From: OPS Amusement Rides and Devices Program [mailto:email@example.com]
Sent: Monday, April 06, 2015 3:26 PM
Subject: Proposed Revisions to the Amusement Rides and Devices Regulations and New Certificate of Inspection Form
Dear Amusement Rides and Devices Stakeholder,
The Amusement Rides and Devices Program hosted a stakeholder meeting on February 20, 2015, to discuss proposed changes to our rules, which included:
- adding language for the regulation of challenge courses and trampoline parks;
- improving current language in regulation regarding zip lines;
- adding language for patron responsibility;
- clarifying language for reportable injuries; and
- updating and/or including applicable standards and definitions.
We took all comments and feedback provided during the meeting into consideration and have postponed the effective date of the proposed changes to July 30, 2015, in order to conduct a second stakeholder meeting to discuss the revisions made after the meeting on February 20th. A draft copy of the revised proposed regulations is attached to this email for your review.
The second stakeholder meetings is scheduled for Tuesday, April 28, 2015 at 1 pm in Conference Room 5C at the CDLE offices (633 17th Street, Denver, Colorado 80202). If you cannot attend the meeting, we encourage you to submit feedback to Scott Narreau at scott.narreau or 303-318-8495. If you plan to attend the meeting:
- Please RSVP by sending an email to cdle_amusements; include your organization’s name and your contact information in your email.
- When you arrive for the meeting, please check in on the 2nd floor, and then you will be directed to the 5th floor conference room.
In addition to the rule changes, we have also made changes to our Certificate of Inspection form. The purpose of changing the form is to further streamline the application process by reducing the amount of documentation submitted to our office. With the new form, a Third-Party Inspector can submit inspection certification information for up to 10 devices on one single form. We have attached a draft copy of the new Certificate of Inspection form to this email. We encourage you to review it and advise us if these or other changes would benefit you as either an operator or a Third-Party inspector.
As always, we thank you for your participation in our program.
Division of Oil and Public Safety
Amusement Rides and Devices Program
We Keep Colorado Working.
633 17th St., Suite 500, Denver, CO 80202
cdle_amusements | www.colorado.gov/ops/amusementrides
**How are we doing? Please complete this survey to provide your feedback: OPS Customer Survey.**
American Academy for Parks & Recreation Administration call for Papers, winners receive $$ to travel and present their papersPosted: April 17, 2015
From: Academy of Leisure Sciences [mailto:ALSNET@LISTSERV.UGA.EDU] On Behalf Of Randy Virden
Sent: Monday, April 06, 2015 5:28 PM
Subject: 2nd Notice of 2015 AAPRA Best Paper Award Competition – Updated Award Amounts – Submissions due April17, 2015
ALSNET Colleagues, Graduate Faculty and Recent Masters and Baccalaureate Graduates:
The American Academy for Parks & Recreation Administration (AAPRA) is proud to announce its Best Paper Awards for 2015. The Best Paper Award competition rotates every other year between a doctoral dissertation (even years) and a pre-doctoral research paper (odd years). This year the Academy will recognize the Best Master’s Thesis/Project or Undergraduate Professional Paper.
BEST PAPER AWARD One (1) Best Paper Award of $750 plus expenses of up to $500 for the author to travel to the Academy’s Annual Meeting (at the 2015 NRPA Congress in Las Vegas) to receive the award and provide a short presentation the paper. Certificate of Merit awards will be given to the two (2) next Best Papers submitted.
Theses and papers should make a contribution to the scholarly literature and have clear implications for the improved practice of park and recreation administration. Please review the award eligibility, entry procedure, rating criteria and timeline – see attached. An electronic application/copy of an executive summary (not exceeding 1000 words) is due to the Chair of the Academy’s Best Paper Award Committee by Monday, April 17, 2015.
Please share this information with any recent master’s degree and/or baccalaureate graduates (open to those who completed their degree requirements in calendar years 2013 or 2014) who may be eligible or interested in such a program/award.
You may contact the Best Paper Award Chair, Randy J. Virden with any questions. You may reach him via email rjvirden or by phone at (480) 215-0340.
Randy J. Virden
Best Paper Award Chair,
American Academy for Parks & Recreation Administration
Randy J. Virden, Ph.D.
School of Community Resources & Development
Arizona State University
|You are receiving this message because you are subscribed to the mailing list for the Colorado Roadless Area.Dear Interested Party:
The U.S. Department of Agriculture Forest Service (USDA FS) is initiating scoping for a Supplemental Draft Environmental Impact Statement (SDEIS) to reinstate the North Fork Coal Mining Area exception of the Colorado Roadless Rule. This specific exception allows for temporary road construction for coal exploration and/or coal-related surface activities in a 19,100-acre area defined as the North Fork Coal Mining Area. The FS will use the SDEIS to address specific deficiencies that were identified by the District Court of Colorado.
We invite your comments on the reinstatement of the exception within the North Fork Coal Mining Area. The scoping period closes 45 days after issuance of the notice of intent in the Federal Register. Comments should be limited to issues related to the proposed action, which is limited only to reinstating the North Fork Coal Mining Area exception of the Colorado Roadless Rule. The Forest Service is not seeking comments on the other portions of the Colorado Roadless Rule, roadless area boundary modifications, or other roadless areas in Colorado.
Due to the extensive public participation process that occurred with the development of the Colorado Roadless Rule, no public meetings are planned for this 45 day scoping effort. However, public meetings may be held in Denver and Paonia, Colorado after the release of the SDEIS and proposed rule.
On July 3, 2012 (77 FR 39576), the USDA promulgated the Colorado Roadless Rule, a state-specific regulation for management of Colorado Roadless Areas. This Rule addressed State-specific concerns while conserving roadless area characteristics. One State-specific concern was continuing exploration and development of coal resources on the Grand Mesa, Uncompahgre, and Gunnison (GMUG) National Forests. The Colorado Roadless Rule addressed this by defining a 19,100-acre area as the North Fork Coal Mining Area, and developing an exception that allows temporary road construction for coal-related activities on within in that defined area.
In July 2013, High Country Conservation Advocates, WildEarth Guardians, and Sierra Club challenged the FS’s decision to consent to the Bureau of Land Management (BLM) modifying two existing coal leases, the BLM’s companion decision to modify the leases, BLM’s authorization of an exploration plan in the lease modification areas, and the North Fork Coal Mining Area exception of the Colorado Roadless Rule.
In June 2014, the District Court of Colorado found the environmental documents supporting the four decisions to be in violation of the National Environmental Policy Act (NEPA) due to analysis deficiencies. In September 2014, the District Court of Colorado vacated the lease modifications, the exploration plan, and the North Fork Coal Mining Area exception of the Colorado Roadless Rule (36 CFR 294.43(c)(1)(ix)).
Purpose and Need
The purpose and need for this SDEIS and is to provide management direction for conserving roadless characteristics within the area while addressing the State interest in facilitating exploration and development of the coal resources in the North Fork Coal Mining Area.
The proposed action for the SDEIS is to reinstate the North Fork Coal Mining Area exception as written in (36 CFR 294.43(c)(1)(ix)). In addition, the Forest Service is proposing to administratively correct the North Fork Coal Mining Area boundary to remedy clerical errors.
Alternative to the Proposed Action
The other alternative being considered is the no-action alternative, which is the continuation of current management following the District Court ruling to vacate the North Fork Coal Mining Area exception. The Colorado Roadless Rule contains a severability clause (36 CFR 294.48(f)), which allows the rest of the Rule to remain in effect. Therefore, the District Court of Colorado’s ruling only changed management of Colorado Roadless Areas in the North Fork Coal Mining Area. Currently, the North Fork Coal Mining Area is being managed the same as other non-upper tier Colorado Roadless Areas. Valid existing coal leases would operate according the terms of their lease.
