Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39
Posted: January 21, 2016 Filed under: Colorado Leave a commentTo Read an Analysis of this decision see
10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39
Jesus Espinoza, Jr., Plaintiff – Appellant, v. Arkansas Valley Adventures, LLC, Defendant – Appellee. Colorado Trial Lawyers Association, Amicus Curiae.
No. 14-1444
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
2016 U.S. App. LEXIS 39
January 5, 2016, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:13-CV-01421-MSK-BNB).
Espinoza v. Ark. Valley Adventures, LLC, 2014 U.S. Dist. LEXIS 136102 (D. Colo., Sept. 26, 2014)
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-The deceased’s son unsuccessfully argued that, while his mother signed a release, it should be still be held to violate state public policy as it ran afoul of the first two Jones factors because his is claim was one for negligence per se rather than common law negligence; [2]-The argument mistook the nature of the inquiry called for by the first two Jones factors; [3]-His argument suggested a firmer analytical line could be drawn between claims of negligence and negligence per se than the circumstances in the case would fairly allow; [4]-His interpretation of the Colorado River Outfitters Act would require the court to read into that statute a good deal more than it said; [5]-The disclosure and release sufficed to satisfy the third and fourth Jones factors.
OUTCOME: Judgment affirmed.
CORE TERMS: rafting, recreational, common law, trip, claim of negligence, warning, negligence per se, public policy, equine, river, common law, private parties, recreational activities, misdemeanor, outfitter’s, provider, Colo Law, civil liability, purporting, raft, ski, matter of law, negligence claims, matter of practical necessity, public services, great importance, mean to suggest, horseback riding, standard of care, civil claims
COUNSEL: William J. Hansen of McDermott & McDermott, LLP, Denver, CO (George E. McLaughlin of Warshauer McLaughlin Law Group, P.C., Denver, CO, with him on the briefs), for Plaintiff-Appellant.
Alan Epstein (Ryan L. Winter and Conor P. Boyle, with him on the brief), of Hall & Evans, L.L.C., Denver, CO, for Defendant-Appellee.
Russell R. Hatten and Evan P. Banker of Chalat Hatten Koupal & Banker PC, Denver, CO, on the brief for amicus curiae Colorado Trial Lawyers Association, in support of Plaintiff-Appellant.
JUDGES: Before KELLY, HARTZ, and GORSUCH, Circuit Judges.
OPINION BY: GORSUCH
OPINION
GORSUCH, Circuit Judge.
This case arises from a summer rafting trip gone tragically wrong. It began when Sue Ann Apolinar hired a guide for a family adventure in the Colorado Rockies: an overnight rafting and camping excursion on a popular stretch of the Arkansas River running through Brown’s Canyon. After she arrived at the outfitter’s office, Ms. Apolinar and the other rafters received the usual guidance, made the usual preparations, and signed the usual release before heading down river. The next day, while maneuvering around [*2] a rapid known locally as Seidel’s Suck Hole, the raft capsized. Everyone else was fished out of the water soon enough. But in a heartbreaking turn of events, the current swept Ms. Apolinar into a logjam where, despite repeated efforts to save her, she drowned. Eventually, Ms. Apolinar’s son, Jesus Espinoza, Jr., brought a lawsuit against the rafting company alleging negligence per se and fraud (and other claims no longer in dispute). In reply, the company sought summary judgment, arguing that the release Ms. Apolinar signed shielded it from liability. With this the district court agreed and proceeded to enter judgment for the company. It’s the propriety of this ruling that we’re asked to assess in this appeal.
No one before us doubts that Ms. Apolinar signed a release. Or that the release purported to absolve the rafting company from any claim of negligence. The only question in this appeal is whether Colorado law permits private parties to enforce a contract like this. [HN1] Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct. See, e.g., Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). But claims of negligence are a different [*3] matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence. Instead, and at the most general level, 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.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).
Even more specifically, [HN2] the Colorado Supreme Court has explained that the first two Jones factors focus on 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.” Id. (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444 (Cal. 1963)). Meanwhile, the latter two factors focus on more party- and contract-specific questions — asking whether the release was fairly [*4] obtained and clearly and unambiguously expressed. Id. at 378. If the release satisfies both sets of questions — the more general and the more particular — it may be enforced. (Provided, of course, that it is otherwise a valid contract, involving, for example, mutual assent and consideration, matters not in dispute here).
[HN3] When it comes to the first two Jones factors, the Colorado Supreme Court has offered even more specific guidance yet. Though some businesses perform essential public services and owe special duties to the public, the court has held that “businesses engaged in recreational activities” generally do not. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004); see also Boles, 223 P.3d at 726 (“More than a quarter century ago, this court rejected the assertion that any agreement purporting to shield a party from liability for its own tortious conduct” in the provision of recreational services “would violate . . . public policy . . . .”). So while businesses providing, say, water, electricity, or sanitary services usually may not shield themselves from claims of negligence, recreational service providers often can. Though, of course, they must still face and satisfy the latter two case-specific Jones factors.
This relatively permissive public policy toward [*5] recreational releases may not be unique to Colorado common law but it does seem to be one of its distinguishing features. We don’t doubt other states may rationally choose to pursue different lines when it comes to recreational releases: certainly the parties before us cite an array of cases from other jurisdictions taking an array of views. But [HN4] in our federal system, states are usually permitted (and encouraged) to pursue their own paths on policy matters like these. And it’s clear enough that Colorado allows private parties to assume some of the risks associated with their recreational pursuits. It’s a policy choice that, no doubt, means some losses go uncompensated but one that also promotes the output and diversity of recreational services consumers may enjoy. Of course, the Colorado Supreme Court and the Colorado General Assembly may change their judgment on this score at any time. And maybe someday they will prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this even if also impairing to some degree individual choice and output. But that decision is their decision to make, not ours, and their current policy is clear. Indeed, [*6] following the Colorado Supreme Court’s guidance in this area, this court and many Colorado courts have upheld many releases in many recreational activities over many years. Only some examples of which we include in the margin.1
1 See, e.g., Lahey v. Covington, 964 F. Supp. 1440, 1444-46 (D. Colo. 1996) (whitewater rafting), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997); Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (same); Robinette v. Aspen Skiing Co., No. 08-cv-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093, at *3-5 (D. Colo. Apr. 23, 2009) (skiing), aff’d, 363 F. App’x 547 (10th Cir. 2010); Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (same); Potter v. Nat’l. Handicapped Sports, 849 F. Supp. 1407, 1409-11 (D. Colo. 1994) (same); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-75 (D. Colo. 1992) (same); Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (mountain biking); Chadwick, 100 P.3d at 468-70 (horseback riding); B & B Livery, Inc. v. Riehl, 960 P.2d 134, 137-38 (Colo. 1998) (same); see also William R. Rapson & Stephen A. Bain, Recreational Waivers in Colorado: Playing at Your Own Risk, 32 Colo. Law. 77, 77 (2003) (noting that “Colorado law generally supports waivers of liability in connection with recreational activities”); James H. Chalat, Colorado Ski Law, 27 Colo. Law. 5, 14 (1998) (noting that “courts generally hold [ski racing] waivers to be enforceable”); Jordan Lipp, Horse Law — A Look at the Equine Statute and Liability Law, 41 Colo. Law. 95, 99 (2012) (“Releases have been upheld in a number of horseback riding cases.”).
Still, Mr. Espinoza submits, his case is categorically different. Yes, Ms. Apolinar signed a document purporting to release the rafting company from all claims of negligence. Yes, Colorado public policy generally permits the release of claims of negligence in recreational pursuits like the one here. But, Mr. Espinoza argues, the release Ms. Apolinar signed should still be held to violate state public policy — it should [*7] still be held to run afoul of the first two Jones factors — because his claim is one for negligence per se rather than common law negligence. He observes that the Colorado River Outfitters Act (CROA) makes it a misdemeanor for rafting companies to operate any raft in a “careless or imprudent manner.” Colo. Rev. Stat. § 33-32-107(2)(b). And from this, he reasons, negligence by rafting companies has become a matter of public concern and a public service within the meaning of the first two Jones factors.
We find ourselves unable to agree for a number of related reasons.
First, we think this argument mistakes the nature of the inquiry called for by the first two Jones factors. [HN5] By their terms, those factors don’t ask whether the activity in question is the subject of some sort of state regulation. Instead, they ask whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational” one. 623 P.2d at 376-77. 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” [*8] one. After all, state law imposes various rules and regulations on service providers in most every field these days — including on service providers who operate in a variety of clearly recreational fields. See, e.g., Colo. Rev. Stat. § 33-14-116 (snowmobiling); id. § 33-44-104(2) (skiing); id. § 13-21-119(4)(b)(I) (equine activities).
Second, Mr. Espinoza’s argument suggests a firmer analytical line can be drawn between claims of negligence and negligence per se than we think the circumstances here will fairly allow. As we’ve seen, [HN6] 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. See Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 573 (Colo. 2008). In fact, in the case before us it’s not even clear what duty of care CROA adds to the common law. Mr. Espinoza says the rafting company violated the statutory duty to avoid operating a raft in a “careless or imprudent manner.” Mr. Espinoza points as well to implementing regulations that suggest a company should offer things like a “basic orientation” for rafters and help when accidents occur. [*9] But Mr. Espinoza does not suggest how these provisions create any distinctly new duty of care. Indeed, they appear to be more or less coextensive with [HN7] the preexisting common law standard of care, which requires parties to act with “reasonable care . . . i.e., that which a person of common prudence would use under the circumstances.” Christensen v. Hoover, 643 P.2d 525, 529 (Colo. 1982). And given this it seems hard to see a rational basis on which the law might treat such similar (identical?) claims so differently based merely on how they are pleaded, rewarding the crafty but penalizing the pedestrian pleader.2
2 Though we do not rely on the fact in our analysis above, Colorado authorities did conduct an investigation of the accident in this case pursuant to CROA and ultimately decided not to pursue any sanction.
Third, Mr. Espinoza’s interpretation of CROA would require us to read into that statute a good deal more than it says. [HN8] CROA imposes criminal misdemeanor sanctions for violating the duties it prescribes. It does not speak, one way or the other, to the question of civil liability — let alone suggest that private parties are forbidden from contractually releasing potential negligence claims. Neither [HN9] is it obviously irrational that the [*10] General Assembly might choose to pass legislation about public (criminal) liability but leave private (civil) liability to preexisting common law principles. 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. See Robbins v. People, 107 P.3d 384, 387 (Colo. 2005). The General Assembly, too, has shown that — when it wishes — it well knows how to displace background common law norms and preclude the release of civil claims. See, e.g., Stanley v. Creighton Co., 911 P.2d 705, 707-09 (Colo. App. 1996). Given all this, we do not think it our place to adorn the General Assembly’s handiwork with revisions to the common law that it easily could have but declined to undertake for itself.
Finally, we find it noteworthy that Colorado courts faced with similar challenges seem to have resolved them much as we resolve this one today. For example, the General Assembly has adopted a statute holding that “equine professional[s]” may not be held civilly liable for “the inherent risks of equine activities.” Colo. Rev. Stat. § 13-21-119(3). But that statute goes on to state that the immunity it provides does not extinguish civil liability in cases where the equine professional supplied equipment or tack it should have known was faulty or [*11] failed to make reasonable efforts to determine the ability of the rider before the excursion began. Id. § 13-21-119(4)(b)(I). And despite the General Assembly’s express solicitude toward these latter classes of claims, the Colorado Supreme Court has allowed private parties to contract away claims of negligence on both fronts. B & B Livery, 960 P.2d at 135, 137-38. Maybe even more pointedly still, [HN10] since the enactment of CROA and its misdemeanor criminal penalties, various Colorado courts have enforced releases of civil negligence claims obtained by whitewater rafting companies. See, e.g., Lahey, 964 F. Supp. at 1444-46; Forman, 944 P.2d at 563-64. This court has upheld, too, a release a snowboarder gave to a ski area absolving its employees of negligence even when the area’s employee allegedly operated a snowmobile in a negligent manner and a state statute made that very behavior a misdemeanor. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093, at *3-5.
In saying this much, we take care to emphasize what we do not mean to say. We do not mean to suggest that some future statute could not — or even that some other current statute might not — preclude the enforcement of releases like the one here. Neither do we mean to suggest that the Colorado Supreme Court could not alter its common law policy with respect to recreational releases. In particular, we [*12] do not pass on the question whether the General Assembly’s enactment of the Colorado Consumer Protection Act (CCPA), Colo. Rev. Stat. §§ 6-1-101 to 6-1-1001, might preclude the enforcement of recreational releases when the plaintiff pleads a valid claim under that statute. See Rapson & Bain, supra, at 77-78 (noting that while Colorado law “generally supports” recreational waivers, it’s an open question whether a statutory CCPA claim can be waived). In this case, we merely hold that the CROA provisions cited to us do not satisfy and do not overrule the first two factors of the common law Jones test.
Of course, that takes us only half way. Having decided that the release survives Jones‘s public-policy factors, we must still consider its case-specific factors. [HN11] The third Jones factor requires us to ask whether “the circumstances and the nature of the service involved indicate that the contract was fairly entered into.” Chadwick, 100 P.3d at 467. Relatedly, the fourth Jones factor addresses the terms of the contract itself, inviting us to “examine[] the actual language of the [release] for legal jargon, length and complication” and any other evidence that a party might not “recognize the full extent of the release provisions.” Id. The district court held that the release before us [*13] satisfied both of these conditions — that it was fairly entered into and clear in its terms. And in the end we find we agree with its assessment on this score too.
Mr. Espinoza trains most of his attention on the third factor. 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. He points as well to his expert witness who testified that Seidel’s Suck Hole is really a class IV rapid, not a class III rapid, according to the “International Scale of River Difficulty.”3 But at the same time Mr. Espinoza must acknowledge that another of his witnesses — a state ranger charged with overseeing the stretch of river in question — testified that he believes the trip is indeed appropriate for families with children. So the facts Mr. Espinoza himself offers are mixed at best on whether the rafting company actually ever made a material misstatement about the nature of the trip.4
3 That scale describes class III rapids [*14] as requiring (among other things) “[c]omplex maneuvers in fast current and good boat control in tight passages or around ledges” and notes that “[i]njuries while swimming are rare.” The scale describes class IV rapids as involving “[i]ntense, powerful but predictable rapids requiring precise boat handling in turbulent water. . . . [and] fast maneuvers under pressure” and notes that the “[r]isk of injury to swimmers is moderate to high.”
4 On appeal, Mr. Espinoza offers another theory why the circumstances surrounding the release were unfair. He alleges that the rafting company refused to reschedule the trip and might have refused to refund Ms. Apolinar’s deposit if she declined to sign the release. And this, he says, imposed unfair pressure on her to sign the release. But Mr. Espinoza’s argument along these lines before the district court consisted of only two sentences so it’s not surprising or improper that the district court declined to pass upon it. Neither will we pass on this argument for the first time now, leaving its development instead to future cases where it might prove relevant and more fully presented. See generally Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).
Still, even if we might assume (without deciding) that the facts here are enough to create [*15] a material dispute of fact regarding whether the rafting company initially misrepresented the nature of the trip, it’s still hard to see how we could say the release was unfairly secured or unclear in its terms — at least within the meaning Colorado law gives to the third and fourth Jones factors. That’s because of what happened next. 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 document proceeded to offer a detailed picture of the sorts of problems that could be (and sadly were) encountered: “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 . . . .” It added that “THE UNDERSIGNED ACKNOWLEDGE[S] AND UNDERSTAND[S] THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING [*16] IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS.” The document provided, too, that its representations and warnings about the trip superseded any prior “communications or representations” on these subjects. Neither can there be any question that the document clearly communicated that a signature would release civil claims for liability. At the outset it directed Ms. Apolinar to “PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS.” And later it provided that “THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE[S], FOREVER DISCHARGE[S], AND AGREE[S] NOT TO SUE . . . with respect to any and all claims and causes of action . . . which could be asserted [by] the Undersigned in connection with . . . the Activity.”
This disclosure and release suffices to satisfy the third and fourth Jones factors. To be sure, we can imagine other states might choose to hold circumstances and printed forms like these insufficiently fair or clear. But [HN12] 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 [*17] necessity” individuals are generally free to walk away if they do not wish to assume the risks described. See, e.g., Jones, 623 P.2d at 377-78. Particularly where, as here, the person confronted with the release is competent and reasonably educated. Chadwick, 100 P.3d at 469. Indeed, Colorado courts and this court have consistently found releases provided at the outset of a recreational activity and containing language very much like the one now before us sufficient as a matter of law to supply a fair and full warning within the meaning of the latter two Jones factors. See, e.g., Jones, 623 P.2d at 377-78; Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-76 (10th Cir. 1997); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 782, 785 (Colo. 1989); Chadwick, 100 P.3d at 468-69.
