 441. The court clarified that an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied.[7] Id., at 101, 32 Cal.Rptr. 33, 383 P.2d 441.

          Various states have adopted the Tunkl factors to determine whether exculpatory agreements affect the public interest adversely and, thus, violate public policy. See, e.g., Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977); Wagenblast v. Odessa School District, 110 Wash.2d 845, 851-52, 758 P.2d 968 (1988). Other states have developed their own variations of the Tunkl factors; see, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) ("[i]n determining whether an exculpatory agreement is valid, there are four factors which a court must consider: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] whether the intention of the parties is expressed in clear and unambiguous language"); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) ("express agreements exempting one of the parties for negligence are to be sustained except where: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is involved [public utility companies, common carriers]"); while still others have adopted a totality of the circumstances approach. See, e.g., Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994) (expressly declining to adopt Tunkl factors because "[t]he ultimate determination of 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 (1995) (same). The Virginia Supreme Court, however, has determined that all exculpatory agreements purporting to release tortfeasors from future liability for personal injuries are unenforceable because "[t]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct. . . can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it. . . ." (Internal quotation marks omitted.) Hiett v. Lake Barcroft Community Assn., 244 Va. 191, 194, 418 S.E.2d 894 (1992).

          Having reviewed the various methods for determining whether exculpatory agreements violate public policy, we conclude, as the Tunkl court itself acknowledged, that "[n]o definition of the concept of public interest can be contained within the four corners of a formula." 744*744 Tunkl v. Regents of the University of California, supra, 60 Cal.2d at 98, 32 Cal.Rptr. 33, 383 P.2d 441. Accordingly, we agree with the Supreme Courts of Maryland and Vermont that "[t]he ultimate determination of 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." Wolf v. Ford, supra, 335 Md. at 535, 644 A.2d 522; Dalury v. S-K-I, Ltd., supra, 164 Vt. at 333-34, 670 A.2d 795. Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.

          We now turn to the merits of the plaintiff's claim. The defendants are in the business of providing snowtubing services to the public generally, regardless of prior snowtubing experience, with the minimal restriction that only persons at least six years old or forty-four inches tall are eligible to participate. Given the virtually unrestricted access of the public to Powder Ridge, a reasonable person would presume that the defendants were offering a recreational activity that the whole family could enjoy safely. Indeed, this presumption is borne out by the plaintiff's own testimony. Specifically, the plaintiff testified that he "trusted that [the defendants] would, within their good conscience, operate a safe ride."

          The societal expectation that family oriented recreational activities will be reasonably safe is even more important where, as in the present matter, patrons are under the care and control of the recreational operator as a result of an economic transaction. The plaintiff, in exchange for a fee, was permitted access to the defendants' snowtubing runs and was provided with snowtubing gear. As a result of this transaction, the plaintiff was under the care and control of the defendants and, thus, was subject to the risk of the defendants' carelessness. Specifically, the defendants designed and maintained the snowtubing run and, therefore, controlled the steepness of the incline, the condition of the snow and the method of slowing down or stopping patrons. Further, the defendants provided the plaintiff with the requisite snowtubing supplies and, therefore, controlled the size and quality of the snowtube as well as the provision of any necessary protective gear. Accordingly, the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an exciting, but reasonably safe, snowtubing experience.

          Moreover, the plaintiff lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants' snowtubing runs were maintained in a reasonably safe condition. As the Vermont Supreme Court observed, in the context of the sport of skiing, it is consistent with public policy "to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. [The] [d]efendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the costs of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area's negligence.

          "If the 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. . . . It is illogical, in these circumstances, 745*745 to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control."[8] (Citations omitted.) Dalury v. S-K-I, Ltd., supra, 164 Vt. at 335, 670 A.2d 795. The concerns expressed by the court in Dalury are equally applicable to the context of snowtubing, and we agree that it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control.[9]

          Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a "take it or leave it" basis. The "most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts." Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988); see also Black's Law Dictionary (7th Ed. 1999) (defining adhesion contract as "[a] standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms"). Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him 746*746 the option of procuring protection against negligence at an additional reasonable cost. See Restatement (Third), Torts, Apportionment of Liability § 2, comment (e), p. 21 (2000) (factor relevant to enforcement of contractual limit on liability is "whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reasonable, additional fee"). Moreover, the defendants did not inform prospective snowtubers prior to their arrival at Powder Ridge that they would have to waive important common-law rights as a condition of participation. Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants' proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge. Under the present factual circumstances, it would ignore reality to conclude that the plaintiff wielded the same bargaining power as the defendants.

          The defendants contend, nevertheless, that they did not have superior bargaining power because, unlike an essential public service, "[s]nowtubing is a voluntary activity and the plaintiff could have just as easily decided not to participate."[10] We acknowledge that snowtubing is a voluntary activity, but we do not agree that there can never be a disparity of bargaining power in the context of voluntary or elective activities.[11] See Dalury v. S-K-I, Ltd., supra, 164 Vt. at 335, 670 A.2d 795 ("[w]hile interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that implicate public concerns"). Voluntary recreational activities, such as snowtubing, skiing, basket ball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga, are pursued by the vast majority of the population and constitute an important and healthy part of everyday life. Indeed, this court has previously recognized the public policy interest of promoting vigorous participation in such activities. See, e.g., Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. at 702, 849 A.2d 813 (important public policy interest in encouraging vigorous participation in skiing); Jaworski v. Kiernan, 241 Conn. 399, 409, 696 A.2d 332 (1997) (important public policy interest in promoting vigorous participation in soccer). In the present case, the 747*747 defendants held themselves out as a provider of a healthy, fun, family activity. After the plaintiff and his family arrived at Powder Ridge eager to participate in the activity, however, the defendants informed the plaintiff that, not only would they be immune from claims arising from the inherent risks of the activity, but they would not be responsible for injuries resulting from their own carelessness and negligence in the operation of the snowtubing facility. We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances.

          For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because it violates public policy.[12] Accordingly, the trial court improperly rendered summary judgment in favor of the defendants.

          The defendants and the dissent point out that our conclusion represents the "distinct minority view" and is inconsistent with the majority of sister state authority upholding exculpatory agreements in similar recreational settings. We acknowledge that most states uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct. Put simply, we disagree with these decisions for the reasons already explained in this opinion. Moreover, we find it significant that many states uphold exculpatory agreements in the context of simple negligence, but refuse to enforce such agreements in the context of gross negligence. See, e.g., Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235-36 (9th Cir.1995) (Oregon law); Wheelock v. Sport Kites, Inc., 839 F.Supp. 730, 736 (D.Haw.1993), superseded in part by Haw.Rev.Stat. § 663-1.54 (1997) (recreational providers liable for simple negligence in addition to gross negligence); McFann v. Sky Warriors, Inc., 268 Ga.App. 750, 758, 603 S.E.2d 7 (2004), cert. denied, 2005 Ga. Lexis 69 (January 10, 2005); Boucher v. Riner, 68 Md.App. 539, 543, 514 A.2d 485 (1986); Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App. 17, 18-19, 687 N.E.2d 1263 (1997); Schmidt v. United States, 912 P.2d 871, 874 (Okla.1996); Adams v. Roark, 686 S.W.2d 73, 75-76 (Tenn.1985); Conradt v. Four Star Promotions, Inc., 45 Wash.App. 847, 852, 728 P.2d 617 (1986); see also New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 62-65, 525 N.W.2d 25 (1994); 8 S. Williston, Contracts (4th Ed. 1998) § 19:23, pp. 291-97 ("[a]n attempted exemption from liability for a future intentional tort or crime or for a future willful or grossly negligent act is generally held void, although a release exculpating a party from liability for negligence may also cover gross negligence where the jurisdiction has abolished the distinction between degrees of negligence and treats all negligence alike"). Connecticut does not recognize 748*748 degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 833 and n. 10, 836 A.2d 394 (2003). Accordingly, although in some states recreational operators cannot, consistent with public policy, release themselves from prospective liability for conduct that is more egregious than simple negligence, in this state, were we to adopt the position advocated by the defendants, recreational operators would be able to release their liability for such conduct unless it rose to the level of recklessness. Id., at 832, 836 A.2d 394 (recklessness is "a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater. . . than that which is necessary to make his conduct negligent" [internal quotation marks omitted]). As a result, recreational operators would lack the incentive to exercise even slight care, with the public bearing the costs of the resulting injuries. See 57A Am. Jur. 2d 296, Negligence § 227 (2004) ("`gross negligence' is commonly defined as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or `slight diligence'"). Such a result would be inconsistent with the public policy of this state.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.

NORCOTT, J., with whom BORDEN and PALMER, Js., join, dissenting.