Decision to be Made
The Responsible Official will determine whether to reinstate the North Fork Coal Mining Area exception, or continue to manage the area without the exception. In addition, the Forest Service will determine if corrections to the North Fork Coal Mining Area boundary should be remedied to adjust for clerical errors.
How to Submit a Formal Comment
In order for a scoping comment to be considered and become part of the record for the SDEIS, it must be submitted and received within 45 days of the publication of the notice of intent in the Federal Register.
It would be helpful if comments:
· State each concern, criticism and/or suggestion as clearly and specifically as possible.
· Focus on the issue of reinstating the North Fork Coal Mining Area exception of the Colorado Roadless Rule. Please remember, this supplemental NEPA process will only address the Colorado Roadless Rule. The lease modifications and exploration plan authorization will be addressed in future analysis efforts if needed.
Scoping comments can be submitted electronically through:
2. Mail: Colorado Roadless Rule
740 Simms Street,
Golden, CO 80401
3. Fax: 303-275-5134
All comments, including names and addresses, are placed in the record and are available for public inspection and copying.
We anticipate completing and publishing a final rule and SDEIS in Spring 2016.
Thank you for your interest in the management of your national forests.
Jesus Espinoza, Jr., Plaintiff, v. Arkansas Valley Adventures, LLC; Defendant.
Civil Action No. 13-cv-01421-MSK-BNB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2014 U.S. Dist. LEXIS 136102
September 26, 2014, Decided
September 26, 2014, Filed
CORE TERMS: rafting, trip, undersigned, wrongful death, decedent’s, exculpatory provision, outfitter, exculpatory clause, summary judgment, white water, website, participating, genuine, raft, river, affirmative defense, material facts, misrepresentation, exculpatory, enforceable, unambiguous, whitewater, survived, heir, obstacles, matter of law, entitled to judgment, assumption of risk, burden of proof, personal representative
COUNSEL: [*1] For Jesus Espinoza, Jr., Plaintiff: William James Hansen, LEAD ATTORNEY, McDermott & McDermott, LLP, Denver, CO; George E. McLaughlin, Warshauer-McLaughlin Law Group, P.C., Denver, CO.
For Arkansas Valley Adventures, LLC, Defendant: Conor P. Boyle, Ryan L. Winter, Hall & Evans, LLC-Denver, Denver, CO.
JUDGES: Marcia S. Krieger, Chief United States District Judge.
OPINION BY: Marcia S. Krieger
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on the Defendant’s Motion for Summary Judgment (# 17), the Plaintiff’s Response (# 22), and the Defendant’s Reply (# 26).
I. JURISDICTION AND ISSUES PRESENTED
Sue Ann Apolinar died on a white water rafting trip conducted by Defendant Arkansas Valley Adventures (“AVA”). This action is brought by Ms. Apolinar’s son, Jesus Espinoza, who asserts three claims related to his mother’s death: (1) negligent, careless, and imprudent operation of a raft resulting in wrongful death; (2) negligence and negligence per se; and (3) fraud and misrepresentation.
AVA moves for summary judgment on all three claims. It seeks to dismiss any “survivorship” claim premised on C.R.S. § 13-20-101 for lack of capacity. In addition, it seeks judgment in its favor on all of Plaintiff’s [*2] claims based on its affirmative defense that Ms. Apolinar released AVA from liability and assumed all risks prior to the rafting trip. The Court exercises jurisdiction pursuant to 28 U.S.C. 1332. The issues are governed by Colorado law.
II. MATERIAL FACTS
Based upon the evidence submitted by the parties, which the Court construes most favorably to the Plaintiff, the material facts are summarized below. Where appropriate, the Court provides further explication explication in conjunction with its analysis.
Mr. Espinoza is Ms. Apolinar’s son. There is no evidence of record that an estate was created following Ms. Apolinar’s death or whether Mr. Espinoza acts in a fiduciary capacity for such estate.
AVA is a river outfitter licensed under C.R.S. § 33-32-104. It offers a number of river rafting trips of varying levels of difficulty. Among the trips it offers is “24 Hours in Brown’s Canyon,” which Ms. Apolinar booked based on her review of AVA’s website. She made reservations for herself, her significant other, her god-daughter, and Mr. Espinoza because “it looked like fun and was appropriate for [the group’s] level of experience.”
Before beginning the rafting trip, AVA required its participants to review and execute a document [*3] entitled “Rafting Warning, Assumption of Risk, and Release of Liability & Indemnification Agreement” (“Agreement”). Ms. Apolinar signed the Agreement for herself and for her minor son, Mr. Espinoza, on June 7, 2011 before beginning the trip.
On the second day of the trip, the raft carrying Ms. Apolinar capsized while navigating a rapid known as “Seidel’s Suck Hole.” Ms. Apolinar was ejected from the raft. An AVA guide pulled her back into the raft, but it capsized and ejected Ms. Apolinar, again. Ms. Apolinar was swept into a logjam, became entangled with the collection of tree logs and branches, and tragically drowned.
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Kaiser–Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if [*4] the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.
AVA’s motion raises a straight forward issue — are Ms. Espinoza’s claims barred by the exculpatory and release provisions of the Agreement executed by Ms. Apolinar. However, before addressing that question, AVA asks that the Court clarify the capacity in which Mr. Espinoza [*5] brings this action.
As noted, Mr. Espinoza asserted three claims in the Amended Complaint: (1) negligent, careless, and imprudent operation of a raft resulting in wrongful death; (2) negligence and negligence per se; and (3) fraud and misrepresentation. None of these are brought for injuries to Mr. Espinoza1, only for the death of his mother.
1 Much of the parties’ argument addresses questions of Ms. Apolinar’s capacity to execute the Agreement for her son (then a minor), Mr. Espinoza. The Court need not address this debate because Mr. Espinoza is not asserting claims for injuries to him. He asserts claims for the death of his mother, which grow out of what she could have asserted had she survived, and therefore it is the Agreement that she executed for herself that is at issue.
Colorado law recognizes that claims can be brought on behalf of a decedent in two different capacities. The first type of claim is brought in a fiduciary capacity by the personal representative of the estate of the deceased person. C.R.S. § 13-20-101. Claims brought in this capacity are often referred to as “survival” claims. The personal representative “stands in the decedent’s shoes” in order to assert a claim that the [*6] decedent could have asserted had he or she been alive. The beneficiary of a survival claim is the decedent’s estate.
The second type of claim is brought by the decedent’s heir. Known as a wrongful death claim, it is created and limited by statute. C.R.S. § 13-21-201 et seq; see also Espinoza v. O’Dell, 633 P.2d 455, 462-466 (Colo. 1981). A wrongful death claim differs from a claim that a decedent could have asserted during his or her lifetime. A wrongful death claim arises only upon the decedent’s death, it addresses wrongful acts that caused the death, and the amount of recovery is limited by statute. C.R.S. § 13-21-203; Fish v. Liley, 120 Colo. 156, 208 P.2d 930, 933 (1949); Colorado Comp. Ins. Auth. v. Jorgensen, 992 P.2d 1156, 1164 n. 6 (Colo. 2000). To prove a wrongful death claim, an heir must establish that (1) the death of the decedent; (2) was caused by a wrongful act and 3) that the decedent would have been able to maintain an action for injuries, had the person survived. Stamp v. Vail Corp., 172 P.3d 437, 451 (Colo. 2007). A wrongful death claim is subject to the same limitations and defenses that would have applied to the claim had the decedent survived and brought the claim. Elgin v. Bartlett, 994 P.2d 411, 416 (Colo.1999); see also Lee v. Colo. Dep’t of Health, 718 P.2d 221, 233 (Colo.1986) ( comparative negligence of the decedent will reduce the recovery available in a wrongful death action brought by the decedent’s heirs).