As the district court recognized, too, this resolution of the third and fourth Jones factors also resolves Mr. Espinoza’s fraud claim. [HN13] 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. Neither do we see how we might arrive at a different result just because this claim is denominated [*18] in fraud rather than negligence. The inquiries prescribed for us by law are virtually indistinguishable (was the truth fairly and fully disclosed?), the facts are the same (the release’s warnings), and it follows that the result should be the same. See Vinton v. Virzi, 269 P.3d 1242, 1247, 2012 CO 10, 2012 CO 10 (Colo. 2012) (holding if a party “has access to information” that “would have led to the true facts, that party has no right to rely on a [prior] false representation”); Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 462 (Colo. 1937) (same).
Enduring the death of a close family member in tragic circumstances is among life’s bitterest challenges. The loss Ms. Apolinar’s family has suffered is beyond words. But our charge is to follow the law. And in this case the law is just as the district court described it, permitting the enforcement of the release in this case and requiring the entry of summary judgment.
Affirmed.5
5 We decline Mr. Espinoza’s request for certification of his negligence per se claim to the Colorado Supreme Court for decision. Not only is the request fleetingly made (three sentences in the middle of a brief arguing state law unambiguously supports his position), [HN14] we generally do not trouble state supreme courts where, as here, existing state law provides “a reasonably clear and principled course” [*19] we may follow to resolve the case at hand. Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007).
HARTZ, Circuit Judge, concurring and dissenting:
I fully join all the opinion except the discussion of the third Jones factor. I respectfully dissent, however, on that factor. In my view, a jury must resolve whether Ms. Apolinar was misled about the danger of the rapids. Although the warning provided to her at the outfitter’s office listed all the potential risks that she would face, the description of the rapids is what would convey the probability of those risks. It is not enough to list a risk if the customer has been misled about its probability.
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Colorado River Outfitters Act
Posted: January 21, 2016 Filed under: Colorado Leave a commentCOLORADO REVISED STATUTES
TITLE 33. PARKS AND WILDLIFE
OUTDOOR RECREATION
ARTICLE 32. RIVER OUTFITTERS
33-32-101. Legislative declaration.. 1
33-32-103. Powers and duties of the commission – rules. 3
33-32-104. License required – fee. 3
33-32-105. Minimum qualifications and conditions for a river outfitter’s license. 4
33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors. 4
33-32-106. Equipment required – employees required to meet minimum qualifications. 5
33-32-107. River outfitters – prohibited operations – penalties. 5
33-32-109. Denial, suspension, or revocation of license – disciplinary actions. 8
33-32-110. Advisory committee – repeal 9
33-32-111. Fees – river outfitters cash fund. 9
33-32-112. Repeal of article. 9
C.R.S. 33-32-101 (2015)
33-32-101. Legislative declaration
The general assembly declares that it is the policy of this state to promote and encourage residents and nonresidents alike to participate in the enjoyment and use of the rivers of this state and, to that end, in the exercise of the police powers of this state for the purpose of safeguarding the health, safety, welfare, and freedom from injury or danger of such residents and nonresidents, to license and regulate those persons who provide river-running services in the nature of equipment or personal services to such residents and nonresidents for the purpose of floating on rivers in this state unless the provider of such river-running services is providing such river-running services exclusively for family or friends. It is not the intent of the general assembly to interfere in any way with private land owner rights along rivers or to prevent the owners of whitewater equipment from using said equipment to accommodate friends when no consideration is involved; nor is it the intent of the general assembly to interfere in any way with the general public’s ability to enjoy the recreational value of state rivers when the services of river outfitters are not utilized or to interfere with the right of the United States to manage public lands and waters under its control. The general assembly recognizes that river outfitters, as an established business on rivers flowing within and without this state, make a significant contribution to the economy of this state and that the number of residents and nonresidents who are participating in river-running is steadily increasing.
HISTORY: Source: L. 84: Entire article added, p. 928, § 1, effective May 9.L. 88: Entire section amended, p. 1169, § 1, effective October 1.L. 94: Entire section amended, p. 1226, § 1, effective, July 1.
33-32-102. Definitions
As used in this article, unless the context otherwise requires:
(1) “Advertise” or “advertisement” means any message in any printed materials or electronic media used in the marketing and messaging of river outfitter operations.
(1.4) and (2) Repealed.
(3) “Guide” means any individual, including but not limited to subcontractors, employed for compensation by any river outfitter for the purpose of operating vessels.
(4) “Guide instructor” means any qualified guide whose job responsibilities include the training of guides.
(5) “Person” means any individual, sole proprietorship, partnership, corporation, nonprofit corporation or organization as defined in section 13-21-115.5 (3), C.R.S., limited liability company, firm, association, or other legal entity either located within or outside of this state.
(5.5) (a) “Regulated trip” means any river trip for which river-running services are provided which has been the subject of an advertisement or for which a fee has been charged regardless of whether such fee is:
(I) Charged exclusively for the river trip or as part of a packaged trip, recreational excursion, or camp; or
(II) Calculated to monetarily profit the river outfitter or is calculated merely to offset some or all of the actual costs of the river trip.
(b) “Regulated trip” does not include a trip in which a person is providing river-running services exclusively for family or friends as part of a social gathering of such family or friends.
(6) “River outfitter” means any person advertising to provide or providing river-running services in the nature of facilities, guide services, or transportation for the purpose of river-running; except that “river outfitter” does not include any person whose only service is providing motor vehicles, vessels, and other equipment for rent, any person whose only service is providing instruction in canoeing or kayaking skills, or any person who is providing river-running services exclusively for family or friends.
(7) “Trip leader” means any guide whose job responsibilities include being placed in charge of a river trip.
(8) “Vessel” means every description of watercraft used or capable of being used as a means of transportation of persons and property on the water, other than single-chambered air-inflated devices or seaplanes.
HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) amended, (4) and (5) R&RE, and (6) to (8) added, pp. 1169, 1170, § § 2, 3, effective October 1.L. 94: (1), (5), and (6) amended and (1.4) and (5.5) added, p. 1227, § 2, effective July 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1641, § 4, effective August 11.L. 2012: (1.4) and (2) repealed, (HB 12-1317), ch. 248, p. 1229, § 70, effective June 4.
33-32-103. Powers and duties of the commission – rules
The commission shall promulgate rules to govern the licensing of river outfitters, to regulate river outfitters, guides, trip leaders, and guide instructors, to ensure the safety of associated river-running activities, to establish guidelines to enable a river outfitter, guide, or trip leader to make a determination that the condition of the river constitutes a hazard to the life and safety of certain persons, and to carry out the purposes of this article. The commission may promulgate rules specifically outlining the procedures to be followed by the commission and by the enforcement section of the division in the event of a death or serious injury during a regulated trip. The commission shall e-mail a notice of every proposed rule to each licensee. The commission shall adopt rules regarding notification to outfitters of certain division personnel changes within ten days of the change and safety training standards and customer and outfitter interaction training standards for division rangers who monitor regulated trips.
HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section amended, p. 1170, § 4, effective October 1.L. 94: Entire section amended, p. 1228, § 3, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1641, § 5, effective August 11.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 71, effective June 4.
33-32-103.5. Variances
The director may grant variances from rules adopted by the commission pursuant to section 33-32-103 to any river outfitter on a case-by-case basis if the director determines that the health, safety, and welfare of the general public will not be endangered by the issuance of such variance.
HISTORY: Source: L. 94: Entire section added, p. 1228, § 4, effective July 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 72, effective June 4.
33-32-104. License required – fee
(1) No person shall act in the capacity of a paid river outfitter or advertise or represent himself or herself as a river outfitter in this state without first obtaining a river outfitter’s license in accordance with rules prescribed by the commission.
(2) An applicant for a river outfitter’s license shall meet the minimum qualifications pursuant to section 33-32-105 and shall apply on a form prescribed by the commission. All applicants shall pay a nonrefundable license fee in an amount determined by the commission, which fee shall be adequate to cover the expenses incurred for inspections, licensing, and enforcement required by this article, and shall renew such license pursuant to a schedule adopted by the commission upon payment of the fee. License terms shall not exceed three years. The commission may offer licenses that differ in the length of their terms and may stagger the length of license terms so that approximately equal numbers of licensees renew their licenses each year.
(3) Every river outfitter’s license shall, at all times, be conspicuously placed on the premises set forth in the license.
HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) added, p. 1170, § 5, effective October 1.L. 2010: (1) and (2) amended, (HB 10-1221), ch. 353, p. 1641, § 6, effective August 11.L. 2012: (1) and (2) amended, (HB 12-1317), ch. 248, p. 1230, § 73, effective June 4.
33-32-105. Minimum qualifications and conditions for a river outfitter’s license
(1) A river outfitter’s license may be granted to any river outfitter, either within or without this state, meeting the following minimum qualifications and conditions:
(a) The river outfitter, if a corporation, shall be incorporated pursuant to the laws of this state or duly qualified to do business in this state.
(b) The river outfitter shall submit to the commission evidence of liability insurance in the minimum amount of three hundred thousand dollars’ combined single limit for property damage and bodily injury.
(c) The river outfitter shall meet the safety standards for river-running established by the commission by regulation.
HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section R&RE, p. 1170, § 6, effective October 1.L. 2012: (1)(b) and (1)(c) amended, (HB 12-1317), ch. 248, p. 1230, § 74, effective June 4.
33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors
(1) Individuals providing the services of guides, trip leaders, or guide instructors shall have the following minimum qualifications and such additional qualifications as the commission may establish by rule:
(a) Guides shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have fifty hours of training on the river as a guide from a qualified guide instructor.
(b) Trip leaders shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least five hundred river miles, of which at least two hundred fifty river miles shall have been logged while acting as a qualified guide and no more than two hundred fifty river miles shall have been logged while acting as a guide on nonregulated trips. Miles from nonregulated trips shall be documented and signed by the trip leader under penalty of perjury, and the licensee shall retain the documents during the term of the trip leader’s employment.
(c) Guide instructors shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least fifteen hundred river miles, of which at least seven hundred fifty river miles shall have been logged while acting as a qualified guide.
(2) (Deleted by amendment, L. 2010, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11, 2010.)
HISTORY: Source: L. 88: Entire section added, p. 1171, § 7, effective October 1.L. 94: Entire section amended, p. 1228, § 5, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11.L. 2012: IP(1) amended, (HB 12-1317), ch. 248, p. 1230, § 75, effective June 4.
33-32-106. Equipment required – employees required to meet minimum qualifications
(1) All licensed river outfitters shall provide the river-outfitting equipment required by rules promulgated by the commission, and said equipment shall be in a serviceable condition for its operation as required by the rules promulgated by the commission.
(2) All river outfitters who employ or contract with guides, trip leaders, or guide instructors shall employ or contract only with such individuals who meet the qualifications provided in section 33-32-105.5 (1) and provided by those rules promulgated by the commission.
HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 88: Entire section amended, p. 1171, § 8, effective October 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1230, § 76, effective June 4.
33-32-107. River outfitters – prohibited operations – penalties
(1) (a) No river outfitter shall operate a river-outfitting business without a valid license as prescribed by section 33-32-104 or without insurance as provided in section 33-32-105 (1) (b). Any river outfitter that violates this paragraph (a):
(I) Commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.;
(II) Is liable for an administrative penalty of five times the annual licensing fee established pursuant to section 33-32-104 (2).
(b) If the river outfitter is a corporation, violation of this subsection (1) shall result in the officers of said corporation jointly and severally committing a class 2 misdemeanor, and said officers shall be punished as provided in section 18-1.3-501, C.R.S.
(2) It is unlawful for any river outfitter, guide, trip leader, or guide instructor to:
(a) Violate the safety equipment provisions of section 33-13-106. Any person who violates the provisions of this paragraph (a) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars; except that any person who fails to have one personal flotation device for each person on board as required by section 33-13-106 (3) (a) commits a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.
(b) 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. Any person who violates the provisions of this paragraph (b) is guilty of a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.
(c) Operate a vessel with wanton or willful disregard for the safety of persons or property. Any person who violates the provisions of this paragraph (c) is guilty of a class 2 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.
(3) (Deleted by amendment, L. 94, p. 1229, § 6, effective July 1, 1994.)
(4) (a) No river outfitter or guide shall operate or maintain physical control of or allow any other person to operate or maintain physical control of a vessel on a regulated trip if such river outfitter, guide, or person is under the influence of alcohol or any controlled substance or any combination thereof, as specified in section 33-13-108.1.
(b) Any person who violates this subsection (4) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9; (2)(a) amended, p. 1125, § 46, effective June 7.L. 88: (1), IP(2), and (3) amended, p. 1171, § 9, effective October 1.L. 94: (3) amended and (4) added, p. 1229, § 6, effective July 1.L. 97: (2)(a) amended, p. 1607, § 7, effective June 4.L. 2002: (1), (2), and (4)(b) amended, p. 1545, § 299, effective October 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1642, § 8, effective August 11.
Cross references: For the legislative declaration contained in the 2002 act amending subsections (1), (2), and (4)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
Law reviews. For comment, “The Public Trust Doctrine — A Tool for Expanding Recreational Rafting Rights in Colorado”, see 57 U. Colo. L. Rev. 625 (1986).
33-32-108. Enforcement
(1) (a) Every peace officer, as defined in this section, has the authority to enforce the provisions of this article and in the exercise of such authority is authorized to stop and board any vessel.
(b) As used in this section, “peace officer” means any division of parks and wildlife officer or any sheriff or city and county law enforcement officer certified by the peace officers standards and training board pursuant to part 3 of article 31 of title 24, C.R.S.
(2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any.
(b) Pursuant to paragraph (a) of this subsection (2), any expenses incurred by governmental entities stemming from search and rescue efforts that are reimbursed by a river outfitter shall be distributed as follows:
(I) If to local law enforcement agencies, on a pro rata basis in proportion to the amount of assistance rendered thereby;
(II) If to the division of parks and wildlife, one-half of the moneys shall be credited to the parks and outdoor recreation cash fund, created in section 33-10-111, and one-half shall be credited to the wildlife cash fund, created in section 33-1-112.
(III) (Deleted by amendment, L. 2011, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1, 2011.)
(3) (a) (I) If an authorized representative of the division conducts an inspection or investigation and determines that any provision of this article or any regulation promulgated pursuant to this article has been violated and that such violation creates or may create an emergency condition which may have a significant adverse effect on the health, safety, or welfare of any person, then such authorized representative shall immediately issue an order to the violating party to cease and desist the violating activity.
(II) Any order issued pursuant to this paragraph (a) shall set forth:
(A) The section of this article or the regulation promulgated pursuant to this article allegedly violated;
(B) The factual basis for the allegation of a violation; and
(C) A mandate that all violating activities cease immediately.
(III) (A) The recipient of any cease and desist order issued pursuant to this paragraph (a) may request a hearing to determine whether a violation of this article or of any regulation promulgated pursuant to this article has actually occurred if such request is made in writing within thirty days after the date of the service of the cease and desist order.
(B) Any hearing conducted pursuant to this subparagraph (III) shall be in accordance with article 4 of title 24, C.R.S.
(b) If a person fails to comply with a cease and desist order issued pursuant to paragraph (a) of this subsection (3), the director may request the attorney general or the district attorney for the judicial district in which the alleged violation occurred to bring an action for a temporary restraining order and for injunctive relief to enforce such cease and desist order.
(c) No stay of a cease and desist order may be issued until a hearing at which all parties are present has been held.
HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 94: Entire section amended, p. 1229, § 7, effective July 1.L. 2011: (1)(b), IP(2)(b), (2)(b)(II), and (2)(b)(III) amended, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1.L. 2012: (1)(b) amended, (HB 12-1283), ch. 240, p. 1136, § 54, effective July 1.
Cross references: For the legislative declaration in the 2012 act amending subsection (1)(b), see section 1 of chapter 240, Session Laws of Colorado 2012.
33-32-109. Denial, suspension, or revocation of license – disciplinary actions
(1) The commission may deny, suspend, or revoke a river outfitter license, place a licensed river outfitter on probation, or issue a letter of admonition to a licensed river outfitter if the applicant or holder:
(a) Violates section 33-32-105 or 33-32-106 or uses fraud, misrepresentation, or deceit in applying for or attempting to apply for licensure;
(b) Unlawfully acts as a river outfitter if such violation results in a conviction;
(c) Advertises as a river outfitter in this state without first obtaining a river outfitter license;
(d) Violates any provision of law regulating the practice of river outfitting in another jurisdiction if such violation resulted in disciplinary action against the applicant or holder. Evidence of such disciplinary action shall be prima facie evidence for the possible denial of a license or other disciplinary action in this state if the violation resulting in the disciplinary action in such other jurisdiction would be grounds for disciplinary action in this state.
