By Doyice Cotten
Carolyn Raup was injured dismounting a chairlift. The lift ticket was purchased for her by her daughter and son-in-law. The ticket had a waiver on its back side and a warning on the front reading “IMPORTANT WARNING ON REVERSE.” She sued alleging negligence plus other claims. The trial court ruled that Vail was protected by the waiver language. She appealed to the U.S. Court of Appeals in this action (Raup v. Vail Summit Resorts, Inc., 2018). This is apparently the first time a Colorado court has addressed the enforceability of an unsigned waiver on a ticket. There was considerable disagreement on the court, so keep reading when you get to the dissent.
The language on the back of the ticket follows:
- The Holder of this ticket understands and VOLUNTARILY ASSUMES ALL RISKS associated with visiting the Fun Park, including the risks of property damage, personal injury, and death.
- The Holder agrees to not bring any claim or lawsuit against the Fun Park or its affiliates that could arise from the negligence of the Holder or others, including the negligence of the Fun Park operator or its employees, or from incidents occurring in connection with the natural environment or reasons outside the Fun Park’s or its affiliates’ control.
- The Holder understands that many activities in the Fun Park are self-directed, and that property damage, injury or death to Holder or others may occur as a result of the Holder’s own decisions and actions in these activities.
. . .
- The Fun Park and its affiliates affirmatively deny all liability for any property damage, injury, or death occurring as a result of or related to the Holder’s visit to the Fun Park, and the Holder, by use of this ticket, hereby understands and accepts such denial of liability and agrees to hold harmless and indemnify the Fun Park and its affiliates for any claim or lawsuit that may arise as a result of or related to the Holder’s visit.
The plaintiff was injured when she attempted to dismount from the chairlift. There seemed to be a mixup and negligence was alleged. For details, click here.
The appellate court considered the waiver language in light of Colorado waiver law which requires the Jones test. Under Jones, four factors are required for a waiver to be enforceable. They are:
(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.
Raup challenged the waiver on factors 3 and 4. Regarding the third factor, the court cited a previous case in which the court held a “contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” The court went on to say that recreational activities are not essential services or practically necessary, and therefore a person is not at the mercy of a business’s negligence and are free to walk away if they do not wish to assume the risks described in an exculpatory agreement.
As to the 4th factor, the court stated that the waiver must be “expressed in clear and unambiguous language.” It added that the proper inquiry should be “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”
Raup argued that the waiver was not “fairly entered into” because she “did not receive her lift ticket until after the contract was consummated, and the lift ticket had become non-refundable.” [This argument was not considered because the argument was not made in the trial court.] She also argued that the waiver was not expressed in clear and unambiguous language – focusing largely on small font size (5 point) and allegedly obscure language. The court responded that Colorado law provides that a waiver “should be legible without resort to a special device and should be readily comprehensible by a layperson.” The court agreed “with the district court that the print, although small, does not require a magnifying glass.” It added that the words “WARNING” and “VOLUNTARILY ASSUMES ALL RISKS” are printed so as to attract attention to the essentials of the waiver. Further, the court held that the language was not obscure and was such that a layperson should have no problem understanding it.
The Majority Ruling
The court summarized that the warnings and conditions seemed reasonably apparent, that the release was “fairly entered into,” and was “expressed in clear and unambiguous language.” Hence, the waiver passed the Jones test of enforceability.
Not all judges agreed on this ruling. Judge Briscoe disagreed with the majority’s conclusion that the exculpatory language contained on the back of the lift ticket was expressed in clear and unambiguous language and was therefore enforceable. He argued that nothing on the ticket, including the warning, reasonably alerted Raup to the presence of the waiver language contained on the back of the lift ticket.
He summarized the circumstances as follows:
Raup and the Pyles, with their purchased tickets, walked to the base of the SuperChair to get on the chairlift. Their intention was to ride the SuperChair to the top and back down without getting off at the top. Raup and the Pyles did not, however, inform anyone at the base of the SuperChair of their intention. Raup and the Pyles presented their lift tickets to the attendant at the base, got on the SuperChair without incident, and began riding to the top.
Near the top of the SuperChair, but prior to the unloading area, signs were posted that said “PREPARE TO UNLOAD/RAISE BAR” and “CHECK FOR LOOSE CLOTHING AND EQUIPMENT.” Id. At the top of the SuperChair at the unloading area, there was a vertical sign on the right-hand side that states, “UNLOAD HERE.” The unloading area at that time consisted of a flat area at the UNLOAD HERE sign (i.e., the point at which most riders unload), followed by a ramp of unspecified length that declined in elevation by approximately one inch per foot. During summer operations, chairs on the SuperChair travel more slowly than they do in the winter, and as they proceed through the unloading terminal, the chairs automatically detach from the main haul rope and slow to 1.6 miles per hour to allow for unloading.