The Amended Complaint does not clearly identify in what capacity Mr. Espinoza asserts the claims in this action, but in the absence [*7] of the representation that a probate estate has been created for Ms. Apolinar and that Mr. Espinoza is the appointed executor or personal representative, the Court assumes that he brings this action for wrongful death of his mother. Thus, the three claims are merely alternate theories of alleged wrongful conduct leading to wrongful death. With that clarification, the Court turns to AVA’s affirmative defense.
B. The Agreement
AVA argues that it is entitled to judgment on Mr. Espinoza’s wrongful death claim, regardless of the theory upon which it is premised, because Ms. Apolinar contractually released AVA from any claims and liability and assumed all risks associated with white water rafting. These arguments are in the nature of affirmative defenses upon which AVA bears the burden of proof. See Squires ex rel. Squires v. Goodwin, 829 F.Supp 2d 1062, 1071 (D. Colo. 2011).
There is no dispute that prior to the raft trip, AVA presented and Ms. Apolinar executed a two-page Agreement that provides in pertinent part:
2. Risks of Activity. The Undersigned agree and understand that taking part in the Activity can by HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. The Undersigned acknowledge that the Activity is inherently dangerous and fully realize the [*8] dangers of participating in the Activity. The risks and dangers of the activity include, but are not limited to: choice of rafting course, . . . choice of outfitter, negligence of rafting or climbing or zip lining guides, changing weather conditions, changing water conditions, cold water immersion, hidden underwater obstacles, trees or other above water obstacles, . . . changing and unpredictable currents, drowning, exposure, swimming, overturning, . . . entrapment of feet or other body parts under rocks or other objects . . . . THE UNDERSIGNED ACKNOWLEDGE AND UNDERSTAND THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS.
3. Release, Indemnification, and Assumption of Risk. In consideration of the Participant being permitted to participate in the activity, the Undersigned agree as follows:
(a) Release. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE, FOREVER DISCHARGE, AND AGREE NOT TO SUE OR BRING ANY OTHER LEGAL ACTION AGAINST THE RELEASED PARTIES with respect to any and all claims and causes of action of any nature whether currently known or unknown, which the Undersigned [*9] or any of them, have or which could be asserted on behalf of the Undersigned in connection with the Participant’s participation in the Activity, including, but not limited to claims of negligence, breach of warranty, and/or breach of contract.
(b) Indemnification. The Undersigned hereby agree to indemnify, defend and hold harmless the Released Parties from and against any and all liability, cost, expense or damage of any kind or nature whatsoever and from any suits, claims or demands including legal fees and expenses whether or not in litigation, arising out of, or related to, Participant’s participation in the Activity. Such obligation on the part of the Undersigned shall survive the period of the Participant’s participation in the Activity.
(c) Assumption of Risk. The Undersigned agree and understand that there are dangers and risks associated with participation in the Activity and that INJURIES AND/OR DEATH may result from participating in the Activity, including, but not limited to the acts, omissions, representations, carelessness, and negligence of the Released Parties. By signing this document, the Undersigned recognize that property loss, injury and death are all possible while [*10] participating in the Activity. RECOGNIZING THE RISKS AND DANGERS, THE UNDERSIGNED UNDERSTAND THE NATURE OF THE ACTIVITY AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE PARTICIPATION IN THE ACTIVITY, WHETHER OR NOT DESCRIBED ABOVE, KNOWN OR UNKNOWN, INHERENT, OR OTHERWISE.
As noted earlier, Mr. Espinoza’s wrongful death claim is subject to the defenses that could have been asserted against Ms. Apolinar, had she lived and brought the claim. The issue is whether the exculpatory provision in Paragraph 3(a) or the assumption of risk provision in Paragraphs 2 and 3(c) of the Agreement would have barred Ms. Apolinar’s claims. If so, Mr. Espinoza’s wrongful death claim is similarly barred.
The Court begins with the exculpatory provision of the Agreement. Colorado law favors enforcement of contracts, but exculpatory provisions that shield one party from its future negligence must be carefully scrutinized.2 Whether an exculpatory provision is enforceable is a question of law. In order to determine whether an exculpatory clause is enforceable, courts evaluate the four “Jones factors”3: “(1) the existence of a duty to the public; (2) the nature [*11] 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.”
2 Indeed, there are some types of conduct for which exculpatory clauses are never enforceable. For example, they cannot be used as a shield against a claim for willful and wonton negligence. See, e.g., Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo.2004); Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); Barker v. Colorado Region, 35 Colo. App. 73, 532 P. 2d 372 (1974).
3 These come from Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Although colloquially referred to as “factors,” they really are not treated as such — they are not weighed, compared or tallied. Instead, they might be better understood as situations in which an exculpatory clause should not be enforced.
1. Duty to the Public
This factor focuses on whether the party seeking to enforce the contract (here, AVA) provided such a necessary and important service to the public that the releasing party (Ms. Apolinar) could not reasonably be expected to refuse the service in order to avoid the exculpatory provision. Drawing from Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444 (1963), Colorado law recognizes that when a service has great importance to the public and it is a matter of practical necessity to some members of the public, then the provider of the service has undue bargaining power in setting the terms of the contract. [*12] In such case, an exculpatory agreement may be void as an adhesion contract. See Jones, 623 P. 2d at 376; Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994).
By their nature, recreational activities generally are not considered necessary public services. Instead, participation in these activities is optional. See, e.g., Chadwick, 100 P.3d at 467; Mincin v. Vail Holdings, Inc.., 308 F.3d 1105, 1110 (10th Cir. 2002); Potter, 849 F. Supp. at 1409. Indeed, at least one court has specifically found that white water rafting activities are not necessary public services. See Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo 1996).
Mr. Espinoza does not dispute this authority. Instead, he argues that because white water rafting is regulated by Colorado statute, it has a public aspect4, and that enforcement of the exculpatory clause in the Agreement would frustrate the purposes of regulation. Mr. Espinoza is quite correct that white water rafting enterprises are regulated under the Colorado River Outfitter’s Act (CROA), C.R.S. § 33-32-101 et seq. CROA makes it “unlawful any river outfitter, guide, trip leader, or guide instructor to (i) violate CROA’s safety equipment provisions; (ii) operate a vessel in a careless or imprudent manner without due regard for river conditions or other attending circumstances, or in such a manner as to endanger any person, property, or wildlife; or (iii) operate a vessel with wanton or willful disregard for the safety of persons or property. [*13] An outfitter or guide that does not comply with CROA’s safety obligations commits a misdemeanor. § 33-32-107.
4 Presumably, this argument is based on a sentence found in Tunkl‘s explanation of the types of services that might create public duties: “It concerns a business of a type generally thought suitable for public regulation.” Tunkl, 383 P2d at 444.
The regulation of white-water rafting enterprises, however, does not change the nature of the service that AVA provides. White water rafting is a purely recreational activity, as compared to an essential or necessary one. The rafter is free to decline the service if the rafter is unwilling to accept the terms of the exculpatory clause. Indeed, since CROA was enacted, several courts have enforced exculpatory agreements protecting white water rafting operators. See Lahey, 964 F. Supp. at 1446; Forman v. Brown, 944 P2d 559, 563-64 (Colo. App. 1996).
