Equestrian releases in Colorado | Riding at Summer Camp: Read before you sign…
Written by Lindsay Obert, Esq.
Hamil v. Cheley Colorado Camps, Inc.
The facts of the Hamil case are fairly straight-forward. The horse-back rider was a minor (Hamil) who had been to the Cheley Colorado Camp for summer camp in 2002, 2003, and 2004. Before attending camp each year, Hamill and parents both signed a liability/risk agreement that contained an “exculpatory clause” (which reads in pertinent part): “I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley with respect to any injury…occurring to my child while he/she participates in any and all camp programs and activities. I agree to indemnify and hold harmless Cheley…with respect to any claim asserted by or on behalf of my child as a result of injury… I HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.” The agreement ends with the following statement: “I give permission for my child to participate in all camp activities, including those described above. I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death…resulting from such risks for myself and my child.” Hamill at *2 (emphasis added). Hamill and her parents signed the agreement.
In July 2004, when Hamill was 15 years old, she fell from a Cheley horse and broke her arm. Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had improperly saddled her horse. The lower District Court granted Cheley’s motion for summary judgment on the two negligence claims, ruling that although Hamill was a minor, the agreement barred her claims and that there was no gross negligence as a matter of law. Hamill at *1. Hamill appealed the ruling, arguing that because she was a minor and her mother did not make an informed decision, the agreement did not bar her negligence claims (and that there were material facts that precluded summary judgment on her gross negligence claim). The Colorado Court of Appeals disagreed, and affirmed the District Court judgment.
Validity of Exculpatory Agreement
The Colorado Court of Appeals first reviewed the validity of the exculpatory agreement by examining the four factors set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) and reiterated again in B&B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (and then used these factors to go through the Hamill agreement):
- First and Second Factors – “Duty” and “Nature of Service”
- The Colorado Supreme Court has previously ruled that “businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004). Additionally, horse-back riding is “not a matter of practical necessity for even some members of the public,” and is “not an essential service.” Jones, 623 P.2d at 377-78; see also Chadwick, 100 P.3d at 467; Day v. Snowmass Stables, Inc., 810 F.Supp. 289, 294 (D. Colo. 1993). Further, C.R.S. 13-21-119 limits the civil liability of those involved in equine activities = riding is a matter of choice, not necessity.
- Third Factor – “Fairness”
- The Court of Appeals in Hamill recognized that a contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Here, horseback riding was found not to be an essential activity and Hamill’s mother not at “mercy” of Cheley’s negligence when signing the agreement. Further, Hamil’s mother admitted to voluntarily signing the agreement specifically giving permission for Hamil to participate in horseback riding activities (Note, however: Wycoff v. Grace Community Church, Nos. 09CA1151, 09CA1200 & 09CA1222 (Colo. App. Dec. 9, 2010), waiver insufficient to allow parents to assess the degree of risk involved and extent of possible injuries because it did not describe the activity that resulted in injury). Hamill’s mother also testified that Hamill had previously attended other camps, and that horseback riding services were offered (and experienced) elsewhere.
- Fourth Factor – “Intention of the Parties”
- When reviewing a contract, the Court must enforce the plain meaning of the contract terms. USI Properties East, Inc. v. Simpson, 938 P.2d 168, 172 (Colo. 1997); B&B Livery, Inc., 960 P.2d at 136. In Hamill, contract was unambiguous. The next inquiry was whether the exculpatory agreement clearly evidences the parties’ intentions, which requires an examination of current case law and statute. Similar cases say YES – in B&B Livery Inc, the agreement at issue was written in plain, clear terms, was not overly long; Plaintiff admitted she didn’t really read the agreement, but Court said while they cannot be certain she would have signed after reading and studying the agreement, there is no dispute Plaintiff intended to grant a general release to B&B. There was a similar situation in Chadwick – no legal jargon, not inordinately long, included statutory release for inherent risks, language releasing defendant from “any legal liability,” no other way to interpret other than an intent to release from “any” liability caused by or resulting from plaintiff’s participation in the activity. Additionally, parties can contract to release activity sponsors “even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.” C.R.S. 13-21-119(4)(b); B&B Livery, Inc. Here, the Hamill agreement is similar to B&B and Chadwick. The total length of agreement was 3.5 pages, contained minimal legal jargon, had the statutory release language of CRS 13-21-119, and identified risks associated with horseback riding; contained broad intent to release claims of liability for “any injury”, included all degrees of potential injury. Hamil and her parents signed the release and also signed agreements containing the same language each of the previous two years. The agreement sufficiently put Hamil and her parents on notice that equipment may malfunction, break, or fall, and that counselors may misjudge circumstances. The breadth of the release persuaded the Court that the parties intended to disclaim legal liability for negligence claims. The agreement with such “plain and unambiguous terms” will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of the agreement. Hamill at *3-4.
“Informed Consent” under C.R.S. § 13-22-107
In Cooper v. Aspen Skiing Co., the Colorado Supreme Court held that it was against public policy for parents to prospectively waive liability on behalf of their minor children. 48 P.3d 1229 (Colo. 2002). In 2003, the General Assembly superseded Cooper by enacting 13-22-107, which allows parents to “release or waive the child’s prospective claim for negligence,” and declares that “parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff —P.3d at —; 13-22-107(1)(a)(I)-(V). The statute does NOT, however, allow the parent to waive a child’s prospective claim for “willful and wanton…reckless…or grossly negligent” acts or omissions.” 13-22-107(4); Wycoff. Here, the Court found that the General Assembly required the consent to waiver by a parent to be “voluntary and informed.” Wycoff; Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); Boles v. Sun Ergoline, Inc., 223 P.3d 724 (Colo. 2010). 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. Wycoff; Black’s Law Dictionary 346 (9th ed. 2009).
Unlike the situation in Wycoff, where child was injured while being pulled behind an ATV on a frozen lake and mother did not know her child would be engaging in such an activity, here, the undisputed facts demonstrated that Hamill’s mother knew the activities that Cheley offered. Hamill had attended Cheley and ridden the camp horses for two years prior to the incident, and the agreement clearly indicated that horseback riding was an activity made available to campers. The Cheley agreement contained language envisioned negligence. Hamill’s mother claimed she “skimmed” the document prior to signing, which she also did in 2002 and 2003, indicating that she understood the risks she was accepting on behalf of her child. In fact, Hamill’s mother admitted that the first time she had “thoroughly” read through the document was in her attorney’s office in 2009, well after the accident. Her signature on the document indicated that she had read and understood the terms of the agreement and agreed to be bound by them; failing to read them is not a defense. The Court further found that the agreement did not need to set forth an “exhaustive list of particularized injury scenarios to be effective.” Hamill at * 6.
Gross Negligence
Exculpatory agreements are not a bar to civil liability for gross negligence. Jones, 623 P.2d at 376; Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). “Gross negligence” is willful and wanton conduct; action committed recklessly, with conscious disregard for the safety of others. Forman, 944 P.2d at 564. Here, the evidence demonstrated that a wrangler checked Hamill’s saddle 2-3 times before the ride, and was again checked for a proper fit after Hamill was asked to mount and dismount prior to the ride. There is no evidence that the wrangler was “willfully incompetent,” purposely caused the saddle to slip, or recklessly disregarded the appropriate way to tack the horse. Hamill at * 7.
If you have a Colorado equine law or Colorado equestrian law matter and want to speak with a seasoned attorney with over 18 years of experience in these unique areas of the law, call Marc Patoile of Folkestad Fazekas Barrick & Patoile, P.C., at 303-688-3045 for a free initial telephone consultation today!
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