Unintended Consequences – Claims of Woman Injured on ATV Tour Not Barred by Prior Jeep Tour Waiver (CO)

by

Soucy v. Nova Guides, Inc. (Colorado)
(trial court disposition)

Plaintiff and her family, including her mother and two younger sisters, were vacationing in Vail, Colorado.  On July 9, 2012, plaintiff went on jeep tour, and on July 11, 2012, she went on an ATV tour.  Both tours were operated by the defendant tour guide company.  During the ATV tour, plaintiff’s ATV overturned, causing her personal injury, and plaintiff thereafter filed a negligence lawsuit.  The defendant filed a motion for summary judgment asserting that the plaintiff’s claims were barred by a waiver of liability that the plaintiff has signed prior to her participation.  However, the U.S. District Court ultimately held that there was a triable issue of fact as to the existence of a waiver of liability as between plaintiff and defendant in relation to the ATV tour.  The facts are a little convoluted.

Prior to participating in the jeep tour on July 9th, plaintiff signed a “Lease Agreement and Waiver of Liability” (the “Waiver”) on which a handwritten check mark appeared next to “Jeep tour.”  Nothing was marked next to the other options on the agreement, which were “ATV,” “Mtn. Bike,” and “Hiking.”  However, plaintiff did not sign another Waiver prior to taking part in the ATV tour on July 12th.  Plaintiff’s mother signed a Waiver for the ATV tour, and she listed plaintiff and her sisters as participants in the tour, but the mother did not have the capacity to sign the Waiver for the ATV tour on plaintiff’s behalf.

Plaintiff argued that the Waiver that she signed for the Jeep tour did not apply to the ATV tour since only the Jeep tour was marked on the document.  Defendant argued that plaintiff was bound to the Waiver for the ATV tour despite not having signed it.  Defendant contended that Colorado law allowed for consideration of the parties’ intent in the formation of a contract.  Plaintiff countered by arguing that extrinsic evidence of intent was not admissible where the court finds that an agreement is unambiguous.

The Court recognized that contractual conditions may be express or implied, and noted that it could consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.”  The Court further explained “That intent can be inferred from their actions and may be determined by their conduct prior to the time the controversy arose.”

Defendant presented evidence, including deposition testimony, that demonstrated that plaintiff understood that she would normally have been required to sign a Waiver to participate activities like the ATV tour.  Plaintiff also admitted that she would have signed the Waiver before the ATV tour had she been presented with one.  More significantly, however, the evidence showed that plaintiff “assent[ed] to the proposition that she believed a waiver of liability she actually signed relating to one activity applied to another activity as well.”  Therefore, the Court concluded that “it [was] not disputed that [plaintiff] paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 . . . was valid and necessary for her participation in the ATV tour on July 11, 2012.”

However, the Court stated that “an agreement requires intent to be bound by all parties.”  There was no evidence that the defendant intended that the Waiver signed for the Jeep tour also applied to the ATV tour or that it asked plaintiff to agree to a waiver for the ATV tour.  The Court could not infer such intent, and the moving party had the burden of proof.  Therefore, the Court held that a genuine issue of material fact existed as to whether an agreement was formed by both parties on July 11th in connection with the ATV tour, and the defendant’s motion was denied.

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