(e) Violates section 18-4-503 or 18-4-504, C.R.S., resulting in two or more second or third degree criminal trespass convictions within any three- to five-year period while acting as a river outfitter or guide; except that the commission shall be governed by section 24-5-101, C.R.S., when considering any such conviction;
(f) Violates section 33-32-105.5 (1) by employing any person as a guide who fails to meet the requirements of such section; or
(g) Violates any order of the division or commission or any other provision of this article or any rules promulgated under this article.
(2) A plea of nolo contendere or a deferred prosecution shall be considered a violation for the purposes of this section.
(3) (a) Any proceeding to deny, suspend, or revoke a license granted under this article or to place a licensee on probation shall be pursuant to sections 24-4-104 and 24-4-105, C.R.S. Such proceeding may be conducted by an administrative law judge designated pursuant to part 10 of article 30 of title 24, C.R.S.
(b) Any proceeding conducted pursuant to this subsection (3) shall be deemed final for purposes of judicial review. Any appeal of any such proceeding shall be made to the court of appeals pursuant to section 24-4-106 (11), C.R.S.
(4) The commission may deny an application for a river outfitter license or a renewal of a river outfitter’s license if the applicant does not meet the requirements specified in section 33-32-105 or 33-32-106.
HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 1172, § 10, effective October 1.L. 94: Entire section amended, p. 1230, § 8, effective July 1.L. 2012: IP(1), (1)(e), (1)(g), and (4) amended, (HB 12-1317), ch. 248, p. 1231, § 77, effective June 4.
33-32-110. Advisory committee – repeal
(1) The commission shall appoint a river outfitter advisory committee, consisting of two river outfitters and one representative of the division. The committee shall review and make recommendations concerning rules promulgated and proposed pursuant to this article.
(2) (a) This section is repealed, effective July 1, 2019.
(b) Prior to its repeal, the advisory committee shall be reviewed as provided for in section 2-3-1203, C.R.S.
HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 86: Entire section amended, p. 423, § 54, effective March 26.L. 88: (2)(a) amended, p. 1172, § 11, effective October 1.L. 89: Entire section repealed, p. 1147, § 3, effective April 6.L. 94: Entire section RC&RE, p. 1232, § 9, effective July 1.L. 2000: Entire section repealed, p. 185, § 2, effective July 1.L. 2010: Entire section RC&RE, (HB 10-1221), ch. 353, p. 1643, § 9, effective August 11.L. 2012: (1) amended, (HB 12-1317), ch. 248, p. 1231, § 78, effective June 4.
33-32-111. Fees – river outfitters cash fund
All fees collected under this article shall be transmitted to the state treasurer who shall credit the same to the river outfitters cash fund, which fund is hereby created. The general assembly shall make annual appropriations from such fund for the direct and indirect costs of administration of this article.
HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 94: Entire section amended, p. 1232, § 10, effective July 1.
33-32-112. Repeal of article
This article and the licensing function of the division are repealed, effective September 1, 2019. Prior to such termination, the licensing function shall be reviewed as provided for in section 24-34-104, C.R.S.
HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 931, § 20, effective April 28; entire section amended p. 1172, § 12, effective October 1.L. 94: Entire section amended, p. 1232, § 11, effective July 1.L. 2004: Entire section amended, p. 297, § 3, effective August 4.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1640, § 3, effective August 11.
Editor’s note: Amendments to this section by House Bill 88-1036 and House Bill 88-1138 were harmonized.
No written signature on the release so there is no release, even though the plaintiff acknowledged she would have signed one.
Posted: August 31, 2015 Filed under: Colorado, Release (pre-injury contract not to sue) | Tags: All Terrain Vehicle, ATV, Hiking, Jeep Tours, Meeting of the Minds, Mtn. Bike, Nova Guides, Release Leave a commentA contract requires a meeting of the minds and the agreement to contract. Even though the defendant proved the plaintiff had the intent, the defendant could not prove their own intent.
Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438
State: Colorado
Plaintiff: Megan Soucy
Defendant: Nova Guides, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the Plaintiff
Year: 2015
Warning, this case is probably not over so any decision, here can be altered, changed or appealed. However, the decision is so interesting it was worth the review.
The case involves an All-Terrain Vehicle (ATV) accident. Normally, engines are outside the scope of these articles. However, the facts surrounding the incident are not at issue or even discussed. The main issue is the defense of release raised by the plaintiff.
The plaintiff, her mother and sister were visiting Colorado. While there the party contracted with the defendant for a jeep tour. During that tour, all three signed a release. Two days later, the parties came back and contracted for an ATV tour. The mother and sister signed the release, but the plaintiff did not.
The release for both activities was identical, in fact, it covered, Jeep Tours, ATV, Mtn. Bike, and Hiking in one document. Dependent upon what activity the person signed up for the appropriate box was checked. For the first tour, the box Jeep Tour was checked. The mother and sisters ATV box was checked for the second tour.
The release in the language even spoke the risks of ATV tours but all in the same sentence as the other tours.
I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles.
However, because the box for the only release the plaintiff signed was for a jeep tour, the court did not by the argument it also applied to the ATV tour.
The interrogatory answers of the plaintiff and her testimony in deposition indicated she knew releases were required, understood them, had signed them in the past and would have signed one if asked for the ATV tour.
Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.
This decision is based on a Motion for Summary judgment filed by the defendant based on “release” which was denied by the court.
Analysis: making sense of the law based on these facts.
Under Colorado law contracts can be formed orally and based on the party’s intent.
Under Colorado law, contractual conditions may be express or implied. When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.
A release is an agreement that follows the rules of interpretation and construction of contracts.
By her acts of paying for and taking the ATV tour after admitting she would have signed a release the court found the necessary intent on the part of the plaintiff.
Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.
However, the reason why the court dismissed the defendant’s motion for summary judgment was the court could not find the same intent on the part of the defendant.
A contract implied in fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement.
Because the defendant could not and did not offer any evidence that it had the same intent as the plaintiff, there was no proof of the intent to contract by the defendant, and the motion was denied.
However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment is denied.
Again, this is not a final decision. The issue can be reargued before or at trial with the defendant showing the intent to contract.
So Now What?
There are several major flaws in this case by the defendant besides not being able to prove the intent to contract. This is a classic case of making your release complicated thinking it will save your butt, and the complications created a nightmare.
The first is the defendant is using a release with check boxes. If the wrong box is checked or not checked, then the release has no value. The same thing could have been accomplished, and the case ended if the boxes were eliminated.
The second is no system to make sure the release is signed by all adults and by adults for all children before the trip starts. The classic example was a rafting company that required participants to hand in their release to receive their PFD. No release, no PFD. No PFD you could not board the bus to go to the put in.
While working for one whitewater rafting company the shop manager realized one person had not signed a release. She ran and caught the bus before it pulled out and asked who had not signed the release. No one said anything. She said OK, everyone off the bus; you can get back on when I call your name. She had every release with her, and the bus was not leaving until everyone had signed.
The non-signer, not pretty sheepish, raised his hand and was handed a release to sign.
Normally, I write releases around activities. You can cover the risks of most paddlesports in one release for kayaking, rafting, stand up paddleboards, etc. Oceans pose different threats than lakes and streams so ocean activities are on a different release.
Here, however, the release combined the risks of human powered and motorized activities. Jeep tours and ATV tours probably run similar risks. However, they also have different state laws applicable to them. Mountain biking has different risks than hiking. Dependent upon the area where the mountain biking occurs and the hiking you might be able to cover the risks in one document.
However, to be on the safe side, I think three different releases should be used. Jeep and ATV tours on one, mountain biking on the second and hiking on the third. It would be easy to track them, having each one printed on a separate color of paper. You know based upon the color of the paper on the release what the customers are expecting and where they should be going.
Don’t make your release complicated in an attempt to make it work, or make it cover too much. This is one instance where killing a few more trees to write the release may save a hundred trees in defending a lawsuit.
What do you think? Leave a comment.
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Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438
Posted: August 30, 2015 Filed under: Colorado, Legal Case, Release (pre-injury contract not to sue) | Tags: All Terrain Vehicle, ATV, Hiking, Jeep Tours, Meeting of the Minds, Mtn. Bike, Nova Guides, Release Leave a commentSoucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438
Megan Soucy, Plaintiff, v. Nova Guides, Inc., Defendant.
Civil Action No. 14-cv-01766-MEH
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2015 U.S. Dist. LEXIS 95438
July 20, 2015, Decided
July 20, 2015, Filed
COUNSEL: [*1] For Megan Soucy, Plaintiff: Gregory A. Gold, Sommer D. Luther, LEAD ATTORNEYS, Gold Law Firm, L.L.C, The, Greenwood Village, CO; Joel Stuart Rosen, Cohen Placitella & Roth, Philadelphia, PA.
For Nova Guides, Inc., Defendant: David James Nowak, Tracy Lynn Zuckett , White & Steele, P.C., Denver, CO.
JUDGES: Michael E. Hegarty, United States Magistrate Judge.
OPINION BY: Michael E. Hegarty
OPINION
ORDER ON MOTION FOR SUMMARY JUDGMENT
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18]. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court denies the Defendant’s motion.1
1 On September 8, 2014, the parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c).
BACKGROUND
I. Procedural History
Plaintiff Megan Soucy (“Soucy”) initiated this action on June 24, 2014, alleging essentially that Defendant Nova Guides, Inc. (“Nova”) was negligent in causing her injuries when the all-terrain vehicle (“ATV”) she was driving overturned during a trail ride. Complaint, docket #1. In response to the Complaint, Nova filed [*2] an Answer asserting 13 affirmative defenses, including “Plaintiff’s claims may be barred or limited by contracts entered into by the parties.” Answer, docket #7.
Thereafter, the Court held a Scheduling Conference on September 22, 2014 at which the Court set deadlines for discovery and the filing of dispositive motions. Dockets ## 12, 13. Discovery progressed and, well before the deadline, Nova filed the present motion for summary judgment arguing no triable issues exist as to whether Soucy contractually waived her claims in this action. See docket #18. Specifically, Nova contends that its Waiver of Liability is valid pursuant to Colorado law and the waiver is enforceable despite lacking Plaintiff’s signature. Id.
Soucy counters that she was never presented with nor signed a Waiver of Liability before the July 11, 2012 tour during which she was injured. She argues that the July 9, 2012 waiver she signed before a Jeep tour did not apply to the July 11 ATV tour, since only the Jeep tour was referenced in the July 9 waiver. She further asserts that any release that may be construed as signed on her behalf by her mother is unenforceable. Finally, Soucy contends that any evidence of her intent [*3] is factually and legally irrelevant.
Nova replies arguing that Soucy’s own testimony demonstrates she intended to be bound by the Waiver of Liability, despite its lack of her signature.
II. Findings of Fact
The Court makes the following findings of fact viewed in the light most favorable to Soucy, who is the non-moving party in this matter.
1. While vacationing in Vail, Colorado in July 2012, Soucy, her mother, and her sisters participated in a jeep tour on July 9, 2012 and an ATV tour on July 11, 2012, both guided by Ben Hilley of Nova Guides, Inc. Deposition of Megan Soucy, April 6, 2015 (“Soucy Depo”), 97: 20-25; 129: 12 – 130: 16, docket #19-1.
2. Soucy was 20 years old in July 2012. Id., 136: 23 – 137: 4.
3. Based on her past experience, Soucy understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “safari trip” (also referred to as the “Jeep tour”). Id., 143: 13-20; 145: 16-20.
4. Prior to participating in the Jeep tour on July 9, 2012, Soucy signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “Jeep tour” as the type of tour selected (the other options are “ATV,” “Mtn. Bike,” and “Hiking”). Id., 144: [*4] 4-145: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 9, 2012, docket #19-2.
5. Nova’s Waiver of Liability includes the following language:
PARTICIPANT’S AGREEMENT TO ASSUME THE RISKS OF PERSONAL INJURY AND PROPERTY DAMAGE ASSOCIATED WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, AND JEEP TOURS AND TO RELEASE NOVA GUIDES, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, THE U.S. FOREST SERVICE, AND THE U.S. GOVERNMENT FROM ANY AND ALL LIABILITY IN CONNECTION WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HUMMER AND JEEP TOURING ACTIVITIES.
*THIS IS A RELEASE OF LIABILITY. PLEASE READ BEFORE SIGNING. DO NOT SIGN OR INITIAL THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.
1. I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. … I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles. I understand that accidents or illness can occur in remote places without medical facilities. … I understand that route or activity, chosen as a part of our outdoor [*5] adventure may not be the safest, but has been chosen for its interest. I UNDERSTAND THAT THE ACTIVITIES OF MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, JEEP TOURING, like all outdoor activities involve the risk of contact with wild animals, falls, equipment failure, collisions and/or contact with manmade or natural objects and other riders and drivers which can result in personal injury, property damage and death.
2. I expressly assume all risk of personal injury, death, and property damage set forth in paragraph 1 above which may result from my participation and my minor children’s participation in mountain biking, all terrain vehicle riding, hiking, and jeep touring and waive any claims based on negligence or breach of warranty I might assert on my own behalf or on behalf of my minor children against Nova Guides, Inc., its officers, directors, agents and employees, the U.S. Forest Service, and the U.S. Government for personal injuries, death, and/or property damage sustained while participating in mountain biking activities, all terrain vehicle riding, hummer and jeep touring with Nova Guides, Inc.
Nova Guides Lease Agreement and Waiver of Liability, docket #19-2.
6. Soucy recognized [*6] that operating an ATV involves a risk of injury. Id.; see also Soucy Depo, 154: 8-13.
7. Prior to Soucy’s and her family’s participation in the ATV tour on July 11, 2012, Soucy’s mother, Susan Pesot, completed and signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “ATV” as the type of tour selected. Deposition of Susan Pesot, April 7, 2015 (“Pesot Depo”), 92: 2 – 93: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 11, 2012, docket #19-3.
8. Soucy did not sign the July 11, 2012 Waiver of Liability. Id.
9. Pesot signed the waiver only on behalf of herself and her two minor children (Soucy’s sisters). Pesot Depo, 92: 12-17. She listed Soucy and Soucy’s other sister as participants on the ATV tour “because Ben told [her] to write down all the people who will be driving the vehicles.” Id., 93: 2-13.
10. Pesot did not sign the waiver on behalf of Soucy, who was not a minor, nor asked Soucy to sign the waiver because “that was not [her] responsibility to have [Soucy] sign it.” Id., 92: 12-25, 93: 1.
11. Also, Hilley did not ask Soucy to sign the waiver; however, Soucy would have signed the Waiver of Liability completed by Pesot on July 11, [*7] 2012, had it been presented to her by Hilley or Pesot and she were asked specifically to sign it. Soucy Depo, 215: 4-8 and 217: 7-15.
12. Soucy thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012. Id., 144: 4 – 145:14.
13. Soucy participated in the ATV tour on July 11, 2012. Id., 171: 17-21.
LEGAL STANDARDS
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence [*8] may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” [*9] Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
ANALYSIS
Here, it is undisputed that Soucy did not sign a form waiver of liability for the ATV tour guided by Nova on July 11, 2012. According to Soucy, that is the end of the story. However, Nova argues the lack of a signature on a written agreement “is not always necessary to create a binding agreement.” Motion, docket #18 at 10. Nova contends that Colorado law allows consideration of the parties’ intent in the formation of a contract. Id. Soucy counters that extrinsic evidence, such as the parties’ intent, “is not admissible in a case where the court properly determines as a matter of law that an agreement is unambiguous.” Response, docket #19 at 17. Soucy argues alternatively that, “whether the parties have entered a contract is a question of fact.” Id. at 18.
The Court finds that, because Soucy does not challenge the validity and enforceability of Nova’s waiver of liability, the question is not whether terms of a formal contract are ambiguous (since no formal contract exists between Soucy and Nova from July 11, 2012), but whether an agreement between Soucy and Nova was formed on July 11, 2012 before Soucy was injured on the tour.
Under Colorado law, contractual conditions may be express [*10] or implied. Lane v. Urgitus, 145 P.3d 672, 679 (Colo. 2006) (determining whether an agreement to arbitrate existed between the parties) (citing Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)). When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.” Id. (quoting Eisenhart v. Denver, 27 Colo. App. 470, 478, 150 P. 729, (1915), aff’d, 64 Colo. 141, 170 P. 1179 (1918)). “In contractual settings, [courts] can look to the circumstances surrounding the contract’s formation in construing the contract, in order to carry out the intent of the contracting parties.” Id. (citing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)); see also James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo. App. 1994) (“Generally, whether a contract exists is a question of fact to be determined by all of the surrounding circumstances.”).
