B & B LIVERY, INC., Petitioner, v. Kathy RIEHL, Respondent.
No. 97SC391.
Supreme Court of Colorado, En Banc.
June 22, 1998.
960 P.2d 134
“(e) The term “political contribution paycheck deduction” means the deduction, directly, indirectly, or as a part of some other payment, from a worker‘s paycheck of a specific identified amount, all or portion of which is to be used, directly or indirectly, as a political contribution.”
“(f) The term “fully informed” means complying in all respects with the requirements of subsection (2).”
“(g) The term “person” includes individuals, corporations, partnerships, associations, organizations or any other entity, as appropriate.”
“(h) The term “political purpose destination” means where the worker intends the amount of the deduction to be sent, as indicated by the designation on the request in subsection 2(b)(ii).”
Section 2. Effective Date:
“The effective date of this measure shall be the date of proclamation by the Governor, except that the effective date as to any employment contract or binding collective bargaining agreement for a term commencing prior to and ending after the date of final passage shall be the date of the next expiration of the contract or agreement, notwithstanding any extension, renewal or continuation rights.”
White & Steele, P.C., John Lebsack, John P. Craver, Clair Diaz, Denver, for Petitioner.
Davis & Ceriani, P.C., Bruce E. Rohde, John W. Himmelmann, Denver, for Respondent.
Justice SCOTT delivered the Opinion of the Court.
I.
Kathy Riehl suffered injuries when she was thrown from a horse while participating on a ride organized by B & B. Prior to beginning her horse ride, Riehl executed an exculpatory agreement (“release agreement“), which provided:
I, understand the potential dangers that I could incur in mounting a horse and in riding on said horse. Understanding those risks I do hereby advise and represent and warrant to B & B Livery, Inc., that I do hereby release that Company, its officers, directors, shareholders, employees and anyone else directly or indirectly connected with that Company from any liability in the event of any injury or damage of any nature (or perhaps even death) to me or anyone else caused by my electing to mount and then ride a horse owned or operated by B & B Livery, Inc.
....
I have executed this release willingly and after having read or been advised of the warning posted by B & B Livery, Inc., which warning states as follows: Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities pursuant to section 13-21-119 Colorado Revised Statutes.
Riehl filed a complaint in the Arapahoe County District Court, alleging that: (1) B & B failed to determine or account for her riding ability level; (2) B & B supplied Riehl with faulty gear or equipment for the ride; (3) B & B‘s conduct was willful and wanton or grossly negligent. B & B successfully moved for summary judgment on the ground that Riehl‘s claims were precluded by the release agreement, and Riehl appealed.
The court of appeals reversed and remanded, reasoning that the trial court erred in granting summary judgment based on its conclusion that Riehl had voluntarily signed a release agreement that released B & B from
was intended to exculpate defendant from liability for all negligent acts, including acts contrary to § 13-21-119, and not foreseeable, or, rather, whether exculpation was intended to extend only to those acts that result in injuries arising from the inherent risks of equine activities that are reasonably foreseeable and consistent with the public policy of the state as expressed in the statute.
B & B Livery, 944 P.2d at 644.
Chief Judge Sternberg dissented, finding no ambiguity in the release agreement. In his dissenting opinion, Judge Sternberg relied upon Heil Valley Ranch v. Simkin, 784 P.2d 781 (Colo.1989). In Heil Valley Ranch, we held that “the inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. at 781. The dissent concluded that Heil Valley Ranch controlled and required a contrary result because in the present case, the parties simply intended that B & B be absolved of liability for a broad range of conduct.
II.
A.
Generally, exculpatory agreements have long been disfavored. See, Heil Valley Ranch, 784 P.2d at 783. “They stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one‘s own negligent acts.” Id. at 784. Exculpatory agreements are not necessarily void, however, as long as one party is not “at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other‘s negligence.” Id. (quoting W. Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 482, (5th ed.1984)). The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. See Jones, 623 P.2d at 375. In determining whether an exculpatory agreement is valid, there are four factors which a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. See id. In this case, the parties agree that only the fourth factor is at issue.
