10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.

Posted: January 25, 2016 | Author: Recreation Law | Filed under: Colorado, Paddlesports, Release (pre-injury contract not to sue) | Tags: 10th Circuit, 10th Circuit Court of Appeals, Arkansas River, Brown’s Canyon, fatality, Release, Seidel’s Suck Hole, Strainer, Tenth Circuit Court of Appeals, Waiver, Whitewater Rafting |9 Comments

Plaintiff’s approach was a unique way of attempting to circumvent the legal protection afforded by the release. Claims of negligence per se and fraud were pled to beat the release.

Citation: Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39

State: Colorado, United States Court of Appeals for the Tenth Circuit

Plaintiff: Jesus Espinoza, Jr.

Defendant: Arkansas Valley Adventures, LLC

Plaintiff Claims: Negligence per se and fraud

Defendant Defenses: release

Holding: Defendant

Year: 2016

There is a quasi-third party in this case, the Colorado Trial Lawyers Association (CTLA). The CTLA filed an Amicus Curiae brief with the appellate court. An amicus curiae brief is a written argument with legal support saying there are issues in this case that may or may not be brought out by one of the parties that are important to people other than the named parties.

In this case, the CTLA probably wanted to influence the court in favor of the plaintiff.

The plaintiff’s mother went whitewater rafting with the defendant raft company. Upon arrival the plaintiff received “the usual guidance,” signed a release and headed down the river. “The next day(?)” while rafting through Seidel’s Suck Hole the raft flipped. Everyone was “fished out of the river” except the deceased who was swept into a “log jam” (a strainer).

Brown’s Canyon, including Seidel’s Suck Hole is an all-day river trip. However, a few companies run two-day trips on the river stopping mid-way and camping for the night. That is the confusion on what day, relative to the date the deceased signed the release the fatality occurred. 99.9% of the trips are just one-day trips.

Her son brought suit against the raft company for negligence per se and fraud. The trial court agreed with the defendant and granted its motion for summary judgment. The appeal to the Tenth Circuit and this decision followed.

Analysis: making sense of the law based on these facts.

The court distilled the plaintiff’s major argument down to one sentence. “…whether Colorado law permits private parties to enforce a contract like this.”

The court first looked at the requirements for a release to be valid in Colorado as set out by the Colorado Supreme Court.

…the Colorado Supreme Court has instructed courts to weigh four factors when deciding whether to give effect to agreements along these lines: “(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 then analyzed the four different factors breaking them down into sub-groups. The first two factors the court found to be public policy questions.

…asking whether “[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity [and] . . . [a]s a result of the essential nature of the service . . . the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.”

The last two questions of the four focus on whether the release, as a contract met the requirements to be a contact:

…whether the release was fairly obtained and clearly and unambiguously expressed. If the release satisfies both sets of questions — the more general and the more particular — it may be enforced.”

Generally, the Colorado Supreme Court has held that businesses that perform recreational services are not engaged in essential public services. Essential public services or referred to by other courts as necessities are those are you cannot live without. “So while businesses providing, say, water, electricity, or sanitary services usually may not shield themselves from claims of negligence; recreational service providers often can.”

Under Colorado law, private parties are free to assume the risks associated with recreational activities.

The court then looked at how this test applied to the plaintiff’s argument that the raft company was liable because it was negligent per se. However, the court rejected the negligence per se argument finding that creation of a statute covering a particular business does not therefore create negligence per se actions on all aspects of the statute.

And because whitewater rafting is a recreational activity, a statute could not turn a recreational activity into a necessity.

And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one.

On top of that, Colorado law has always allowed parties to contract away negligence claims and there is almost no difference between the common law of negligence, and the duty required of a negligence per se claim.

Colorado law has long permitted parties to contract away negligence claims in the recreational context. And negligence per se claims often differ very little from their common law cousins: they usually just substitute a common law duty or standard of care with one prescribed by statute, and all other elements remain the same. In fact, in the case before us, it’s not even clear what duty of care CROA adds to the common law.