          Although I concur in part I of the majority opinion, I disagree with its conclusion in part II, namely, that the prospective release of liability for negligence executed by the plaintiff, Gregory D. Hanks, in this case is unenforceable as against public policy. I would follow the overwhelming majority of our sister states and would conclude that prospective releases from liability for negligence are permissible in the context of recreational activities. Accordingly, I respectfully dissent from the majority's decision to take a road that is, for many persuasive reasons, far less traveled.

          I begin by noting that "[i]t is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract . . . ." Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993). Nevertheless, contracts that violate public policy are unenforceable. See, e.g., Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999).

          In determining whether prospective releases of liability violate public policy, the majority adopts the Vermont Supreme Court's totality of the circumstances approach.[1] See Dalury v. S-K-I, Ltd., 164 749*749 Vt. 329, 334, 670 A.2d 795 (1995). Although it also purports to consider the widely accepted test articulated by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), the majority actually accords the test only nominal consideration. Because I consider the Tunkl factors to be dispositive, I address them at length.

          "[T]he attempted but invalid [release agreement] involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents." Id., at 98-101, 32 Cal.Rptr. 33, 383 P.2d 441.

          "[N]ot all of the Tunkl factors need be satisfied in order for an exculpatory clause to be deemed to affect the public interest. The [Tunkl court] conceded that `[n]o definition of the concept of public interest can be contained within the four corners of a formula' and stated that the transaction must only `exhibit some or all' of the identified characteristics. . . . Thus, the ultimate test is whether the exculpatory clause affects the public interest, not whether all of the characteristics that help reach that conclusion are satisfied." (Citations omitted.) Health Net of California, Inc. v. Dept. of Health Services, 113 Cal. App.4th 224, 237-38, 6 Cal.Rptr.3d 235 (2003), review denied, 2004 Cal. Lexis 2043 (March 3, 2004).

          Notwithstanding the statutory origins of the Tunkl factors,[2] numerous other states 750*750 have adopted them to determine whether a prospective release violates public policy under their common law. See, e.g., Morgan v. South Central Bell Telephone Co., 466 So.2d 107, 117 (Ala.1985); Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); La Frenz v. Lake County Fair Board, 172 Ind.App. 389, 395, 360 N.E.2d 605 (1977); Lynch v. Santa Fe National Bank, 97 N.M. 554, 558-59, 627 P.2d 1247 (1981); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977); Wagenblast v. Odessa School District, 110 Wash.2d 845, 852, 758 P.2d 968 (1988); Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo.1986).[3]

          Applying the six Tunkl factors to the sport of snowtubing, I note that the first, second, fourth and sixth factors support the defendants, Powder Ridge Restaurant Corporation and White Water Mountain Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, which operate the Powder Ridge facility, while the third and fifth factors support the plaintiff. Accordingly, I now turn to a detailed examination of each factor as it applies to this case.

          The first of the Tunkl factors, that the business is of a type thought suitable for regulation, cuts squarely in favor of upholding the release. Snowtubing runs generally are not subject to extensive public regulation. Indeed, the plaintiff points to no statutes or regulations that affect snowtubing, and I have located only one statutory reference to it. This sole reference, contained in No. 05-78, § 2, of the 2005 Public Acts, explicitly exempts snowtubing from the scope of General Statutes (Rev. to 2005) § 29-212, which applies to liability for injuries sustained by skiers.[4] Thus, while the legislature has 751*751 chosen to regulate, to some extent, the sport of skiing, it conspicuously has left snowtubing untouched.

          The second Tunkl factor also works in the defendants' favor. Snowtubing is not an important public service. Courts employing the Tunkl factors have found this second element satisfied in the contexts of hospital admission and treatment, residential rental agreements, banking, child care services, telecommunications and public education, including interscholastic sports. See Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 573 P.2d 465, 143 Cal.Rptr. 247 (1978) (residential rental agreements); Tunkl v. Regents of the University of California, supra, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (hospitals); Gavin W. v. YMCA of Metropolitan Los Angeles, 106 Cal.App.4th 662, 131 Cal. Rptr.2d 168 (2003) (child care); Vilner v. Crocker National Bank, 89 Cal.App.3d 732, 152 Cal.Rptr. 850 (1979) (banking); Morgan v. South Central Bell Telephone Co., supra, 466 So.2d 107 (telephone companies); Anchorage v. Locker, supra, 723 P.2d 1261 (telephone companies); Wagenblast v. Odessa School District, supra, 110 Wash.2d 845, 758 P.2d 968 (public schools and interscholastic sports). The public nature of these industries is undeniable and each plays an important and indispensable role in everyday life. Snowtubing, by contrast, is purely a recreational activity.

          The fourth Tunkl factor also counsels against the plaintiff's position that snowtubing affects the public interest because snowtubing is not an essential activity. The plaintiff's only incentive for snowtubing was recreation, not some other important personal interest such as, for example, health care, banking or insurance. The plaintiff would not have suffered any harm by opting not to snowtube at Powder Ridge, because snowtubing is not so significant a service that a person in his position would feel compelled to agree to any terms offered rather than forsake the opportunity to participate. Furthermore, "[u]nlike other activities that require the provision of a certain facility, snowtubing occurs regularly at locations all across the state, including parks, backyards and golf courses." Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 650 n. 4, 829 A.2d 827 (2003) (Norcott, J., dissenting). Thus, the plaintiff had ample opportunity to snowtube in an environment of his choosing, which he could have selected based on whatever safety considerations he felt were relevant. In the absence of a compelling personal need and a limited choice of facilities, I cannot conclude that the defendants enjoyed a significant bargaining advantage over the plaintiff.

          Finally, the sixth Tunkl factor weighs against a determination that the release implicates the public interest. The plaintiff did not place his person or property under the defendants' control. Unlike the 752*752 patient who lies unconscious on the operating table or the child who is placed in the custody of a day care service, the Powder Ridge patron snowtubes on his own, without entrusting his person or property to the defendants' care. In fact, the attraction of snowtubing and other recreational activities often is the lack of control associated with participating.

          In contrast, the third and fifth Tunkl factors support the plaintiff's position. With respect to the third factor, although the defendants restricted access to the snowtubing run to persons at least six years old or forty-four inches tall, this minimal restriction does not diminish the fact that only a small class of the general public is excluded from participation. See Tunkl v. Regents of the University of California, supra, 60 Cal.2d at 102, 32 Cal. Rptr. 33, 383 P.2d 441 (research hospital that only accepted certain patients nevertheless met third prong of Tunkl because it accepted anyone who exhibited medical condition that was being researched at hospital). Such a small exclusion does not diminish the invitation to the public at large to partake in snowtubing at the defendants' facility, because the snowtubing run is open to any person who fits within certain easily satisfied parameters. See id., at 99-101, 32 Cal.Rptr. 33, 383 P.2d 441.

          Finally, I examine the fifth Tunkl factor, namely, whether the release agreement is an "adhesion contract . . . ." Id., at 100, 32 Cal.Rptr.33, 383 P.2d 441. "[The] most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts." Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988). Although the plaintiff made no attempt to bargain as to the terms of the release, it defies logic to presume that he could have done so successfully. As the majority correctly notes, the defendants presented patrons with a "take it or leave it" situation, conditioning access to the snowtubing run on signing the release agreement. Accordingly, the fifth Tunkl factor indicates that the agreement does affect the public interest.