Furthermore, enforcement of the exculpatory provision does not logically or practically have any impact on regulation under CROA. There is Colorado authority that recognizes that when a statute defines the scope of civil liability, individuals cannot contract around it; however, such authority is not instructive here.
In Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996), the Colorado Court of Appeals compared the provision of the Colorado Premises Liability [*14] Act that made a landowner liable to invitees for damages caused by the “landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known”5 with conflicting exculpatory language in a lease, “Lessor shall not be responsible for any damage or injury said Lessee may sustain from any cause whatsoever unless injury is a direct result of the Lessor’s gross negligence.” The Court characterized the issue of the validity of the lease’s exculpatory clause as implicating competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts. Stanley, at 706 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989)). Ultimately, it held that where the General Assembly has expressed its intent in an area of clear public policy, a contract to the contrary is invalid.
5 C.R.S. §13-21-115(3)(c)(I).
However, the Stanley-type situation is not present here. CROA does not address the scope of civil liability of rafting operators.6 Rather, it provides for the creation of safety standards that are enforceable by criminal penalty. See C.R.S. §§ 33-32-107,108. If the exculpatory provision of the Agreement were to bar Mr. Espinoza’s wrongful death claim, Colorado nevertheless could implement its public policy under CROA [*15] by prosecuting and punishing AWA under the CROA safety standards. In fact, the record reflects that CROA enforcement occurred in this case. The Colorado State Parks (“CSP”) conducted an investigation, and found that all required safety equipment was on the trip, all equipment to was in serviceable condition, and all of the guides were qualified as required by Colorado law. CSP concluded that other than filing a late written report that there were “[n]o other violations of Colorado law”.
6 In this respect, CROA differs from the statutory schemes in other states cited by Mr. Espinoza in his Response to the Motion for Summary Judgment because those statutes establish the limits on civil liability for recreational outfitters, rather than a public right enforced through criminal penalties. See W. Va. Code Ann. § 20-3B-5 (West) (“No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by [statute or rule].”); Idaho Code Ann. § 6-1206 (West) (“No licensed [*16] outfitter or guide acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by [statute or rule].”).
Because rafting is not a necessary, public service and its regulation is unaffected by the terms of the exculpatory provision, this factor does not compel a determination of unenforceability.
2. Nature of Service Performed
Somewhat duplicative of the first factor, the second concerns the nature of the service that was performed. An exculpatory provision can be invalidated when “the activity can be described as an essential service.” See Lahey, 964 F.Supp. at 1445. The parties agree that white-water rafting is not an essential service. Thus, this factor does not invalidate the exculpatory provision in the Agreement.
3. Whether the Agreement was Fairly Entered Into
The third factor focuses on whether the party benefitted by the exculpatory clause overreached the releasing party. Colorado law specifies that a contract is “fairly entered into” if neither party is so obviously disadvantaged with respect to bargaining power [*17] that he/she is placed at the mercy of the other party’s negligence.” Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011). Simply because a contract is on a printed form and is offered on a “take-it-or-leave-it basis” does not necessarily make it unfair, especially when similar services can be obtained by another provider. See Jones, 623 P.2d at 375; Mincin, 308 F.3d at 1111; Hamill, 262 P.3d at 949. Analysis with regard to this factor turns on the particular facts surrounding the execution of the Agreement.
Mr. Espinoza argues that AVA defrauded Ms. Apolinar at the time she selected and reserved seats for the rafting trip. He contends that on its website, AVA misrepresented that the trip was for beginners and was safe for families on its website. In particular, he contends that AVA represented that this trip included no rapids rated higher than Class III rapids, when in reality one rapid known as Seidel’s Suck Hole was a Class IV rapid. He states that had Ms. Apolinar known that Seidel’s Suck Hole was a Class IV rapid, she would not have selected the particular rafting trip, participated in the trip or signed the Agreement.
The Court recognizes that there is a genuine dispute as to the difficulty level of Seidel’s Suck Hole and assumes that it was a Class IV rapid for purposes of this motion. The Court [*18] further assumes that AVA did not disclose the severity of the rapid to Ms. Apolinar on its website or later when Ms. Apolinar signed the Agreement. The nature of the omitted information (severity of the rapid) arguably was material to questions of risk of injury or death. Even if viewed as misrepresentation by omission (failure to disclose Seidel’s Suck Hole as a class IV rapid) or false representation (that Seidel’s Suck Hole was a Class III rapid), there is no evidence that suggests that Ms. Apolinar relied on such designation in executing the Agreement.
The chronology of events shows two independent decisions by Ms. Apolinar. She viewed the website and booked the trip online before traveling to Colorado. But, Ms. Apolinar executed the Agreement after she arrived in Colorado before the trip began. There is no evidence in the record addressing the manner in which the Agreement was presented to Ms. Apolinar or any representations made to her by AVA before or at the time of its execution. There is no evidence, for example, that an AVA employee told Ms. Apolinar that the Agreement or release language was not important, was not accurate, would not be enforced, or did not mean what it said. [*19]
Turning to the Agreement, it both applied to all rafting trips (not just the one Ms. Apolinar had chosen) and it described the risks in the contexts of all rafting activity. It characterizes all rafting activity as “HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH” and it states that there are particular risks and dangers that cannot be anticipated including changing water conditions, obstacles, currents, etc. In capitalized print, it states that “THE UNDERSIGNED ACKNOWLEDGE AND UNDERSTAND THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS”. It also contains an integration and merger clause. Paragraph (6)(c) states that the Agreement’s representations “supersede prior contracts, arrangements, communications or representations, whether oral or written, between the parties relating to the subject matter hereof.”
Assuming that AVA’s website portrayed, and Ms. Apolinar believed, that the rafting trip she booked was safe for families before participating, she was presented with an Agreement that contained comprehensive, even dire, descriptions of the risks she was undertaking. There is no evidence [*20] that Ms. Apolinar relied on the website information in lieu of the risks outlined in the Agreement at the time she signed the Agreement, nor any evidence that she was misled or overreached by AVA employees. Faced with stark representations of risk in the Agreement, Ms. Apolinar could have cancelled her reservation and declined to participate in the rafting trip. Thus, the Court finds that Ms. Apolinar fairly entered into the Agreement. On this record, the Court cannot find that she was either overreached or defrauded. See Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 879 (10th Cir. 2013) (“Plaintiff has failed to provide any evidence that [her mother] relied on this misrepresentation in deciding to sign the Release.”).
4. Whether the Agreement is Clear and Unambiguous
The final “Jones factor” asks whether the exculpatory provision was clear and unambiguous. To evaluate this factor, a court “examine[s] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” See Chadwick, 100 P.3d at 467.
Mr. Espinoza argues that Agreement is not clear and unambiguous because it is broad, unduly long, and obscures the key terms. The Court disagrees.
First, at less than two [*21] pages, the Agreement “is not inordinately long or complicated.” See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 (10th Cir. 1997); Lahey, 964 F. Supp. at 1445 (concluding that a release agreement of “just over one page” was “short”).
Second, the Agreement repeatedly and clearly states that the signor is releasing AVA from liability. The title of the document is “RAFTING WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY AND INDEMNIFICATION AGREEMENT”. This is immediately followed by a directive, “PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS.”
