Chapter 5 - § 5.1 • VALIDITY OF EXCULPATORY AGREEMENTS UNDER JONES

• Jurisdiction: Colorado

§ 5.1 • VALIDITY OF EXCULPATORY AGREEMENTS UNDER JONES

The court in Jones v. Dressel, 623 P.2d 370, articulated the four factors relevant in evaluating the sufficiency of an exculpatory agreement. These factors include "(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." Id. at 376. In the ski law context, the first two factors will not invalidate a release. A duty to the public exists where a service is essential and the party seeking exculpation has an unfair bargaining advantage. Id. at 376-77; Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992). A ski area owes no specific duty to the public. Rowan, 31 F. Supp. 2d at 896. Likewise, skiing is a recreational activity, not an essential service. Consequently, in the skiing context, a release for simple negligence may be found valid if it is both fairly entered into and clear and unambiguous. Id. at 897-98. As discussed in further detail below, the four factors in Jones have formed the basis for analysis of the validity of exculpatory agreements and waivers in numerous ski accident and premises liability matters under Colorado law.

For example, in Rowan, the U.S. District Court for Colorado concluded that a release did not bar a plaintiff's negligence claim because it was ambiguous and not fairly entered into. Rowan, 31 F. Supp. 2d at 898-99. The case, the facts of which are discussed in more detail in § 3.2.2, involved a wrongful death action brought by the mother of a skier who sustained fatal injuries when he ran into a picnic deck. The skier, Rowan, was glide testing skis for his employer over a three-day period prior to the World Cup Downhill ski race. At the bottom of the slope used for glide testing was an unpadded picnic deck, situated so as to require skiers to make a hard left turn at the end of the slope to avoid hitting it. During the first two days of glide testing, several skiers narrowly avoided running into the picnic deck. Another glide tester seriously injured her knee in attempt to avoid the deck. On the morning of the third day of glide testing, Vail requested that Rowan and another glide tester sign a liability release. The release stated that the signatory agreed to release Vail from "any and all claims I might state as a result of physical injury, including death" and provided that it was binding on the signatory's heirs. Vail told Rowan and the other glide tester that they "needed to sign these releases before we could get going for the day." It did not discuss the release with Rowan or provide any additional consideration for the release that it had not provided in the first two days of glide testing. Vail claimed that it had glide testers sign releases as a matter of standard procedure, but it could not produce copies of other releases or any other documentation verifying this claim. Id. at 892-94; 899.

The court found that Rowan had not fairly entered into the release agreement. Vail offered the release to him on a "take or leave it" basis; if he did not sign the release, he could not continue to participate in the glide testing. Rowan needed to complete the glide testing as a part of his job, and, because of the consistency needed to accurately perform the testing, he needed to complete it at the same slope used for the two prior days of glide testing, as switching to another slope would render the first two days of testing useless. The court noted that, had Vail asked Rowan to sign the release on the first day of glide testing, then the release might have been fairly entered into. By the third day of testing, however, Rowan could not simply choose to ski elsewhere. Id. at 897-98.

The court also found the release signed by Rowan to be ambiguous. If the plain language of a release is ambiguous or unclear, the release is void as a matter of law. Id. (citing Anderson v. Eby, 998 F.2d 858, 861 (10th Cir. 1993)). The release signed by Rowan, while free of legal jargon and not unduly long or complicated, was ambiguous as to whether it would apply in the case of a wrongful death action because...