Interpretation of a written contract is a question of law for the court. See Colard v. American Family Mut. Ins. Co., 709 P.2d 11 (Colo.App.1985). Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation. See Browder v. U.S. Fidelity & Guar. Co., 893 P.2d 132, 133 (Colo.1995); see also 2A N. Singer, Sutherland Statutory Construction § 45.02 (5th ed.1992) (ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses). If there is no ambiguity, a contract will be enforced according to the express provision of the agreement. See GTM Invs. v. Depot, Inc., 694 P.2d 379 (Colo.App.1984).
Because this case involves equine activities, the following overview of the statute governing equine activities is instructive. In 1989,
The general assembly recognizes that persons who participate in equine activities or llama activities may incur injuries as a result of the risks involved in such activities. The general assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. It is, therefore, the intent of the general assembly to encourage equine activities and llama activities by limiting the civil liability of those involved in such activities.
(Emphasis added.)
[n]othing in subsection (3) of this section shall prevent or limit the liability of ... an equine professional ... if the ... equine professional ...:
(I)(A) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or
(B) Provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity ... and determine the ability of the participant to safely manage the particular animal based on the participant‘s representations of his [or her] ability;
(III) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury.4
Finally,
WARNING
Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes.
(Emphasis added.) Accordingly,
The placement of the statutorily mandated warning in the agreement, however, does not limit an equine professional‘s liability for negligent acts committed by an equine professional that results in injury or harm to the participant, as explained above. Such a result can only be achieved by the use of additional language. By adding the additional language, however, an equine professional‘s form agreement should not be deemed ambiguous simply because it might have been drafted with greater care.
B.
This case involves the interpretation of a release agreement containing this mandatory
The question presented here, therefore, is whether the release agreement is ambiguous because it contains the mandatory
Furthermore, the release agreement here was written in simple and clear terms, it was not inordinately long and complicated, and Riehl indicated in her deposition that she understood that by executing the agreement, she was in fact granting B & B a release.5 Cf. Brooks v. Timberline Tours, Inc., 941 F.Supp. 959, 962 (D.Colo.1996) (release provisions written in simple, clear terms, and were not inordinately long or complicated and excluded specifically “any and all liability, claims, demands, actions, or rights of action, which are related to or are in any way connected with [plaintiffs‘] participation in this activity [snowboarding]“); Potter v. National Handicapped Sports, 849 F.Supp. 1407, 1410-11 (D.Colo.1994) (holding that liability waiver clearly and unambiguously established parties’ intent to extinguish sponsor‘s liability for injuries to skier arising from sponsor‘s negligent acts where waiver was, among other things, written in simple and clear terms, not inordinately complicated, plaintiff indicated that there were no terms that he did not understand, and indicated that the waiver addressed the risk that described the circumstances of plaintiff‘s injury); Heil Valley Ranch, 784 P.2d at 785 (finding release agreement unambiguous, noting, among other things, that: (1) the agreement was written in simple and clear terms that were free from legal jargon; (2) it was not inordinately long and complicated; (3) the plaintiff indicated in her deposition that she understood the release; (4) the first sentence of the release specifically addressed a risk that described the circumstances of the plaintiff‘s injury).
Therefore, while we cannot be certain that if Riehl had read and studied the agreement she would have signed it, there can be no dispute she intended to grant a general release to B & B. Based on the release she did sign, which was clear and consistent with the intent of the parties, we find no basis in our law or the facts present here that requires us to save Riehl from her voluntary, knowing, and intentional act releasing B & B from liability for her injuries.
III.
Accordingly, because we conclude that the release agreement is not ambiguous, we reverse the judgment of the court of appeals
HOBBS, J., dissents, and MULLARKEY and MARTINEZ, JJ., join in the dissent.
Justice HOBBS dissenting:
I respectfully dissent. B & B‘s form of release did not unambiguously notify Riehl that she was waiving any and all rights of action against the business in the event it breached its duty to her of exercising reasonable care.