Whether the parties to an oral agreement become bound prior to the drafting and execution of a contemplated formal writing is a question largely of intent on their part. Mohler v. Park Cnty. Sch. Dist. RE-2, 32 Colo. App. 388, 515 P.2d 112, 114 (Colo. App. 1973). “That intent can be inferred from their actions and may be determined by their conduct prior to the time the controversy arose.” Id. (citing Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76 (Colo. 1960)); see also Moore, 892 P.2d at 372.
“A release [of liability] is an agreement to which the general rules of interpretation and construction apply.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 878 (10th Cir. 2013). In Squires, the court analyzed extrinsic evidence including a letter and the plaintiff’s statements of belief to determine whether a waiver of liability was [*11] procured through fraudulent inducement. Id. at 878-79.
Here, in response to questions by Nova’s counsel, Soucy testified during her deposition that:
o Based on her past experience, she understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “Jeep tour”;
o Prior to participating in the Jeep tour on July 9, 2012, she signed a Nova Guides Lease Agreement and Waiver of Liability;
o She recognized that operating an ATV involves a risk of injury;
o She did not sign an identical form Waiver of Liability prior to participating in the ATV tour on July 11, 2012;
o She would have signed the Waiver of Liability completed by her mother on July 11, 2012, had it been presented to her by Hilley or her mother and she were asked specifically to sign it; and
o She thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012.
While Soucy’s counsel asked her questions during the deposition, his questions did not concern any waiver of liability. Soucy Depo, 254: 9 – 255: 17. In addition, Soucy did not provide an affidavit or other testimony in response to the present motion. Nova argues that [*12] “the clear, undisputed evidence from plaintiff’s own testimony is that she intended to assent and be bound by Nova Guide’s Waiver of Liability when she participated in the July 11, 2012 ATV tour.” Reply, docket #22 at 5. The Court must agree.
At her deposition, Soucy confirmed not only that she understood the concept of a waiver of liability, but also that she was familiar with such a document, as she had executed waivers in the past.
Q. Are you familiar with the concept of a waiver of liability?
A. Yes.
Q. Have you executed those type of documents in certain situations where you wanted to do an activity and it required a waiver?
A. Yes, yes.
Soucy Depo, 125: 1-7. Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. Id., 215: 4-8 and 217: 7-15. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.
Q. — did you understand before engaging in an activity such as ATV’ing, that you would typically execute a waiver of liability?
…
THE WITNESS: Yes.
Q. So that’s [*13] something you were familiar with. Did you at the time think that that was the document that he gave your mother?
…
A. I think, actually, the day before, when we got on that thing, Melissa and I filled something out.
Q. So you think that when you kind of took the safari trip —
A. Right.
Q. — where you were in a vehicle, that you actually filled something out?
A. We may have, yeah.
Q. You, yourself, as opposed to your mother?
A. Yes.
Q. Did you read it?
A. I don’t remember.
Q. Do you remember what it was or what it said?
A. No.
Q. And when you say “we,” do you mean you and all your sisters?
A. Melissa and I, separate from my mom.
Q. Did your mother also execute a document on the safari trip?
A. I believe so.
Q. And did Mr. Hilley, on the safari trip, explain what you were executing?
A. I don’t remember.
Q. Did you at the time think it was a waiver of liability?
A. Yeah. I think– and that’s why when we were in the car the next day, I just thought that kind of carried over or something.
Q. So when you were in the bus, going to do the ATV tour, you thought that what you had signed the day before carried over?
…
THE WITNESS: Right.
…
Q. But you generally understood that with respect to these type of activities, [*14] you did need to execute a waiver of liability?
…
THE WITNESS: Yes.
Soucy Depo, 143: 16 – 145: 20. Importantly, Soucy then participated in the ATV tour on July 11, 2012, which presumes that Soucy paid the required fee and Nova performed the requested service of guiding the tour. Soucy’s testimony does not appear to be vague. She assents to the proposition that she believed a waiver of liability she actually signed relating to one activity applied to another activity as well. She does not attempt to contradict that sworn testimony, so it was uncontroverted.
Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.
However, an agreement requires intent to be bound by all parties. “A contract implied in [*15] fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” Winter v. Indus. Claim Appeals Office, 321 P.3d 609, 614, 2013 COA 126 (Colo. App. 2013) (citations omitted) (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement. Under the circumstances presented here, the Court will not infer such intention. See Celotex Corp., 477 U.S. at 323 (the moving party bears the initial responsibility of providing to the court the factual basis for its motion).
Accordingly, a genuine issue of material fact exists as to whether an agreement was formed by both parties on July 11, 2012 before Soucy participated in the ATV tour and, thus, summary judgment is [*16] improper.
CONCLUSION
Soucy’s deposition testimony reflects her conduct, beliefs and intent regarding whether she agreed to waive Nova’s liability for any negligence claims resulting from the ATV tour on July 11, 2012. No genuine issues of material fact arise from this testimony or any other evidence provided by Soucy as to whether her assent to such agreement existed. The Court must conclude, then, that the evidence demonstrates Soucy’s agreement to waive Nova’s liability for the injuries she suffered on July 11, 2012.
However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18] is denied.
Entered and dated at Denver, Colorado, this 20th day of July, 2015.
BY THE COURT:
/s/ Michael E. Hegarty
Michael E. Hegarty
United States Magistrate Judge
Need an Internship: Audubon Society of Greater Denver has two in the Education Programs this Fall
Posted: August 6, 2015 Filed under: Colorado Leave a commentThe Audubon Society of Greater Denver is looking for two creative and energetic interns to assist with our education programs this fall!
These for-credit internship positions start in August/September 2015—December 2015 with possible winter/summer extensions. Candidates must be currently attending college/university and pursuing or holding a degree in education, environmental sciences, biology, geology, or related fields.
Please see attached document for details. Applications are due by August 28, 2015.
Please share far & wide with those who might be interested! J
Cheers,
Emily
Emily B. Hertz
School Programs Coordinator
9308 S. Wadsworth Blvd.
Littleton, CO 80128
303-973-9530
schoolprograms
Education Internship ASGD 2015-16.pdf
Summer 2015 Commercial Fatalities
Posted: June 10, 2015 Filed under: Colorado, Montana Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of June 1, 2015. Thanks.
Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues unrelated to the activity
Dark blue is a death of an employee while working
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Date |
Activity |
State |
Location |
What |
Age |
Sex |
Location 2 |
Reference |
Company |
|
3/2 |
Backcountry Skiing |
AK |
Chugach Mountains |
Calving Glacier |
28 |
M |
|
Chugach Powder Guides |
|
|
5/23 |
Whitewater Rafting |
CO |
Clear Creek |
Raft Flipped |
47 |
F |
M258.5 |
All American Adventures |
|
|
5/31 |
Whitewater Rafting |
MT |
Gallatin River |
Raft Flipped |
43 |
M |
House Rock |
Geyser Whitewater Expedition |
If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
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Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition,
Colorado has a new Epinephrine law allowing most outdoor programs the ability to stock and administer epinephrine without criminal liability
Posted: May 27, 2015 Filed under: Colorado, First Aid, Medical | Tags: Colorado, Epinephrine, Good Samaritan, Immunity Leave a comment
That means recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, ski areas, and sports arenas can carry epinephrine.
NOTE: The governor signed this measure on 5/14/2015.
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|
HOUSE BILL 15-1232
BY REPRESENTATIVE(S) Ginal and Landgraf, Buckner, Esgar, Fields, Mitsch Bush, Pettersen, Primavera, Rosenthal, Ryden, Salazar, Tyler, Vigil, Williams, Young, Hullinghorst; also SENATOR(S) Todd and Martinez Humenik, Kefalas, Kerr, Newell.
CONCERNING THE EMERGENCY USE OF EPINEPHRINE AUTO–INJECTORS BY AUTHORIZED ENTITIES, AND, IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows:
ARTICLE 47 Use of Epinephrine Injectors by Authorized Entities
25-47-101. Definitions. AS USED IN THIS ARTICLE:
(1) “ADMINISTER“ MEANS TO DIRECTLY APPLY AN EPINEPHRINE AUTO–INJECTOR TO THE BODY OF AN INDIVIDUAL.
(2) “AUTHORIZED ENTITY“ MEANS AN ENTITY OR ORGANIZATION, OTHER THAN A SCHOOL DESCRIBED IN SECTION 22-1-119.5, C.R.S., OR A HOSPITAL LICENSED OR CERTIFIED PURSUANT TO SECTION 25-1.5-103 (1) (a)
(I) (A) OR 25-1.5-103 (1) (a) (II), AT WHICH ALLERGENS CAPABLE OF CAUSING ANAPHYLAXIS MAY BE PRESENT. THE TERM INCLUDES BUT IS NOT LIMITED TO RECREATION CAMPS, COLLEGES AND UNIVERSITIES, DAY CARE FACILITIES, YOUTH SPORTS LEAGUES, AMUSEMENT PARKS, RESTAURANTS, PLACES OF EMPLOYMENT, SKI AREAS, AND SPORTS ARENAS.
(3) “EMERGENCY PUBLIC ACCESS STATION“ OR “EPAS” MEANS A LOCKED, SECURE CONTAINER USED TO STORE EPINEPHRINE AUTO–INJECTORS FOR USE UNDER THE GENERAL OVERSIGHT OF A MEDICAL PROFESSIONAL, WHICH ALLOWS A LAY RESCUER TO CONSULT WITH A MEDICAL PROFESSIONAL IN REAL TIME BY AUDIO, TELEVIDEO, OR OTHER SIMILAR MEANS OF ELECTRONIC COMMUNICATION. UPON AUTHORIZATION OF THE CONSULTING MEDICAL PROFESSIONAL, AN EPAS MAY BE UNLOCKED TO MAKE AN EPINEPHRINE AUTO–INJECTOR AVAILABLE.
(4) “EPINEPHRINE AUTO–INJECTOR“ MEANS A SINGLE–USE DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF EPINEPHRINE INTO THE HUMAN BODY.
(5) “HEALTH CARE PRACTITIONER“ MEANS A PERSON AUTHORIZED BY LAW TO PRESCRIBE ANY DRUG OR DEVICE, ACTING WITHIN THE SCOPE OF HIS OR HER AUTHORITY.
(6) “MEDICAL PROFESSIONAL” MEANS A PHYSICIAN OR OTHER PERSON AUTHORIZED BY APPLICABLE LAW TO PRESCRIBE DRUGS IN THIS STATE OR ANOTHER STATE.
(7) “PHARMACIST“ HAS THE MEANING SET FORTH IN SECTION 12-42.5-102 (28), C.R.S.
(8) “PROVIDE“ MEANS TO SUPPLY ONE OR MORE EPINEPHRINE AUTO–INJECTORS TO AN INDIVIDUAL.
25-47-102. Stock supply of epinephrine auto-injectors emergency administration. (1) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY:
(a) Prescribing to an authorized entity permitted. A HEALTH
CARE PRACTITIONER MAY DIRECT THE DISTRIBUTION OF EPINEPHRINE AUTO–INJECTORS FROM AN IN–STATE PRESCRIPTION DRUG OUTLET TO AN AUTHORIZED ENTITY FOR USE IN ACCORDANCE WITH THIS ARTICLE, AND HEALTH CARE PRACTITIONERS MAY DISTRIBUTE EPINEPHRINE AUTO–INJECTORS TO AN AUTHORIZED ENTITY; AND
(b) Authorized entities permitted to maintain supply. AN AUTHORIZED ENTITY MAY ACQUIRE AND STOCK A SUPPLY OF EPINEPHRINE AUTO–INJECTORS PURSUANT TO A PRESCRIPTION ISSUED IN ACCORDANCE WITH THIS SECTION.
(2) EPINEPHRINE AUTO–INJECTORS MUST BE STORED:
(a) IN A LOCATION THAT WILL BE READILY ACCESSIBLE IN AN EMERGENCY;
(b) ACCORDING TO THE APPLICABLE INSTRUCTIONS FOR USE; AND
(c) IN COMPLIANCE WITH ANY ADDITIONAL REQUIREMENTS THAT MAY BE ESTABLISHED BY THE DEPARTMENT OF HEALTH.
(3) AN AUTHORIZED ENTITY SHALL DESIGNATE EMPLOYEES OR AGENTS WHO HAVE COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 TO BE RESPONSIBLE FOR THE STORAGE, MAINTENANCE,CONTROL, AND GENERAL OVERSIGHT OF EPINEPHRINE AUTO–INJECTORS ACQUIRED BY THE AUTHORIZED ENTITY.
25-47-103. Use of epinephrine auto-injectors. (1) AN EMPLOYEE OR AGENT OF AN AUTHORIZED ENTITY OR OTHER INDIVIDUAL WHO HAS COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 MAY USE EPINEPHRINE AUTO–INJECTORS PRESCRIBED PURSUANT TO SECTION 25-47-102 TO PROVIDE OR ADMINISTER AN EPINEPHRINE AUTO–INJECTOR TO ANY INDIVIDUAL WHO THE EMPLOYEE, AGENT, OR OTHER INDIVIDUAL BELIEVES IN GOOD FAITH IS EXPERIENCING ANAPHYLAXIS, REGARDLESS OF WHETHER THE INDIVIDUAL HAS A PRESCRIPTION FOR AN EPINEPHRINE AUTO–INJECTOR OR HAS PREVIOUSLY BEEN DIAGNOSED WITH AN ALLERGY, OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL; AND
(2) THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR IN ACCORDANCE WITH THIS SECTION IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.
25-47-104. Training. (1) AN EMPLOYEE, AGENT, OR OTHER INDIVIDUAL MUST COMPLETE AN ANAPHYLAXIS TRAINING PROGRAM BEFORE USING AN EPINEPHRINE AUTO–INJECTOR. THE TRAINING MUST BE CONDUCTED BY A NATIONALLY RECOGNIZED ORGANIZATION EXPERIENCED IN TRAINING LAYPERSONS IN EMERGENCY HEALTH TREATMENT OR BY AN INDIVIDUAL OR ENTITY APPROVED BY THE DEPARTMENT OF HEALTH. THE DEPARTMENT OF HEALTH MAY APPROVE SPECIFIC ENTITIES OR INDIVIDUALS TO CONDUCT TRAINING OR MAY APPROVE SPECIFIC CLASSES BY INDIVIDUALS OR ENTITIES. THE TRAINING MAY BE CONDUCTED ON–LINE OR IN–PERSON AND, AT A MINIMUM, MUST COVER:
(a) HOW TO RECOGNIZE THE SIGNS AND SYMPTOMS OF SEVERE ALLERGIC REACTIONS, INCLUDING ANAPHYLAXIS;
(b) THE STANDARDS AND PROCEDURES FOR THE STORAGE AND ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR; AND
(c) EMERGENCY FOLLOW–UP PROCEDURES.
(2) THE INDIVIDUAL OR ENTITY THAT CONDUCTS THE ANAPHYLAXIS TRAINING PROGRAM SHALL ISSUE A CERTIFICATE, ON A FORM DEVELOPED OR APPROVED BY THE DEPARTMENT OF HEALTH, TO EACH PERSON WHO SUCCESSFULLY COMPLETES THE ANAPHYLAXIS TRAINING PROGRAM.
25-47-105. Reporting. AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS SHALL SUBMIT TO THE DEPARTMENT OF HEALTH, ON A FORM DEVELOPED BY THE DEPARTMENT OF HEALTH, A REPORT OF EACH INCIDENT ON THE AUTHORIZED ENTITY‘S PREMISES THAT INVOLVES THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR PURSUANT TO SECTION 25-47-103. THE DEPARTMENT OF HEALTH SHALL ANNUALLY PUBLISH A REPORT THAT SUMMARIZES AND ANALYZES ALL REPORTS SUBMITTED TO IT UNDER THIS SECTION.
25-47-106. Emergency public access stations – life-saving allergy medication. (1) NOTWITHSTANDING ANY LAW TO THE CONTRARY:
(a) A MEDICAL PROFESSIONAL MAY PRESCRIBE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS TO ANY AUTHORIZED ENTITY FOR STORAGE IN AN EPAS, AND MAY PLACE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS IN AN EPAS MAINTAINED BY AN AUTHORIZED ENTITY;
(b) A MEDICAL PROFESSIONAL MAY CONSULT THE USER OF AN EPAS AND MAKE THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; AND
(c) ANY PERSON MAY USE AN EPAS TO ADMINISTER OR PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO AN INDIVIDUAL BELIEVED IN GOOD FAITH TO BE EXPERIENCING ANAPHYLAXIS OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL.
(2) THE USE OF AN EPAS IN ACCORDANCE WITH THIS ARTICLE IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.
