With its majestic mountains, raging rivers, and clear skies, Colorado offers folks from all walks of life endless opportunities for adventure, thrills, and even danger. Perhaps best known for its vast wilderness and outdoor recreation, excitement can be found in Colorado over almost any mountain pass. With these recreational opportunities come risks. And unless you have substantial experience or training in some of the more extreme outdoor sports, a recreational guide service can be essential to having a good time while staying safe.
Typically, a key component of hiring a guide is signing a recreational waiver. Waivers are meant to relieve recreational sponsors from liability and responsibility if a participant is injured or killed while engaging in a recreational activity. Whether its skiing, mountain climbing, whitewater rafting, skydiving, rock climbing, snowmobiling, horseback riding, or four-wheeling, you will likely be asked to waive some of your legal rights before being taken out on an adventure with a guide. If you choose not to sign a waiver, you will likely be prevented from participating.
What are Recreational Waivers?
In its most basic form, recreational waivers or exculpatory agreements originate from a contract where someone surrenders in advance their legal rights or privileges to sue someone for damages resulting from another’s misconduct. As with any valid contract, recreational waivers require mutual agreement and consideration. Releases need not contain any magic words to be valid but should contain some reference to waiving personal injury claims based on the activity being engaged in. In fact, recreational waivers can be referred to by many different names:
- Exculpatory agreement;
- Assumption of the risk agreement;
- Release of liability form;
- Liability waiver form;
- Waiver of rights form;
- Adhesion contract;
- Liability release form; or
- Disclaimer of rights form.
Are Recreational Waivers Favored in Colorado?
Although exculpatory agreements have long been disfavored in Colorado, they can be enforceable provided certain criteria are met. “The concern with exculpatory agreements is that they stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.”
Nevertheless, Colorado has also long recognized, for more than 45 years, a public policy generally permitting exculpatory agreements that preclude recovery for injuries caused by simple negligence. By enforcing such agreements, Colorado allows private parties to assume some of the risks associated with their recreational pursuits. Stated differently, your hired guide and the company they work for won’t be held responsible if you’re injured in this kind of situation.
What Makes Recreational Waivers Valid and Enforceable in Colorado?
To be valid, an exculpatory agreement cannot place a party “at such obvious disadvantage in bargaining power that the effect of the contract is to put him [or her] at the mercy of the other’s negligence.”
In Jones v. Dressel, a case involving personal injuries suffered when an airplane crashed shortly after takeoff as part of a skydiving operation, the Colorado Supreme Court set forth a test for determining the validity of an exculpatory agreement. This test consists of four factors that must be considered by courts:
- the existence of a duty to the public;
- the nature of the service performed;
- whether the contract was fairly entered into; and
- whether the intention of the parties is expressed in clear and unambiguous language.
The first two factors focus on public policy questions whereas the second two factors focus more on party and contract-specific questions.
The public policy concern is that if the party seeking to avoid liability is engaged in performing a service of great importance to the public, which is often a matter of practical necessity, then, as a result of the essential nature of the services, the party seeking to avoid liability possesses a decisive advantage of bargaining power against any member of the public who seeks the services. For example, in Stanley v. Creighton Co., which arose from personal injuries suffered by a tenant when she slipped on ice and fell down stairs at her apartment complex, the Colorado Court of Appeals held that an exculpatory clause relieving a landlord of liability for negligence in a residential lease was void as a matter of public policy. This is because the court determined that landlord services are generally held out to the public and that housing rental is a matter of practical necessity to the public. Due to this necessity, the court acknowledged the landlord held an obvious disadvantage in bargaining power such that the effect of the contract was to put the tenant at the mercy of the landlord’s negligence.
The concern surrounding the parties and contract is ensuring the agreement was fairly obtained and the terms were clearly and unambiguously expressed. Naturally, as discussed above, for a contract to be fairly obtained, one party cannot have a disparate advantage over the other with respect to bargaining power. The Colorado Court of Appeals has identified the following examples of unfair disparity in bargaining power: agreements between employers and employees, common carriers or public utilities and members of the public, and residential landlord-tenant relationships.
Additionally, to be valid, the exculpatory agreement must clearly and unambiguously express the intent of the parties to extinguish liability. This is determined by looking at the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions as well as a party’s subsequent acknowledgement that he or she understood the provisions of the agreement.
Typically, unlike businesses that provide water, electricity, or sanitary services, recreational service providers can shield themselves from claims of negligence through the use of exculpatory agreements (i.e., recreational waivers). Unlike essential services, recreational services, while important, are optional. That is, you can choose not to go on an ATV tour, but you cannot reasonably opt out of utilities that are necessary for ordinary life. Although this means that some losses suffered during recreational activities may go uncompensated, it’s a policy choice that Colorado has adopted to promote the output and diversity of recreational services that consumers may enjoy.
What Makes Recreational Waivers Invalid and Unenforceable in Colorado?
In addition to the public policy and contract considerations contemplated by the Jones test, an exculpatory agreement can also be unenforceable if its scope is too broad. As a matter of public policy, exculpatory agreements cannot relinquish someone’s legal ability to pursue claims premised upon someone’s intentional, knowing, or reckless misconduct – rather, it can only apply to simple negligence. That is, your hunting guide is excused from liability if he or she negligently causes you to become injured, but there is no liability protection for that same guide if he or she punches you in the face. This is true regardless of the circumstances or intent of the parties.
Simply because a liability waiver is printed on a “form contract” and presented as a “take it or leave it” offer, by itself, does not render the agreement unenforceable. This is particularly true if the services offered are not essential and could be obtained elsewhere. The rationale is that the party seeking the services is not forced by necessity to agree to the exculpatory provision if it is for nonessential services – instead, they could just walk away without signing the agreement. If the services are nonessential, then typically there would not be any unfair bargaining power by the party seeking exculpation.
Another consideration is whether a liability waiver signed by a parent on behalf of a minor child is enforceable. The short answer in Colorado is yes. Colorado Revised Statute § 13–22–107 allows parents to “release or waive the child’s prospective claim for negligence.” This is because, as the statute declares, “parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children,” including whether the children should participate in risky activities. The statute states that “[s]o long as the [parent’s] decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.”
When it involves recreational waivers, the key component for determining whether or not a parent validly released their child’s prospective negligence claim is that the decision to do so be voluntary and informed. Under the law, a parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury. A valid waiver should provide sufficient notice and knowledge of the activities to be engaged in as well as the associated risks.
If an exculpatory agreement is determined to be invalid and unenforceable, it means the participant may not be contractually barred from pursuing a cause of action against the recreational guide service or other activity sponsor. Essentially, without a valid waiver, the service provider can be exposed to liability for their misconduct. Ultimately, whether or not a waiver of liability is enforceable depends upon the language contained within the specific agreement and the circumstances of the particular activity being engaged in.
Exculpatory Agreements Outside of the Recreational Waiver Context
Exculpatory agreements can also be found in a variety of other contractual scenarios beyond recreational services, including many contracts for services, commercial lease agreements, and even gym memberships.
If you have questions about waivers/releases or other contract provisions in general, please contact any of the attorneys at Proctor Brant, P.C. to discuss your situation.
 Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989) (citation omitted)
 Jones v. Dressel, 623 P.2d 370 (Colo. 1981).
 Stanley v. Creighton Co., 911 P.2d 705 (Colo. App. 1996)