By Doyice Cotten

Vail Resorts Holdings, Inc. and others contracted with Bonsai Design LLC to build a zipline  course on the back side of Vail Mountain. Bonsai is a company that plans zipline layouts, builds them, and advises zipline providers on their operation. Lisa Cowles was grievously injured on the facility after signing a liability waiver. She subsequently filed suit for negligence and gross negligence (Cowles v. Bonsai Design, LLC, 2020).

On the day of the incident, Cowles was going down a zipline that was over one half mile long, but as she progressed something malfunctioned and she gained an excessive speed, collided with the stop location and suffered serious permanent injury.

Waiver of Ordinary Negligence and Colorado Law

One of the first tasks facing the court was to determine if the waiver of liability for negligence was sufficient to protect the defendants. The court stated that Colorado law has long disfavored exculpatory agreements and “it is well-established that such agreements cannot ‘shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties.'”  It went on to say that waivers of ordinary negligence are not prohibited when one seeks to release claims of negligence.  It referred to the Jones v. Drexxel (1981) Colorado Supreme Court ruling.

In Jones, the court established four factors to be used in determining the validity of such waivers. The first Jones factor—the existence of a duty to the public— “distinguishe[s] businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public.” Courts have consistently ruled that waivers may be enforced in the context of recreational services and activities because such activities do not involve a duty to the public of a kind that would make enforcement of such contractual waivers against public policy. Zip-lining, of course, is recreational and “involves no matter of great public importance.” Thus, the court said is no duty to the public that prevents enforcement of the Waiver.

The second Jones factor requires consideration of the “nature of the service performed,” which involves an assessment of whether the activity can be described as an “essential service.” This is quite similar to the first factor. It stated that skiing is not an essential service”; therefore, this  factor does not bar enforcement of the Waiver.

The third Jones factor is “whether the contract was fairly entered into.” The court stated that the defendant had no unfair bargaining advantage and the plaintiff was not “at the mercy” of Bonsai’s negligence. In other words, the plaintiff was not forced to participate in the zip-line course and was free to “walk away if [she did] not wish to assume the risks described in the exculpatory agreement” when she agreed to the exculpatory contract terms as a condition of zip-lining at Vail.

Finally, the fourth Jones factor involves the determination of whether the intention of the parties is expressed in clear and unambiguous language.” The court examined the actual language of the waiver (for legal jargon, length and complication, and any likelihood of confusion) to determine whether the plaintiff should have recognized the full extent of the release provisions. Waivers that are clear and unambiguous, are enforced as a matter of law.”).

The court examined the following language and commented that the provisions are not inordinately long (less than a page) or complicated. It pointed to the top of the page where it states: “THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION.” Regarding the following language, it said “This language cannot reasonably be understood as expressing anything other than a release from negligence liability. It is thus beyond dispute that it was the parties’ intention to extinguish liability for claims stemming from negligence and that this intention was clearly and unambiguously expressed.”

IN CONSIDERATION FOR BEING ALLOWED TO PARTICIPATE IN THE ACTIVITY, I AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE the Activity operator, Vail Resorts, Inc., The Vail Corporation, . . . [the] equipment manufacturer . . . FROM ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to property arising from Activity participation, INCLUDING THOSE INJURIES AND DAMAGES CAUSED BY ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE (including failure to take reasonable steps to protect against the risks of the Activity).

The court then stated that the fourth Jones factor does not bar enforcement of the Waiver.

The Court found that all four of the Jones factors are satisfied and that the Waiver’s provisions are valid as a matter of law.  Thus it ruled that the Plaintiff has failed to allege a plausible negligence claim.

Gross Negligence Claim

The court elected to allow a third amendment to the claim of gross negligence. One reason it was allowed was information was obtained regarding three other accidents on other ziplines including one that was only a couple of weeks before the Cowles injury. There were allegations that Bonsai knew of numerous braking system issues, but failed to make needed repairs or modifications to the system.

Photo Credit: thanks to Branson Convention and Visitor’s Bureau via Flickr.