As their chair approached the unloading area, Raup and the Pyles did not raise their safety bar because, as noted, their intention was to ride the chairlift back down the mountain. The lift attendants working at the unloading area signaled for them to raise the bar on their chair in order to get off of the lift. It is disputed whether one of the lift attendants also slowed the lift down so that Raup and the Pyles could get off of their chair more easily. After their chair had traveled past the “PREPARE TO UNLOAD/RAISE BAR” sign, one of the lift operators began waving his arms and yelling at Raup and the Pyles to raise the foot rest and get off the chair.
According to Raup, she and the Pyles did not understand that the lift operators wanted them to get off of the chair until they were approximately five feet from the unloading area. At that point, Raup and the Pyles responded by raising the foot rest, which caused Raup to lose one of her sandals. The Pyles were able to hop off of the chairlift without incident. Raup, however, did not hop off of the chairlift until it was approximately ten feet past the unloading sign, which meant that the unloading platform was approximately ten inches lower than at the unloading sign. More specifically, the seat of the chairlift was approximately 32 inches off of the platform at the point at which Raup hopped off, versus the seat of the chairlift being 22 inches off of the platform at the unloading sign. Shortly after hopping off the chairlift, Raup stumbled and was struck by the chair as it swung around to the left to descend down the mountain. Raup then fell off of the platform and, in the process, sustained fractures to her left femur, tibial plateau, and ankle.
Colorado Waiver Law
Judge Briscoe summarized Colorado Waiver Law as follows:
- Under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.”
- “An exculpatory agreement, which attempts to insulate a party from his own negligence, must be closely scrutinized, and in no event will such an agreement provide a shield against a claim for willful and wanton negligence.”
- “In determining whether an exculpatory agreement is valid, there are four factors which a court must consider.” These include: “(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.”
He stated that enforceability usually turns on the fourth factor and points to the following:
- It is undisputed that Raup had the lift ticket in her possession for a short period of time (before presenting it to the lift operator) and may have looked at the front of it.
- It is also undisputed, however, that Raup did not look at the back of the lift ticket.
- Further, there is no evidence that any Vail employee verbally alerted Raup or the Pyles to the exculpatory language printed on the back of the lift ticket,
- nor is there any evidence that there were any signs in the Fun Park alerting Raup and other visitors to the exculpatory language.
- Thus, the only way that we could say as a matter of law that Raup reasonably knew or should have known about the exculpatory language on the back of the lift ticket is because of the presence of the warning language printed on the front of the lift ticket, i.e., “IMPORTANT WARNING ON REVERSE.”
- The problem with this warning language, however, is that it was printed in an extremely small font—approximately 5-point font—at the very bottom of the ticket.
- Moreover, the warning language was positioned directly below and literally touched a series of thirteen larger letters and numbers, which in turn were positioned directly below the ticket’s even larger bar code.
- The majority concludes, and I agree, that “[c]ertainly anyone who uses reading glasses to read a newspaper would need such glasses to read the [warning] language on the [front of the] ticket.”
- As Raup argues on appeal, “Vail’s reliance on tiny words crowded onto the front of the lift ticket is not sufficient to satisfy the strict scrutiny standard required to enforce an exculpatory agreement.”
- In sum, the warning language was both inconspicuous (a factor that the majority does not discuss) and illegible—at least without use of an assistive device—to a significant percentage of the population.
- Consequently, I conclude as a matter of law that the waiver language on the back of the lift ticket is unenforceable.
Briscoe then cited a Pennsylvania case (Beck-Hummel v. Ski Shawnee, Inc., 2006) with very similar facts; that appellate court reversed a summary judgment in favor of Ski Shawnee stating
[u]nder the circumstances of this case, where it is undisputed that neither the purchaser nor user of the ticket read its language, and where the language of the ticket itself is not so conspicuous as to, without more, put the user/p notice, we cannot conclude as a matter of law that the disclaimer is enforceable.
In reaching this conclusion, the court noted that “[t]he disclaimer language on the ticket was in a font size . . . that . . . was just barely readable,” and that, consequently, “the disclaimer language on the ticket itself was [not] sufficiently conspicuous such that, without any further indications from the ski facility, a purchaser would be put on notice of its contents.”
Briscoe roundly criticized the ruling of the majority allowing for the enforcement of the ticket waiver. For more of his reasoning, click here. He included a footnote stating
Because the Colorado courts have never before addressed the validity of an exculpatory provision contained on an unsigned document, such as a ski lift ticket, this case is significant and should arguably be addressed by the Colorado Supreme Court in the first instance, rather than by this court. In any event, exculpatory provisions contained on documents of this type surely must be easily noticeable by customers in order to be deemed valid.
Although the waiver was accepted in this case, the argument of the dissent makes a lot of sense. Keep in mind – signed waivers are much more likely to be enforced than are those on the back of a ticket. Also, keep your print size readable.
Photo Credit: Thanks to russellstreet via Flickr.