By Doyice Cotten
In a recent Colorado equine injury lawsuit (Eburn v. Capitol Peak Outfitters, Inc., 2012 U.S. Dist. LEXIS 106 236), an inexperienced rider was injured when her saddle rotated to the side and caused her to fall from the horse. The court examined the waiver she had signed and concluded that Capitol Peak Outfitters (CPO) was protected from liability for such injuries.
The court declared the waiver clearly and unambiguously expresses the parties’ intent to preclude CPO’s liability for negligent acts. The pertinent parts of the waiver follows:
In consideration of being allowed to participate in any way in the program, related events and activities, the undersigned acknowledge, appreciate, and agree that:
1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death.
2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation. [. . .]
4. I . . . HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE , its officers, officials, agents and/or employees, other participants, sponsors, advertisers, and, if applicable, owners and lessors of premises used to conduct the event (RELEASEES), from any and all claims, demands, losses, and liability arising out of or related to any INJURY, DISABILITY OR DEATH I may suffer, or loss or damage to person or property, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.
The second page further states, in relevant part:
NOTICE OF INHERENT RISKS: Equines have the propensity to behave in ways that may result in injury, harm or death to persons on or around the equine; have unpredictable reactions to such things as sounds, sudden movement and unfamiliar objects, persons or other [*5] animals; are susceptible to certain hazards such as surface or subsurface conditions; collisions with other equines or objects. Propensities include kicking, biting, stamping, stumbling, rearing, and others. Tack equipment can fail, resulting in falling or loss of control. Participants could act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the equine or not acting within the participant’s ability. Equine activities are INHERENTLY DANGEROUS. [. . .]
We realize that we are subject to injury from this activity and that no form of preplanning can remove all of the danger to which we are exposing ourselves. [. . .]
I . . . the undersigned, have read the foregoing statement carefully before signing and do understand its warnings and assumption of risks.
The reasoning of the court can be helpful for one preparing or evaluating a waiver. Some of the reasoning follows: The waiver
- Was written in simple and clear, non-legal terms
- Comprises less than two full pages
- Is not very complicated
- Specifically addresses the reality that equipment can fail and result in loss of control
- Explicitly states that the signor assumes all risks, including those arising from negligence
- Made clear that no form of preplanning can remove all danger
- Emphasizes (by use of capitalization) important information in several places.
Subsequently, the court granted summary judgment in favor of CPO regarding the negligence claim.