          In sum, I conclude that, under the Tunkl factors, the defendants' release at issue in this case does not violate public policy with respect to the sport of snowtubing. This conclusion is consistent with the vast majority of sister state authority, which upholds releases of liability in a variety of recreational or athletic settings that are akin to snowtubing as not violative of public policy. See, e.g., Barnes v. Birmingham International Raceway, Inc., 551 So.2d 929, 933 (Ala.1989) (automobile racing); Valley National Bank v. National Assn. for Stock Car Auto Racing, 153 Ariz. 374, 378, 736 P.2d 1186 (Ct.App.1987) (spectator in pit area at automobile race); Plant v. Wilbur, 345 Ark. 487, 494-96, 47 S.W.3d 889 (2001) (same); Madison v. Superior Court, 203 Cal.App.3d 589, 602, 250 Cal.Rptr. 299 (1988) (scuba diving), review denied, 1988 Cal. Lexis 1511 (October 13, 1988); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo.1989) (horseback riding); Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla.App.1990) (automobile racing), review denied, 581 So.2d 168 (Fla.1991); Bien v. Fox Meadow Farms Ltd., 215 Ill.App.3d 337, 341, 158 Ill.Dec. 918, 574 N.E.2d 1311 (horseback riding), appeal denied, 142 Ill.2d 651, 164 Ill.Dec. 914, 584 N.E.2d 126 (1991); Clanton v. United Skates of America, 686 N.E.2d 896, 899-900 (Ind.App.1997) (roller skating); Boucher v. Riner, 68 Md. App. 539, 551, 514 A.2d 485 (1986) (skydiving); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965) (spectator at automobile race); Lloyd v. Sugarloaf Mountain Corp., 833 A.2d 1, 4 (Me.2003) (mountain biking); Gara v. 753*753 Woodbridge Tavern, 224 Mich.App. 63, 66-68, 568 N.W.2d 138 (1997) (recreational sumo wrestling); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn.1982) (weightlifting at fitness center); Mayer v. Howard, 220 Neb. 328, 336, 370 N.W.2d 93 (1985) (motorcycle racing); Barnes v. New Hampshire Karting Assn., Inc., 128 N.H. 102, 108, 509 A.2d 151 (1986) (go-cart racing); Kondrad v. Bismarck Park District, 655 N.W.2d 411, 414 (N.D.2003) (bicycling); Cain v. Cleveland Parachute Training Center, 9 Ohio App.3d 27, 28, 457 N.E.2d 1185 (1983) (skydiving); Manning v. Brannon, 956 P.2d 156, 159 (Okla.Civ. App.1997) (skydiving); Mann v. Wetter, 100 Or.App. 184, 187-88, 785 P.2d 1064 (1990) (scuba diving); Kotovsky v. Ski Liberty Operating Corp., 412 Pa.Super. 442, 448, 603 A.2d 663 (1992) (ski racing); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 631, 281 S.E.2d 223 (1981) (automobile racing); Holzer v. Dakota Speedway, Inc., 610 N.W.2d 787, 798 (S.D. 2000) (automobile racing); Kellar v. Lloyd, 180 Wis.2d 162, 183, 509 N.W.2d 87 (Ct.App.1993) (flagperson at automobile race); Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo.1988) (ski race during decathlon).[5]

          This near unanimity among the courts of the various states reflects the fact that "[m]ost, if not all, recreational activities are voluntary acts. Individuals participate in them for a variety of reasons, including to exercise, to experience a rush of adrenaline, and to engage their competitive nature. These activities, while surely increasing one's enjoyment of life, cannot be considered so essential as to override the ability of two parties to contract about the allocation of the risks involved in the provision of such activity. When deciding to engage in a recreational activity, participants have the ability to weigh their desire to participate against their willingness to sign a contract containing an exculpatory clause." Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 649, 829 A.2d 827 (Norcott, J., dissenting). It also is consistent with the view of the American Law Institute, as embodied in 2 Restatement (Second) of Contracts § 195 (1981),[6] and Restatement (Third) of Torts, Apportionment of Liability § 2 (2000).[7]

          754*754 Notwithstanding the foregoing authority, the majority adopts the Vermont Supreme Court's holding in Dalury v. S-K-I, Ltd., supra, 164 Vt. at 334, 670 A.2d 795, and concludes that the release agreement in the present case violates public policy. In Dalury, the plaintiff "sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski lift line. Before the season started, [the plaintiff] had purchased a midweek season pass and signed a form releasing the ski area from liability." Id., at 330, 670 A.2d 795. The release signed by the plaintiff in Dalury clearly disclaimed liability for negligence. Id. Citing the Tunkl factors, but fashioning an alternative test based on the totality of the circumstances, the Dalury court held the release invalid as against public policy. Id., at 333-35, 670 A.2d 795. The Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation. Id., at 334, 670 A.2d 795. I find the Vermont court's opinion unpersuasive.

          Although the number of tickets sold to the public is instructive in determining whether an agreement affects the public interest, it is by no means dispositive. Private, nonessential industries, while often very popular, wield no indomitable influence over the public. The average person is capable of reading a release agreement and deciding not to snowtube because of the risks that he or she is asked to assume.[8] By contrast, in those fields implicating the public interest, the patron is at a substantial bargaining disadvantage. Few people are in a position to quibble over contractual obligations when seeking, for example, insurance, medical treatment or child care. A general characteristic of fields entangled with the public interest is their indispensability; snowtubing hardly is indispensable. Under the majority's reasoning, nearly any release affects the public interest, no matter how unnecessary or inherently dangerous the underlying activity may be.[9] That position remains the distinct minority view, followed only by 755*755 the courts of Vermont and Virginia.[10] See Hiett v. Lake Barcroft Community Assn., 244 Va. 191, 194, 418 S.E.2d 894 (1992) ("[t]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct. . . can never be lawfully done where an enlightened system of jurisprudence prevails").

          The majority also contends that, because of the status of Connecticut negligence law, my conclusion would have broader public policy implications than the decisions of other courts upholding releases. Specifically, the majority contends that because the law of Connecticut does not recognize differing degrees of negligence, my position allows snowtube operators to insulate themselves from liability even for grossly negligent acts. This is a contrast from states that do recognize a separate claim for gross negligence. Thus, the majority avers, in this state, it would be possible to insulate oneself from liability for all acts not rising to the level of recklessness, whereas elsewhere only simple negligence may be disclaimed.

          Although the majority's theory initially appears compelling, closer examination reveals that the line it draws is a distinction without a difference because many states that prohibit prospective releases of liability for gross negligence define gross negligence in a way that mirrors Connecticut recklessness law.[11] See Mich. Comp. Laws § 691.1407(7)(a) (2005) (governmental immunity statute defining gross negligence as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results"); see also Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997) ("[W]anton misconduct is aggravated negligence . . . . [W]illful, wanton, and reckless conduct have commonly been grouped together as an aggravated form of negligence." [Citations omitted; internal quotation marks omitted.]); Cullison v. Peoria, 120 Ariz. 165, 169, 584 P.2d 1156 (1978) ("[W]anton [or gross] negligence is highly potent, and when it is present it fairly proclaims itself 756*756 in no uncertain terms. It is in the air, so to speak. It is flagrant and evinces a lawless and destructive spirit." [Internal quotation marks omitted.]); Ziarko v. Soo Line R. Co., 161 Ill.2d 267, 274-75, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994) ("[U]nlike intentionally tortious behavior, conduct characterized as willful and wanton may be proven where the acts have been less than intentional — i.e., where there has been a failure, after knowledge of impending danger, to exercise ordinary care to prevent the danger, or a failure to discover the danger through . . . carelessness when it could have been discovered by the exercise of ordinary care. . . . Our case law has sometimes used interchangeably the terms willful and wanton negligence, gross negligence, and willful and wanton conduct. . . . This court has previously observed that there is a thin line between simple negligence and willful and wanton acts . . . ." [Citations omitted; internal quotation marks omitted.]); Murphy v. Edmonds, 325 Md. 342, 375, 601 A.2d 102 (1992) ("gross negligence . . . has been defined in motor vehicle tort cases as a wanton or reckless disregard for human life in the operation of a motor vehicle" [internal quotation marks omitted]); Stringer v. Minnesota Vikings Football Club, 686 N.W.2d 545, 552-53 (Minn.App.2004) ("Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others." [Internal quotation marks omitted.]), quoting State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480 (1946), review granted, Nos. A03-1635, A04-205, 2004 Minn. Lexis 752 (November 23, 2004); State v. Chambers, 589 N.W.2d 466, 478-79 (Minn.1999) (person is grossly negligent when he acts "without even scant care but not with such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong" [internal quotation marks omitted]), quoting State v. Bolsinger, supra, at 159, 21 N.W.2d 480; Bennett v. Labenz, 265 Neb. 750, 755, 659 N.W.2d 339 (2003) ("[g]ross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty"); New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 64, 525 N.W.2d 25 (1994) (relying on New York law characterizing gross negligence as "conduct that evinces a reckless indifference @to the rights of others"); Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992) ("Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, must smack of intentional wrongdoing. . . . It is conduct that evinces a reckless indifference to the rights of others." [Citations omitted; internal quotation marks omitted.]); Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D.1996) ("[Where] [g]ross negligence is defined [by statute] as the want of slight care and diligence. . . . This court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically willful in its nature." [Citation omitted; internal quotation marks omitted.]); Harsh v. Lorain County Speedway, Inc., 111 Ohio App.3d 113, 118-19, 675 N.E.2d 885 (1996) (upholding release 757*757 for negligence but not "willful and wanton conduct");[12] Bogue v. McKibben, 278 Or. 483, 486, 564 P.2d 1031 (1977) ("[g]ross negligence refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others" [internal quotation marks omitted]); Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159 (1997) (Pennsylvania Supreme Court approved a trial court's characterization of gross negligence for purposes of governmental immunity statute as "a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care."); Jinks v. Richland County, 355 S.C. 341, 345, 585 S.E.2d 281 (2003) (For the purposes of a governmental immunity statute, gross negligence is defined as "the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do . . . . It is the failure to exercise slight care . . . . Gross negligence has also been defined as a relative term and means the absence of care that is necessary under the circumstances." [Citations omitted.]).[13]

          Furthermore, at least one other court has concluded that releases similar to the one in question are valid notwithstanding the absence of a gross negligence doctrine. New Hampshire, like Connecticut, does not recognize differing degrees of negligence, yet its highest court has upheld a release of liability for negligence, stating: "The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. . . . The plaintiff advances no reasons for abandoning this rule and we decline to create an 758*758 exception to allow him to pursue his claims of gross negligence." (Citation omitted.) Barnes v. New Hampshire Karting Assn., Inc., supra, 128 N.H. at 108-109, 509 A.2d 151; but see Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 705 n. 3 (Pa.Super.2000) (declining to reach issue of whether agreement that released liability for gross negligence would violate public policy where agreement in question stated only "negligence"); Bielski v. Schulze, 16 Wis.2d 1, 18-19, 114 N.W.2d 105 (1962) (recognizing potential problems that Wisconsin's abolition of gross negligence might raise in area of exculpatory clauses).