The body of the Agreement contains six main paragraphs titled in boldface print. For example: 2. Risks of Activity” and “3. Release, Indemnification and Assumption of Risk.” Key portions are printed in all capital letters. For example, the “Release” clause indicates the signor’s agreement to “THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE, FOREVER DISCHARGE , AND AGREE NOT TO SUE OR BRING ANY OTHER LEGAL ACTION AGAINST THE RELEASED PARTIES with respect to any and all claims and causes of action of any nature whether currently known or unknown, which the undersigned of any of them have or which could be asserted on behalf of the Undersigned in connection with the Participant’s [*22] participation in the Activity.” There is no legal jargon that impairs the meaning of this or other provisions.
Third, the Agreement clearly expresses intent for the release to apply to claims based on injury or death resulting from white water rafter, including the type of circumstances that led to Ms. Apolinar’s death. It expressly states there is a risk of physical injury or death and lists specific risks such as “trees or other above water obstacles,” drowning, overturning, and “entrapment of feet or other body parts under rocks or other objects.” The Court finds that the Agreement clearly and unambiguously articulates the intent of the parties to release AVA from all liability resulting from Ms. Apolinar’s participation in the rafting trip.
As explained above, none of the Jones factors compels a finding that the Agreement’s exculpatory clause is invalid. Thus, as a matter of law, the exculpatory clause would have barred claims for injury to Ms. Apolinar, had she survived. Similarly, it bars wrongful death claims by Mr. Espinoza as her heir. C.R.S. § 13-21-202; see also Rowan v. Vail Holdings, Inc., 31 F.Supp.2d 889, 895 (D. Colo. 1998) (“Colorado courts interpreting the statute hold, consistent with the plain language of the statute, that the right to bring a wrongful [*23] death claim is dependent on the decedent’s ability to have brought the claim.”). Because this action is barred, it is not necessary to address the parties’ arguments as to the Agreement’s assumption of risk provisions. As a matter of law, AVA is entitled to dismissal of all claims with prejudice.
IT IS HEREBY ORDERED that AVA’s Motion for Summary Judgment (#17) is GRANTED. AVA is entitled to judgment on its affirmative defense as against all claims of the Plaintiff. The Clerk shall enter judgment in favor of the Defendant and against the Plaintiff on all claims and close this case.
Dated this 26th day of September, 2014.
BY THE COURT:
/s/ Marcia S. Krieger
Marcia S. Krieger
Chief United States District Judge
Lahey v. Covington, 964 F. Supp. 1440 (Dist Colo 1996)
Carol Lahey, Plaintiff, v. Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard, Defendants and Third-Party Plaintiffs, v. Rob Mobilian, Third-Party Defendant.
Civil Action No. 95 N 1396
United States District Court for the District of Colorado
964 F. Supp. 1440; 1996 U.S. Dist. LEXIS 21247
April 29, 1996, Decided
April 29, 1996, FILED; May 1, 1996, ENTERED
Disposition: [**1] Mobilian’s motion for judgment on the pleadings Granted.
Defendants’ motion for summary judgment Granted in part and Denied in part.
Counsel: For Carol Lahey, plaintiff: William A. Trine, Williams & Trine, P.C., Boulder, CO U.S.A.
For Twin Lakes Expeditions, Inc., a Colorado corporation, defendant: James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO U.S.A. For Rick Covington, defendant: James V. Pearson, (See above). For Douglas (Blues) Voisard, defendant: James V. Pearson, (See above).
For Twin Lakes Expeditions, Inc., counter-claimant: James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO U.S.A. For Rick Covington, counter-claimant: James V. Pearson, (See above). For Douglas (Blues) Voisard, counter-claimant: James V. Pearson, (See above).
For Twin Lakes Expeditions, Inc., third-party plaintiff: James V. Pearson, (See above). For Rick Covington, third-party plaintiff: James V. Pearson, (See above). For Douglas (BLUES) Voisard, third-party plaintiff: James V. Pearson, (See above).
For Carol Lahey, counter-defendant: William A. Trine, Williams & Trine, P.C., Boulder, CO U.S.A.
For Rob Mobilian, third-party defendant: Ira M. Long, Jr., Roos, [**2] Cohen & Long, P.C., Denver, CO U.S.A.
Judges: Edward W. Nottingham, United States District Judge
Opinion by: Edward W. Nottingham
[*1441] Order and Memorandum of Decision
This is a personal injury action. Plaintiff Carol Lahey alleges that she suffered serious injuries during a white-water rafting trip as a result of the negligence and willful and wanton conduct of Defendants and Third-Party Plaintiffs Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard [hereinafter “defendants”]. Defendants allege that, pursuant to an indemnity agreement, both plaintiff and Third-Party Defendant Rob Mobilian (“Mobilian”) are liable to defendants for any fees and costs they incur in connection with this lawsuit. The matter is before the court on (1) “Third-Party Defendant’s Motion for Judgment on the Pleadings” filed November 15, 1995, and (2) “Defendants’ and Third-Party Plaintiffs’ Motion for Summary Judgment” filed January 19, [*1442] 1996. Jurisdiction is based on 28 U.S.C.A. § 1332 (West 1993).
At all times relevant to this case, Covington owned and operated Twin Lakes Expeditions, Inc., a white-water rafting company located in Twin Lakes, Colorado. (Defs.’ and Third-Party [**3] Pls.’ Br. in Supp. of Mot. for Summ. J., Statement of Undisputed Material Facts P A [filed Jan. 19, 1996] [hereinafter “Defs.’ Summ. J. Br.”]; admitted at Pl.’s Mem. Br. in Opp’n to Defs.’ Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts P A [filed Feb. 5, 1996] [hereinafter “Pl.’s Resp. to Summ. J. Mot.”]; Mobilian’s Br. in Opp’n to Mot. for Summ. J., Resp. to Statement of Undisputed Facts [filed Feb. 9, 1995] [hereinafter “Mobilian’s Resp. to Summ. J. Mot.”] [incorporating “Pl.’s Resp. to Summ. J. Mot., Resp. to Undisputed Material Facts”].) At all times relevant to this case, Voisard worked for Twin Lakes as a rafting guide. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P B; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P B; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.)
At sometime prior to June 1, 1993, Mobilian scheduled a white-water rafting trip for himself and his family with Covington and Twin Lakes. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P C; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material [**4] Facts P C; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Mobilian is plaintiff’s brother. (See Answer, Countercl. and Third-Party Compl. P 15 [filed Sept. 15, 1995]; Am. Answer to Third-Party Compl. P 3 [filed Nov. 7, 1995].) On the morning of June 1, 1993, plaintiff, Mobilian, and family members arrived at Twin Lakes for the purpose of taking a white-water rafting trip. (See Pl.’s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 15-16].)
At the Twin Lakes office, plaintiff and Mobilian signed identical release agreements. (See Defs.’ Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) Plaintiff did not read the release before she signed it. (Pl.’s Resp. to Summ. J. Mot. at 18.) The releases provided:
I recognize that there is a significant element of risk in whitewater rafting or any adventure expedition, sport or activity associated with the outdoors which I have voluntarily applied to participate in.
I fully understand that any activity associated with Twin Lakes Expeditions may include hazards and exposures connected in the outdoors which do involve risk and that I [**5] am aware of the risks and dangers inherent with the activities that I and/or my family, including any minor children, are involved in. I am mentally and physically capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility, including loss of control, collisions with other participants, trees, rocks, and other man made or natural obstacles, whether they are obvious or not obvious.
. . . .
