By Doyice Cotten
Three snow tubing cases were discussed in last week’s post. Two more “snow” cases will be examined in this post with two more to follow next week.
Two Colorado cases are examined here. One case involves the enforcement of waivers in snow mobile rental case while the other involves a skiing accident.
Salazar v. On the Trail Rentals
Salazar v. On the Trail Rentals (2012) is a case in which the spouse of Monique Salazar rented a snow mobile, signed a waiver, struck a tree, and was killed. Salazar argued that the waiver was ambiguous because it did not list her as a signing party (see waiver following); hence, the waiver did not specifically bar the claim of non-signators. The waiver in pertinent part follows:
Being aware that this activity entails risks, I agree, covenant and promise and assume all responsibility or liability and risk for injury, death, illness, disease, or [*711] damage to property arising out of or in any way connected with the participation in this activity to myself. My participation in this activity is purely voluntary, no one is forcing me to participate, and I elect to participate in spite of and with full knowledge of the risks. I hereby certify that I am fully capable of participating in this activity.
I hereby voluntarily release and forever discharge Lessor, its agents, shareholders, officers, directors, and employees, and all other persons or entities from any and all liability, claims, demands, actions or rights of action, loss, damages, injury to persons or property, which are related to, arising out of or in any way connected with my participation in this activity or use of the leased equipment, including specifically but not limited to the negligent acts or omissions of Lessor, its agents and employees, and all other persons or entities, including attorney’s fees and costs incurred.
The court enforced the waiver ruling that the ambiguity was irrelevant because Colorado limits such claims to claims that the deceased could have brought; he had released his claim by the waiver.
Squires v. Breckenridge Outdoor Education Center
The other Colorado case (Squires v. Breckenridge Outdoor Education Center, 2013) involved injury to a blind, disabled minor enrolled in a wilderness program. The injury occurred when a third party crashed into the instructor while he was tethered to the plaintiff in the process of bi-skiing. The collision caused the plaintiff to strike some trees.
Here, as in Salazar, ambiguity was an allegation; plaintiff claimed the waiver failed to mention skiing as one of the outdoor activities. The court held that listing all activities was not necessary. A more important challenge was whether the mother, in signing the waiver, had sufficient information by which to make an informed decision (a statutory requirement for the enforcement of parental waivers).
ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)
In consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.
2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.
I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.
In addition, Squires also received a letter months in advance informing her of the program:
LETTER TO STUDENTS, PARENTS AND GUARDIANS
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledgment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.
If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.
The court ruled that the parent’s decision was an informed one and, in adherence to the Colorado statute, upheld the parental waiver.
Photo Credit: Thanks to JordanHipwell at Flickr.