          The great weight of these numerous and highly persuasive authorities compels my conclusion that the release at issue herein does not violate public policy as it pertains to the sport of snowtubing. Accordingly, I conclude that the trial court properly granted summary judgment in the defendants' favor and I would affirm that judgment. I, therefore, respectfully dissent.

          [1] This case originally was argued before a panel of this court consisting of Justices Borden, Norcott, Katz, Palmer and Vertefeuille. Thereafter, the court, pursuant to Practice Book § 70-7(b), sua sponte, ordered that the case be considered en banc. Accordingly, Chief Justice Sullivan and Justice Zarella were added to the panel. They have read the record, briefs and transcript of the oral argument.

          [2] The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-2.

          [3] We note that White Water Mountain Resorts of Connecticut, Inc., is also a defendant in the present matter and that the plaintiff in the present matter was also injured while snowtubing at Powder Ridge.

          [4] That exculpatory agreement provided:

"SNOWTUBING

"RELEASE FROM LIABILITY

"PLEASE READ CAREFULLY BEFORE SIGNING

"1. I accept use of a snowtube and accept full responsibility for the care of the snowtube while in my possession.

"2. I understand that there are inherent and other risks involved in SNOWTUBING, including the use of lifts and snowtube, and it is a dangerous activity/sport. These risks include, but are not limited to, variations in snow, steepness and terrain, ice and icy conditions, moguls, rocks, trees, and other forms of forest growth or debris (above or below the surface), bare spots, lift terminals, cables, utility lines, snowmaking equipment and component parts, and other forms [of] natural or man made obstacles on and/or off chutes, as well as collisions with equipment, obstacles or other snowtubes. Snow chute conditions vary constantly because of weather changes and snowtubing use. Be aware that snowmaking and snow grooming may be in progress at any time. These are some of the risks of SNOWTUBING. All of the inherent risks of SNOWTUBING present the risk of serious and/or fatal injury.

"3. I agree to hold harmless and indemnify Powder Ridge, White Water Mountain Resorts of Connecticut, Inc. and/or any employee of the aforementioned for loss or damage, including any loss or injuries that result from damages related to the use of a snowtube or lift.

"I, the undersigned, have read and understand the above release of liability." (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. at 638 n. 3, 829 A.2d 827.

          [5] The complete agreement provides:

"Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability

"In consideration for the privilege of participating in snowtubing at Powder Ridge Ski Area, I hereby agree that:

"1. I understand that there are inherent risks involved in snowtubing, including the risk of serious physical injury or death and I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area and its Affiliates, Officers, Directors, Agents, Servants and/or Employees, including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like.

"2. I, for myself and for my heirs, assigns, successors, executors, administrators, and legal representatives, agree I will defend, indemnify and hold harmless White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and Employees from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees.

"3. I, for myself and for my heirs, assigns, successors, executors, administrators, and legal representatives, hereby release, and agree that I will not sue, White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees.

"I have read this Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability and fully understand its terms. I further understand that by signing this agreement that I am giving up substantial legal rights. I have not been induced to sign this agreement by any promise or representation and I sign it voluntarily and of my own free will." (Emphasis in original.)

          [6] The plaintiff claims that the trial court improperly rendered summary judgment in the present matter because "there [was] a question of fact as to [the plaintiff's] understanding of the scope of the release." We reject this claim. "It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties." (Internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 94, 709 A.2d 540 (1998). Accordingly, where the language of a contract is clear and unambiguous, "[a] party may not assert as a defense to an action on [the] contract that [he] did not understand what [he] was signing." John M. Glover Agency v. RDB Building, LLC, 60 Conn.App. 640, 645, 760 A.2d 980 (2000).

          Regardless, the plaintiff's deposition testimony establishes that he understood the scope of the agreement, but did not believe that the defendants would seek to enforce the agreement or that the agreement would be upheld as a matter of law. See part II of this opinion. Specifically, the plaintiff testified: "I did not understand that I was saying it was okay for Powder Ridge to willingly kill me or injure me or my children or anyone else that participated in the ride, and it is my understanding of the form as it's written, that Powder Ridge has the right, from this document, to take my life, injure me, injure my children, without regard or responsibility. That is my understanding of the form now. At the time I read that, I did not believe that, and I had that understanding of the words as they're written and I did not believe that any organization would attempt to enforce language of that kind nor would any court uphold it." The plaintiff further testified: "My son, who at that time was [twelve], read [the agreement] as well and he said, `Dad, don't sign this thing.' And I looked at it and I said, `It's so patently egregious, I don't see how it could be enforced.' He was right and I was wrong. `Out of the mouths of babes.'"

          [7] In Tunkl, the plaintiff filed suit against a charitable research hospital for personal injuries allegedly incurred as a result of the negligence of two physicians employed by the hospital. Tunkl v. Regents of the University of California, supra, 60 Cal.2d at 94, 32 Cal.Rptr. 33, 383 P.2d 441. Upon admission, the plaintiff was required to sign an exculpatory agreement that released the hospital from "any and all liability for the negligent or wrongful acts or omissions of its employees. . . ." (Internal quotation marks omitted.) Id. Applying the Tunkl factors, the court determined that the exculpatory agreement was unenforceable because it violated public policy. Id., at 101-104, 32 Cal.Rptr. 33, 383 P.2d 441.

          [8] Exculpatory agreements, like the one at issue in the present matter, shift the costs of injuries from the tortfeasor to the person injured. As a consequence, health care insurance providers or the state, through its provision of medicaid benefits, absorb the costs of the tortfeasor's negligence. These costs necessarily are passed on to the population of the state through higher health care premiums and state taxes. Accordingly, in the present matter, it ultimately would be the population generally, and not the snowtube operators and their patrons, who would bear the costs if these agreements were to be enforced.

          [9] The dissent claims that "[t]he Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation." The dissent mischaracterizes both the conclusion of the Vermont Supreme Court in Dalury v. S-K-I, Ltd., supra, 164 Vt. at 335, 670 A.2d 795, and our conclusion today. In Dalury, the court did not rely solely on the volume of public participation in determining that exculpatory agreements violate public policy in the context of skiing. Rather, the court relied on the following relevant factors: "(1) the ski area operated a facility open to the general public, (2) the ski area advertised and invited persons of every level of skiing ability onto its premises, (3) the ski area, and not recreational skiers, had the expertise and opportunity to foresee and control hazards and to guard against the negligence of its employees and agents, (4) the ski area was in a better position to insure against the risks of its own negligence and spread the cost of the insurance among its customers, and (5) if ski areas were permitted to obtain broad waivers of their liability, incentives for them to manage risks would be removed, with the public bearing the cost." Spencer v. Killington, Ltd., 167 Vt. 137, 141, 702 A.2d 35 (1997) (discussing Dalury). Likewise, we conclude today that the agreement at issue in this case violates public policy, not solely because of the volume of public participation, but because: (1) the defendants invite the public generally to snowtube at their facility, regardless of snowtubing ability; (2) snowtubers are under the care and control of the defendants as a result of an economic transaction; (3) the defendants, not recreational snowtubers, have the knowledge, experience and authority to maintain the snowtubing runs in reasonably safe condition, to determine whether the snowtubing equipment is adequate and reasonably safe, and to guard against the negligence of its employees and agents; (4) the defendants are in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons; (5) if we were to uphold the present agreement under the facts of this case, the defendants would be permitted to obtain broad waivers of their liability and the incentive for them to maintain a reasonably safe snowtubing environment would be removed, with the public bearing the cost; (6) the agreement at issue is a standardized adhesion contract, offered to snowtubers on a "take it or leave it" basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee; and (7) the defendants had superior bargaining authority.

