Release stops suit for falling off horse at Colorado summer Camp.

Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495 

I always enjoy it when people with money, sue to get more money….. 

In this case, the minor plaintiff fell off a horse and suffered a broken arm. She sued for her damages. What makes this sort of amusing is the minor had attended the camp two prior years. Her mother has signed the release three consecutive times. However, the plaintiff sued.

The allegations in the complaint were the wrangler had inappropriately saddled the horse she rode. This is a classic claim used to get around equine liability acts. Equine liability acts are 100% effective. Since they have been passed no horse has been sued. However, suits against horse owners have increased.

For additional articles about equine (horse) lawsuits and why Equine Liability Acts have little value see: $2.36 M awarded to a boy kicked by horse during inner-city youth program and $1.2 M award in horseback riding fatality in Wyoming.

The district court (trial or first court) granted the defendant camp’s motion for summary judgment. And the Plaintiff appealed. The basis for the appeal was:

she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim. 

The first issue the court reviewed was whether the release was valid under Colorado law. The court found there were four tests that had to be met for the release to be valid.

(1) the existence of a duty to the public;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language.

B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
The court found the first two tests were met because recreational activities create no duty to the public and are not necessary for living.

The next test was whether the contract was fairly entered into. This is a case of whether the injured party had the opportunity to go somewhere else or not participate. Whether one party was at the mercy of the other party because of unequal bargaining power. However, again, recreational activities are not something that a parent or participant is forced to undertake. On top of that the mother admitted she voluntarily signed the release…..three times.

More importantly the court found the plaintiff could have attended other camps. She was not forced to attend the defendant camp.

The last test also can be examined multiple ways. First way is, is the agreement plan on its face is it written in such a way that the parties understand what it says or should have understood what it said. Another way is whether the agreement, the release, clearly evidenced the intent of the party’s.

Here you can release one party from negligent conduct as long as the intent of the parties is clearly expressed in the contract. Here the release expressly contained language that the court found was clear to the plaintiff and her mother of the intent of the release.

The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence. 

The classic I now did not understand the release is also looked at this point, and the court rejected that argument.

An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement. 

The court succinctly summed up its decision about the release stating:

Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid. 

The court then reviewed the recently enacted Colorado statute allowing a parent to sign away a minor’s right to sue C.R.S. § 13-22-107. A recent decision by the Colorado Appellate court had thrown out a release signed by a mother because it was not sufficient to meet the requirements of the statute. See Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele which discussed the case Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.

The statute requires the parent who is signing a release for a minor to be voluntary and informed. The court stated that “A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” quoting Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.

Here the mother and the plaintiff knew of the risks because the plaintiff had attended the camp two prior years and had ridden horses those two years.

The final argument was made that the release did not bar claims for gross negligence. However, the court found the complaint and the other documents in the case did not plead any facts giving rise to a claim that would be a gross negligence claim. Under the Colorado law gross negligence is “willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Nothing in the documents indicated the defendant had acted willfully or wantonly.

One interesting part of this case was a statement quoted in the case from a deposition of the mother. The defendant’s attorney referred to Christopher Reeves, who suffered a fall from a horse becoming a quadriplegic and eventually died from the injuries. The mother answered she personally knew Mr. Reeve. If you want to do a little research, match the names of the parties, and determine who would know other movie stars.

So?

Again and again, and again, make sure you have a well written release. That was the first and best thing done in this case. The release stood up to scrutiny by the trial court and the appellate court.

The next thing is always have good facts. The court pointed out the wrangler checked the saddle two or three times before the plaintiff rode the horse which eliminated the gross negligence argument. Good facts do not mean to only defend yourself when you are going to win. It means to do things right, and you don’t have to worry and if you do have a problem you will win.

Here the wrangler had been well trained in how to deal with the situation and problems of kids at summer camps riding horses. Before the plaintiff was allowed to mount the horse the saddle was checked and double checked.

So Now What?

Hire well, train well and treat well; the three ideas to keep employees part of your defense team. Your employees do not need to lawsuits and not have a lawsuit become a forum for any employee to come back at you.

See 7 Mistakes Made by People, who are called Defendant. Hire good people to begin with. Work hard at hiring people who like people and understand the job. The job is not to show off to little kids about how great a horseman you are, the job is to get kids on horses and have them have a good time. The job is to have the kids leave the ring the same way they entered the ring with a big grin on top of a horse.

Never hire for skills except people skills. You can teach anyone to ride a horse, row a raft or run a ropes course. Finding someone who can remember to double check everything, deal with a problem child and entertain at the same time is a little harder. However, those people are out there, work harder and find them.

7 Mistakes Made by People who are called Defendant.

1. Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
2. Failing to Know Your Customers and why they are buying from you.
3. Failing to Treat Your Customers the Way They Want to Be Treated:
4. Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe before a Lawsuit
6. Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
7. Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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