Recreational Waivers in Colorado: Playing at Your Own Risk

• Publication year: 2003
• Pages: 77

32 Colo.Law. 77 Colorado Lawyer 2003.

2003, August, Pg. 77. Recreational Waivers in Colorado: Playing at Your Own Risk

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77

Vol. 32, No. 8, Pg. 77

The Colorado Lawyer
August 2003
Vol. 32, No. 8 [Page 77]

Specialty Law Columns
Tort and Insurance Law Reporter
Recreational Waivers in Colorado: Playing at Your Own Risk
by Stephen A. Bain, William R. Rapson

This column provides information concerning current tort law issues and insurance issues addressed by practitioners representing either plaintiffs or defendants in tort cases In addition, it addresses issues of insurance coverage regulation, and bad faith

Column Editor:
William P. Godsman of the Law Office of William Godsman, Denver - (303) 455-6900, wgodsman@qwest.net

About The Authors:

William R. Rapson Stephen A. Bain
This month's article was written by William R. Rapson, brapson@wsmtlaw.com; and Stephen A. Bain, sbain@ wsmtlaw.com. The authors are attorneys with Welborn Sullivan Meck & Tooley, P.C. - (303) 830-2500.

Liability waivers often play an important part in litigation affecting Colorado's recreational industry. This article discusses how to evaluate such waivers.

Over time, Americans have become less tolerant of risk and more likely to sue.1 Not surprisingly, Colorado's recreational industry has come to rely on waivers of liability to stay in business. Almost every recreational operator requires participants to sign some sort of waiver. Determining whether the waiver will be enforced is critical to assessing the viability of many recreational tort cases. Winning or losing a recreational tort case can depend on how counsel fields issues relating to waivers of liability.2 This article discusses the enforceability of liability waivers and how such waivers should be analyzed.

Overview of Liability Waivers in Colorado

Colorado law generally supports waivers of liability in connection with recreational activities, such as skiing, swimming, and softball. However, Colorado courts have stated repeatedly that under well-established Colorado law, agreements attempting to exculpate a party from that party's own negligence are disfavored.3 As a result, liability waiver agreements are closely scrutinized.4 They also are strictly construed against the party seeking enforcement.5

Limitations on the enforcement of recreational waivers have developed in part because waivers are at odds with common law liability for tortious conduct, which is supported by Colorado law and public policy. Other public policy reasons also are significant. By way of example, consumers lacking legal expertise do not really understand that waivers mean they are giving up the right to sue for tortious conduct, as opposed to simply waiving liability for "accidents" that occur without fault. Further, the circumstances under which waivers are executed generally do not lend themselves to a fair and balanced assessment by the consumer of the consequences of executing a waiver.

Two en banc decisions by the Colorado Supreme Court illustrate how the tort landscape has changed over the past forty years and how important waivers have become. In the 1960 case of Hook v. Lakeside Park Co.,6 the plaintiff suffered back injuries from riding a "Loop-O-Plane," an amusement ride in which she was a passive passenger. Despite testimony that the operator had not properly drawn a restraining strap across her lap, the Court upheld the dismissal of her claim for negligence because "the predominant warranty which the operator offers is not that the passenger shall be safe, but that he shall receive a thrill."7 Although the Court found the "express waiver" printed on the plaintiff's ticket to have no legal significance, it held that she assumed the risk of injury by voluntarily riding on the Loop-O-Plane. The Court concluded its opinion by commenting that "[t]he timorous may stay at home."8

The case of Cooper v. Aspen Skiing Co.,9 which was decided in June 2002, reflected a different sensibility. Cooper involved a seventeen-year-old competitive ski racer who skied into a tree during a training run and was blinded. The minor plaintiff had raced for several years and was fully aware of the risks involved. Nevertheless, both he and his mother had executed a comprehensive "Acknowledgment and Assumption of Risk and Release." The Colorado Supreme Court held the waiver to be void as against public policy. Because the plaintiff was a minor, neither he nor his mother had the capacity or authority to waive any cause of action he might have had prior to the injury.10

Forty years ago, the recreational industry did not need to rely on liability waivers because common law principles of assumption of risk provided significant protection. Now, the industry depends on waivers, and much litigation focuses on their enforceability.

Three-Prong Analysis of Liability Waivers

In Colorado, the validity of a recreational waiver is tested by a three-pronged analysis. Each prong of the analysis must be completed to evaluate the validity of a waiver. First, the waiver must not be barred because it involves minors, common carriers, willful conduct, or consumer legislation. Second, the waiver must meet all four of the requirements set forth in a 1981 Colorado Supreme Court case, Jones v. Dressel,11 relating to: (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 intentions of the parties were expressed in clear and unambiguous language.12 Third, the waiver must be enforceable under general principles of contract law relating to contract formation, interpretation, and affirmative defenses. The following discussion examines the three prongs in detail.

First Prong: Absolute Bar Analysis

The first prong involves an examination of whether there is any prohibition to enforcement of the recreational waiver. The following caveats or prohibitions relating to minors, common carriers, willful and wanton conduct, and consumer protection apply in Colorado.

Minors: As noted with regard to the Cooper case,13 as of June 2002, a parent could not waive or release a minor's prospective negligence claim. The Colorado Supreme Court also held that a parent could not indemnify the operator against any liability the operator has to the minor.14 However, on May 14, 2003, Governor Owens signed Senate Bill 03-253, in which the General Assembly declared that Cooper "has not been adopted by the [G]eneral [A]ssembly and does not reflect the intent of the [G]eneral [A]ssembly or the public policy of this state."15 CRS § 13-22-107(3) now provides that "[a] parent of a child may, on behalf of the child, release or waive the child's prospective claim for negligence." Although the General Assembly has overruled Cooper, it still is important to be careful when dealing with waivers involving minors.16

Common Carriers: Common carriers, such as trains and airlines, owe a duty to exercise the highest degree of care and not simply a duty of ordinary care. As a result, waivers of liability for common carriers are invalid.17 The only exception to the prohibition on the invalidity of common carrier waivers is where statutes override the common law. For example, ski chair lifts and other passenger tramways are defined by statute not to be common carriers for liability purposes.18

A key issue in this area turns on what characterizes common carriers. The applicable statutory and case law generally applies the doctrine where a passenger surrenders himself or herself to an operator to be transported from "point A" to "point B."19 The fact that an element of recreation may be involved does not destroy common carrier status.

Willful and Wanton Conduct: Under Colorado law, an exculpatory agreement will not provide "a shield against a claim for willful and wanton negligence."20 In this context, the main issue is what constitutes willful and wanton conduct. Various courts have defined such conduct in different ways. In Brooks v. Timberline Tours, Inc.,21 the Tenth Circuit Court of Appeals stated,

. . . willful and wanton behavior requires...