          [10] The defendants also claim, and the dissent agrees, that the defendants did not have superior bargaining power because the plaintiff "could have participated in snowtubing elsewhere, either on that day or another day." We are not persuaded. Snowtubing is a seasonal activity that requires the provision of specific supplies and particular topographic and weather conditions. Although the dissent correctly states that "`snowtubing occurs regularly at locations all across the state, including parks, backyards and golf courses'"; we point out that, even when weather conditions are naturally appropriate for snowtubing, not all individuals are fortunate enough to have access to places where snowtubing is both feasible topographically and permitted freely. Moreover, the dissent argues that the plaintiff had ample opportunity to select a snowtubing environment "based on whatever safety considerations he felt were relevant." As already explained in this opinion, however, the defendants, not the plaintiff, had the requisite knowledge and experience to determine what safety considerations are relevant to snowtubing. As such, it was reasonable for the plaintiff to presume that the defendants, who are in the business of supplying snowtubing services, provide the safest snowtubing alternative.

          [11] We need not decide whether an exculpatory agreement concerning a voluntary recreational activity violates public policy if the only factor militating against enforcement of the agreement is a disparity in bargaining power because, in the present matter, there are additional factors that combine to render the agreement contrary to public policy. See footnote 9 of this opinion.

          [12] We clarify that our conclusion does not extend to the risks inherent in the activity of snowtubing. As we have explained, inherent risks are those risks that are innate to the activity, "are beyond the control of the [recreational] area operator and cannot be minimized by the operator's exercise of reasonable care." Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. at 692, 849 A.2d 813 (distinguishing between inherent risks of skiing and ski operator's negligence); see also Spencer v. Killington, Ltd., 167 Vt. 137, 143, 702 A.2d 35 (1997) (same). For example, risks inherent in the sport of skiing include, but are not limited to, the risk of collision with another skier or a tree outside the confines of the slope. See Public Acts 2005, No. 05-78, § 2. The risks inherent in each type of recreational activity will necessarily vary, and it is common knowledge that some recreational activities are inherently more dangerous than others.

          [1] The majority also cites Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994), in support of its totality of the circumstances approach. The Wolf court concluded that a release executed in the context of a stockbroker-client relationship did not implicate the public interest. Id., at 527-28, 644 A.2d 522. Such a result is incongruous with the vast majority of American law and I am aware of no other case in which a court held that a release of liability for negligence in such a sensitive context did not implicate the public interest. In my view, Wolf illustrates the significant problem inherent in employing an amorphous "totality of the circumstances" test.

          [2] The Tunkl court construed California Civil Code § 1668, which provides: "All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." (Internal quotation marks omitted.) Tunkl v. Regents of the University of California, supra, 60 Cal.2d at 95, 32 Cal.Rptr. 33, 383 P.2d 441. Despite the sweeping language of the statute, California courts had construed it inconsistently, with many allowing prospective releases from liability for negligence. See id., at 95-98, 32 Cal.Rptr. 33, 383 P.2d 441. The Tunkl court, in reconciling conflicting lower court decisions, confined the effect of § 1668 on releases from liability for negligence to situations affecting the public interest, stating: "While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, [circumstances affecting the public interest] pose a different situation." Id., at 101, 32 Cal.Rptr. 33, 383 P.2d 441.

          [3] I note that still other states have chosen to adopt variations on the Tunkl factors. See, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) ("[i]n determining whether an exculpatory agreement is valid, there are four factors which a court must consider: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] whether the intention of the parties is expressed in clear and unambiguous language"); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) ("[o]n the basis of these authorities we hold that express agreements exempting one of the parties for negligence are to be sustained except where: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is involved [public utility companies, common carriers]").

          [4] Public Act 05-78, § 2, which amended General Statutes (Rev. to 2005) § 29-212 effective October 1, 2005, provides: "(a) For the purposes of this section:

"(1) `Skier' includes any person who is using a ski area for the purpose of skiing or who is on the skiable terrain of a ski area as a spectator or otherwise, but does not include (A) any person using a snow tube provided by a ski area operator, and (B) any person who is a spectator while in a designated spectator area during any event;

"(2) `Skiing' means sliding downhill or jumping on snow or ice using skis, a snow-board, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain, but does not include snow tubing operations provided by a ski area operator; and

"(3) `Ski area operator' means a person who owns or controls the operation of a ski area and such person's agents and employees.

"(b) Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211, as amended by this act, or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

"(c) The provisions of this section shall not apply in any case in which it is determined that a claimant's injury was not caused by a hazard inherent in the sport of skiing." (Emphasis added.)

          [5] See also McAtee v. Newhall Land & Farming Co., 169 Cal.App.3d 1031, 1034-35, 216 Cal. Rptr. 465 (1985) (motocross racing); Hulsey v. Elsinore Parachute Center, 168 Cal.App.3d 333, 343, 214 Cal.Rptr. 194 (1985) (skydiving); Jones v. Dressel, 623 P.2d 370, 375 (Colo.1981) (skydiving).

          [6] Section 195 of 2 Restatement (Second) of Contracts provides in relevant part: "(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if

"(a) the term exempts an employer from liability to an employee for injury in the course of his employment;

"(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or

"(c) the other party is similarly a member of a class protected against the class to which the first party belongs. . . ." 2 Restatement (Second), Contracts § 195, p. 65 (1981).

          [7] Restatement (Third), Torts, Apportionment of Liability § 2, p. 19 (2000), provides: "When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff's recovery from that person for the harm. Unlike a plaintiff's negligence, a valid contractual limitation on liability does not provide an occasion for the factfinder to assign a percentage of responsibility to any party or other person."

          The commentary to § 2 further supports our conclusion in the present case. See id., comment (b), p. 20 ("In appropriate situations, the parties to a transaction should be able to agree which of them should bear the risk of injury, even when the injury is caused by a party's legally culpable conduct. That policy is not altered or undermined by the adoption of comparative responsibility. Consequently, a valid contractual limitation on liability, within its terms, creates an absolute bar to a plaintiff's recovery from the other party to the contract."); see also id., comment (e), p. 21 ("Some contracts for assumption of risk are unenforceable as a matter of public policy. Whether a contractual limitation on liability is unenforceable depends on the nature of the parties and their relationship to each other, including whether one party is in a position of dependency; the nature of the conduct or service provided by the party seeking exculpation, including whether the conduct or service is laden with `public interest'; the extent of the exculpation; the economic setting of the transaction; whether the document is a standardized contract of adhesion; and whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reasonable, additional fee.").

          [8] The majority apparently considers snowtubing to be so important that the average consumer would be unable to pass up participation, stating: "Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants' proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge." Because snowtubing, unlike the important societal considerations that other courts have concluded implicate the public interest, is wholly nonessential, I disagree with the majority's position that the mere inconvenience of having to forgo it creates an unacceptable disparity in bargaining power.

          [9] Indeed, the majority states: "Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga are pursued by the vast majority of the population and constitute an important and healthy part of everyday life."

          [10] Although New York courts formerly upheld prospective releases from liability; see Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); that state's legislature superseded many of those precedents with New York Gen. Oblig. Law § 5-326 (McKinney 2001), which provides: "Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable."

          [11] Recklessness entails "something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . . Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . [W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003).

          [12] The Ohio Supreme Court has equated willful and wanton conduct with recklessness as that term is defined in the Restatement Second of Torts, stating: "The actor's conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Thompson v. McNeill, 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705 (1990), quoting 2 Restatement (Second), Torts § 500, p. 587 (1965).

          [13] Other states do, however, characterize gross negligence as more serious than ordinary negligence, while not rising to the level of recklessness. See Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 968 P.2d 65, 80 Cal. Rptr.2d 506 (1998) (characterizing willful and wanton conduct as more serious than gross negligence), overruled on other grounds, Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 854, 24 P.3d 493, 107 Cal.Rptr.2d 841 (2001); Travelers Indemnity Co. v. PCR, Inc., 889 So.2d 779, 793 n. 17 (Fla.2004) (defining "`culpable negligence' as `reckless indifference' or `grossly careless disregard' of human life" and gross negligence as "an act or omission that a reasonable, prudent person would know is likely to result in injury to another"); Altman v. Aronson, 231 Mass. 588, 592, 121 N.E. 505 (1919) (defining gross negligence as less serious than recklessness); Parret v. Unicco Service Co., 2005 OK 54, *11-*13, 2005 WL 1515924, ___ P.3d ___, 2005 Okla. Lexis 54 (June 28, 2005) (same); Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo.1986) (punitive damages cannot be awarded for gross negligence, which is less serious than reckless or wanton conduct). Despite these decisions, I am not persuaded that our conclusion provides inadequate protection to snowtube patrons.

Justice McBRIDE delivered the judgment of the court, with opinion.

