ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Wednesday, January 20, 2016

The Enforceability of Liability Releases for Negligence in Colorado

When I was in law school, I remember starting to be really struck by how often I had to sign liability releases: going to play paintball, renting skis, etc. A recent case out of the Tenth Circuit, Espinoza v. Arkansas Valley Adventures, had to deal with just such a release in the context of a tragic whitewater rafting accident. 

The plaintiff's mother drowned when her raft capsized during a rafting trip organized by the defendant. She had signed a contract that released the defendant from liability for negligence. The plaintiff agreed that his mother had signed the release but tried to argue that the release was unenforceable. As a matter of Colorado law, though, he lost. The court found the release enforceable both as a matter of public policy and under the particular circumstances of the mother's signing. 

The court explained that Colorado uses four facts to determine whether a release of liability for negligence is enforceable: 

(1) the existence [or nonexistence] 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 court concluded that, while other states were free to disagree on this, Colorado had decided that corporations providing recreational activities are allowed to protect themselves from liability for negligence. The court stated that this is a valid policy choice for Colorado to make because it arguably encourages the active, outdoorsy lifestyle that the state of Colorado cherishes and wants to protect and promote. Without such ability to protect themselves, companies might be discouraged from offering recreational activities like horseback riding, snowboarding, or whitewater rafting. And in fact other courts in Colorado had explicitly found that companies offering whitewater rafting trips can protect themselves from liability for negligence using a contractual release. The court stated that the Colorado legislature was free to introduce a statute that would change this legal precedent, but, as it stood, the court was bound to follow the precedent. 

Having decided that the release was not against public policy according to the first two factors of the balancing test, the court then further decided that the plaintiff's mother had fairly entered into the contract with full knowledge of the risks at stake. The court dismissed the plaintiff's expert testimony that the rapids his mother was exposed to were too advanced for a beginner (in contrast to what the defendant had assured her) by pointing to the fact that the defendant had expert testimony that the rapids were suitable for beginners. Finally, the court noted that the release had the typical all-caps language that you see on these sorts of contracts. You know:  "HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH" and "THIS IS A RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS." The truth is, seldom does any consumer seeing that stuff really take it a serious communication of a great risk of death, I think. Especially not when there was some evidence that the consumer has been assured the trip in question was suitable for families with children. Nonetheless, the court found that the language of the release unambiguously informed the plaintiff's mother of the risks of the activity and the fact that she was releasing the defendant from liability should those risks come to pass. 

There was a dissent in this case, however, who agreed that the release wasn't against public policy but disagreed on the conclusion that the contract had been fairly entered into. In the dissent's view, the contradictory testimony about the level of difficulty of the rapids meant that the question should have gone to the jury. 

I don't spend a lot of time in my Contracts class talking in detail about liability releases for negligence, but this case made me think that I should talk about them more, because they really do seem to arise in the context of so many activities.

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From your telling, it's not clear to me that the mother voluntarily agreed to assume a "great risk" of death. But is that required? It seems likely sufficient that she assumed SOME risk that she would die.

Posted by: Matthew Bruckner | Jan 21, 2016 7:48:24 AM

You are correct: She assumed *some* risk of death. Her son's argument was that the rapids were too advanced for a beginner, thereby meaning they were a level of greater risk of death than she had assumed, but the testimony was that they were not. I think the son's argument betrays how a lot of people think about these contracts, though: "Sure, white water rafting is risky, but they won't take beginners out anywhere too risky, so that risk of death is just for advanced people or people being idiots." It's not the right way to think, but I do think the son's argument was betraying that idea in a roundabout manner: "Yeah, she assumed some risk, but not *that* risk, because she actually *died.*" If that makes sense.

Posted by: Stacey | Jan 23, 2016 12:46:36 PM

I definitely get it and am sympathetic. But the son's argument then boils down to, "My Mom assumed NO risk of death." The essential argument is that the form she signed did not apply to her situation, at all. It seems that the appropriate response is to ask, "why are you having me sign this?" which may have cleared up that she did, in fact, stand some risk of dying.

Posted by: Matthew Bruckner | Jan 28, 2016 8:56:53 AM

Completely agreed. I think the son, as a practical matter, thought his mother assumed no risk of death, yes. Which yeah, doesn't make sense because she signed the agreement explicitly assuming some risk of death. But I think that's the disconnect in the case.

Posted by: Stacey | Jan 28, 2016 11:44:59 AM