25-47-107. Good samaritan protections – liability. (1) THE FOLLOWING INDIVIDUALS AND ENTITIES ARE IMMUNE FROM CRIMINAL LIABILITY AND FROM SUIT IN ANY CIVIL ACTION BROUGHT BY ANY PERSON FOR INJURIES OR RELATED DAMAGES THAT RESULT FROM AN ACT OR OMISSION TAKEN PURSUANT TO THIS ARTICLE:
(a) AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;
(b) AN AUTHORIZED ENTITY THAT DOES NOT POSSESS OR MAKE AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;
(c) AN INDIVIDUAL OR ENTITY THAT CONDUCTS AN ANAPHYLAXIS TRAINING PROGRAM;
(d) AN INDIVIDUAL WHO PRESCRIBES OR DISPENSES AN EPINEPHRINE AUTO–INJECTOR;
(e) AN INDIVIDUAL WHO ADMINISTERS OR PROVIDES AN EPINEPHRINE AUTO–INJECTOR;
(f) A MEDICAL PROFESSIONAL WHO CONSULTS THE USER OF AN EPAS AND MAKES THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; OR
(g) AN INDIVIDUAL WHO USES AN EPAS.
(2) IMMUNITY UNDER SUBSECTION (1) OF THIS SECTION DOES NOT APPLY TO ACTS OR OMISSIONS THAT ARE GROSSLY NEGLIGENT OR WILLFUL AND WANTON.
(3) THIS SECTION DOES NOT ELIMINATE, LIMIT, OR REDUCE ANY OTHER IMMUNITY OR DEFENSE THAT MAY BE AVAILABLE UNDER STATE LAW, INCLUDING THE PROTECTIONS SET FORTH IN SECTION 13-21-108, C.R.S. PROVIDING OR ADMINISTERING AN EPINEPHRINE AUTO–INJECTOR BY AN ENTITY OR INDIVIDUAL IS DEEMED EMERGENCY CARE OR EMERGENCY ASSISTANCE FOR PURPOSES OF SECTION 13-21-108, C.R.S.
(4) AN AUTHORIZED ENTITY LOCATED IN THIS STATE THAT PROVIDES OR ADMINISTERS AN EPINEPHRINE AUTO–INJECTOR OUTSIDE OF THIS STATE IS NOT LIABLE FOR ANY RESULTING INJURIES OR RELATED DAMAGES IF THE AUTHORIZED ENTITY:
(a) WOULD NOT BE LIABLE FOR THE INJURIES OR RELATED DAMAGES IF THE EPINEPHRINE AUTO–INJECTOR HAD BEEN PROVIDED OR ADMINISTERED IN THIS STATE; OR
(b) IS NOT LIABLE FOR INJURIES OR RELATED DAMAGES UNDER THE LAW OF THE STATE WHERE THE AUTHORIZED ENTITY PROVIDED OR ADMINISTERED THE EPINEPHRINE AUTO–INJECTOR.
25-47-108. Health care professionals – hospitals – obligations under state and federal law. NOTHING IN THIS ARTICLE LIMITS THE OBLIGATIONS OF A HEALTH CARE PROFESSIONAL OR HOSPITAL UNDER STATE OR FEDERAL LAW IN PRESCRIBING, STORING, OR ADMINISTERING DRUGS OR DEVICES.
SECTION 2. In Colorado Revised Statutes, 12-36-117, amend
(1.8) as follows:
12-36-117. Unprofessional conduct. (1.8) A licensee shall IS not be subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, C.R.S., or for the actions taken by a school nurse or by any designated school personnel who administer epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, C.R.S., OR FOR PRESCRIBING EPINEPHRINE AUTO–INJECTORS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.
SECTION 3. In Colorado Revised Statutes, 12-38-125, add (1) (o) as follows:
12-38-125. Exclusions. (1) No provision of this article shall be construed to prohibit:
(o) A PRESCRIPTION BY AN ADVANCED PRACTICE NURSE WITH PRESCRIPTIVE AUTHORITY FOR THE USE OF EPINEPHRINE AUTO–INJECTORS BY AN AUTHORIZED ENTITY IN ACCORDANCE WITH ARTICLE 47 OF TITLE 25,
C.R.S.
SECTION 4. In Colorado Revised Statutes, 12-42.5-102, amend
(42) (b) (XV) as follows:
12-42.5-102. Definitions. As used in this article, unless the context otherwise requires or the term is otherwise defined in another part of this article:
(42) (b) “Wholesale distribution” does not include:
(XV) The distribution, donation, or sale by a manufacturer or wholesaler of a stock supply of epinephrine auto-injectors to public schools or nonpublic schools for emergency use by designated school personnel in accordance with the requirements of section 22-1-119.5, C.R.S., OR TO OTHER ENTITIES FOR EMERGENCY USE IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.
SECTION 5. Appropriation. For the 2015-16 state fiscal year, $23,736 is appropriated to the department of public health and environment for use by the disease control and environmental epidemiology division.
This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.4 FTE. To implement this act, the division may use this appropriation for costs to implement this act.
SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.
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2015 USA Pro Challenge Route will Attract Great Racers and Great Fans
Posted: April 30, 2015 Filed under: Colorado, Cycling | Tags: #USAProChallenge, Bicycle Racing, Cycling, x, y, z Leave a comment
USA PRO CHALLENGE ANNOUNCES 2015 ROUTE WITH EPIC MOUNTAINTOP FINISH AND ALTITUDE INFUSED TIME TRIAL
New Host Communities Arapahoe Basin and Copper Mountain
Promise to Delight Fans
DENVER (April 28, 2015) – The 2015 USA Pro Challenge swings into action in its fifth year with a new circuit start in Steamboat Springs on Monday, August 17th and then it makes its way through another eight stunning host cities for the race finale in Denver on Sunday, August 23, 2015.
The Rocky Mountains of Colorado serve as home for the USA Pro Challenge, and every year since its inception over a million fans get to witness the world’s best cyclists, iconic routes and lung-piercing climbs of the seven stage event. With the State of Colorado containing 28 of the 50 highest peaks in the United States, it’s no surprise the race is a favorite for the world’s top teams and cyclists.
“Each of our 2015 host cities offers something unique and special to the 5th anniversary of the Pro Challenge,” said Shawn Hunter, CEO of USA Pro Challenge. “We’re confident that this year’s route will provide the most exciting week of racing yet. We have added new cities and a dramatic mountaintop finish that will prove to be a fierce battleground for riders eager to show they have what it takes to compete on a new climb up Loveland Pass.”
The Pro Challenge has grown into the largest spectator event in Colorado history with tremendous crowds enjoying the weeklong race action and event festivities. New additions to this year’s race include: Arapahoe Basin, Loveland Pass, Copper Mountain and a lung buster time-trial in Breckenridge, a new twist for a familiar host city of past races. This year the USA Pro Challenge also pays homage to the inaugural race in 2011 with a repeat of that year’s final stage – from Golden to Denver.
The 2015 USA Pro Challenge race is back with a combination of familiar host cities and new communities added into the mix.
Highlights of the route include:
Stage 1 – Steamboat Springs Circuit – Monday, August 17, 2015
After a brief venture onto the rolling roads of Routt County in 2013, the USA Pro Challenge knew it had to make a return to put on a classic circuit race. The quiet roads offer straights, twists, and a few rather steep surprises. Match that with the fan favorite host city of Steamboat Springs, and you have the makings of a great opening stage. This 49-mile circuit will be completed twice by the peloton, creating great spectator opportunities both in Steamboat Springs and for on course locations like the Rt. 27 KOM climb and the town of Oak Creek. Will Steamboat Springs be treated to another classic sprint finish or will the challenges of Routt County create an opportunity for a surprise first yellow jersey of 2015? Either way, the fans of Steamboat Springs will be treated to quite a show.
Stage 2 – Steamboat Springs to Arapahoe Basin – Tuesday, August 18, 2015
As the Pro Challenge says goodbye to its overall start host, Steamboat Springs, it welcomes a new member to the family with the race’s first visit to Arapahoe Basin. Leaving Steamboat Springs there is little time to settle in before the pros have to tackle Rabbit Ears Pass. From there, this familiar route heads south through Kremmling, around the Green Mtn. Reservoir, and continues through Silverthorne and Dillon. Unlike years past, the 2015 Pro Challenge will then turn east and suffer 5 miles up Loveland Pass to Arapahoe Basin. Look for jerseys to change hands, dreams fulfilled for some, expectations dashed for others, on this new mountain top finish.
Stage 3 – Copper Mountain to Aspen – Wednesday, August 19, 2015
Another new twist on an old favorite, but this time it is the opening that changes. Copper Mountain plays host to its first ever Pro Challenge stage and sends off Stage 3 in style, while familiar terrain and fans await the race on Independence Pass and the run into Aspen.
No rest for the weary this day as the climbing starts right away with the ascent of Freemont Pass, followed by the gorgeous shores of Turquoise Lake and then a quick sprint through Leadville. However that is only the appetizer as the main course awaits on the upper slopes of Independence Pass and then it’s down the breathtaking descent into Aspen where some of the most memorable moments in Pro Challenge history have played out.
Oh, and by the way, over half of Stage 3 takes place above 10,000 feet. Bring your lungs.
Stage 4 – Aspen to Breckenridge – Thursday, August 20, 2015
This crowd-pleasing stage from 2013 is back for an encore in 2015 as it connects the Pro Challenge’s two most visited towns; Aspen and Breckenridge. Starting off with 20 miles of climbing up Independence Pass is a rude wake up call, but that is only the beginning. The racers still have the climbs of Trout Creek Pass and Hoosier Pass to conquer, while sprints in Buena Vista and Fairplay dot the route to Breckenridge. Once in town, one final obstacle stands between the riders and victory, the wall up Moonstone road and the drop down Boreas Pass to the finish where the always boisterous crowds of Breckenridge await.
Stage 5 – Breckenridge Time Trial – Friday, August 21, 2015
Completely new for 2015, the Breckenridge Time Trial will test all of a rider’s skills and will produce a truly worthy winner. The 8.5-mile time trial starts out flat for the pure time trialists. However, it’s not long before it’s back onto the climb up Moonstone road, still fresh in the pain file from the day before and a real test of climbing skills. Finally, the race could be won or lost going downhill this day, as racers will push the limits on the Boreas Pass descent to shave seconds off their time. Whoever wins the day will certainly be one who can hammer the flats, dance up the climbs, and carve down the descents.
Stage 6 – Loveland to Ft. Collins – Saturday, August 22, 2015
The start and finish location of Stage 6 may be familiar, but what lies between the two is new and challenging.
The early flats and sprints in Windsor and Loveland hide the wicked side of the route that waits in the second half. It may not have the grand names or the huge elevation numbers, but the lower and smaller climbs of this stage still have a serious sting. Climbing the north side of Carter Lake and then onto the new climb up Rist Canyon should get everyone’s attention. It may also present one of the last chances for overall contenders to make a move. Wrapping up with the jagged rollers of Horsetooth Reservoir before bombing into Ft. Collins, this stage proves that a race doesn’t need to reach 12’000’ to be epic.
Stage 7 – Golden to Denver – Sunday, August 23, 2015
For a finale the Pro Challenge goes back to its roots. This route was the final stage of the first Pro Challenge in 2011 and introduced the world to the cycling crowds on the Front Range.
After a short loop north of Golden the race will tackle its main obstacle of the day, the 4-mile climb of Lookout Mtn. Another quick pass of Golden and the race is screaming through Wheat Ridge and Lakewood en route to downtown Denver. Four laps of the familiar Denver circuit await and Civic Center Park, City Park, and 17th street will be treated to blazing speeds as the last prizes of the week are fought for over tooth and nail.
One of the most highly anticipated events on the race calendar, the 2015 USA Pro Challenge will test the riders’ strength and endurance over a 605 mile course. To give fans the opportunity to see their heroes up close and in action, each stage, with the exception of the individual time trial, will start with at least one circuit lap in the start city before leaving town
Host city information, maps and elevation profiles are available on the race website http://www.usaprocyclingchallenge.com/route
About the USA Pro Challenge
Referred to as “America’s Race,” the USA Pro Challenge will take place August 17-23, 2015 and an inaugural Women’s USA Pro Challenge will take place from August 21-23, 2015. For seven consecutive days, the world’s top male and female athletes race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure. One of the largest cycling events in U.S. history and the largest spectator event in the history of the state, the USA Pro Challenge is back for 2015. Featuring a challenging course, the fifth annual race will spotlight the best of the best in professional cycling and some of America’s most beautiful scenery.
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Colorado Agency now regulating Zip Lines and Ropes Courses in Ohio
Posted: April 18, 2015 Filed under: Challenge or Ropes Course, Colorado, Zip Line | Tags: Colorado, Ropes course, x, y, z, Zip Lines Leave a commentFrom: OPS Amusement Rides and Devices Program [mailto:cdle_amusements@state.co.us]
Sent: Monday, April 06, 2015 3:26 PM
To: undisclosed-recipients:
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.
Kind regards,
Division of Oil and Public Safety
Amusement Rides and Devices Program
We Keep Colorado Working.
P 303.318.8552 | F 303.318.8488
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.**
Amusements Certificate of Inspection (Draft).pdf
Amusement Rides and Devices Proposed Rule Changes Effective 07-30-15 (Draft).pdf
Lahey v. Covington, 964 F. Supp. 1440 (Dist Colo 1996)
Posted: April 16, 2015 Filed under: Colorado Leave a commentLahey 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
Opinion:
[*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).
Facts
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.
(Id.)
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.
ANALYSIS
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]).
b. Negligence
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).
d. Indemnity
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.
3. Conclusion
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
Great Opportunity for Graduate Student to Study in Colorado at Grand Sand Dunes National park and Preserve
Posted: April 9, 2015 Filed under: Colorado | Tags: George Wright Society, Graduate Student, Great Sand Dunes Ntional Park, National Park Service, x, y, z Leave a commentSocial Science Park Break – Great Sand Dunes National Park & Preserve
Dates: October 11-16, 2015
The opportunity:
The George Wright Society and National Park Service Social Science Program announce an exciting opportunity for graduate students. Applications are being accepted for participation in a social science focused Park Break Program at Great Sand Dunes National Park and Preserve (GRSA). The objective of this program is for students to understand a variety of applied social science methods to collect information about visitor activities, attitudes, and travel patterns in GRSA, and how these results integrate into planning across a diverse landscape of grasslands, wetlands, conifer and aspen forests, alpine lakes, and tundra. The park unit is ramping up efforts to conduct a backcountry management plan in the coming years, and has initiated collections of visitor use and social science information in the summer and fall of 2015. As part of this program, students will understand protected area management issues and questions that exist in relation to resource protection and visitor enjoyment, and how social science information can benefit this planning effort to prescribe backcountry management direction into the future.
What is included?
Park Break is an all-expenses-paid, park-based field seminar for graduate students who are thinking about a career in park management or park-related research and education. Park Break puts you in a national park unit for five days of field and classroom activities in close collaboration with park scientists and scholars, managers and administrators, and partner organizations.
Who is eligible?
Graduate students (Ph.D. or Master’s level) who are studying in fields related to parks, protected areas, and cultural sites.
Park Break puts you on the path to success:
Several Park Breakers have been hired by the National Park Service and the U.S. Forest Service. Other Park Break alums have embarked on Ph.D. programs. Park Break makes you and your skills visible!
For more information and how to apply:
Visit http://www.georgewright.org/parkbreak to learn more about the opportunity, and http://www.georgewright.org/parkbreak_apply to apply. Deadline is May 15, 2015.
Contact Ryan Sharp (ryan.sharp) with questions.
Get Outdoors Colorado now has a Summer Job Center
Posted: April 7, 2015 Filed under: Colorado | Tags: Employement, Get Outdoors Colorado, Job, Outdoor Job, Summer Job, x, y, z Leave a commentLet Get Outdoors Colorado help you find the best candidates for your seasonal and summer jobs! The Get Outdoors Colorado Job Center was launched in 2014 and has been a huge success. The Job Center is quickly becoming the premier place to post and search jobs in the natural resources, environmental education and outdoor recreation fields.
Here are a few tips to be sure you are maximizing the benefits of the Get Outdoors Colorado Job Center:
· Be a Partner – If you are not a partner yet, click here to sign up. It’s free and so are all of your job postings!
· Post Your Jobs – Our spring marketing has begun and is focused on driving job seekers to the site so be sure that your jobs are posted throughout the season. Click here for more information on how easy and quick it is to post a job.