          ¶ 1 The issue on appeal is whether plaintiff's negligence suit regarding serious personal injuries he suffered while using exercise equipment at a fitness club is barred, under Minnesota law, by an exculpatory clause in his contract with the club. The circuit court of Cook County determined the clause warranted the dismissal of plaintiff's first amended complaint with prejudice and the denial of his motion for reconsideration. Plaintiff contends the court misconstrued the contract and the law and failed to consider his affidavit establishing material questions which could not be resolved on the pleadings.

          ¶ 2 Plaintiff-appellant Sahal Hussein was a resident of Minneapolis, Minnesota, when he executed the contract at issue with defendant-appellee L.A. Fitness International, L.L.C., d/b/a Pro Results (hereinafter L.A. Fitness), the operator of a national chain of fitness clubs which is headquartered in Irvine, California. A choice-of-law clause in this written agreement indicates it will be governed and enforced in accordance with Minnesota law. Hussein filed suit in 2010 in Illinois, alleging that he was injured in 2009, at an L.A. Fitness facility located near downtown Chicago, at 1101 South Canal Street, while making unsupervised use of an "assisted dip/chin" exercise machine. The circuit court granted L.A. Fitness' motion to dismiss the pleading as factually insufficient and allowed Hussein to replead.

          ¶ 3 Hussein alleged the following in his single-count first amended complaint. On February 14, 2009, Hussein "became a client and patron" of L.A. Fitness by executing a fitness service agreement and paying certain fees. He visited the Canal Street location of L.A. Fitness on July 7, 2009, and was permitted to make unsupervised use of its exercise equipment. L.A. Fitness breached its duty of ordinary care to Hussein by failing to maintain and inspect its fitness equipment and by failing to "appropriately and properly" monitor, supervise, or instruct club members who used the equipment. As a result, while Hussein was using the upper and lower bars and movable and adjustable bench on an assisted dip/chin exercise machine, he fell, struck his head and body, and was rendered a quadriplegic. (There has been no discovery and thus no further description of the accident, injuries, or health care.) Hussein claimed damages in excess of $50,000.

          ¶ 4 The "Fitness Service Agreement and Release of Liability" attached to Hussein's pleading indicates it was a contract for a series of prepaid 30-minute personal training sessions. However, L.A. Fitness' motion to dismiss provided the trial court with Hussein's general contract with the club, which was entitled "Membership Agreement" and bore the signature date of February 6, 2009, which was about a week before he bought the personal training sessions. Hussein acknowledged in the circuit court and again in his appellate brief that "[w]hen initially joining [L.A.] Fitness, [he] was provided with and signed" the membership agreement and entered into the fitness service agreement on February 14, 2009. In an affidavit attached to 463*463 his response to L.A. Fitness' motion to dismiss, Hussein swore that when the accident occurred he was not exercising pursuant to the fitness service agreement and was not working with a personal trainer. Accordingly, the trial court's ruling was based on the membership agreement and did not rely on any part of the fitness service agreement.

          ¶ 5 Hussein's "multi-club" membership agreement states in pertinent part, "It is agreed * * * you [the Buyer] are purchasing a membership from L.A. Fitness according to the terms on both pages of this Membership Agreement and the current Membership Policies and Club Rules and Regulations (`Agreement')." Also, "By signing this Agreement, Buyer acknowledges that Buyer * * * has read and understands the entire Agreement including * * * the Release and Waiver of Liability and Indemnity, [and] all other Additional Terms and Conditions on the reverse side hereof * * *." The signature block at the bottom of this page dated February 6, 2009, contains the signatures of Hussein and an agent of L.A. Fitness. The following language appears on the reverse side of the page and is emphasized by a black frame and bold font:

"IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that Member's use of L.A. Fitness' facilities, services, equipment or premises involves risks of injury to persons * * * and Member assumes full responsibility for such risks. * * * Member hereby releases and holds L.A. Fitness * * * harmless from all liability to Member * * * for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member's person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment. * * * Member has read this release and waiver of liability * * *."

          ¶ 6 This quote is an excerpt from a paragraph which covers about one-third of the page. Hussein's affidavit indicates that when he joined L.A. Fitness by signing the membership agreement, the contents of the contract were not explained to him other than the provisions regarding payment and cancellation and he was not advised that the agreement included a release or waiver of liability.

          ¶ 7 Due to this exculpatory language, the circuit court granted L.A. Fitness' motion to dismiss Hussein's lawsuit and for the same reason denied his motion to reconsider the ruling.

          ¶ 8 Hussein's complaint was dismissed pursuant to section 2-619 of the Code of Civil Procedure, which governs the involuntary dismissal of a complaint based on certain defects, defenses, or other affirmative matters. 735 ILCS 5/2-619 (West 2010). The purpose of a section 2-619 motion is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Zerjal v. Daech & Bauer Construction, Inc., 405 Ill.App.3d 907, 910, 345 Ill.Dec. 887, 939 N.E.2d 1067, 1071 (2010). A section 2-619 motion admits the legal sufficiency of the plaintiff's claim "`and raises defects, defenses, or other affirmative matters that appear on the face of the complaint or are established by external submissions that act to defeat the claim.'" Zerjal, 405 Ill.App.3d at 910, 345 Ill.Dec. 887, 939 N.E.2d at 1071 (quoting Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill.App.3d 563, 569-70, 268 Ill.Dec. 531, 778 N.E.2d 1153-60 (2002)). When ruling on a section 2-619 motion, a 464*464 court must construe the pleadings and supporting documents in the light most favorable to the plaintiff. Zerjal, 405 Ill.App.3d at 910, 345 Ill.Dec. 887, 939 N.E.2d at 1071. This appellate court's role is to review the dismissal de novo and determine whether the existence of a genuine issue of material fact should have precluded the ruling or, absent an issue of material fact, whether the dismissal was proper as a matter of law. Zerjal, 405 Ill.App.3d at 910-11, 345 Ill.Dec. 887, 939 N.E.2d at 1071-72.

          ¶ 9 Appellant Hussein argues the membership agreement is confusing, that the fitness services agreement is similarly flawed, and that the two contracts are contradictory, do not reflect the clear format and language required by Minnesota law, and should not be enforced. He also contends the trial court failed to consider the affidavit he filed in opposition to the motion to dismiss and that his sworn statement substantiates that the contracts are defective and should have led to the conclusion that there are material issues which cannot be properly decided at the pleading stage. Based on these arguments, Hussein seeks reversal of the dismissal order. Appellee L.A. Fitness responds that the exculpatory language in the membership agreement is clear, consistent with Minnesota public policy, and enforceable as written, despite Hussein's purported failure to read and comprehend the language before he executed that contract. L.A. Fitness also contends the fitness service agreement should be disregarded as irrelevant in this instance.

          ¶ 10 We agree with L.A. Fitness that the fitness service agreement (regardless of its content) is not at issue and we decline to address Hussein's contentions about this contract. Hussein's affidavit and appellate brief indicate he was not working with a personal trainer or pursuant to the fitness service agreement when he was injured.

          ¶ 11 Before responding to his specific contentions about the membership agreement, we must address the parties' choice of law clause. A trial court's choice-of-law determination is a legal issue subject to de novo review. Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 154, 316 Ill.Dec. 505, 879 N.E.2d 893, 898 (2007); see, e.g., Roby v. Corporation of Lloyd's, 996 F.2d 1353 (2d Cir.1993). Illinois's public policy "`strongly favors freedom to contract'" (Harris v. Walker, 119 Ill.2d 542, 548, 116 Ill.Dec. 702, 519 N.E.2d 917, 919 (1988)) (quoting McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp., 95 Ill.2d 68, 72, 69 Ill. Dec. 183, 447 N.E.2d 400, 402 (1983)) and broadly allows parties to determine their contractual obligations. Restatement (Second) of Conflict of Laws § 187 cmt. e (1989). The primary objectives of contract law are to make it possible for parties "to foretell with accuracy what will be their rights and liabilities under * * * [their] contract" and then protect the justified expectations that arise from that agreement. Restatement (Second) of Conflict of Laws § 187 cmt. e (1989). These two objectives are likely to be met when parties are allowed to choose the law that will govern the interpretation of their agreement. Restatement (Second) of Conflict of Laws § 187 cmt. e (1989). In Illinois, an express choice-of-law provision will be given effect where there is some reasonable relationship between the chosen forum and the parties or transaction (Potomac Leasing Co. v. Chuck's Pub, Inc., 156 Ill.App.3d 755, 759, 109 Ill.Dec. 90, 509 N.E.2d 751, 754 (1987)) and it is "`not dangerous, inconvenient, immoral, nor contrary to the public policy of our local government'" (Potomac Leasing, 156 Ill.App.3d at 758, 109 Ill.Dec. 90, 509 N.E.2d at 753 (quoting 465*465 McAllister v. Smith, 17 Ill. 328, 334 (1856))).

