Beyond Control – Woman Injured on Costa Rican Bicycle Tour; Claims Survive Motion to Dismiss (CO)

by

Steinfeld v. EmPG International, LLC (Colorado)
(trial court disposition)

A woman fell off her bicycle during a bicycle your vacation in Costa Rica.  She and her husband filed a lawsuit against the bicycle tour company.  The lawsuit was filed in Pennsylvania where the plaintiffs resided, but the Pennsylvania District Court held that is lacked personal jurisdiction over the defendant tour company that was based in Colorado.  The defendant filed a motion to dismiss based in large part on the assumption of risk and waiver of liability forms (“Releases”) signed by the plaintiffs prior to their participation in the tour.  However, the Colorado District Court applied Colorado law (as having the “most significant relationship” to claims), denied the motion, and allowed the case to proceed to discovery, finding that the Releases did not bar all of the plaintiffs claims.  The Court explained:

“A waiver implicitly or explicitly is grounded on warranties of fitness, and assumption of risk can only take place when the risk is inherent and clearly foreseeable.  The Complaint in this case abounds with allegations of misrepresentations and abandonment of good faith attempts to fulfill the obligations of the contract.”

The plaintiffs had signed separate forms stating that they had “full understanding that bicycling and other tour activities involve risks and hazards that may involve injury and/or death,” and that each agreed “to assume full responsibility for [himself/herself]…and for the bicycle(s) which is/are assigned to [him/her], except when said bicycle(s) is/are in the care of [defendant].”  Additionally, the defendant cited to the terms and conditions of its website, which included lengthy text about the responsibilities and risks that each plaintiff was accepting and assuming.  However, the Court challenged the documents, stating:

“The waivers at issue in this case are neither clear or unambiguous, and even if they were, the [plaintiffs] were at such an obvious disadvantage in bargaining power vis á vis the [defendant], that the effect of the waiver was to put them ‘at the mercy’ not only of [the defendant] as the tour organizer, but of the negligence of any number of entities and individuals in Costa Rica with whom [defendant] contracted to perform services on its behalf.”

The form that plaintiffs signed did not include a reference to “waiver” or “negligence,” and they did not purport to “release” anyone from liability.  Instead, the agreements focused on addressing the customer’s understanding of the various risks and hazards associated with the activities.  Additionally, the language on the website only referred to the defendant not being responsible for personal injuries “arising out of the act of negligence of any direct or supplemental carrier, hotel or other person rendering any of the[ ] services or accommodations being offered in these tours,” or “any injuries, death, damage, loss or delay in any means of transportation or by reasons of any event beyond the actual control of [defendant] or of any agent or supplier.” (Emphasis in original.)  The Court interpreted this language to imply that the defendant could be held responsible for injuries that “were not ‘beyond its actual control,’ i.e., the hiring, outfitting, and delegation decisions it made.” (Emphasis in original.)  In the end, the Court concluded that the evidence at trial may ultimately support the limitation of liability that the defendant asserted, but the defendant was not entitled to dismissal as a matter of law.

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