What’s in a Waiver?

We’ve been approached by numerous companies who rent bikes or host events, and they’ve asked us to review their waivers. In so doing, it brought to mind the issues surrounding waivers we cyclists are often signing, or creating for our own endeavors. Here is a primer meant to inform and educate you about waivers.

***This is NOT legal advice - as these laws change and evolve often, be sure to consult an attorney for the most up-to-date information.

Please note, this blog is oriented towards Colorado law for purposes of this discussion. Waiver laws and cases vary drastically from state to state.

A release of liability waiver is an agreement that you will not hold someone else liable for your bodily injuries or property damage. Liability waivers are often used by companies who provide services such as rental bikes or bike tours, or run events such as a bike race or triathlon. Liability waivers are used as evidence that you were warned of the risks of participation, and that you agreed to assume those risks.

Signing a liability waiver is often a condition of participating in an activity or event. If you don’t sign it, you don’t get to participate.

Exculpatory agreements are construed strictly against the party seeking to limit its liability. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.1989). However, the validity of such waivers is a question of law. Jones, 623 P.2d at 376; Stanley v. Creighton Co., 911 P.2d 7405, 707 (Colo.App.1996).

In determining whether an exculpatory agreement is valid in Colorado, there are four factors which a court must consider: (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, 623 P. 2d 370 (Colo. 1981).

Waivers should be carefully scrutinized to see that the “intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate the contract was fairly entered into.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo. 2004). Chadwick involved equine activities- specifically, an incident that occurred during a hunting expedition, guided by Colt Ross Outfitters, Inc., in which Chadwick was thrown from a mule and sustained severe injuries. The Supreme Court of Colorado affirmed the Court of Appeals in finding that (1) the release agreement was not void as against public policy; (2) the language of the agreement reflected a clear and unambiguous intent to release the Outfitter from all liability for any injury resulting from Chadwick's participation in activities of the guided hunt; (3) that the agreement contained the warnings expressly required by section 13-21-119, 5 C.R.S. (2003); and (4) that riding a mule fell within the statutory definition of equine activities, as well as the broad language of the agreement concerning the use of animals while participating in the activities of the hunt.

Colorado courts have consistently upheld broad waivers for equine activities.

Courts will often review the length/legal complicatedness of the release or waiver in assessing factor number 4 above. In Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945 (2011) the Court stated, “the agreement here is not inordinately long-three and a half pages. The legal jargon is minimal.”

So, keep your waivers short and simple, easy to read and understand.

It is reasonable to interpret the broad language of a release to cover claims based on negligence; otherwise the agreement would be essentially meaningless. It is not necessary to describe in detail each specific risk that might be encountered. Lahey v. Covington, 964 F. Supp. 1440 (D. Colo. 1996).

What about minors?

A court will use the four-part test articulated in Jones listed above, 628 P.2d at 376, AND will look at whether the parent made an informed decision under section C.R.S. 18-22-107 to release his/her child’s prospective negligence claims. That statute states that "so long as [a parent's] decision to waive the child's claims is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education." C.R.S. § 18-22-107(I)(a)(V).

For a thorough review of the 4 factors as well as releases involving minors, consider reviewing the Hamill case here.

Public or Essential Services

A liability waiver can be unenforceable if you have to sign it in order to use a public or essential service. Courts have told us that certain activities are not public or essential, including: Skydiving, Whitewater rafting, Horseback riding, Mountain biking, Skiing, Snowmobiling tours. Some factors that may make a service public or essential include: regulated by the government, important necessity for a lot of people, service provider says they allow anyone to use the service. An example of a public or essential service is commercial airlines. x (See Jones v. Dressel).

Willful and Wanton?

In no event will an exculpatory agreement be permitted to shield against a claim of willful and wanton negligence. Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981), citing Barker v. Colorado Region, 35 Colo.App. 73, 532 P.2d 372 (1974); Kansas City Power & Light Company v. United Telephone Company of Kansas, Inc., 458 F.2d 177 (1972); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925 (N.Y. 1961).

What is willful and wanton behavior? In Brooks v. Timberline Tours, the 10th Circuit Court of Appeals stated that in Colorado, willful and wanton behavior requires “a mental state of the actor consonant with purpose, intent, and voluntary choice,” citing Potter, 849 F.Supp. at 1411. It 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.” (citations omitted).

In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889 (D. Colo. 1998), the Court found sufficient evidence for a claim of willful and wanton conduct to go to the jury. There, several prior skiers had close calls with an unprotected picnic deck before Rowan died by skiing into it.

Our book devotes an entire chapter to waivers/releases of liability. Order your copy HERE.

For more, consider this Colorado Lawyer Article HERE. Another great resource is Sportwaiver.com.