Waivers, Wrongful Death, and Colorado

By Doyice Cotten

William Bradford rented a snowmobile, accidentally struck a tree, and was killed leaving behind a spouse and a son by a former spouse. The survivors filed a wrongful death claim against the rental company, On the Trail Rentals, Inc. (Salazar v. On the Trail Rentals, Inc., 2012 U.S. App. LEXIS 25880).

Prior to his death, Bradford had signed a waiver of liability which included the following pertinent language related to warning of inherent risks; assumption of inherent risks; negligent acts; and indemnification of the provider:

Lessor has informed me and I understand that this activity is not without substantial risk. These inherent risks can be the cause of loss or damage to my property, or accidental injury, illness or in extreme cases, permanent trauma or death. Among these risks are the following: (1) the nature of the activity itself; (2) the acts or omissions, negligent in any degree, of Lessor, it’s [sic] agents and employees; (3) the acts or omissions, negligent in any degree, of other persons or entities; (4) latent or apparent defects or conditions in equipment or property supplied by Lessor; (5) weather; (6) use or operation, by myself or others, of equipment supplied by Lessor or others; (7) exposure to noise and exhaust; (8) contact with vegetation or animals; (9) my own physical, mental or emotional condition, or my own acts or omissions; (10) conditions of snow, roads, trails, lakes, fences or terrain, and accidents in connection therewith . . . . I understand and acknowledge that the above list is not complete or exhaustive, and that other risks, known or unknown, identified or unidentified, may also result in injury, death, illness or disease or damage to property. . . .   I agree, covenant and promise and assume all responsibility or liability and risk for injury, death, illness, disease, or damage to property arising out of or in any way connected with the participation in this activity to myself.

 I hereby voluntarily release and forever discharge Lessor … from any and all liability, claims, demands, actions or rights of action, … 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….

I further agree, promise and covenant to hold harmless and indemnify Lessor … for any injury to person or property, death, illness, disease or damage, expenses and costs including reasonable  attorney’s fees.

Following Bradford’s death, the plaintiffs filed suit alleging the rental company’s (OTR) negligence caused the wrongful death. OTR moved for summary judgment claiming the waiver barred the claim. The trial court granted summary judgment upholding the waiver.

On appeal, plaintiff’s alleged error because the waiver was ambiguous in that it did not specifically bar their claim as non-signatories. Colorado law disfavors waivers, but will enforce them depending upon the following factors:

(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 only factor contested in the appeal was the fourth requirement. The plaintiffs alleged that the terms “I,” “myself,” and “me” used in the document make it unclear whether Bradford could have known he was releasing claims of his wife and children. They further claimed that the waiver did not specifically bar a wrongful death claim.

The court stated that the Colorado Wrongful Death Statute limits wrongful death claims to those that could have brought by the defendant had he or she survived. The statute, Colo. Rev. Stat. 13-21-202 reads

 When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.

 The court upheld the waiver as unambiguous and affirmed the lower court ruling that the wrongful death claim fails.

The reader might want to contrast this ruling with the New Jersey wrongful death ruling discussed in Waivers, Wrongful Death and New Jersey discussed in a recent article. Keep in mind, however, the New Jersey law seems to be the exception to the rule.

NOTE: It is worth noting that the language in the waiver (“(3) the acts or omissions, negligent in any degree, of other persons or entities”) would likely be troublesome in some states. This language could be interpreted by some courts to exculpate the defendant from gross negligence or even reckless or willful/wanton conduct in addition to the ordinary negligence of the defendant. Better practice would simply specify “ordinary negligence.”

 

 Photo Credit:  Thanks to Bluelemur at http://www.flickr.com/photos/bluelemur/453017040/.