By Doyice Cotten
The enforceability of waivers on the back of tickets is sometimes in question, depending upon the state involved. There are times when such waivers are enforced. One certainly can’t say they are never enforced, however, it is probably safe to say that such unsigned waivers are less likely to be enforced than are signed waivers.
Redden v. Clear Creek Skiing Corporation (2020), a Colorado case, involved a ski-lift injury in which a signed liability waiver and an unsigned waiver on a ski lift ticket were tested. The issue was whether ski area operators can, by using exculpatory agreements, protect themselves from personal injury lawsuits arising from the alleged negligence of their employees. Colorado waiver law and the Dressel criteria have been discussed often in previous posts and will not be summarized here (locate previous cases with the Search Box).
Based on these two waivers, the trial court granted summary judgment in favor of the defendant, Clear Creek Skiing Corporation.
The Signed Waiver
The signed waiver was comprehensive and, in part, stated that
- Additionally, THE UNDERSIGNED HEREBY AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY Clear Creek Ski Corporation d/b/a Loveland Ski Areas, the equipment manufacturers and distributors, their successors in interest, their affiliated organizations and companies, and each of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders (each hereinafter a “RELEASED PARTY”) for ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to property arising from the PURCHASER’s use of this equipment, including those claims based on any RELEASED PARTY’s alleged or actual NEGLIGENCE OR BREACH OF any express or implied WARRANTY.
The plaintiff argued that (1) the agreements were not fairly entered into (the third factor in Jones v. Dressel) and (2) the agreements do not “clearly” and “unambiguously” express her intent to relieve Clear Creek of liability from negligence at the ski lifts. Redden argued that it is unfair to:
(1) “to hold a person’s property hostage until they sign a waiver”;
(2) to sell, through the mail, an expensive, nonrefundable ticket, only to learn that it includes “release language in tiny print on the back … that forces the purchaser to either waive their rights or forfeit their money”; and
(3) to “sn[ea]k” broad language exculpating Clear Creek as a whole into an agreement centered around Redden’s purchase of boots and an adjustment of her bindings.
The court noted that Redden offered no evidence regarding the first point. Further, the second point was not addressed at trial and could not be argued in appeal. The court added that “if we addressed it, we would conclude that one does not enter into an exculpatory agreement unfairly simply because payment under the agreement is nonrefundable.” The court stated that plaintiffs failed to cite a single Colorado or federal case that would support Plaintiffs’ interpretation of “free to walk away” to mean free from all costs, rather than free from compulsion or coercion. The court added that “all of the pertinent authorities indicate that this factor will generally be satisfied where the contract relates to a non-essential recreational activity, absent evidence of unusual circumstances such as incompetency.”
Finally, still regarding the third Jones factor (fairly entered into), the court added:
… what is important is that in two separate locations on the signed waiver, Redden acknowledged that she had an opportunity to review the contents of the agreement she was about to — and did — sign twice. As to the ticket waiver, in her deposition Redden acknowledged that she (1) was familiar with the language on its back (“Oh, it’s been in existence for a while. I probably have read it several times over the years.”), and (2) purchased the ticket knowing that language was present on the back.
Regarding the fourth Jones factor, plaintiffs argued that the agreements do not “clearly” and “unambiguously” express her intent to relieve Clear Creek of liability from negligence in operating its ski lifts. She asserts that a reasonable person could have interpreted
(1) the signed waiver as limiting the liability of only the boot shop, the manufacturers, and distributors of the boots; and
(2) the ticket waiver as limiting Clear Creek’s liability for the listed inherent risks and dangers of skiing, and not for its operation of a ski lift.
The court rejected plaintiff’s arguments, stating:
With respect to the assertion that a reasonable person could have interpreted the signed waiver as limiting the liability of only the boot shop, the manufacturers, and distributors of the boots, Redden points to paragraph six of the signed waiver and argues, “[the signed waiver] advised that ‘the equipment manufacturers and distributors’ would be held harmless for claims ‘arising from the PURCHASER’S use of this equipment ….’ ” But Redden overlooks the long list of parties mentioned in the paragraph that she released from “any and all liability” by signing the agreement: “Clear Creek Ski Corporation d/b/a/ Loveland Ski Areas, the equipment manufacturers and distributors, their successors in interest, their affiliated organizations and companies, and each of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders[.]”
The court pointed out that the language included “any and all liability” as well as “all risks” associated with her participation in the “ACTIVITY.” So the court concluded that the signed waiver “unambiguously encompasses “ALL” risks — including Clear Creek’s negligence — associated with her use of ski lifts.
The Ticket Waiver
The ticket waiver provided,
“HOLDER AGREES AND UNDERSTANDS THAT SKIING, SNOWBOARDING, AND USING LOVELAND SKI AREA, INCLUDING ITS LIFTS, FOR ANY PURPOSE CAN BE HAZARDOUS.”
Then, after warning the ticket holder that, by law,
“a skier assumes the risks of any injury … resulting from any of the listed inherent risks of skiing,” … Holder understands that he/she is responsible for using the ski area safely and for having physical dexterity to safely load, ride, and unload the lifts …. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS Loveland Ski Area and its representatives for all claims to injury to person or property.
The court added that “Similar language appears — achieving a similar effect — in the ticket waiver.” The court pointed out that the ticket waiver includes both (1)the statutorily mandated warning of the inherent risks and dangers of skiing, (2) a warning in capital letters that the use of ski lifts can be hazardous, (3) provides that, “[i]n consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities, and (4) to HOLD HARMLESS Loveland Ski Area and its representatives for all claims for injury to person or property.
The court concluded that the ticket waiver was clear — that the holder assumes all risks of skiing, whether inherent to skiing or not.” The purchaser of the boots and the holder of the ticket are “to assume all risks of skiing, whether inherent to skiing or not.” NOTE: the court enforced the agreement “even though it did not specifically detail that it would release claims arising out of the defendant’s employee’s allegedly negligent operation of the ski lift.”
The court ruled that the signed waiver and the ticket waiver unambiguously evidence the parties’ intention to cover the activity in question — that is, riding on a ski lift.
Photo Credit: Thanks to Dave Dugdale via Flickr.