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 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.
Julie Fershtman’s Recent and Upcoming Equine Law Speaking Engagements Include:
National Conference on Equine Law in Louisville, Kentucky on April 29, 2020. Topic will be on Waivers/Releases of Liability Involving Minor Participants.
U.S. Hunter Jumper Association (USHJA) Annual Convention in Denver, Colorado on December 10, 2019. Topic will be on Equine Liability.
IRMI Emmett J. Vaughan Agribusiness Conference (“AgriCon”) in Sacramento, CA (April 2019), and Richmond, VA (June 2019) and in Des Moines, IA (September 2019), on topics of “Equine Activity Liability Acts” and “Equine Mortality Insurance Disputes.”
National Conference on Equine Law in May 2019 in Lexington, KY, on the topic of “Equine Activity Liability Act Updates” and liabilities involving hosting of equine clinics.
Agricultural Claims Conference in Kansas City, MO, in March 2019 on topics of “Loose Livestock Liabilities.”
2018 American Bar Association Annual Meeting in Chicago, IL, on “Equine Mortality Coverage and Disputes.”
November 2018, American Horse Council webinar on “Equine Liability.”
Honors & Recognitions
Equine lawyer, Julie Fershtman, has received these prestigious equine industry awards from respected equine organizations:
"Excellence in the Advancement of Animal Law Award" - American Bar Association Tort Trial & Insurance Law Section Animal Law Committee
"Distinguished Service Award" - American Youth Horse Council
"Industry Service Award" - Michigan Equine Partnership
"Catalyst Award"- Michigan Horse Council
"Outstanding Achievement Award" - American Riding Instructors Association
"Partner in Safety Award" - American Riding Instructors Association
"Associate Service Award" - United Professional Horseman's Association
"National Partnership in Safety" Award" - Certified Horsemanship Association
What our Equine Law Services can Provide
Handling breach of contract, fraud/ misrepresentation, commercial code, and other claims involving equine-related transactions including purchases/sales, leases, mare leases/foal transfers, and partnerships.
Litigating disputes in court or through alternative dispute resolution (arbitration, mediation, facilitation).
Defending equine/farm/equestrian industry professionals, businesses, and associations in personal injury claims and lawsuits.
Drafting and negotiating contracts for boarding, training, sales, waivers/releases, leases, and numerous other equine-related transactions.
Representing and advising insurers on coverage and policy language as well as litigation;
Advising equine industry clubs and associations regarding management, rules, bylaws, disputes, and regulations.
Representing some of the equine industry's top trainers, competitors, stables, and associations.
Counseling industry professionals, stable managers, and individual horse owners.
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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