And the Case Rides Off Into the Sunset

by

Eburn v. Capitol Peak Outfitters, Inc. (Colorado)
(An inexperienced rider was injured during a horseback ride and she sued the facility and equipment provider for negligence; the court found that the exculpatory agreement signed by the plaintiff precluded liability.)

Prior to her participation in a horseback ride, the plaintiff signed two documents, a “Participant Release of Liability and Assumption of Risk Agreement” and a “Protective Headgear Refusal.”  The release document addressed both the inherent risks associated with the activity and included a release of liability for the potential negligent conduct of the defendant.  The District Court denied the plaintiff’s motion for partial summary judgment and granted the defendant’s cross motion for partial summary judgment based on the exculpatory document.

The plaintiff initially argued that the defendant had failed to properly raise the execution of the exculpatory agreement as an affirmative defense in its Answer.  However, the Court quickly dismissed the argument, referring to the issue being clearly identified in the Court’s scheduling order and its final pretrial order.

Plaintiff also argued that the language in the exculpatory agreement was ambiguous and unenforceable.  However, the Court disagreed noting,

“In the instant case, the Court finds that the language of the exculpatory agreement clearly and unambiguously expresses the parties’ intent to preclude [defendant’s] liability for negligent acts.  To begin with, as is evident from the language quoted above, the agreement is written in relatively simple and clear, non-legal terms.  Also, the agreement comprises less than two full pages and is otherwise not very complicated.  Additionally, it specifically addresses the reality that ‘[t]ack equipment can fail, resulting in falling or loss of control’ and explicitly states that the signor assumes all risks from the activities involved, ‘including the potential for permanent paralysis and death . . . even if arising from the negligence of [defendant]. . . .’ [Citation omitted.] With her signature, [plaintiff] also agreed that ‘no form of preplanning can remove all of the danger to which [she was] exposing [herself].’ (Citation omitted.)  Further, the agreement emphasizes important information in several places through the use of capitalization.”

The Court did acknowledge that the plaintiff was an inexperienced horseback rider such that she was “theoretically less knowledgeable about the potential injuries she could suffer.”  However, the Court explained that factor was not dispositive alone.  The exculpatory agreement clearly and unambiguously expressed the intent to protect the defendant from negligence liability.

Finally, plaintiff argued that the exculpatory agreement “did not contain ‘the required statutory warning language.”  Referring to Colorado Revised Statute Section 13-21-119(5), the Court noted that “an equine professional is not liable for an injury to or death of a participant in equine activities resulting from the inherent risks of equine activities.”  The Colorado courts had construed that statute as requiring “that every release agreement between an equine professional and a participant include a warning that the equine professional is not liable for ‘inherent risks’ resulting from an equine activity.'”  Plaintiff argued that the warning in the exculpatory agreement needed to employ the language of the statute “verbatim.”  However, the Court noted that plaintiff cited not authority supporting that position.  The exculpatory agreement did refer to the inherent risks and was sufficient to satisfy the statute.

NOTE: This case is a good example of the use of a waiver and release specifically tailored to a particular recreational activity with clear and concise language on point.  It is also a good example of proper release presentation and form.

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