As lawful consideration for being permitted by Twin Lakes Expeditions to participate in the activities involved, the undersigned, for himself and/or his heirs and assigns, hereby releases the State of Colorado, Bureau of Land Management, Twin Lakes Expeditions and employees of Twin Lakes Expeditions from any liability for claims or lawsuits brought by the undersigned and arising out of the activities provided by the concessioner.
I agree to defend, indemnify and hold harmless Twin Lakes Expeditions, the United States Forest Service and Parks Department, and all State or Government agencies, and private property [sic] the activities may be conducted on, and all of their officers, members, affiliated organizations, agents and employees [**6] for any injury or death caused by or resulting from me or my family’s participation in the activities associated with Twin Lakes Expeditions both scheduled and unscheduled whether or not such injury or death was caused by their negligence or from any other causes.
I assume complete and full responsibility for my family and myself, including any minor children, for bodily injury, loss of [*1443] life, loss of personal property and expenses thereof.
I have carefully read the agreement, fully understand and accept the terms and conditions explained and stated herein and acknowledge that this release shall be effective and legally binding upon me, my heirs, my estate, assigns[,] legal guardians and my personal representatives during the entire period of participation in the activities.
DO NOT SIGN THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.
After signing the releases, plaintiff, Mobilian, and the others embarked on a white-water rafting trip. (See Pl.’s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 21].) They went to the “Numbers” section of the Arkansas River. (See Am. Compl. in Tort for Damages P 10 [filed Aug. 24, 1995] [**7] [hereinafter “Am. Compl.”]; Answer, Countercl. and Third-Party Compl. P 10 [filed Sept. 15, 1995].) Plaintiff testified that, at the time of the trip, she understood that she faced the following risks: (1) she might fall into the river; (2) she might be swept away from her raft; (3) she might strike rocks in the river; and (4) she could be injured. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P F; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P F; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.).
Covington testified that, on June 1, 1993, “Numbers” were a Class IV-plus set of rapids. (Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 128 11. 16-18].) He described the condition of the river as “high” but not “any more challenging that day than any other day.” (Id., Ex. D [Covington Dep. at 136 11. 6-11].) On June 1, 1993, the water flow at the “Numbers” measured 3.8 feet high on the Scott’s Bridge Gauge. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P L; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P L; Mobilian’s [**8] Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) The Arkansas Headwater Recreation Area, apparently a white-water rafting regulatory group, recommends against commercial rafting through the “Numbers” when the water flow measures 4.0 feet high or more on the Scott’s Bridge Gauge. (Summ. J. Br., Statement of Undisputed Material Facts P M; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P M; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Covington testified that his company policy was not to take people rafting through the “Numbers” if the water was four feet high or more. (See Defs.’ Summ. J. Br., Ex. H [Covington Dep. at 160 1. 23 to 161 1.7]; Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 169 11. 4].) He explained that “anything up to [four] feet . . . was certainly not only acceptable, but a fine rafting level, exciting, and a guide’s favorite, if you want to put it that way.” (See Defs.’ Summ. J. Br., Ex. H [Covington Dep. at 161 ll. 4-7].)
During the trip, plaintiff was in a raft guided by Voisard. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P K; [**9] admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P K; Mobilian ‘s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) As plaintiff ‘s raft entered “rapid number 4,” Voisard was thrown out of the raft. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P N; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P N; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Shortly thereafter, the raft capsized, tossing plaintiff into the river. (Id.) Plaintiff maintains that, as she was swept through the rapids, she incurred multiple injuries and, as a result, has had to undergo surgery and physical therapy. (Am. Compl. P 29.)
On May 31, 1995, plaintiff filed a complaint against defendants in this court, alleging that defendants were liable for (1) negligence and (2) willful and wanton conduct. (See Compl. [filed May 31, 1995].) On August 24, 1995, plaintiff filed an amended complaint, in which she corrected her allegation regarding Covington’s residence. (See Am. Compl.) [*1444] On September 15, 1995, defendants filed an answer to the amended complaint, a [**10] counterclaim against plaintiff, and a third-party complaint against Mobilian. (See Answer, Countercl. and Third-Party Compl.) In their counterclaim, defendants assert that, according to the terms of the release agreement, plaintiff is obligated to indemnify defendants for “all of their damages, attorneys’ fees, costs and other expenses incurred as a result of” her participation in the June 1, 1993, rafting trip. (See id. at 7-8.) Similarly in their third-party claim against Mobilian, defendants assert that, according to the terms of the release agreement, Mobilian must indemnify defendants for all of the fees and costs they incur in connection with this lawsuit.
The motions currently before the court present the following three issues:
(1) whether the release agreement bars plaintiff’s negligence claims; (2) whether plaintiff has presented evidence that defendants acted willfully and wantonly; (3) whether, by signing the release agreement, plaintiff and Mobilian agreed to indemnify defendants for their expenses in connection with this lawsuit. In his motion for judgment on the pleadings, Mobilian argues that the release agreement is unclear and ambiguous and counter to public [**11] policy and, thus, does not obligate him to indemnify defendants. In their motion for summary judgment, defendants maintain that: (1) plaintiff’s negligence claims are barred by the release agreement; (2) plaintiff has not presented evidence that defendants acted willfully and wantonly in taking her on the rafting trip; and (3) Mobilian is obligated to indemnify defendants for their expenses in connection with this lawsuit. I begin with the issues raised in defendants’ motion for summary judgment.
1. Defendants’ Motion for Summary Judgment
a. Legal Standard
Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and the . . . moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Concrete Works, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 131 L. Ed. [**12] 2d 196, 115 S. Ct. 1315 (1995). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553, see Fed. R. Civ. P. 56(e). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S. Ct. 77, 88 L. Ed. 2d 63 (1985). Additionally, the factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int’l, Inc. v. First Affiliated [**13] Sec., Inc., 912 F.2d 1238, 1241 [10th Cir. 1990]).
Colorado law disfavors exculpatory agreements such as the release agreement at issue here. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989) (en banc). Thus, they are strictly construed against the drafter. Anderson v. Eby, 998 F.2d 858, 861 (10th Cir. 1993) (quoting Jones v. Dressel, 623 P.2d 370, 376 [Colo. 1981] [en banc]); Potter v. National Handicapped Sports , 849 F. Supp. 1407, 1409 (D. Colo. 1994). Nevertheless, an exculpatory agreement is “not necessarily void . . . as long as one party [*1445] is not ‘at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.’” Heil Valley Ranch, Inc., 784 P.2d at 784 (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 482 [5th ed. 1984].) The release agreement at issue here is not the sort where one party is at so great a disadvantage as to render the agreement void. See Jones, 623 P.2d at 374-75.
In determining whether an exculpatory agreement is valid, the court must consider the following four factors: “’(1) [**14] 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.’” Id. at 784 (quoting Jones, 623 P.2d at 376). Whether an exculpatory agreement is valid is a question of law for the court. Jones, 623 P.2d at 376; Potter, 849 F. Supp. at 1409. “For an exculpatory agreement to fail under the first factor, the party seeking exculpation must be engaged in providing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.” Potter, 849 F. Supp. at 1409. Such is not the case here. As in Potter, the activity at issue—white-water rafting—is recreational in nature. Thus, “by definition and common sense, it is neither a matter of great public importance nor a matter of practical necessity.” Id. (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 [D. Colo. 1992]).
The second factor, “the nature of the activity,” involves an assessment of whether the activity can be described as an “essential service.” See Potter, [**15] 849 F. Supp. at 1410; Jones, 784 P.2d. at 784. Clearly white-water rafting is neither. See Potter, 849 F. Supp. at 1409. Regarding the third factor, plaintiff testified that she does not feel that she was treated unfairly by Twin Lake’s requirement that she sign the release form before going on the rafting trip. (Def.’s Summ. J. Br., Ex. G [Pl.’s Dep. at 131 l. 23 to 132 l.
