Are Waivers Enforceable?
The dominant response by the tourism industry to limit liability is the use of exculpatory agreements, often titled as a waiver or release. These include separate written contracts with full and complete exculpatory agreements which bar claims even for the negligence of the provider. The contracts are modeled on what one used to see only in high-risk recreational accident circumstances such bungee jumping and as sky-diving.
Now, exculpatory agreements and mostly industry-supportive case law have metastasized to all recreational industries, no matter the risk involved, or control exercised by the resort, provider, wrangler, outfitter, etc. Colorado’s tourist economy is now dominated by exculpatory agreements which seek to immunize entire industries from negligence, and even statutory negligence per se:
River rafting: Apolinar v. Arkansas Valley Adventures, LLC, 809 F.3d 1150 (10th Circ. 2016) Opinion by Judge Gorsuch.
Mr. Espinoza argues, the release Ms. Apolinar signed should still be held to violate state public policy—it should still be held to run afoul of the first two Jones factors—because his claim is one for negligence per se rather than common law negligence. He observes that the Colorado River Outfitters Act (CROA) makes it a misdemeanor for rafting companies to operate any raft in a “careless or imprudent manner.” C.R.S. § 33–32–107(2)(b). And from this, he reasons, negligence by rafting companies has become a matter of public concern and a public service within the meaning of the first two Jones factors. We find ourselves unable to agree …
Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d at 1154
See also, Forman v. Brown, 944 P.2d 559, Colo.App., Nov. 29, 1996, rehearing denied (Feb 06, 1997), certiorari denied (Oct 20, 1997)(exculpatory agreement barred plaintiff’s claims); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730 (Tenn. Ct. App. 2005) (exculpatory contract signed by participant did not affect the public interest and, thus, was not void as against public policy, and barred plaintiffs’ claims); Murphy v. North American River Runners, Inc., 186 W.Va. 310, 412 S.E. 2d 504 (W. Va. 1991).
Dude ranching: Heil Valley Ranch v. Simkin, 784 P.2d 781, 784 (Colo.1989); B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo.1998).
Mountain Biking: Mincin v. Vail Holdings, Inc., 308 F.3d 1105 (10th Cir. 2002).
Snowmobiling: Brooks v. Timberline Tours, Inc., 127 F.3d 1273 (10th Cir. 1997) Parents action against operators of snowmobile tour in connection with accident in which plaintiff mother was injured and plaintiffs' minor son was killed. The 10th Circuit held that releases which plaintiffs signed for themselves and their minor son precluded their recovery.
Outfitter: Fall from horse: Eburn v. Capitol Peak Outfitters, Inc. 882 F. Supp.2d 1248 (D. Colo. 2012)
Ski Resorts: See Colorado Ski Law
Enforcement of Liability Waivers Extends Even to Minor Children
For over a century, Colorado law accorded special protection to minors. “[T]o allow a parent to release a child’s possible future claims for injury caused by negligence may as a practical matter leave the minor in an unacceptably precarious position with no recourse, no parental support, and no method to support himself or care for his injury” Cooper v. Aspen Skiing Company, 48 P.3d 1229 (Colo. 2002) abrogated by statute, C.R.S. § 13-22-107:
But then the state legislature declared that the Colorado supreme court's holding in case [Cooper v. Aspen Skiing Company], 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state. …A Parent of a child may, on behalf of the child, release or waiver the child’s prospective claim for negligence. C.R.S. § 13-22-107(3).
Unsigned Waivers Based On “Tiny Font” Disclaimers on Lift or Participation Tickets
Rental agreement which contains global waiver language effectively bars all claims which may arise while skiing, riding lifts, or otherwise using resort facilities notwithstanding statutory claims under CPTSB or the Ski Safety Act, purportedly over-ruling Phillips v. Monarch. When combined with waiver language on the back of a lift ticket, all claims are conclusively barred. Raup v. Vail Summit Resorts, Inc., 233 F. Supp. 3d 934, 944 (D. Colo. 2017) confirmed on appeal, holding that the exculpatory language on the reverse of a lift ticket sold for a summer-time chairlift sight-seeing ride was enforceable and barred plaintiff’s claims.