          ¶ 12 We find there is a sufficient relationship with Minnesota. Hussein and L.A. Fitness executed the membership agreement in Minnesota while Hussein was residing there and the contract allowed him to use any branch of the national chain of health clubs. Hussein has neither confirmed nor denied L.A. Fitness' statement that he still resides in Minnesota. Hussein is not arguing that the Minnesota choice-of-law clause is improper.

          ¶ 13 The question then becomes whether enforcement of the exculpatory clause is contrary to the standards of our own jurisdiction. Illinois will not "interfere with the rights of two parties to contract with one another if they freely and knowingly enter into the agreement" (Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 584, 147 Ill.Dec. 187, 559 N.E.2d 187, 190 (1990)). They may allocate the risk of negligence as they see fit and rely on their agreement in the absence of fraud, willful and wanton negligence, or substantial disparity in their bargaining power, or the presence of some other factor in the social relationship of the parties which militates against upholding their agreement. Garrison, 201 Ill. App.3d at 584, 147 Ill.Dec. 187, 559 N.E.2d at 189; Harris, 119 Ill.2d at 548, 116 Ill. Dec. 702, 519 N.E.2d at 919. Exculpatory clauses may be broadly worded (Harris, 119 Ill.2d at 549, 116 Ill.Dec. 702, 519 N.E.2d at 920), but must "contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that [are encompassed]." (Garrison, 201 Ill.App.3d at 585, 147 Ill.Dec. 187, 559 N.E.2d at 190). "In this way the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution." Garrison, 201 Ill. App.3d at 585, 147 Ill.Dec. 187, 559 N.E.2d at 190. "The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into." Garrison, 201 Ill.App.3d at 585, 147 Ill.Dec. 187, 559 N.E.2d at 190. "It should only appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff." Garrison, 201 Ill.App.3d at 585, 147 Ill.Dec. 187, 559 N.E.2d at 190. Even so, "exculpatory clauses are not favored and must be strictly construed against the benefitting party, particularly one who drafted the release." Harris, 119 Ill.2d at 548, 116 Ill.Dec. 702, 519 N.E.2d at 919 (quoting Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill.2d 378, 395, 98 Ill.Dec. 1, 493 N.E.2d 1022, 1029 (1986)). Hussein does not suggest that enforcement of this particular exculpatory clause is contrary to Illinois law and we note that similar clauses enforced in this jurisdiction have completely barred negligence claims arising from recreational activities. Compare Garrison, 201 Ill. App.3d 581, 147 Ill.Dec. 187, 559 N.E.2d 187 (enforcing release against health club member who sued health club alleging his trachea was crushed when a 295-pound weighted bar rolled and dropped off a bench press), Neumann v. Gloria Marshall Figure Salon, 149 Ill.App.3d 824, 102 Ill.Dec. 910, 500 N.E.2d 1011 (1986) (enforcing release against health club member alleging she ruptured a lumbar disc using an exercise machine that was adjusted and activated for her by a health club employee), and Owen v. Vic Tanny's Enterprises, 48 Ill.App.2d 344, 199 N.E.2d 280 (1964) (enforcing release against gymnasium member alleging her wrist was injured in slip and fall on smooth spot on shower 466*466 room floor), with Larsen v. Vic Tanny International, 130 Ill.App.3d 574, 85 Ill. Dec. 769, 474 N.E.2d 729 (1984) (ruling material questions of fact existed whether release fairly applied to health club member's claim she suffered internal injuries from breathing noxious combination of cleaning compounds). See also Schlessman v. Henson, 83 Ill.2d 82, 46 Ill.Dec. 139, 413 N.E.2d 1252 (1980) (enforcing release in suit by amateur race car driver who sued speedway operator alleging injuries in a car crash precipitated by collapse of banked race track); Hellweg v. Special Events Management, 2011 IL App (1st) 103604, 353 Ill.Dec. 826, 956 N.E.2d 954 (enforcing release against bicycle racer who sued race organizers for alleged injuries from collision with juvenile bicyclist who was not participating in race on the "`closed course'" of municipal streets); Harris, 119 Ill.2d 542, 116 Ill.Dec. 702, 519 N.E.2d 917 (enforcing release against horseback rider who sued stables alleging rented horse became spooked and caused rider to fall from the horse). But see Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 103 Ill.Dec. 247, 501 N.E.2d 268 (1986) (finding general language of release did not relieve recreation facility from liability for member alleging two fingers were fractured when metal weights fell from exercise equipment she was adjusting for another member).

          ¶ 14 Accordingly, we conclude that Minnesota law governs this contract and will next consider whether that state would enforce its terms. Our review discloses that Minnesota and Illinois share the same perspective on exculpatory clauses.

          ¶ 15 Schlobohm was a case of first impression in the Minnesota Supreme Court as to whether an exculpatory clause in "a health spa or gymnasium contract" should be invalidated on public policy grounds. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922 (Minn.1982). About six months after joining the Spa Petite health club in Owatonna, Minnesota, plaintiff Schlobohm was injured while using a leg extension machine which required her to sit on the edge of a bench, place her ankles under a padded bar to which weights were attached by a pulley, and then lift her legs straight up until they were parallel with the floor. Schlobohm, 326 N.W.2d at 922. The plaintiff was lifting an unusually large weight when she felt a sharp pain in her back which forced her to stop her workout and obtain a series of chiropractic, orthopedic, and neurological treatments culminating in back surgery about four years later. Schlobohm, 326 N.W.2d at 922. Her membership agreement stated "`all exercises and treatments and use of all facilities shall be undertaken by member at member's sole risk.'" Schlobohm, 326 N.W.2d at 921. The clause expressly exonerated the defendant health club from "any claims, demands, injuries, damages, actions or causes of action, * * * arising out of or connected with the use of any of the services and facilities * * * and from all acts of active or passive negligence." Schlobohm, 326 N.W.2d at 921-22.

          ¶ 16 Like the Illinois authority set out above, the Minnesota Supreme Court indicated that the public interest in freedom of contract is preserved by recognizing exculpatory clauses as valid, exculpatory clauses are not favored by the courts, they are strictly construed against the drafter, and if a clause lacks clarity or purports to release a party from liability for intentional torts or willful or wanton recklessness, then it will not be enforced. Schlobohm, 326 N.W.2d at 922-23.

"The vice of ambiguous language is that it fails precisely and clearly to inform contracting parties of the meaning of their ostensible agreement. Because ambiguous language is susceptible to 467*467 two or more reasonable meanings, each party might carry away from the agreement a different and perhaps contradictory understanding. In the context of a release in connection with an athletic, health, or fitness activity, the consumer surely is entitled to know precisely what liability is being exonerated. A release that is so vague, general, or broad as to fail to specifically designate the particular nature of liability exonerated is not enforceable." Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 801 (Minn.Ct.App.2006) (applying Schlobohm).

          ¶ 17 The court determined the Spa Petite clause was unambiguous and that its broadly-worded release of "`any claims * * * from all acts of active or passive negligence'" was permissible in that it was limited to exoneration from liability for ordinary rather than intentional or willful negligence. Schlobohm, 326 N.W.2d at 921-23.

          ¶ 18 Even if a release clause is unambiguous in scope and limited only to negligence, a court must determine whether enforcement of the clause will contravene Minnesota public policy. Schlobohm, 326 N.W.2d at 923. Here we again point out the similarity between Illinois and Minnesota law. The Minnesota court considered whether (1) there was a disparity in bargaining power between the two parties (resulting in a compulsion to sign a contract containing an unacceptable provision) and whether the services could be obtained elsewhere, as well as (2) whether the services were so essential to the public, they were "a practical necessity." Schlobohm, 326 N.W.2d at 923-26. The first prong would indicate the membership agreement was an adhesion contract and the second prong would indicate the service being offered should be publically regulated instead of governed by the principle that parties may contract as they see fit. "By definition, an adhesion contract is drafted unilaterally by a business enterprise and forced upon an unwilling and often unknowing public for services that cannot readily be obtained elsewhere." Schlobohm, 326 N.W.2d at 924. "It is a contract generally not bargained for, but which is imposed on the public for necessary services on a `take it or leave it' basis." (Emphasis omitted.) Schlobohm, 326 N.W.2d at 924. The Minnesota Supreme Court found that the plaintiff could freely choose between becoming a member of Spa Petite subject to the provisions in the membership contract or not becoming a member and that the provision of gymnasium or health spa services was not an essential service that was offered on a "`take it or leave it basis.'" Schlobohm, 326 N.W.2d at 924-25. "Nothing in the record indicates that [plaintiff] Schlobohm had been directed to participate in Spa Petite's program by any health adviser, nor that similar facilities offering similar programs were unavailable." Schlobohm, 326 N.W.2d at 925. Furthermore, "Even if there were a scarcity of facilities for gymnastic and reducing activities in the area, that fact alone would not create * * * disparity of bargaining power." Schlobohm, 326 N.W.2d at 925. Continuing with its analysis, the court concluded: "It should have been obvious to anyone of Schlobohm's age, education and experience that an exercise program in a gymnasium bears with a certain risk of injury, and that by the exculpatory clause Spa Petite indicated clearly that it was unwilling to shoulder that risk for the relatively nominal membership fee it charged its members." Schlobohm, 326 N.W.2d at 925. Also, "Defendant, a private corporation, was under no obligation or legal duty to accept plaintiff as a `member' or patron. Having consented to do so, it has the right to insist upon such terms as it deemed 468*468 appropriate." (Internal quotation marks omitted.) Schlobohm, 326 N.W.2d at 926. The Minnesota court also indicated it was well-settled in Minnesota and elsewhere that enforcing an exculpatory clause in a contract regarding recreational activities would not violate public policy. Schlobohm, 326 N.W.2d at 926. The Minnesota court specifically held that "the furnishing of gymnasium or health spa services is not an activity of great public importance nor of a practical necessity," and thus, there was no overriding public interest which would demand that the exculpatory language, entered into by two competent parties, should be disregarded. Schlobohm, 326 N.W.2d at 926. Accordingly, it declined to invalidate the release. Schlobohm, 326 N.W.2d at 926.