1].) Because plaintiff has presented no evidence which contradicts her testimony, I conclude that she entered into the release fairly. Thus, only the fourth factor, whether the terms of the exculpatory agreement are clear and unambiguous, remains to be considered.
The release agreement in this case is short (just over one page), written in simple, clear terms, free of legal jargon, and uncomplicated. Thus, under the standard expressed in Heil Valley Ranch, Inc., it appears to be clear and unambiguous. See Heil Valley Ranch, Inc., 784 P.2d at 785; see also Potter, 849 F. Supp. at 1410. Plaintiff maintains, however, that the agreement is not clear because, even if she had read it, n1 it would not have fully apprised her of the risks she would encounter on the rafting trip. Specifically, plaintiff [**16] complains that the release did not inform her of the following: (1) she would not be given an opportunity to observe “rapid number 4” before proceeding through it; (2) she would not be given an opportunity to determine what risks were inherent in “rapid number 4” before proceeding through it; (3) she would not be given an opportunity to walk around “rapid number 4” instead of rafting through it; and (4) Voisard could fall out of the raft and, consequently, be unable to direct and navigate the raft. (See Pl.’s Resp. to Summ. J. Mot. At 16.)
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 Even though plaintiff did not read the agreement before signing it, she is nevertheless bound by its terms since there is no evidence that she was fraudulently induced to sign it. See Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Colorado law does not require that an exculpatory agreement describe in detail each specific risk that the signor might encounter. See Heil Valley Ranch, Inc., 784 P.2d at 785; see also Potter, 849 F. Supp. [**17] at 1410-11. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim. See id.
Plaintiff asserts that the above-listed risks of which she allegedly was not informed were the product of defendants’ negligence. (Pl.’s Resp. to Summ. J. Mot. at 16.) The release agreement states in plain language, however, that plaintiff agreed to “hold harmless Twin Lakes Expeditions . . . and all of [its] officers . . . and employees for any injury . . . whether [*1446] or not such injury . . . was caused by their negligence. . . . “ (Defs.’ Summ. J. Br., Ex. A [copy of release agreement signed by plaintiff] [emphasis supplied].) Thus, the exculpatory agreement clearly reflects an intent to preclude claims based on defendants’ negligence. See Potter, 849 F. Supp. at 1411.
I conclude that the exculpatory portion of the release agreement is valid as a matter of law. See Heil Valley Ranch, Inc., 784 P.2d at 784; Jones, 623 P.2d at 378; see also Anderson, 998 F.2d at 861-62; Potter, 849 F. Supp. at 1410.
Consequently, it bars plaintiff’s claims to the extent that they are based on defendants’ [**18] alleged negligence. See id. Accordingly, defendants are entitled to summary judgment on plaintiff’s negligence claims. See id.c.
Willful and Wanton Conduct
In Colorado, “willful and wanton conduct” is conduct which an actor realizes is highly hazardous and poses a strong probability of injury to another but nevertheless knowingly and voluntarily chooses to engage in. See Steeves v. Smiley, 144 Colo. 5, 354 P.2d 1011, 1013-14 (Colo. 1960); Hodges v. Ladd, 143 Colo. 143, 352 P.2d 660, 663 (Colo. 1960) (en banc); Colo. Rev. Stat. § 13-21-102(1)(b) (1987) (concerning exemplary damages). Here, plaintiff claims that defendants are liable for willful and wanton conduct because they concealed from her the fact that the risks she would face on the rafting trip were greater that those usually involved in white-water rafting. (See Pl.’s Resp. to Summ. J. Br. at 13-14.) She maintains that “defendants knew that the [’Numbers’] stretch of the river was extremely dangerous and that only skilled and experienced rafters could safely maneuver the rapids.” (See id. at 13.)
Plaintiff’s claim, however, is wholly unsupported by the record. Plaintiff presents no evidence [**19] that defendants knew that the risks posed by rafting through the “Numbers” were greater than usual for the sport of white-water rafting, let alone any evidence that the risks were, in fact, greater. To the contrary, Covington’s uncontroverted testimony is that the river ‘s water-height on the day of plaintiff’s trip was appropriate for rafting according to industry standards as well as his company policy, and that the “Numbers” was not any more dangerous on June 1, 1993, than on any other day. (See Def.’s Summ. J. Br., Ex. H [Covington Dep. at 160 l. 21 to 164 l. 25]; Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 136 ll. 6-12].) Plaintiff has introduced nothing to suggest that defendants did not believe that, in taking plaintiff on the rafting trip, they were acting (1) in conformance with industry standards, (2) in conformance with their company standards, and (3) in what they knew to be a reasonably safe manner, given the nature of white-water rafting. Thus, because plaintiff has failed to introduce evidence that defendants’ conduct rises to the level of willful and wanton, I conclude that defendants are entitled to summary judgment on that claim. Concrete [**20] Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554).
As indicated above, defendants maintain that, by signing the release agreement, plaintiff agreed to indemnify them for their attorneys’ fees and other expenses incurred in connection with this lawsuit. Similarly, defendants argue that, because Mobilian is plaintiff’s brother, the indemnity clause in the release agreement obligates him to indemnify defendants for any costs they incur in connection with this lawsuit, including attorneys’ fees and costs.
In general, indemnity agreements, like exculpatory agreements, are strictly construed under Colorado law. Public Serv. Co. of Colo. v. United Cable Television of Jeffco, Inc., 829 P.2d 1280, 1284 (Colo. 1992) (en banc). For an indemnity agreement to be enforceable, it must contain clear and unequivocal language which manifests the parties’ intent that the indemnitee be indemnified for the expenses at issue. See id.; Williams v. White Mountain Constr. Co., Inc. , 749 P.2d 423, 426 (Colo. 1988) (en banc).
Here, the relevant language provides, “I agree to . . . indemnify [defendants] . . . for any injury or [**21] death caused by or resulting from me or my family’s participation [*1447] [in the rafting activity].” (Defs.’ Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) That language does not clearly and unequivocally state that the signor agrees to pay the attorney’s fees and costs associated with a lawsuit such as this. In fact, it seems more likely that the clause means that the signor agrees to pay expenses such as medical bills which result from her or her family member’s physical injury during a rafting trip. Further, with respect to defendant’s claim against Mobilian, the term “family” is not clearly and unequivocally broad enough to encompass the signor’s adult sister as opposed to only the signor’s spouse and children. Thus, I conclude that the language of the indemnity clause does not obligate plaintiff or Mobilian to indemnify defendants for the attorneys’ fees and other expenses they incur in connection with this lawsuit. See Public Serv. Co. of Colo., 829 P.2d at 1284; Williams, 749 P.2d at 426. Accordingly, defendants’ summary judgment motion is denied on the issue of plaintiff’s and Mobilian’s indemnity obligations. [**22] I need not reach the parties’ further arguments on that issue.
2. Mobilian’s Motion for Judgment on the Pleadings
As indicated above, Mobilian moves for judgment on the pleadings with respect to his obligation to indemnify defendants for their attorneys’ fees and other expenses incurred in connection with this lawsuit. A motion for judgment on the pleadings is a motion to dismiss that is filed after the pleadings are closed.