· Like & Share – Social media seems to make the world go ’round these days. We’ll be using #GetOutdoorsJobs to draw people to the Job Center and track traffic. We’ll also be posting on Facebook, Twitter(@GetOutdoorsCO) and Instagram (@GetOutdoorsCO). Be sure to like and follow us on these platforms and share our posts or create posts of your own to let people know that your job opportunities can be seen on the Get Outdoors Colorado Job Center. Don’t forget, all your postings will link directly back to your site so traffic for the GOC website is traffic for your website.
Have questions about the Job Center or posting a job? Contact us at info.
Colorado Equine Liability Act
Posted: March 9, 2015 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals | Tags: Equine, Equine Liability Act, Horse, Immunity, Llama Leave a commentC.R.S. 13-21-119 (2014)
COLORADO REVISED STATUTES
TITLE 13. COURTS AND COURT PROCEDURE
DAMAGES
ARTICLE 21.DAMAGES
PART 1. GENERAL PROVISIONS
13-21-119. Equine activities – llama activities – legislative declaration – exemption from civil liability13-21-119. Equine activities – llama activities – legislative declaration – exemption from civil liability
(1) The general assembly recognizes that persons who participate in equine activities or llama activities may incur injuries as a result of the risks involved in such activities. The general assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. It is, therefore, the intent of the general assembly to encourage equine activities and llama activities by limiting the civil liability of those involved in such activities.
(2) As used in this section, unless the context otherwise requires:
(a) “Engages in a llama activity” means riding, training, assisting in medical treatment of, driving, or being a passenger upon a llama, whether mounted or unmounted or any person assisting a participant or show management. The term “engages in a llama activity” does not include being a spectator at a llama activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the llama activity.
(a.5) “Engages in an equine activity” means riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted or any person assisting a participant or show management. The term “engages in an equine activity” does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the equine activity.
(b) “Equine” means a horse, pony, mule, donkey, or hinny.
(c) “Equine activity” means:
(I) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting;
(II) Equine training or teaching activities or both;
(III) Boarding equines;
(IV) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;
(V) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
(VI) Placing or replacing horseshoes on an equine.
(d) “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity, including but not limited to: Pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors, and promoters of equine facilities, including but not limited to stables, clubhouses, ponyride strings, fairs, and arenas at which the activity is held.
(e) “Equine professional” means a person engaged for compensation:
(I) In instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine; or
(II) In renting equipment or tack to a participant.
(f) “Inherent risks of equine activities” and “inherent risks of llama activities” means those dangers or conditions which are an integral part of equine activities or llama activities, as the case may be, including, but not limited to:
(I) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;
(II) The unpredictability of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(III) Certain hazards such as surface and subsurface conditions;
(IV) Collisions with other animals or objects;
(V) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.
(f.1) “Llama” means a South American camelid which is an animal of the genus lama, commonly referred to as a “one llama”, including llamas, alpacas, guanacos, and vicunas.
(f.2) “Llama activity” means:
(I) Llama shows, fairs, competitions, performances, packing events, or parades that involve any or all breeds of llamas;
(II) Using llamas to pull carts or to carry packs or other items;
(III) Using llamas to pull travois-type carriers during rescue or emergency situations;
(IV) Llama training or teaching activities or both;
(V) Taking llamas on public relations trips or visits to schools or nursing homes;
(VI) Participating in commercial packing trips in which participants pay a llama professional to be a guide on a hike leading llamas;
(VII) Boarding llamas;
(VIII) Riding, inspecting, or evaluating a llama belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the llama or is permitting a prospective purchaser of the llama to ride, inspect, or evaluate the llama;
(IX) Using llamas in wool production;
(X) Rides, trips, or other llama activities of any type however informal or impromptu that are sponsored by a llama activity sponsor; and
(XI) Trimming the nails of a llama.
(f.3) “Llama activity sponsor” means an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, a llama activity, including but not limited to: Llama clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors, and promoters of llama facilities, including but not limited to stables, clubhouses, fairs, and arenas at which the activity is held.
(f.4) “Llama professional” means a person engaged for compensation:
(I) In instructing a participant or renting to a participant a llama for the purpose of riding, driving, or being a passenger upon the llama; or
(II) In renting equipment or tack to a participant.
(g) “Participant” means any person, whether amateur or professional, who engages in an equine activity or who engages in a llama activity, whether or not a fee is paid to participate in such activity.
(3) Except as provided in subsection (4) of this section, an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, a doctor of veterinary medicine, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities, or from the inherent risks of llama activities and, except as provided in subsection (4) of this section, no participant nor participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, a doctor of veterinary medicine, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities or resulting from any of the inherent risks of llama activities.
(4) (a) This section shall not apply to the horse racing industry as regulated in article 60 of title 12, C.R.S.
(b) Nothing in subsection (3) of this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, or any other person if the equine activity sponsor, equine professional, llama activity sponsor, llama professional, or person:
(I) (A) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or
(B) Provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity or llama activity and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability;
(II) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, llama activity sponsor, llama professional, or person and for which warning signs have not been conspicuously posted;
(III) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury;
(IV) Intentionally injures the participant.
(c) Nothing in subsection (3) of this section shall prevent or limit the liability of an equine activity sponsor, equine professional, llama activity sponsor, or llama professional:
(I) Under liability provisions as set forth in the products liability laws; or
(II) Under liability provisions in section 35-46-102, C.R.S.
(5) (a) Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (b) of this subsection (5). Such signs shall be placed in a clearly visible location on or near stables, corrals, or arenas where the equine professional conducts equine activities if such stables, corrals, or arenas are owned, managed, or controlled by the equine professional. The warning notice specified in paragraph (b) of this subsection (5) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in paragraph (b) of this subsection (5).
(b) The signs and contracts described in paragraph (a) of this subsection (5) shall contain the following warning notice:
WARNING
Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes.
(6) (a) Every llama professional shall post and maintain signs which contain the warning notice specified in paragraph (b) of this subsection (6). Such signs shall be placed in a clearly visible location on or near stables, corrals, pens, or arenas where the llama professional conducts llama activities if such stables, corrals, pens, or arenas are owned, managed, or controlled by the llama professional. The warning notice specified in paragraph (b) of this subsection (6) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by a llama professional for the providing of professional services, instruction, or the rental of equipment or tack or a llama to a participant, whether or not the contract involves llama activities on or off the location or site of the llama professional’s business, shall contain in clearly readable print the warning notice specified in paragraph (b) of this subsection (6).
(b) The signs and contracts described in paragraph (a) of this subsection (6) shall contain the following warning notice:
WARNING
Under Colorado Law, a llama professional is not liable for an injury to or the death of a participant in llama activities resulting from the inherent risks of llama activities, pursuant to section 13-21-119, Colorado Revised Statutes.
Dolores River Boating Advocates needs another Board Member: Join and maybe save a river
Posted: February 20, 2015 Filed under: Colorado Leave a comment
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CAIC Launches Mobile Avalanche App to help you Stay Alive in the Backcountry
Posted: February 13, 2015 Filed under: Avalanche, Colorado | Tags: x, y, z Leave a commentWe are proud to announce that we have launched version 1 of our mobile app in partnership with Black Diamond Equipment and the Northwest Avalanche Center.
The mobile app project aligns directly with our effort to make the avalanche forecast easily accessible across a variety of platforms. Version 1 of the mobile app consolidates and optimizes the daily zone avalanche forecasts for all 10 zones across Colorado. It also makes it incredibly easy to submit observations directly from your device to the CAIC Observation database.
Our partnership with Black Diamond and NWAC merges technology with a common goal to provide avalanche information, education and support for our incredible community of backcountry skiers.
The app is available on both Android and IOS platforms. Go get it and let us know what you think!
Forman v. Brown, d/b/a Brown’s Royal Gorge Rafting, 944 P.2d 559; 1996 Colo. App. LEXIS 343
Posted: February 7, 2015 Filed under: Colorado Leave a commentForman v. Brown, d/b/a Brown’s Royal Gorge Rafting, 944 P.2d 559; 1996 Colo. App. LEXIS 343
Sue Forman, Plaintiff-Appellant, v. Mark N. Brown, d/b/a Brown’s Royal Gorge Rafting, Brown’s Fort and Greg Scott, Defendants-Appellees.
No. 95CA1380
COURT OF APPEALS OF COLORADO, DIVISION B
944 P.2d 559; 1996 Colo. App. LEXIS 343
November 29, 1996, Decided
SUBSEQUENT HISTORY: [**1] Released for Publication October 23, 1997.
Rehearing Denied February 6, 1997.
PRIOR HISTORY: Appeal from the District Court of Fremont County. Honorable John Anderson, Judge. No. 93CV123.
DISPOSITION: JUDGMENT AFFIRMED
COUNSEL: Gregory J. Hock, Colorado Springs, Colorado, for Plaintiff-Appellant.
Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees.
JUDGES: Opinion by JUDGE NEY. Pierce *, J. concurs. Tursi *, J. concurs in part and dissents in part.
* Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1996 Cum. Supp.).
OPINION BY: NEY
OPINION
[*560] Opinion by JUDGE NEY
Plaintiff, Sue Forman, appeals from a summary judgment entered in favor of defendants, Mark N. Brown d/b/a Brown’s Royal Gorge Rafting and Brown’s Fort, and Greg Scott. We affirm.
Plaintiff participated in a rafting trip conducted by defendants. During the trip, defendant Scott, the river guide, pulled the raft off the river for a rest break and suggested [*561] that the participants take a swim in the river. Scott led some of the participants, including plaintiff, to a large boulder near the river and instructed them on the proper method [**2] to enter the water. Plaintiff injured her ankle when she jumped into the river.
Plaintiff brought this action alleging negligence, willful and wanton conduct, and breach of contract. Defendants moved for partial summary judgment on the grounds that the exculpatory agreement executed by plaintiff before the trip absolved them from liability for negligence as a matter of law. The trial court granted defendant’s motion for partial summary judgment, and later granted defendants’ motion for summary judgment on plaintiff’s remaining claims. This appeal followed.
I.
Plaintiff argues that summary judgment was improper because a genuine issue of fact existed as to whether she was mentally competent when she signed the exculpatory agreement. We disagree.
[HN1] Summary judgment is proper when the pleadings, affidavits, depositions, and admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Civil Service Commission v. Pinder, 812 P.2d 645 (Colo. 1991).
The moving party has the burden to show that there is no issue of material fact. Once the moving party has met its initial burden, the burden then [**3] shifts to the nonmoving party to establish that there is a triable issue of material fact. Mancuso v. United Bank, 818 P.2d 732 (Colo. 1991).
In determining whether summary judgment is proper, the nonmoving party must receive the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts. Mancuso v. United Bank, supra. Summary judgment is proper if reasonable persons could not reach differing conclusions. Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952).
In their motion for summary judgment, defendants attached the exculpatory agreement, which was signed by plaintiff, entitled “Agreement to Participate (Acknowledgment of Risks),” and an agreement entitled “On River Prohibitions,” also signed by plaintiff, which listed rules that rafting participants were required to follow while on the rafts. Defendants also included plaintiff’s admissions that she signed the exculpatory agreements and that she was advised concerning the hazards involved in the raft trip. With this evidence, defendants established both the scope of the exculpatory agreement and the fact that plaintiff signed the agreement, and thus the burden shifted to plaintiff to establish [**4] triable issues of fact. Mancuso v. United Bank, supra.
Plaintiff admitted in her response to the summary judgment motion that she had signed the exculpatory agreement and she attached to her response an affidavit in which she stated:
I believe I am an intelligent woman and I
understand the (prohibition.) My failure to read the Agreement to Participate was related to my mental condition.
. . . .
Although I was not incompetent when I signed the on-river prohibitions and the Agreement to Participate, I do feel I lacked competency in the skills of independent decision-making and that I had mental impairment on relying on what Mr. Scott had advised.
Plaintiff also averred that she had been in therapy for several years before the incident, and included extensive documentation of the diagnosis and in-patient treatment of her emotional and mental condition that she underwent six months after the rafting incident. However, plaintiff’s complaint did not state any allegations of her impaired mental capacity.
Plaintiff filed a supplementary response to the summary judgment motion which included an affidavit from the therapist who had been treating her for several years prior to the rafting [**5] incident wherein the therapist stated that, at the time of the rafting trip, plaintiff was suffering from a mental impairment, “including a mental and/or emotional disability related to psychiatric problems, her [*562] inability to handle stress, emotional illness and severe psychiatric difficulties and serious emotional disturbances which prevented her from fully assessing the consequences of risks or prohibited conduct related to jumping into the river.” The therapist further opined that plaintiff had a tendency “to be quite vulnerable following the direction of someone she was trusting as well as to following the actions of those with whom she desired to be a part.”
Plaintiff also supplemented her response with an affidavit from a therapist who began treating her a year after the rafting incident in which the therapist averred that, at the time of the rafting incident, plaintiff’s need to be liked and accepted was likely to have caused her to suspend her own judgment in deference to others.
The trial court held that, even under the most favorable interpretation of the evidence, plaintiff did not show that she was incompetent to enter into a binding contract. Relying on plaintiff’s [**6] specific assertion that she was not incompetent when she signed the exculpatory agreements, the court found that plaintiff’s assertions of mental impairment, such as her need to belong to a group and her need to trust and follow the river guide, did not at all relate to her execution of a binding contract.
We agree with the trial court and find that the relevant evidence established, as a matter of law, that plaintiff was not, under principles of competency applicable to contracts in general, incompetent at the time she signed the exculpatory agreement.
[HN2] Every person is presumed by the law to be sane and competent for the purpose of entering into a contract. Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946). A party can be insane for some purposes and still have the capacity to contract. Davis v. Colorado Kenworth Corp., 156 Colo. 98, 396 P.2d 958 (1964).
A person is incompetent to contract when the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction. Hanks v. McNeil Coal Corp., supra. Therefore, under this [**7] rule, it follows that emotional distress or severe mental depression generally is insufficient to negate the capacity to contract. See Drewry v. Drewry, 8 Va. App. 460, 383 S.E.2d 12 (Va. App. 1989)(severe mental depression did not render party to separation agreement legally incompetent where there was no evidence that party did not understand the nature and consequences of her acts).
Moreover, a contract may not be voided when, as here, the alleged incompetence arose after the execution of the contract. Competency to contract is determined by a party’s mental state at the time of execution of the agreement. See Hanks v. McNeil Coal Corp., supra.
[HN3] Where a party has failed to present sufficient evidence to make out a triable issue of material fact, the moving party is entitled to summary judgment. See Continental Air Lines Inc. v. Keenan, 731 P.2d 708 (Colo. 1987).
Plaintiff admitted that she was not incompetent at the time she signed the exculpatory agreement, that she was “an intelligent woman,” and that she understood the “prohibition.” Additionally, none of plaintiff’s evidence of her psychological diagnosis and treatment showed that, at the time she signed the exculpatory agreements, she was [**8] suffering under an insane delusion that prevented her from understanding the nature and effect of the agreements or of acting rationally in the transaction.
Nor do we agree with plaintiff’s claim that her impaired mental capacity caused her to fail to read the Agreement to Participate. As noted above, plaintiff admitted that she was not incompetent when she signed the exculpatory agreements; therefore, her failure to read the Agreement to Participate precludes her from arguing that she is not bound by it. See Rasmussen v. Freehling, 159 Colo. 414, 412 P.2d 217 (1966)(in the absence of fraud, one who signs a contract without reading it is barred from claiming she is not bound by what she has signed); Cordillera Corp. v. Heard, 41 Colo. App. 537, 592 P.2d 12 (1978), aff’d, 200 Colo. 72, 612 [*563] P.2d 92 (1980)(party signing an agreement is presumed to know its contents).
We conclude, therefore, that plaintiff failed to establish a triable issue of fact concerning her capacity to execute a contract at the time she signed the exculpatory agreement.
II.
Plaintiff also argues that the exculpatory agreement was invalid and ambiguous as to whether it applied to the activity in which she was [**9] injured. We disagree.
[HN4] The determination of the sufficiency and validity of an exculpatory agreement is a matter of law for the court to determine. Jones v. Dressel, 623 P.2d 370 (Colo. 1981).
The validity of an exculpatory agreement must be determined by the following four criteria: (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. Jones v. Dressel, supra.
Only the fourth factor is at issue here, and as to this factor, the supreme court has held that in order for an exculpatory agreement to shield a party from liability, the intent of the parties to extinguish liability must be clearly and unambiguously expressed. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989).
The Agreement to Participate provided in relevant part:
I am aware that the activities I am participating in, under the arrangements of Brown’s Fort family recreation center; its agents, employees, and associates, involves certain inherent risks. I recognize that white water rafting, . . . and other activities, scheduled or unscheduled [**10] have an element of risk which combined with the forces of nature, acts of commission, or omission, by participants or others, can lead to injury or death.
