829 F. Supp. 2d 1062
D. Colo.2011Background
- Ms. Squires, a minor with visual impairment and cerebral palsy, was injured during a BOEC ski program at Breckenridge in Feb. 2008.
- Ms. Squires signed an Acknowledgement of Risk and Release of Liability prior to the trip, on behalf of herself and her daughter.
- BOEC’s bi-ski program used tethers controlled by an instructor; a collision occurred with a tree after another skier lost control.
- Ms. Squires’ SAC asserts nine claims for relief against BOEC, Goodwin, and Mountain Man; the court previously granted Mountain Man summary judgment on several claims.
- BOEC moves for summary judgment on the Fifth Claim (negligence/willful and wanton/gross negligence) based on the Release’s waiver of liability.
- The court determines the Release was informed and valid under Colo. Rev. Stat. § 13-22-107 and declines to void it on misrepresentation or public policy grounds, while allowing a potential willful/gross-negligence theory to go to trial against BOEC.]
- The court also addresses whether a material misrepresentation and fraud in the inducement could render the Release voidable, and whether the Trisler volunteer’s conduct is sufficiently willful and wanton to overcome the Release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Release is valid and enforceable. | Squires argues the Release was not informed and thus invalid. | BOEC contends the Release was informed and enforceable. | Release valid and enforceable. |
| Whether the Release was informed under §13-22-107( l )(a)(V). | Mother’s signing was not informed based on Wycoff deficiencies. | Release provided detailed risk disclosure and a Greetings Letter. | Release informed. |
| Whether misrepresentation or fraud in inducement voids the Release. | BOEC misrepresented AEE standards/accreditation to induce signing. | No evidence of fraudulent intent or justifiable reliance. | Fraud claim not supported; Release not voided. |
| Whether willful and wanton conduct is barred by the Release. | BOEC’s conduct could be willful/wanton and not precluded by Release. | Release excludes simple negligence, but not willful/wanton; issues for trial. | Willful/wanton claim survives for trial; some aspects barred as to Trisler. |
| Whether the Trisler blocker’s conduct is willful and wanton to override the Release. | Trisler failed to perform duties, showing willful/wanton conduct. | Evidence shows only negligence; Release bars claims against Trisler. | Trisler claim barred by Release; BOEC trial issue remains on other willful/wanton theories. |
Key Cases Cited
- Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945 (Colo.App.2011) (exculpatory agreements must meet four criteria; public policy considerations)
- Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo.2004) (emphasizes enforceability where no obvious bargaining disadvantage)
- Robinette v. Aspen Skiing Co., LLC, 2009 WL 1108093 (Colo.D.Colo.2009) (consideration of extrinsic evidence to determine waiver intent)
- B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo.1998) (exculpatory agreements construed against drafter; four elements)
- Mincin v. Vail Holdings, Inc., 308 F.3d 1105 (10th Cir.2002) (recreational services lack bargaining power disparity; standard for waiver)
- Jones v. Dressel, 623 P.2d 370 (Colo.1972) (recreational services not essential; fairness in agreement)
- Potter v. Nat’l Handicapped Sports, 849 F.Supp. 1407 (D.Colo.1994) (ski-related recreational activity; waiver context)
- Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989) (clarity and express language in exculpatory releases)