Nor did the plaintiff point out how the statute created a new duty that was violated by the defendant. And the court cannot create a new duty. “Indeed, courts generally will not assume that the General Assembly means to displace background common law principles absent some clear legislative expression of that intent.”

He contends that the rafting company misrepresented the nature of the trip to Ms. Apolinar. He points for support to testimony suggesting that, when Ms. Apolinar first made her reservation, she was told by company representatives and read on its website that the trip was appropriate for beginners and involved at most only class III rapids.

However, the court found the deceased was provided information on the risks of the rafting trip.

Whatever the rafting company said about the trip earlier on, when Ms. Apolinar arrived at the outfitter’s office she received a vivid description of the risks she could face. The rafting company provided — and Ms. Apolinar signed — a document titled in part “RAFTING WARNING” explaining that rafting can be “HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.”

The release also had a clause that voided all other statements or sales pitches and stated only the representations in the release were valid. “The document provided, too, that its representations and warnings about the trip superseded any prior “communications or representations…”

The court then restated that in Colorado, courts had consistently upheld releases signed by “competent and reasonably educated” people.

Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these, and because recreational businesses do not provide “essential” services of “practical necessity” individuals are generally free to walk away if they do not wish to assume the risks described.

Nor would the court allow the claim for fraud to proceed.

To make out a claim for fraud in Colorado, a plaintiff must establish actual and reasonable reliance on a false statement; a party cannot — as a matter of law — continue to rely on a previously expressed false statement after the truth is aired. And, of course, we have just found that the rafting company’s written warnings accomplished just that — adequately airing the truth about the nature of the risks Ms. Apolinar faced.

Here again, the court could not find a false statement that was in the documents, and any false statement made prior to the signing of the release was null and void based on the superseding statement clause in the release.

The court upheld the release and the dismissal of the lawsuit by the trial court.

So Now What?

The issue with the most concern is the dispute between the American Whitewater Association whitewater difficulty rating of the section of river (International Scale of River Difficulty). For decades, the Arkansas River running through Brown’s Canyon was considered a Class III section.

Outfitters believing they could receive one of two benefits; either could receive some marketing value or lawsuit protection, started advertising the section as Class IV yet still marketed it as a beginner section.

A couple of books were published about the river and those books in an effort to protect someone (First Amendment is pretty strong though) also rated the river as a Class IV section.

Now an outfitter almost loses a decision because there is enough contention over the rating of the river that one judge thinks it should go to trial.

THINK people. Your actions today may come back to bite you somewhere in the future.

You can’t say something is a beginner run and then give it a Class IV rating to cover your legal butt. An AWA Class IV rating is advanced. Advanced is not Beginner.

The second issue is how hard the plaintiff’s and the plaintiff’s bar worked to overcome the release. Your release must be written correctly (See Think your release will survive a lawsuit? Test your Release and Find out.) If you stole your release from a competitor, cut and pasted yours from the web or was there when you bought the place you are going to lose a lawsuit.

Releases must fit the experience you are attempting to provide your guests. Your release must not be contradicted by your marketing or your website. Your release must be understood by you and your staff so you don’t void your release by your actions. Finally, your release must meet the legal requirements for a release for your industry and pursuant to your state law.

You then must make sure the information you provide to your guests before during and after their experience does no invalidate your release. Finally deal with the issues a disaster creates, just don’t hide.

Finally, the release was relied upon not only as a release, but as proof of the risks of the activity, for a superseding statement clause to eliminate fraud claims and failure to inform claims.

A well written release work.

Remember!

Marketing makes promises Risk Management must pay for.

Here the marketing was it was a beginner raft trip; however, someone died on it and there was enough controversy over whether the trip was really for beginners that this case was a close call.

What do you think? Leave a comment.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,

and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

If you are interested in having me write your release, download the form and return it to me.

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