By Doyice Cotten

Sandra Steinfield fell from her bicycle and was injured during a bicycle tour vacation in Costa Rica. She and her husband filed suit in their home state of Pennsylvania; the case was moved to Colorado for trial under Colorado law (Steinfield v. EmPG Int’l, LLC, 2015).

The major issue in the case was whether a waiver and release signed by Steinfield barred the claims by Steinfield. The waiver was in two forms. First was a document stating that they had

“full understanding that bicycling and other tour activities involve risks and hazards that may involve injury and/or death,” and that each agreed “to assume full responsibility for myself . . . and for the bicycle(s) which is/are assigned to me, except when said bicycle(s) is/are in the care of ExperiencePlus! Bicycle Tours.”

Second was the Terms and Conditions of its website, which Plaintiffs accepted:

RESPONSIBILITY: The payment of the deposit or full payment for a reservation on a tour shall constitute consent to all provisions listed under “Terms & Conditions” herein. These provisions are hereby incorporated by reference in this RESPONSIBILITY notice, and participants are advised to take notice. ExperiencePlus! Bicycle Tours is the principal tour operator for these tours and is responsible to the participants for all arrangements and for all tour services and accommodations offered. ExperiencePlus!, its agents, servants and employees shall not be responsible for personal injuries or property damage, loss or delay, or change of itinerary incurred by any person or tour participant arising out of the act of negligence of any direct or supplemental carrier, hotel, or other person rendering any of these services, or accommodations being offered in these tours; nor shall ExperiencePlus! Bicycle Tours be responsible for any injuries, death, damage, loss or delay in any means of transportation or by reasons of any event beyond the actual control of ExperiencePlus! Bicycle Tours or of any agent or supplier, or due to force majeure. Tour participants follow the suggested itinerary at their own risk and agree not to hold ExperiencePlus! Bicycle Tours responsible for injury or death resulting from accidents. Bicycles provided for use during these tours are in satisfactory operating condition and participants agree to use them at their own risk or call deficiencies to the immediate attention of the head tour leader. Instruction in the use of bicycles will not be provided and participants affirm that they are familiar with the use of a multi-speed bicycle. Bicycle tour participants are required to wear a helmet while cycling. The tour operator reserves the right to substitute hotels, restaurants, routes or other services listed in the itinerary with comparable services if necessary. The right is also reserved to decline to accept or retain any person as a member of a trip due to circumstances beyond the control of ExperiencePlus! Bicycle Tours. Activities involved in active travel and the tours described in our catalogs and on our web site are physically demanding, strenuous and potentially dangerous. By reserving space on a tour, tour participants acknowledge that they are in suitable physical and mental condition to perform the activities described herein. At the discretion of employees of ExperiencePlus! Bicycle Tours, participants failing to meet these physical and mental requirements, or participants deemed harmful or disruptive to other participants’ enjoyment of the tour, may be asked to leave the tour, with no refund applicable.

Colorado Law

Waivers are recognized under Colorado law, but are construed narrowly and “closely scrutinized” to make sure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Agreements protecting against simple negligence are enforced; those protecting against willful or wanton negligence are not enforceable. Indeed, even waivers of simple negligence are “disfavored,” but they are “not necessarily void as against public policy” in Colorado as long as one party is not “at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.”

EmPG Waiver

The court held that the waivers at issue in this case are neither clear or unambiguous. Further, they would not be enforceable even if they were because the Steinfields were at such an obvious disadvantage in bargaining power that the effect of the waiver was to put them “at the mercy” of both tour organizer EmPG/ExperiencePlus! and any number of entities and individuals in Costa Rica with whom EmPG contracted to perform services on its behalf.

Problems. First, the first document did not contain the words “waiver” or “negligence” at all, and did not purport to “release” anyone or any entity of liability. Instead, they framed the purported “waiver” in terms of the customer’s understanding that “bicycling and other tour activities involve risks and hazards,” and that the customer “assumed full responsibility for myself and for any minors who accompany me on this tour, and for the bicycle(s) which is/are assigned to me.”

Second, the website language does not make clear at all that the Steinfields were releasing EmPG/ExperiencePlus! from its own negligence, providing that the company would not be responsible for personal injuries “arising out of the act of negligence of any direct or supplemental carrier, hotel or other person rendering any of the services or accommodations being offered in these tours,” or “any injuries, death, damage, loss or delay in any means of transportation or by reasons of any event beyond the actual control of ExperiencePlus! Bicycle Tours or of any agent or supplier.” This language, in fact, implies that ExperiencePlus! could be held responsible for injuries that were not “beyond its actual control.”

The court stated that the Steinfields’ allegations are sufficient to withstand dismissal, not the least of which is the provision of a bicycle to Mrs. Steinfield with faulty brakes or an allegedly wanton disregard for her ability or safety in having her pedal alone in a strange town down steep streets and curves. EmPG’s motion for dismissal was denied.

NOTES:

1. Here again we have a case where a business was not protected because they failed to use a clear and unambiguous waiver.
2. Note that the case was in a Colorado court under Colorado law even though the incident occurred in Costa Rica.
3. The court discussion regarding the “obvious disadvantage in bargaining power” may not be consistent with other Colorado courts or with courts in other states.
4. When deciding to use a waiver for liability protection, be sure to have it drafted by someone who is qualified and experienced in state waiver law.

Photo Credit: Thanks to Malouette on Flickr.

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