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 ›
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"Excellence in the Advancement of Animal Law Award" - American Bar Association Tort Trial & Insurance Law Section Animal Law Committee
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"Industry Service Award" - Michigan Equine Partnership
"Catalyst Award"- Michigan Horse Council
"Outstanding Achievement Award" - American Riding Instructors Association
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"Associate Service Award" - United Professional Horseman's Association
"National Partnership in Safety" Award" - Certified Horsemanship Association
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