I also state and acknowledge that the hazards include, but are not limited to the loss of control, collisions with rocks, trees and other man made or natural objects, whether they are obvious or not obvious, flips, immersions in water, hypothermia, and falls from vessels, vehicles, animals, or on land.
I understand that any route or activity, chosen as a part of our outdoor adventure may not be the safest, but has been chosen for its interest and challenge. . . . I . . . understand and agree that any bodily injury, death or loss of personal property, and expenses thereof, as a result of my . . . participation in any scheduled or unscheduled activities, are my responsibility. I hereby acknowledge that I and my family . . . have voluntarily applied to participate in these activities. I do hereby agree that I and my family . . . are in good health with no physical defects that might be injurious to me and that I and my family are able to handle the hazards of traffic, weather conditions, exposure to animals, walking, riding, and all [**11] and any similar conditions associated with the activities we have contracted for.
. . . .
I and my family . . . agree to follow the instructions and commands of the guides, wranglers, and others in charge at Brown’s Fort recreation center with conducting activities in which I and my family are engaged.
Further, and in consideration of, and as part payment for the right to participate in such trips or other activities . . . I have and do hereby assume all the above risks and will hold Brown’s Fort . . . its agents, employees, and associates harmless from any and all liability, action, causes of action, debts, claims, and demands of any kind or nature whatsoever which I now have or which may arise out of, or in connection with, my trip or participation in any other activities.
The terms of this contract shall serve as a release and assumption of risk for my heirs, executors and administers and for all members of my family, including any minors accompanying me. . . .
I have carefully read this contract and fully understand its contents. I am aware [*564] that I am releasing certain legal rights that
I otherwise may have and I enter into this contract in behalf of myself and my family [**12] of my own free will.
Plaintiff was engaged in an apparently unscheduled activity that had an element of risk which, combined with the forces of nature and acts of others, resulted in an injury. The language of the Agreement to Participate specifically addressed a risk, collision with boulders, that adequately described the circumstances of plaintiff’s injury, and by executing the Agreement to Participate, plaintiff was specifically made aware of and agreed to assume this risk. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (broad language in a release interpreted to cover all negligence claims); Barker v. Colorado Region–Sports Car Club of America, Inc., 35 Colo. App. 73, 532 P.2d 372 (1974) (in absence of duty to public, exculpatory agreements are valid when fairly made and may be enforced to preclude recovery for injury sustained by patrons of recreational facilities).
Therefore, we agree with the trial court that the Agreement to Participate unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities such as the swimming activity here at issue.
III.
Plaintiff’s final contention is that the trial court erred in [**13] dismissing her claim of willful and wanton conduct against defendant Scott. We disagree.
[HN5] An exculpatory agreement does not bar an action based upon injuries sustained by a defendant’s willful and wanton conduct. Barker v. Colorado Region-Sports Car Club of America, Inc., supra. Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness. Terror Mining Co. v. Roter, 866 P.2d 929 (Colo. 1994) (applying definition of willful and wanton conduct to parental immunity doctrine); see also § 13-21-102(1)(b), C.R.S. (1987 Repl. Vol. 6A)(for purposes of exemplary damages, willful and wanton conduct means conduct purposefully committed which the actor must have realized as dangerous and which was done heedlessly and recklessly, without regard to the consequences, or of the rights and safety of others, particularly the plaintiff).
[HN6] Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question of fact, Wolther v. Schaarschmidt, 738 P.2d 25 (Colo. App. 1986), if the record is devoid of sufficient evidence to raise a factual [**14] issue, then the question may be resolved by the court as a matter of law. See Continental Air Lines, Inc. v. Keenan, supra.
Plaintiff’s complaint alleged only that defendant Scott “beached the raft with Plaintiff and other guests, subsequently inviting, encouraging and directing Plaintiff and other guests to jump into the river and take a swim, directing them to a point of jumping that Scott represented as being safe for entry.” Plaintiff also gave a statement in which she said that, prior to the swim, defendant Scott reinforced the possibility of being hurt while jumping into the river but that he instructed the group on the proper manner of entry to avoid injury, and talked and stood close to the participants while they jumped.
Additionally, plaintiff stated in one of her affidavits:
Scott was with all of us monitoring the entry into the river. He gave brief instructions that we should try to jump with our feet up and keep our feet downstream and paddle to the shore. Although the possibility of being hurt existed, this clearly related to after we went downstream and tried to negotiate the river current and swim to the side of the river. I did not believe there were any safety [**15] problems in entering the water at the place he designated, nor could I see any submerged rocks.
. . . .
A couple jumped in before me and everything worked out fine. Their experience was consistent with what Scott had stated that if we followed his direction we would not get hurt.
. . . .
[*565] I feel that Scott was negligent in his suggesting the jumping and his preparing us and instructing us for that exercise.
Plaintiff’s evidence is insufficient to establish a factual question as to whether defendant Scott acted in a willful and wanton manner. Plaintiff’s statements that Scott instructed the participants on the proper manner to enter the water to avoid injury indicates that Scott did not consciously and willfully disregard the safety of the participants. Furthermore, plaintiff does not allege, nor does the record indicate, that Scott recklessly forced the participants to jump in the river or otherwise intentionally disregarded the participants’ safety. Rather, plaintiff states in her affidavit that Scott acted negligently. Negligence is not the same as willful or wanton conduct. Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954).
Therefore, the court properly entered summary [**16] judgment in defendant Scott’s favor. See Mancuso v. United Bank, supra.
The judgment is affirmed.
JUDGE PIERCE concurs.
JUDGE TURSI concurs in part and dissents in part.
CONCUR BY: TURSI (In Part)
DISSENT BY: TURSI (In Part)
DISSENT
JUDGE TURSI concurring in part and dissenting in part.
I concur in Parts I and III of the majority opinion and dissent as to Part II.
This matter is before us on summary judgment. The majority adequately sets forth the rules governing review of summary judgments. However, as to Part II, it misapplies them.
In Part II, the majority concludes that the documents which defendant had plaintiff execute were unambiguous. I disagree.
Plaintiff was presented with two documents by the defendants and was required to execute them simultaneously. These are the Agreement to Participate, quoted at length in the majority opinion, and the On River Prohibitions, which although mentioned, are not quoted.
It is axiomatic that if simultaneously executed agreements between the same parties and relating to the same subject matter are contained in more than one instrument, the documents must be construed together. Bledsoe v. Hill, 747 P.2d 10 (Colo. App. 1987).
The On River Prohibitions [**17] contained a prohibition that stated: “No diving or jumping into the river. (There are rocks under the surface of the river).”
By affidavit and by a statement appended to defendant’s motion for summary judgment, facts were presented that the guide had instructed plaintiff to “jump in” the river. In plaintiff’s affidavit (referred to by the majority), plaintiff further stated that the guide “indicated that we should jump into the water at that point.”
Plaintiff correctly argues that she was confronted with the requirement that she follow the instruction of the guide as required by the Agreement to Participate, but that this conflicted with a specific provision of the On River Prohibitions. The patently conflicting provision was, at a minimum, ambiguous and placed plaintiff in a situation that gave rise to a genuine issue of material fact. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781; Jones v. Dressel, 623 P.2d 370.
Clearly, the provision in the Agreement to Participate stating that participants “agree to follow the instruction . . . of the guides” creates a conflict when a participant is instructed by the guide to violate the specific prohibition against jumping into the river. Under [**18] these circumstances, an ambiguity arises which creates a genuine issue of material fact and thus, renders the entry of summary judgment reversible error.
Finally, after giving the entire agreement a fair reading, I am unable to comprehend how the majority can conclude that a prohibited activity is a foreseeable “unscheduled” [*566] activity. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781.
Therefore, in view of the ambiguity that arose under the documents based upon the material facts herein, I would reverse and remand to the trial court to proceed on the issues addressed in Part II of the majority opinion.
G-YQ06K3L262
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USA Pro Challenge Stage 6 Route Announced: Loveland to Fort Collins
Posted: January 6, 2015 Filed under: Colorado, Cycling | Tags: Bicycle Race, Colorado, Cycling, Fort Collins, Loveland, USA Pro Challenge Leave a commentStage 6 of 2015 USA Pro Challenge will take Riders from Loveland to Fort Collins
Fans Helped Shape Stage 6 of Colorado Professional Cycling Race
Denver (Dec. 22, 2014) – With the majority of the host cities announced for the 2015 USA Pro Challenge, organizers looked to fans to help determine the start and finish locations for Stage 6. Thousands of fans submitted their opinions, providing more than 20 start and finish city options. In the end, nearly half the responses encouraged a return to Northern Colorado resulting in a Stage 6 start in Loveland and a finish in Fort Collins.
“Loveland and Fort Collins have been such great host cities in the past and we’re looking forward to visiting them again,” said Shawn Hunter, CEO of the USA Pro Challenge. “Last year, we gave fans the chance to weigh in on the final stage of the race and we got a huge response with people voicing their support for the two different options. This year, the fans once again showed their passion for the sport through an overwhelming number of responses regarding where Stage 6 should take place.”
After the initial host cities announcement just over two weeks ago, during which six of the seven stages for the 2015 race were revealed, fans were given the opportunity to provide suggestions for Stage 6 through Facebook and the race website.
USA Pro Challenge fan Michael DePalma wanted a return to Northern Colorado stating it, “offers some of the most spectacular cycling opportunities in the state.” And many spoke to returning to areas that were greatly damaged by the 2013 floods. Gary Crews said the Pro Challenge will, “help us further recover from the flooding and put a smile on the face of riders and residents alike.”
With the fans’ opinions taken into account, the Stage 6 host cities have been determined. And while the host cities are familiar to the race, after visiting them in 2013, the route through Larimer County promises to be new and unique in 2015.
“It has been incredible to witness the outpouring of support from the Northern Colorado community who has rallied together to bring back the USA Pro Challenge in 2015,” said Local Organizing Member Eric Thompson. “We are honored to have been selected for Stage 6 next summer and look forward to sharing the excitement with the cycling fans that made it happen.”
Taking place Aug. 17-23, the host cities and stages of the 2015 USA Pro Challenge include:
- Stage 1: Monday, Aug. 17 – Steamboat Springs Circuit Race
- Stage 2: Tuesday, Aug. 18 – Steamboat Springs to Arapahoe Basin
- Stage 3: Wednesday, Aug. 19 – Copper Mountain Resort to Aspen
- Stage 4: Thursday, Aug. 20 – Aspen to Breckenridge
- Stage 5: Friday, Aug. 21 – Breckenridge Individual Time Trial
- Stage 6: Saturday, Aug. 22 – Loveland to Fort Collins
- Stage 7: Sunday, Aug. 23 – Golden to Denver
Additional details regarding the start and finish locations of the 2015 race, as well as the specific, detailed route will be announced in the spring.
About the USA Pro Challenge
Referred to as “America’s Race,” the USA Pro Challenge will take place August 17-23, 2015. For seven consecutive days, the world’s top athletes race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure. One of the largest cycling events in U.S. history and the largest spectator event in the history of the state, the USA Pro Challenge is back for 2015.
More information can be found online at www.USAProChallenge.com and on Twitter at @USAProChallenge.
Colorado District court judge rules a ski area release does not cover the back entrance to a restaurant
Posted: December 3, 2014 Filed under: Colorado, Release (pre-injury contract not to sue), Ski Area | Tags: Alpine skiing, ASC, Aspen Highlands, Aspen Skiing Company, Assumption of risk, backdoor, Cloud 9, Cloud 9 restaurant, Release, restaurant, Ski Resort, SkiCo, skiing, Winter sport Leave a commentSeason pass holder went in the back door of restaurant to warm up. Slipped and fell in kitchen on way back out. Ski area sued for broken elbow.
This case has a long way to go as the trial has not even occurred. However it is sort of interesting based on the limited information available. Basically the language of the release was not enough to stop a lawsuit over a slip and fall in a building on the mountain.
The basis for the judge’s ruling, based on the article, is the term “facility” is not defined in the release to include restaurants. More importantly no release probably covers the back door entrance.
Bigger will be the response by the ski area.
· Will they put “employee only signs” on the back doors of all their buildings?
· Will they modify their release to provide better coverage for their buildings
· Will they put signs and mats down as the court seems to want?
Let me know your picks!
See Judge rules against SkiCo’s waiver in lawsuit
What do you think? Leave a comment.
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Colorado Electronic Signature Act
Posted: November 14, 2014 Filed under: Colorado, Contract | Tags: CO, Colorado, Colorado Electronic Signature Act, Contract, Electronic Signature, Electronic Signatures 2 CommentsColorado Electronic Signature Act
24-71-101. Electronic signatures – construction with other laws
(1) As used in this article, “electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(2) In any written communication in which a signature is required or used, any party to the communication may affix a signature by use of an electronic signature that complies with the requirements of article 71.3 of this title for electronic signatures.
(3) The use or acceptance of an electronic signature shall be at the option of the parties. Nothing in this section shall require any person to use or permit the use of an electronic signature.
(4) In the event of any conflict between article 71.3 of this title and this article, said article 71.3 shall control, but only to the extent of such conflict.
24-71.3-102. Definitions
As used in this article, unless the context otherwise requires:
(1) “Agreement” means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures given the effect of agreements under laws otherwise applicable to a particular transaction.
(2) “Automated transaction” means a transaction conducted or performed, in whole or in part, by electronic means or electronic records in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.
(3) “Computer program” means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.
(4) “Contract” means the total legal obligation resulting from the parties’ agreement as affected by this article and other applicable law.
(5) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(6) “Electronic agent” means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances, in whole or in part, without review or action by an individual.
(7) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
(8) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(9) “Governmental agency” means an executive agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.
(10) “Information” means data, text, images, sounds, codes, computer programs, software, databases, or the like.
(11) “Information processing system” means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information.
(12) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity.
(13) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) “Security procedure” means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.
(15) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, that is recognized by federal law or formally acknowledged by a state.
(16) “Transaction” means an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, charitable, or governmental affairs. For the purpose of this article, “transaction” shall not mean any ballot cast in any election or any petition related to any department, board, commission, authority, institution, or instrumentality of the state or any county, municipality, or of their political subdivisions, or any of their instrumentalities.
(1) Except as otherwise provided in subsection (2) of this section, this article applies to electronic records and electronic signatures relating to a transaction.
(2) This article does not apply to a transaction to the extent it is governed by:
(a) A law governing the creation and execution of wills, codicils, or testamentary trusts;
(b) The “Uniform Commercial Code”, title 4, C.R.S., other than sections 4-1-107 and 4-1-206, C.R.S., and articles 2 and 2.5 of title 4, C.R.S.
(3) Additional exceptions. This article shall not apply to:
(a) Court orders or notices or official court documents, including briefs, pleadings, and other writings, required to be executed in connection with court proceedings;
(b) Any notice of:
(I) The cancellation or termination of utility services, including water, heat, and power;
(II) Default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual;
(III) The cancellation or termination of health insurance or benefits or life insurance benefits, excluding annuities; or
(IV) Recall of a product, or material failure of a product, that risks endangering health or safety; or
(c) Any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials.
(4) This article applies to an electronic record or electronic signature otherwise excluded from the application of this article under subsection (2) of this section to the extent it is governed by a law other than those specified in said subsection (2).
(5) A transaction subject to this article is also subject to other applicable substantive law.
(6) (a) This article is not intended to limit, modify, or supercede the requirements of section 101 (d), 101 (e), 102 (c), 103 (a), or 103 (b) of the federal “Electronic Signatures in Global and National Commerce Act”, 15 U.S.C. sec. 7001 (d), 7001 (e), 7002 (c), 7003 (a), and 7003 (b).
(b) The consumer disclosures contained in section 101 (c) of the federal “Electronic Signatures in Global and National Commerce Act”, 15 U.S.C. sec. 7001 (c), are incorporated by reference and shall also apply to intrastate transactions.
24-71.3-104. Prospective application
This article applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after May 30, 2002.
24-71.3-105. Use of electronic records and electronic signatures – variation by agreement
(1) This article does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.
(2) This article applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.
(3) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection (3) may not be waived by agreement.
(4) Except as otherwise provided in this article, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this article of the words “unless otherwise agreed”, or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.
(5) Whether an electronic record or electronic signature has legal consequences is determined by this article and other applicable law.
24-71.3-106. Construction and application
(1) This article must be construed and applied:
(a) To facilitate electronic transactions consistent with other applicable law;
(b) To be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and
(c) To effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.
24-71.3-107. Legal recognition of electronic records, electronic signatures, and electronic contracts
(1) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(2) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(3) If a law requires a record to be in writing, an electronic record satisfies the law.
(4) If a law requires a signature, an electronic signature satisfies the law.