Agreements that attempt to insulate a party from liability from his or her own negligence have long been disfavored, see Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo.1989), and must be closely scrutinized. See Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981). B & B‘s release referred in clear terms to the inherent risks of equine activity but not to the risk that this business might fail to adhere to the usual and customary safety procedures of the industry, such as (1) selecting a horse suitable to the rider‘s level of experience and skill, (2) utilizing equipment and tack in good condition, (3) cinching and fitting the saddle, stirrups, and bridle correctly, and (4) giving appropriate passenger safety instructions for handling the horse and one‘s self.
Falling from a horse in Colorado‘s challenging terrain can cause serious injury or death. Though riders can be expected to absorb the inherent risks of this potentially dangerous activity, they cannot reasonably expect, in the absence of notice and informed consent, to fall victim to the equine professional‘s negligence. We must therefore closely scrutinize the release language used by B & B to ascertain, as a matter of law, whether Riehl‘s waiver of rights constituted informed consent under the circumstances and can be given effect.
B & B seeks to immunize itself from its liability for breach of its statutory duty and its common law duty to exercise reasonable care under the circumstances. In this regard, it relies on our decision in Heil Valley, 784 P.2d at 781. There we set forth four factors for determining whether an exculpatory release is valid:
(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.
Id. at 784 (quoting Jones, 623 P.2d at 376). At issue here is the fourth factor, and under Heil Valley we must determine “whether the intent of the parties was to extinguish liability [for negligence] and whether this intent was clearly and unambiguously expressed.” Heil Valley, 784 P.2d at 785.
An agreement is ambiguous when it is fairly susceptible to more than one reasonable interpretation. See Browder v. United States Fidelity & Guar. Co., 893 P.2d 132, 133 (Colo.1995). If two or more interpretations can reasonably result from a reading of B & B‘s language, the reading most favorable to Riehl must be chosen because exculpatory agreements are strictly construed against the drafter. See Heil Valley, 784 P.2d at 784.
The majority opinion sets forth the operable language of the release. Maj. op. at 135. The opening sentence of the release states
The majority holds that the second sentence, waiving liability for “any injury or damage of any nature,” operates as a comprehensive waiver of liability for injuries arising from the rental of a horse from B & B, including injuries arising from B & B‘s negligence. Maj. op. at 135. However, nowhere does the form refer to releasing B & B from its own negligence, and the release recites that the signer has executed the agreement “willingly and after having read or been advised of” the warning required to be given under
Because B & B‘s agreement can logically be read in a manner that differs from the majority‘s reading, it cannot be said that “the intention of the parties is expressed in clear and unambiguous language.” Heil Valley, 784 P.2d at 784. The agreement must therefore be strictly construed against its drafter, B & B, so as not to immunize B & B from its own negligence.
In Heil Valley, we held that an exculpatory agreement “purporting to waive ‘any claim [plaintiff] might state against the [defendant] as a result of physical injury incurred’ while horseback riding” covered claims based on negligence. Id. at 781. In enforcing the agreement, we noted that it was written in simple and clear terms that were free from legal jargon, and was not complicated. Id. at 785. The plaintiff had acknowledged that she understood the agreement. Id. The agreement‘s first sentence specifically addressed the circumstances of the plaintiff‘s injury. Id. The rider was experienced and knew of the equine professional‘s safety duties, yet waived them. As an experienced rider, she could have foreseen the risk that the horse might rear, causing the resultant injury. Id.
By contrast, the ambiguity in B & B‘s release illustrates that it was not simple, clear, and uncomplicated. While the plaintiff in Heil Valley stated that she understood the agreement, Riehl stated here that she relied on the operative phrase in the release, “inherent risk.” None of Riehl‘s claims based upon negligence or gross negligence are among the inherent risks of equine activity set forth in
A novice like Riehl who is presented with a pre-printed form, is eager to commence the ride, and is relying on the good faith of the person to whom she has paid the price of service, should expect that a business like B & B is not departing from customary safety practices of the industry. She, and other visitors and residents of Colorado like her, should not be required to scrutinize such an instrument for its intent before mounting the horse.
MULLARKEY and MARTINEZ, JJ., join in this dissent.