Colorado Appellate Court Strikes Down Recreational Liability Release: Ruling Could Impact Stable/Equine Professional Releases
Individuals and businesses in the horse industry rely on waivers/releases as part of their risk management programs. We’ve written for years that most states nationwide have shown a willingness to enforce these documents – if they are properly worded and signed. Colorado is among those states.
On December 29, 2016, the Colorado Court of Appeals found a national fitness facility’s liability waiver/release form to be unenforceable against a lawsuit brought by a patron. In that case, the injured patron (the plaintiff) who sued was not partaking in any fitness, sporting, or recreational activity when she was injured; rather, she was in the women's locker room and allegedly tripped on a blow dryer cord under a sink, causing injuries. In defense of her lawsuit, the fitness facility argued that she released her claims when she signed its “Member Usage Agreement,” which included release of liability language. Thereafter, the fitness facility sought dismissal of her case, which the trial court granted. The plaintiff appealed to the Colorado Court of Appeals, which reversed the dismissal and reinstated her case.
Here are some of the points the Colorado court made in its 18-page ruling:
- Based on established precedent, Colorado courts have analyzed certain factors in determining whether a release is valid. These factors include “whether the contract was fairly entered into" and "whether the intention of the parties was expressed in clear and unambiguous language."
- The court noted that Colorado courts have enforced release agreements in recreational activity settings.
- The problem for the Court was that it found that the fitness facility’s release did not express the intention of the parties in “clear and unambiguous language.” The Court considered language in the form to be “legal jargon” and “technical legal language.” It concluded that the form created a likelihood of confusion or failure of a person signing it to recognize the extent of the release’s provisions.
The case was: Stone v. Life Time Fitness, Inc., No. 15CA0598 (Colo. App. 12/29/2016). An appeal is possible.
What’s Effective Release Language?
The frequently asked question is: How should release documents be worded?
Unfortunately, there is never a guarantee that liability releases, regardless of how they are worded, will dismiss a lawsuit. State laws can differ, and courts don’t always agree. In the past, this blog has covered several reasons why releases can be complicated, such as states differing on how releases interact with state Equine Activity Liability Acts, states differing on coverage of details, courts disagreeing on whether a signer had sufficient time to read the release before signing, whether releases can bar claims of children, and other reasons. Your lawyer can recommend language for your operations.
Julie Fershtman, who speaks nationally regarding waivers/releases, litigates cases involving these documents, and follows the law closely, offers a few suggestions regarding waivers/releases in every state:
- Be cautious before using a waiver/release form that someone shares with you online. Chances are possible that the form comes from another state whose laws differ from those where you live or do business.
- Understand that state-by-state variations can impact release language. These include, for example, Equine Activity Liability Act language requirements.
- A release that is readable and understandable stands a better chance of being enforced.
- Don’t conceal that the document is a release or waiver of liability.
- If your intent is to have visitors and customers release your facility (and others described in the document) from injuries, losses, or damages that can occur when people are mounted AND un-mounted, such as walking on the property, have the document reflect this.
- Remember that releases do not substitute for liability insurance. Because people who sign releases can, and sometimes do, file lawsuits, make sure you are properly insured.
This blog post does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.
Julie Fershtman is considered to be one of the nation's leading attorneys in the field of equine law. A frequent author and speaker on legal issues, she has written over 400 published articles, three books, and has lectured at seminars, conventions, and conferences in 29 states on issues involving law, liability, risk management, and insurance. For more information, please also visit www.fershtmanlaw.com and www.equinelaw.net, and www.equinelaw.info.View All Posts by Author ›
Our Equine law blog (and its author) in the news!
Julie Fershtman, author of our popular and prolific Equine Law Blog, was interviewed this week by the State Bar of Michigan. The interview, which called Fershtman "Lawyer-Blogger," discussed our Equine Law Blog. We truly believe that this blog is the nation's most active blog serving the equine industry on equine law topics, and we thank you for visiting it. Read more here.
Honors & Recognitions
Congratulations, Julie! We're proud to share that Julie Fershtman has received two prestigious awards.
On April 13, 2013, she received the American Youth Horse Council's 2013 "Distinguished Service" Award. As the award itself states, she received it "[i]n recognition of years of dedicated service to the American Youth Horse Council and tireless efforts to touch the lives of youth involved with horses." For more information about the American Youth Horse Council, please visit www.ayhc.com/.
On May 7, 2013, Julie received the 2013 "Industry Award" from the Michigan Equine Partnership for her work over the years supporting legislation to promote and protect the Michigan equine industry. For more information about the Michigan Equine Partnership, please visit www.miequine.com/.
RECENT EQUINE LAW COURTROOM VICTORY
We're pleased to share that Julie just won a case in Michigan where she defended a boarding and training stable that was sued by a visitor who was injured in the barn aisle. Julie cautions that this case might have been avoided altogether if the stable required every visitor to sign its waiver/release of liability. (Julie, interestingly, drafted that stable's release document years ago but the stable only presented it to customers.) Make sure that your release is well-worded and complies with the laws of your state.
"The Seller's Contract Includes an "As Is" Disclaimer – Now What?" - Desert Mirage Magazine, August 2013
Win Equine law Books!
We're always on the lookout for good article and update ideas for the Equine Law Blog. Please share yours! We'll give the sender of best tip of the month a free copy of Julie Fershtman's books, EQUINE LAW & HORSE SENSE and MORE EQUINE LAW & HORSE SENSE. Click here to send your ideas. [For more info on these and other publications written by Julie Fershtman, please visit www.equinelaw.net and www.equinelaw.info or call her directly at (248) 785-4731.]
Large Step Forward for the Horse Industry
We applaud the American Horse Council (www.horsecouncil.org) for its national marketing initiative for the horse industry. The AHC joined together ten national associations and large corporate industry stakeholders to make this happen. We await its marketing plan, which will propose ways to help people become more interested in horses and equine activities, either as participants or spectators.
THE NATION'S MOST SOUGHT-AFTER EQUINE LAW SPEAKER
Did you know Julie Fershtman has spoken at the American Horse Council Annual Meeting, Equine Affaire, Midwest Horse Fair, Equitana USA, US Dressage Federation Annual Meeting, North American Riding for the Handicapped (now PATH International) Annual Meeting, American Morgan Horse Association Annual Meeting, American Paint Horse Association Annual Meeting, US Pony Clubs, Inc.'s Annual Meeting, All-American Quarter Horse Congress, American Youth Horse Council Annual Meeting, American Riding Instructors Association Annual Meeting, CHA Annual Meeting, and numerous others? Consider signing her up for your convention. Contact Julie.
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