Fed. R. Civ. P. 12(c); 2A James W. Moore, Moore’s Federal Practice P 12.15 (2d ed. 1995). The standard of review for such a motion is as follows:
For purposes of the motion, all well-pleaded material allegations of the non-moving party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not deemed admitted. On the basis of the facts so admitted, the court may grant judgment only if the moving party is clearly entitled to judgment. 2A Moore P 12.15; Hamilton v. Cunningham, 880 F. Supp. 1407, 1410 (D. Colo. 1995). I therefore accept as true all allegations set forth by defendants. See id. “A judgment on the pleadings is appropriate [**23] when, even if all allegations in the complaint are true, the moving party is entitled to judgment as a matter of law.” Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993) (citation omitted).
Here, for the reasons explained in the previous section, I conclude as a matter of law that Mobilian is not obligated to indemnify defendants for their expenses in connection with this lawsuit. Accordingly, Mobilian’s motion for judgment on the pleadings is granted.
Based on the foregoing, it is therefore
ORDERED as follows:
1. Mobilian’s motion for judgment on the pleadings is GRANTED.
2. Defendants’ motion for summary judgment is GRANTED in part and DENIED in part.
3. Defendants’ motion for summary judgment is GRANTED with respect to plaintiff’s claims of negligence and willful and wanton conduct.
4. Defendants’ motion for summary judgment is DENIED with respect to defendants’ claim that plaintiff and Mobilian are obligated to indemnify defendants for their attorneys’ fees and other costs incurred in connection with this lawsuit.
5. Defendants’ third-party claim is hereby dismissed.
Dated this 29 day of April, 1996.
By The [**24] Court:
Edward W. Nottingham
United States District Judge
Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968Posted: April 16, 2015
Kathleen Sajkowski et al., Appellants, v. Young Men’s Christian Association of Greater New York, Respondent.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968
February 1, 2000, Decided
February 1, 2000, Entered
COUNSEL: [***1] For Plaintiffs-Appellants: Charles H. Dobkin.
For Defendant-Respondent: Laura Getreu.
JUDGES: Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.
[*105] [**66] Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 20, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The Young Men’s Christian Association of Greater New York (YMCA) sponsored a “Wellness for Life” weekend program for adults who wished to engage in exercise and outdoor activities. Among the activities [**67] that were offered at the program was an obstacle course that included an event called the Nitro Crossing. This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.
Plaintiff, Kathleen Sajkowski, an attendee [***2] at the weekend program, stood in line with several other participants and waited for her turn to swing on the rope. While she was waiting, she observed that several participants lost their grip and fell while swinging. When her turn came, she grasped the rope and began to swing. Approximately at the midway point of the imaginary pit, plaintiff lost her grip and fell, injuring her ankle. Plaintiff, alleging, inter alia, that defendant YMCA was negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing, commenced this action. No claim was made that the rope broke or was otherwise defective. Thereafter, defendant moved for summary judgment dismissing the complaint, asserting that plaintiff assumed the risk of participating in this activity. We conclude that the assumption of risk doctrine is applicable to plaintiff’s injury.
In Morgan v State of New York (90 NY2d 471, 484), the Court of Appeals reaffirmed the principle that, [HN1] “by engaging in a [*106] sport or recreational activity, a participant consents to those commonly [***3] appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it ( Maddox v City of New York, 66 NY2d 270, 277). Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks ( Morgan v State of New York, supra; see also, Turcotte v Fell, 68 NY2d 432, 439). Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant ( Simoneau v State of New York, 248 AD2d 865).
In considering plaintiff’s injury, it is apparent that the risk of falling while swinging from a rope is inherent in participation in such an activity (cf., Hofflich v Mendell, 235 AD2d 784; compare, Roska v Town of Cheektowaga, 251 AD2d 984). It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several [***4] other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable ( Maddox v City of New York, supra; see also, Sheridan v City of New York, 261 AD2d 528; Paone v County of Suffolk, 251 AD2d 563; Brown v City of New York, 251 AD2d 361; compare, Warren v Town of Hempstead, 246 AD2d 536 [defect concealed]; Cronson v Town of N. Hempstead, 245 AD2d 331).
Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards. Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity. These violations, it is asserted, exposed plaintiff to unreasonably enhanced risks, which she cannot be deemed to have assumed (see, Morgan v State of New York, supra, at 485; [***5] [**68] see also, Greenburg v Peekskill City School Dist., 255 AD2d 487; Clark v State of New York, 245 AD2d 413; Stackwick v Young Men’s Christian Assn., 242 AD2d 878). In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.
[*107] What becomes apparent is that the comparison of the Nitro Crossing to a gymnastics event is incongruous. * Simply stated, plaintiff was not dismounting from uneven bars, or doing a tumbling routine during a floor exercise–activities completely different in degree, complexity, and danger from the activity at issue here. Nor was she engaged in an activity that required any specialized kind of training, instruction, or skill. She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built [***6] for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.
* For the same reasons plaintiff’s claim that defendant should have provided a spotter is without merit. Moreover, since plaintiff immediately fell to the ground when she lost her grip on the rope, the presence of a spotter would not have prevented this accident.
We also note that the balance of the expert evidence failed to demonstrate that defendant violated any prevailing standards in constructing the Nitro Crossing (see, Simoneau v State of New York, supra; cf., Greenburg v Peekskill City School Dist., supra; Clark v State of New York, supra; Stackwick v Young Men’s Christian Assn., supra).
In view of the foregoing, Supreme Court properly granted defendant’s motion and dismissed the complaint.
Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.
Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.Posted: April 13, 2015
Failure of the plaintiff to find an expert witness in a case requiring an expert results in dismissal of the plaintiff’s complaint.
State: Connecticut, United States District Court for the District of Connecticut
Plaintiff: Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis
Defendant: Y.M.C.A. Camp Mohawk, Inc.
Plaintiff Claims: negligence and consequential damages
Defendant Defenses: Plaintiff cannot prove their case because they do not have an expert witness qualified to prove their claims.
The plaintiff attended the day camp of the defendants. One of the activities was horseback riding. For one of various reasons, the plaintiff was given a pony to ride rather than a horse. While riding the horse, the plaintiff fell over the shoulder or head of the horse suffering injuries.
The plaintiff sued for negligence and consequential damages (which is slightly confusing). The plaintiff hired an expert witness to prove their case that had no qualifications as a horse expert. The plaintiff’s expert was then disqualified. Because under Connecticut law, an expert witness was needed to prove the plaintiff’s case, the case was dismissed. The plaintiff appealed.
Analysis: making sense of the law based upon these facts.
The court first looked at what an expert witness is and when a case requires an expert witness. An expert witness is a person that is qualified to prove testimony as an expert because of their knowledge, skill, experience, training or education. “…the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.”
The plaintiff’s expert had no “education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.” His work experience also provided no background in horses or horseback riding. Consequently, the plaintiff’s expert was not qualified to be an expert witness.
The next issue was whether or not an expert was needed to prove the case.
Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror.
The court then looked at whether the average jury would know enough about horses to understand the case. This court looked at a prior ruling on the subject:
The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Therefore, the court concluded; it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.”
The court reached this conclusion. “The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors.”
Because the plaintiff did not have an expert witness, the plaintiff was unable to prove their case. The court upheld the dismissal of the case.
So Now What?
This is an extremely rare decision, in fact, the first I have ever read. It is paramount that if you are involved in litigation, you assist your defense attorney in finding the best expert witness you can for your case. That means two things.
1. The expert has the necessary qualifications to be an expert.
2. The expert has the ability to convey their opinion to the jury in a way the jury will understand.
You can have the most qualified person in the world as your expert but if he or she is unable to convey the message in a way the jury will understand you may still lose your case.
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