          ¶ 19 In our opinion, the Schlobohm release is remarkably similar to the language quoted above from Hussein's membership contract with L.A. Fitness and he has failed to identify any circumstances suggesting that he had no choice but to join L.A. Fitness and become subject to the broad exculpatory terms in the membership agreement or that enforcing this particular clause would contravene the public interest. The clause was clear, explicit, and unequivocally stated that the "Member's use of L.A. Fitness' * * * equipment * * * involves risks of injury," "including injury leading to the death of Member," and "Member assumes full responsibility for such risks." This language encompassed the most unfortunate circumstances that occurred on July 7, 2009, while Hussein was making unaided use of the exercise equipment at L.A. Fitness' Canal Street location in Chicago. Hussein was on notice of the range of dangers he was exposing himself to, that he had assumed the risk of injury, and that he should exercise a greater degree of caution in order to minimize those risks. Like Spa Petite, L.A. Fitness is a private corporation which was under no obligation or legal duty to accept Hussein as a member or client. Having agreed to accept him, it had the right to insist on the terms it deemed appropriate. Schlobohm, 326 N.W.2d at 926. Also, like plaintiff Schlobohm, Hussein voluntarily applied for membership in a private organization and agreed to the terms that came with that membership. Schlobohm, 326 N.W.2d at 926. Nothing about these parties or the provision of health club services suggests that the exculpatory terms should be negated.

          ¶ 20 Hussein contends, however, that there are certain "material defects" in the L.A. Fitness membership agreement which render the exculpatory clause unclear and unenforceable. For instance, he contends that before he executed the membership agreement, only the payment and cancellation terms were explained to him and he was not specifically advised that the contract included liability release language. He contends the location of the signature block should distinguish this contract from Schlobohm, since signatures are affixed on the front page of the agreement directly below language pertaining to the member's right to cancel. He also points out that the cancellation language is emphasized with a larger typeface. He contends the exculpatory paragraph should have had its own signature block indicating that the terms had been explained to and read and understood by the new club member. None of these arguments are persuasive, however. Hussein has not cited any authority indicating L.A. Fitness was under a duty to explain any part of the contract to him or that he can avoid the effect of the contract by claiming that he did not read or understand it before signing it. In fact, Minnesota law provides that except in instances of fraud or misrepresentation, a person who signs a contract cannot invalidate 469*469 the agreement by claiming that he did not read it or thought that it contained different terms. Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 731 (Minn.Ct.App.1986) (declining to invalidate exculpatory clause where injured skydiving client claimed "he was not informed of the effect of the document before signing it" and "he did not thoroughly read the waiver and he claims he did not understand its terms prior to signing it"); Gartner v. Eikill, 319 N.W.2d 397, 398 (Minn.1982) ("In the absence of fraud or misrepresentation, a person who signs a contract may not avoid it on the ground that he did not read it or thought its terms to be different."). Furthermore, at the top of the membership agreement, it is explicitly stated that Hussein was "purchasing a membership from L.A. Fitness according to both pages of this Membership Agreement and the current Membership Policies and Club Rules and Regulations." This sentence alerted Hussein to the fact that he was agreeing to terms printed on the reverse side of the page. Further down the first page, the fourth paragraph of the membership agreement stated that "[b]y signing this agreement" Hussein was acknowledging that he "has read and understands the entire Agreement including * * * the Release and Waiver of Liability and Indemnity * * * on the reverse side" of the page. Hussein has not distinguished the Minnesota cases which the trial judge cited indicating that the membership terms located on the reverse side of the contract are enforceable. See Laurens Mills v. M.M.C., Inc., 280 Minn. 422, 159 N.W.2d 781, 785 (1968) ("There appeared on the front of the order blank in this case a warning that the parties agreed to the provisions on the back * * *."); Brown v. State Automobile Insurance Ass'n, 216 Minn. 329, 12 N.W.2d 712, 717 (1944) ("the part above the insurer's signature refers to the policy provisions printed elsewhere"). In addition, the release paragraph itself is printed in bold font, is offset by a box around the entire paragraph, and it is the most prominent provision on that page. We also emphasize that this language was not a minor clause buried in a lengthy or confusing contract. It covers about one-third of a page in this three-page contract. The membership agreement terms are printed on the front and back of a single page in a readable, normal-sized typeface or larger and the membership policies and club rules and regulations are printed on one side only in a similar, readable and normal-sized font or larger. Thus, the presentation, paragraph placement, and typeface are not grounds for repudiating the release clause.

          ¶ 21 Hussein also points out that the term "multi-club [membership]" and the subtitle "Release and Waiver of Liability" are undefined in the membership contract. We consider these terms to be self-explanatory. In any event, the contract does specify the "membership types" that L.A. Fitness offered to Hussein, including "Single" membership, which was described as "A single club membership valid only at the club of enrollment"; "Premier" membership, which was described as "A multi-club membership valid at L.A. Fitness clubs in all states, except `Signature' clubs"; and "Signature" membership, which was described as "A multi-state membership valid at L.A. Fitness clubs in all states, including `Signature' clubs." The contract referred readers to L.A. Fitness' website for complete and current club listings and locations. The fact that Hussein joined at a Minnesota club but was exercising in an Illinois club indicates he understood the significance of this contract language. We also fail to see a need for a definition of the words used in the subtitle, "Release and Waiver of Liability." Most importantly, Hussein has failed to 470*470 identify and discuss any precedent which suggests these words should have been expressly defined and he has failed to explain how these supposed "material defects" are actually "material" to his claim, or "defects" in the agreement, or in any other way militate against enforcement of the explicit exculpatory language.

          ¶ 22 Hussein also unpersuasively argues that contract language releasing L.A. Fitness from liability for "the active or passive negligence of defendant or otherwise" renders the contract ambiguous. (Emphasis in original.) The Schlobohm clause was broadly worded, in that it released "any claims, demands, injuries, damages, actions or causes of action, whatsoever * * * and from all acts of active or passive negligence." (Emphasis added.) Schlobohm, 326 N.W.2d at 921-22. The Minnesota Supreme Court construed this to release only ordinary negligence. Another pertinent Minnesota case is Malecha, 392 N.W.2d at 728, which concerned a skydiving student who was injured when his parachute did not open properly after he jumped from a plane near Osceola, Wisconsin. A Minnesota appellate court concluded that a clause releasing the skydiving club from liability for "`negligence implied or otherwise'" could have been interpreted to release more than negligent conduct, but was not ambiguous and unenforceable where the skydiving student was claiming only ordinary negligence. Malecha, 392 N.W.2d at 728. See also Anderson, 712 N.W.2d at 800-01 (following Schlobohm and indicating that language in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable but does not defeat the release of ordinary negligence). It is clear that Hussein agreed to exonerate L.A. Fitness from liability for negligence, that being part of the express agreement he executed, and that he is alleging only ordinary negligence. Minnesota has already rejected Hussein's argument.

          ¶ 23 We acknowledge that upholding the health club's exculpatory clause in this instance leads to a harsh result. Nevertheless, the law dictates that we reject Hussein's contentions that this portion of the membership agreement is unenforceable due to its wording or on public policy grounds. We affirm the ruling of the circuit court that the contract affirmatively barred Hussein's lawsuit against L.A. Fitness.

          ¶ 24 Affirmed.