By Doyice Cotten
In June, 2018, Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch. She sued Golden Bell Retreat, Cross Bearing Adventures (“CBA”), the company which constructed the course and trained employees, and it’s owner Kent McIlhany. alleging negligence (Sheldon v. Golden Bell Retreat, 2020). All three defendants claimed Ms. Sheldon’s claims are barred by a waiver and indemnification agreement signed by Sheldon.
The waiver read, in part:
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.
Sheldon claimed the waiver did not apply because the high ropes course was not mentioned in the waiver. The court dismissed the claim against McIhany early since the claims against him related to his capacity as operator of CBA.
The court then ruled that Sheldon’s claims against Golden Bell and CBA were precluded by the Waiver. The court stated that waivers “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” It went on to say that waivers are disfavored, that “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” It did point out that waivers do not provide a shield against willful and wanton conduct. .
Colorado Waiver Law
The court reported four factors which determine if the waiver is enforceable:
- the existence of a duty to the public;
- the nature of the service performed;
- whether the contract was fairly entered into; and
- whether the intention of the parties is expressed in clear and unambiguous language.
If any of the factors is met, the waiver is to be deemed enforceable. The first two factors regarding whether the party seeking exculpation is engaged in performing a service of great importance to the public were not at issue since this involved a recreational activity. The latter two factors focus on more contract-specific questions : was the waiver fairly obtained and was it unambiguous.
There was also no claim that the waiver was unfairly administered. The big question was whether the waiver was clear and unambiguous. Thus the role of the court was to determine whether the parties’ intent to “extinguish liability … was clearly and unambiguously expressed.”
Colorado courts examine the actual language of the document for “legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” They have also considered a plaintiff’s subsequent acknowledgment that he understood the meaning of the waiver. [They] have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.
Ms. Sheldon insists the Waiver is ambiguous as to
- whether the high ropes course was within the scope of the activities covered. The court was not persuaded. The term “Activities” as “recreational activities … including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury.
- the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered. The court did not agree: Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.” Read in context, and considering not only its structure and language but also its purpose, the Waiver clearly and unambiguously applies to activities such as the high ropes course.
The court also held that the Waiver also clearly bared Ms. Sheldon’s claims against CBA. The court explained:
The Waiver specifically protects Golden Bell’s “contractors” and “vendors.” It specified protection from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” The intent to protect contractors and vendors was obvious.
Plaintiff claimed ambiguity as to which contractors and vendors are covered. The court disagreed:
- It pointed out that the language indicated the broadest possible scope, applying to claims “arising from or relating in any way.”
Plaintiff also claimed 1) lack of consideration, 2) mutual mistake, and 3) unilateral mistake. The court found none of these claims had merit.
The court ruled that Golden Bell and CBA were protected by the liability waiver signed by the plaintiff. Thus the court granted summary judgment in favor of the defendants.
Risk Management Take-away
Waivers will protect sport, recreation, and fitness providers from liability for their own negligence in most states. Colorado courts consistently enforce well-drafted waivers. Read through the waiver presented above and compare it to your waiver. Does your waiver stack up well against it? ONE CAUTION! A waiver like this will protect in 20 to 30 states, but it has one major weakness! It does not specifically state that it protects against provider negligence. In a number of states, a waiver will not protect if the waiver does not include the word NEGLIGENCE, or a word of similar import.
Photo Credit: Thanks to Mike Cardus via Flickr.