Help in Recognizing Ambiguity in Your Waiver

By Doyice Cotten

Ambiguity is one of the most prevalent claims when challenging the enforceability of liability waivers. This post involves a case in which a waiver is claimed to be ambiguous. We focus on the arguments by the plaintiff and the reasoning of the court in addressing the issue.

Jodi Sheldon suffered serious injury while participating in a high ropes course at the Golden Bell Ranch in Colorado. She sued claiming negligence naming Golden Bell, CBA (Cross Bearing Advenures, the company which constructed and inspected the course and trained Golden Bell employees), and Kent  McIlhany, (the owner of CBA)  as defendants (Sheldon v. Golden Bell Retreat, 2020). All defendants argued that her claims were barred by a Waiver, Release and Indemnification Agreement signed by the plaintiff. The waiver follows:

I wish to participate in recreational activities to be made available to participants at Golden Bell Camp including activities that may be hazardous or otherwise involve a risk of physical injury or death to the participants (the“Activities”).

I expressly assume any and all risks of injury or death arising from or relating to the Activities including horseback riding, agricultural recreation and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against Golden Bell Camp, its corporate affiliates, contractors, vendors, officer, agents, sponsors, volunteers or representatives of any kind (collectively “Releases”) arising from or relating in any way to my voluntary participation in these activities. I understand that this Waiver, Release and Indemnification agreement means, among other things, that if I am injured or die as a result of my participation in these activities, I and/or my family or heirs cannot under any circumstances sue Releases or any of them for damages relating to or caused by my injuries or death.

…I agree to indemnify Releases or any of them and their subrogees, if any, in the event of any loss, damage or claim arising from or relating in any way to my participation in any of the Activities.

….I have read this Waiver, Release and Indemnification Agreement, have asked and received answers to any questions I had concerning its meaning and execute it freely, without duress, and in full complete understanding of its legal effect, and of the fact that it may affect my legal rights.

Ms. Sheldon received the waiver after indicating an interest in the high ropes course.

Colorado law provides that four factors are to be used in determining the enforceability of a waiver of liability: 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.” The first three factors were not at issue; the effect of the waiver rested solely on whether the waiver language was clear and unambiguous.

Was the Ropes Course covered By the Waiver?

Ms. Sheldon insisted the Waiver was ambiguous as to whether the high ropes course was within the scope of the activities covered. The court noted 1) the Waiver defined the term “Activities” as “recreational activities … including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” It stated the the use of the term “including” plainly indicates that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Hence, even if plainiff’s argument that the high ropes course is not a hazardous activity is accepted, her argument failed. The court also stated that 2) the failure of the waiver to mention high ropes course does not make the waiver ambiguous because Colorado law does not require a waiver to describe in detail each specific risk one might encounter.

The court made it clear that when read in context, the waiver clearly and unambiguously applied to the high ropes course. It added that “Moreover, nothing in the record suggests Ms. Sheldon would have been asked to sign a Waiver had she not requested to participate in the high ropes course. Given those circumstances, it ‘strains logic,’  to suggest Ms. Sheldon was confused or misled as to the fact that she was being asked to waive potential claims of negligence associated with the high ropes course.”

Was the CBA Covered by the Waiver?

The court then stated that  the waiver also clearly bars Ms. Sheldon’s claims against CBA. The waiver specifically lists as protected parties “Golden Bell Camp, …, contractors, vendors, … .” protecting Golden Bell’s “contractors” and “vendors.” It further added that protection included that from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” The court felt the waiver obviously intended to protect parties like CBA from this exact situation.

Ms. Sheldon argued that contractors and vendors are covered only when on site; the court countered that the argument was meritless because the waiver intended to have the broadest possible scope because it said “arising from or relating in any way” to Ms. Sheldon’s participation in the covered activities. Thus, the court concluded that the waiver clearly and unambiguously bars Ms. Sheldon’s claims against CBA as well.

Ruling

The court ruled in favor of the defendants holding that the waiver was clear, unambiguous, and enforceable.

Photo Credit: Thanks to Mike Cardus   via Flickr.