24-71.3-108. Provision of information in writing – presentation of records
(1) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.
(2) If a law other than this article requires a record to be posted or displayed in a certain manner, to be sent, communicated, or transmitted by a specified method, or to contain information that is formatted in a certain manner, the following rules apply:
(a) The record must be posted or displayed in the manner specified in the other law.
(b) Except as otherwise provided in paragraph (b) of subsection (4) of this section, the record must be sent, communicated, or transmitted by the method specified in the other law.
(c) The record must contain the information formatted in the manner specified in the other law.
(3) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.
(4) The requirements of this section may not be varied by agreement, but:
(a) To the extent a law other than this article requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (1) of this section that the information be in the form of an electronic record capable of retention may also be varied by agreement; and
(b) A requirement under a law other than this article to send, communicate, or transmit a record by first-class mail, postage prepaid, or regular United States mail may be varied by agreement to the extent permitted by the other law.
24-71.3-109. Attribution and effect of electronic record and electronic signature
(1) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
(2) The effect of an electronic record or electronic signature attributed to a person under subsection (1) of this section is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and otherwise as provided by law.
24-71.3-110. Effect of change or error
(1) If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules apply:
(a) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.
(b) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:
(I) Promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;
(II) Takes reasonable steps, including steps that conform to the other person’s reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and
(III) Has not used or received any benefit or value from the consideration, if any, received from the other person.
(c) If neither paragraph (a) nor paragraph (b) of this subsection (1) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties’ contract, if any.
(d) Paragraphs (b) and (c) of this subsection (1) may not be varied by agreement.
24-71.3-111. Notarization and acknowledgment
If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
24-71.3-112. Retention of electronic records – originals
(1) If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record that:
(a) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and
(b) Remains accessible for later reference.
(2) A requirement to retain a record in accordance with subsection (1) of this section does not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.
(3) A person may satisfy subsection (1) of this section by using the services of another person if the requirements of said subsection (1) are satisfied.
(4) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (1) of this section.
(5) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (1) of this section.
(6) A record retained as an electronic record in accordance with subsection (1) of this section satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes unless a law enacted after May 30, 2002, specifically prohibits the use of an electronic record for the specified purpose.
(7) This section does not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency’s jurisdiction.
24-71.3-113. Admissibility in evidence
In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.
24-71.3-114. Automated transaction
(1) In an automated transaction, the following rules apply:
(a) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents’ actions or the resulting terms and agreements.
(b) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual’s own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and that the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance.
(c) The terms of the contract are determined by the substantive law applicable to it.
24-71.3-115. Time and place of sending and receipt
(1) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:
(a) Is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;
(b) Is in a form capable of being processed by that system; and
(c) Enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient that is under the control of the recipient.
(2) Unless otherwise agreed between a sender and the recipient, an electronic record is received when:
(a) It enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and
(b) It is in a form capable of being processed by that system.
(3) Subsection (2) of this section applies even if the place the information processing system is located is different from the place the electronic record is deemed to be received under subsection (4) of this section.
(4) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender’s place of business and to be received at the recipient’s place of business. For purposes of this subsection (4), the following rules apply:
(a) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction.
(b) If the sender or the recipient does not have a place of business, the place of business is the sender’s or recipient’s residence, as the case may be.
(5) An electronic record is received under subsection (2) of this section even if no individual is aware of its receipt.
(6) Receipt of an electronic acknowledgment from an information processing system described in subsection (2) of this section establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content received.
(7) If a person is aware that an electronic record purportedly sent under subsection (1) of this section or purportedly received under subsection (2) of this section was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection (7) may not be varied by agreement.
24-71.3-116. Transferable records
(1) In this section, “transferable record” means an electronic record that:
(a) Would be a note under article 3 of the “Uniform Commercial Code”, title 4, C.R.S., or a document under article 7 of the “Uniform Commercial Code”, if the electronic record were in writing; and
(b) The issuer of the electronic record expressly has agreed is a transferable record.
(2) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.
(3) A system satisfies subsection (2) of this section, and a person is deemed to have control of a transferable record, if the transferable record is created, stored, and assigned in such a manner that:
(a) A single authoritative copy of the transferable record exists that is unique, identifiable, and, except as otherwise provided in paragraphs (d), (e), and (f) of this subsection (3), unalterable;
(b) The authoritative copy identifies the person asserting control as:
(I) The person to which the transferable record was issued; or
(II) If the authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred;
(c) The authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;
(d) Copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control;
(e) Each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and
(f) Any revision of the authoritative copy is readily identifiable as authorized or unauthorized.
(4) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in section 4-1-201 (20), C.R.S., of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under the “Uniform Commercial Code”, title 4, C.R.S., including, if the applicable statutory requirements under section 4-3-302 (a), 4-7-501, or 4-9-308, C.R.S., are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this subsection (4).
(5) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings under the “Uniform Commercial Code”, title 4, C.R.S.
(6) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.
24-71.3-117. Creation and retention of electronic records by political subdivisions
Each department, board, commission, authority, institution, or instrumentality of the state, in accordance with the policies, standards, and guidelines set forth by the office of innovation and technology of this state, may determine whether, and the extent to which, such department, board, commission, authority, institution, or instrumentality shall create and retain electronic records and convert written records to electronic records. A county, municipality, or other political subdivision, or any of their instrumentalities, shall have the general power, in relation to the administration of the affairs of a county, municipality, or other political subdivision, or any of their instrumentalities, to determine the extent to which it will create and retain electronic records and electronic signatures.
24-71.3-118. Acceptance and distribution of electronic records by governmental agencies – rules
(1) Except as otherwise provided in section 24-71.3-112 (6), each department, board, commission, authority, institution, or instrumentality of the state may determine the extent to which such department, board, commission, authority, institution, or instrumentality shall send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures. A county, municipality, or other political subdivision, or any of their instrumentalities, shall have the general power, in relation to the administration of the affairs of a county, municipality, or of their political subdivision, or any of their instrumentalities, to determine the extent to which it will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures.
(2) Except in relation to electronic payments, which shall be governed by the state treasurer, to the extent that a department, board, commission, authority, institution, or instrumentality of this state uses electronic records and electronic signatures under subsection (1) of this section, the secretary of state, giving due consideration to security, shall by rule specify:
(a) The manner and format in which the electronic records must be created, generated, sent, communicated, received, and stored and the systems established for those purposes;
(b) If electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record, and the identity of, or criteria that must be met by, any third party used by a person filing a document to facilitate the process;
(c) Control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and
(d) Any other required attributes for electronic records that are specified for corresponding nonelectronic records or reasonably necessary under the circumstances.
(3) Except as otherwise provided in section 24-71.3-112 (6), this article does not require a governmental agency of this state to use or permit the use of electronic records or electronic signatures.
(4) Repealed.
The secretary of state may, in adopting rules promulgated pursuant to section 24-71.3-118, encourage and promote consistency and interoperability with similar requirements adopted by other governmental agencies of this and other states and the federal government and nongovernmental persons interacting with governmental agencies of this state. If appropriate, such rules may specify differing levels of standards from which governmental agencies of this state may choose in implementing the most appropriate standard for a particular application.
24-71.3-120. Severability clause
If any provision of this article or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provision or application, and to this end the provisions of this article are hereby expressly declared to be severable.
24-71.3-121. Construction with other laws
In the event of any conflict between article 71 of this title and this article, this article shall control, but only to the extent of such conflict.
13-25-134. Electronic records and signatures – admissibility in evidence – originals
Pursuant to the provisions of article 71.3 of title 24, C.R.S., in any legal proceeding, nothing in the application of the rules of evidence shall apply so as to deny the admissibility of an electronic record or electronic signature into evidence on the sole ground that it is an electronic record or electronic signature or on the grounds that it is not in its original form or is not an original.
Love the Dolores River? Remember when it flowed freely? Join this Organization and help Keep the Dolores alive!
Posted: November 7, 2014 Filed under: Colorado, Paddlesports, Whitewater Rafting | Tags: Dolores, Dolores River, Dolores River Boating Advocates, Dolores River Valley Plan, x, y, z Leave a comment
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USA Pro Challenge Starts Monday
Posted: August 16, 2014 Filed under: Colorado, Cycling | Tags: Aspen, Aspen Colorado, Colorado, Denver, Monarch Mountain, USA Pro Challenge Leave a comment
Are you ready to race in Colorado?
The USA Pro Challenge starts Monday in Aspen.
Find the route near you and go see the race!
Commercial Summer Fatalities: 2014
Posted: July 9, 2014 Filed under: Arizona, Colorado, Idaho, Paddlesports, Whitewater Rafting | Tags: Chattooga River, Colorado, Commercial, Commercial Guide Service, Commercial Raft Company, Mountaineering, Rafting, Rock climbing, Whitewater, Whitewater Rafting Leave a commentOur condolences to the families of the deceased.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Whitewater fatalities are light blue
Medical fatalities are light red
This is up to date as of July 1, 2014
If this information is incorrect or incomplete please let me know. Thank You.
|
Date |
State |
Activity |
Where |
How |
Outfitter or Guide Service |
Sex |
Home |
Age |
Source |
Source |
|
5/28 |
AZ |
Whitewater Kayaking |
Colorado River, Grand Canyon, Badger Rapid |
Did not right his kayak |
|
M |
|
43 |
|
|
|
6/3 |
AZ |
Whitewater Rafting |
Colorado River, Grand Canyon |
Allergic reaction |
|
F |
Seattle, WA |
54 |
|
|
|
6/7 |
CO |
Whitewater Rafting |
Clear Creek |
Fell out of raft, possible respirator problems |
|
M |
Brighton, CO |
41 |
||
|
6/10 |
CO |
Whitewater Rafting |
Arkansas River, Salt Lick |
boat flipped or dump trucked |
Royal Gorge Rafting |
M |
Enid, OK |
48 |
||
|
6/14 |
CO |
Whitewater Rafting |
Arkansas River, Royal Gorge |
respiratory problems before he and five other rafters were tossed out |
|
M |
Colorado Springs, CO |
44 |
||
|
6/16 |
CO |
Whitewater Rafting |
Roaring Fork river |
Fell out of raft |
Blazing Adventures |
M |
Denver, CO |
44 |
|
|
|
6/27 |
ID |
Whitewater Rafting |
Salmon River, The Slide |
Ejected from raft |
Epley’s Whitewater Adventure |
M |
Poulsbo, WA |
50 |
Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.
If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.
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Copyright 2013 Recreation Law (720) Edit Law
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Want to Maximize a Visit to Colorado? San Juan Mountain Guides can help!
Posted: June 24, 2014 Filed under: Colorado, Mountaineering | Tags: Alaska, Canyoning, Mountaineering, Peru, Rock climbing, San Juan, San Juan Mountain Guides, San Juan Mountains, SJMG, Via Ferrata, Washington, Weminuche Wilderness Leave a comment
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Want to Volunteer for the USA Pro Challenge, sign up Now!
Posted: June 20, 2014 Filed under: Colorado, Cycling | Tags: Aspen, Bicycle Racing, Colorado, Colorado Springs, Cycling, Denver, Monarch Mountain, USA Pro Challenge, Volunteer Leave a comment
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Release is used to prove an activity is hazardous and deny a claim for life insurance. Heli-skiing should have been disclosed as a risk activity or hobby according to the court when buying life insurance.
Posted: April 21, 2014 Filed under: Avalanche, Colorado, Insurance, Skiing / Snow Boarding | Tags: Alaska, Assumption of risk, Buy Sell Agreement, Colorado, Disability Insurance, Health insurance, Heli-skiing, Heliski, Life Insurance, Policy, Premium, Rescission, scuba diving, skiing 4 Comments“Rating up” is a term used to say an insured is a higher than normal risk, and the insurance rate will increase. The amount of the increase is dependent upon the risk. Heli-skiing would have tripled the cost of a life insurance policy. However, not telling the insurance company denied the claim.
West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
Date of the Decision: 2009
Plaintiff: West Coast Life Insurance Company
Defendants: Martha Hoar, as the personal representative of the other Estate of Stephen M. Butts; Telluride Properties, Llc., a Colorado Limited Liability Company; Telluride Properties, Inc., a Colorado corporation; Albert D. Roer, an individual; Polly Lychee, an individual
Plaintiff Claims: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act
Defendant Defenses: Rescission
Holding: for the plaintiff life insurance company
Owners in a business want to make sure the business will survive if one of the owners is disabled or dies. There is also a desire to take care of the family of the deceased. Finally, immediately purchasing the deceased share of the business keeps the business running smoothly without the worry or probate or someone with no business experience from running the business. This usually takes the form of a buy-sell agreement. The agreement sets out the terms on when the contract kicks in, how to value the business and how to pay the estate of the deceased or the disabled owner.
Many times the owners will want to make the purchase of the deceased estate immediate, so the business purchases life insurance on the owners. Upon the death of an insured, the insurance proceeds are used to keep the business going to pay for the ownership of the business from the estate of the deceased.
In this case, the parties created a business and purchased a $3 million-dollar policy on the owners. For large life insurance policies more underwriting, questions are asked and sometimes physicals are required. In this case, the insured owner was asked if he “”[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or hobby.” The insured said he was a scuba diver and skier. At the end of the form the insured had to affirm that all of his answers were full, complete, and true to the best of his knowledge and belief.
The insured was then interviewed by a third party hired to investigate the insured. The insured was asked what he did in his spare time. The insured answered he skied and golfed. He also stated he was into private aviation and scuba diving. At no time did the insured ask any clarifying questions as to what hazardous activities meant.
The insured regularly participated in heli-ski trips in Canada. He had been heli-skiing for at least six years. He purchased a Black Diamond Avalung for his ski trips. The heli-ski operation required the insured to sign a “Release of Liability, Waiver of Claims, Assumption of Risk and Indemnity Agreement.” The heli-ski operation also required avalanche rescue training, helicopter safety training and required the use of avalanche beacons.
During a heli-ski trip, the insured was killed in an avalanche.
The insurance company refused to pay the life insurance benefit because the insured had not been truthful on his application for insurance. The life insurance company sued for rescission. The trial court granted the life insurance company’s motion for summary judgment, and the case was appealed.
Summary of the case
Rescission is the term applied when a contract is unwound, and both parties are placed back in their original position. There must be a legally recognized cause for a court to require rescission. Material breach, or as in this case fraud, can be a cause for a court to rescind a contract.
To win a claim of rescission under Colorado law the insurance company had to prove:
(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy.
The court focused on the first and second claims that the deceased made a false statement or concealed a fact and did so knowingly.
The court did a thorough review of all the facts the life insurance company presented, which stated that heli-skiing was a high-risk operation. These facts included the acts of the insured/deceased as outlined above and statements made by the expert witness of the insurance company. One statement which the court found particularly informative was that heli-skier was “… approximately 18,702 times more likely to be killed in an avalanche than an individual skiing inbounds at a ski area.” This statement was then supported by this footnote the court included. “The probability of an avalanche fatality occurring while heli-skiing or snowcat skiing is approximately 1 per 29,000 visits.”
The risk of heli-skiing was then supported in the court’s argument by the fact the deceased had signed a release. “This is especially true where heli-skiers such as Butts were required to sign a waiver explicitly acknowledging heli-skiing was far more dangerous than resort skiing.”
The fact that the deceased had signed the release, purchased a Black Diamond Avalung, and took avalanche and helicopter training showed the activity was dangerous. That was proof of knowledge and intent that heli-skiing was a high-risk activity which his involvement in should have been disclosed to the insurance company.
The next argument was over the fourth element. The court found for this argument the insurance company had to have knowledge that the life insurance policy applicant was not truthful in answer questions.
Consequently, the beneficiary of the insurance policy, the defendants were not able to argue the contract should not be rescinded. The insurance company was granted rescission and did not have to pay the $3 million-dollar policy benefit.
So Now What?
The increase due to heli-skiing would have increased the yearly premium from $4,800 to $12,380. For most people making a living in the outdoor recreation, the basic premium is too much, the increased premium out of reach. Disability insurance can cost more.
Health insurance is probably no longer subject to such rating changes to do the Patient Protection and Affordable Care Act, which is one blessing for those of us making a living in the outdoors.
If you are just starting out, make sure you have good health, life and disability policies. Lying or misrepresenting the risks you take will subject your family to a similar situation. Purchasing the policies before you have gone too far…outdoors, may save you some money.
If you die mowing the lawn or in a car accident, the chances of this occurring are low. The investigation is triggered when you die doing a high-risk activity, and the insurance company finds out you regularly participated in the activity and did not tell them at the time you applied for the policy.
You’ll probably not have to worry about this issue. You’ll be dead.
What do you think? Leave a comment.
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Copyright 2014 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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