*2 FURTHER AGREES UNDERSIGNED I. TO HOLD THE STABLES HARMLESS 17,1983, morning July plaintiff On the OTHERS, FOR PHYSICAL INJURY TO arrived at the Roane Simkin Heil DAMAGE, OR FOR PROPERTY County go Ranch in Boulder RIDERS USE WHICH RESULTS FROM friends.1 Before riding group with a IN OF STABLES HORSE VIOLATION in the ride were participants ANY THE OF STABLES’ RULES OR they to mount their rented horse allowed TERMS AND CONDITIONS OF THIS required to come into the ranch’s were AGREEMENT. sign following purported office and re- BE EF- THIS AGREEMENT SHALL liability: lease of THE FECTIVE AND BINDING UPON Liability This is a Release of PARTIES HERETO FOR THE DATE Signing Please Read Before INDICATED. THE PARTIES HERETO UPON MY ACCEPTANCE OF HORSE ACKNOWLEDGE HAVING READ EQUIPMENT, AND I ACKNOWLEDGE AND UNDERSTOOD THIS AGREE- USE, THAT THE AND HANDLING MENT. RIDING OF A HORSE INVOLVES A hearing, Valley presented At a evi- ANY RISK OF PHYSICAL INJURY TO dence that before Simkin mounted her INDIVIDUAL UNDERTAKING SUCH horse, signed she ACTIVITIES; HORSE, THAT A AND Hillman, deposition, a office. his John IRRESPECTIVE OF ITS TRAINING employee, testified that Uncle AND AND USUAL PAST BEHAVIOR Bud, employee, another told first wom- CHARACTERISTICS, MAY ACT OR an who wanted to ride Bill that the horse REACT UNPREDICTABLY AT TIMES rider, good she needed a said she BASED UPON INSTINCT OR FRIGHT for the next horse. said LIKEWISE, would wait WHICH, IS AN INHER- “that’s the horse for me.” Uncle Bud ENT BY A RISK ASSUMED HORSE- RIDER. THE if she ride BACK UNDERSIGNED asked Simkin “knew how to questions deposition 1. Simkin testified at a and at a hear- from members of the court. The ing anything copy exculpatory agreement that she does not remember in the record morning except driving occurred that to the legible enough indisputably is not settle the pushing the dirt ranch and arriving her toes into after although reading point, period a with a is less Except at the ranch. for whether or strained than with a comma. After the district release, signed actually not she Simkin did par court resolved the issue dispute the facts related here. proceeded punctuation ties as if the mark was period. We are satisfied Simkin did not capital 2. The release was in all letters. Simkin appeals, raise brief issue the court of punctua- contended in the district court that however, so we do not address it here. See following tion "ACTIVITIES” was a comma. Webster, 111, 111-12, Heginbotham v. 55 Colo. concluded, however, district that the Gundersons, P. Tull v. period mark was a and that "EXCEPT TO THE cf. Inc., (court (Colo.1985) beginning n. EXTENT SUCH CLAIM ...” was the though aof new sentence. would address issue not decided appeals court of where it would arise on re punctuation Simkin did not raise or brief this argument fully appeals, mand and had been in the court of nor was it briefed in court of court, although appeals). raised in the briefs to this it did during argument response surface oral negligence and breach of claims based on spirited,” and Simkin good because [Bill] dude ranch.” replied worked warranty.6 that “she Bill, Hillman mounted After Simkin reversed, appeals the court appeal, On he *3 walking and heard horse backward the not clear finding that the release was and [Simkin], and saw and saw “turned around v. Dressel. under Jones unambiguous at tight, yelled I
that she the reins and had Ranch, Inc., Valley v. Heil Simkin 765 reins, didn’t up the and she her to loosen on Judge 582, (Colo.App.1988). P.2d 584-85 fell up Bill then reared and listen to me.” dissented, concluding that the lan- Babcock Simkin, her se- injuring backwards onto adequately re- guage in the verely. Val- intent to release Heil flected Simkin’s Valley negligence3 Heil for Simkin sued Id. ley injury. for for her 585. warranty.4 Valley Heil and breach as an de- pleaded release affirmative fense, judgment. summary for and moved II. 2,1985, August the district court issued On exculpate Agreements attempting to a summary judgment,5 holding that partial a party’s that own party from exculpatory agree- a valid release was See Jones v. long been disfavored. have Dressel, v. P.2d under Jones ment 623 Co., Disney F.Supp. Walt World 409 (Colo.1981). particular, In the court Walker, (W.D.N.Y.1976); Harris 119 exculpatory held that 547-49, 116 Ill.Dec. Ill.2d was clear and unam-
portion of the release
-
generally An
see
biguous
Valley from N.E.2d
and thus shielded Heil
alleged
knew
complaint
with said horse which Defendant
3. Simkin's
that Heil
following ways:
unreasonably danger-
was
have known was
should
and
like Plaintiff. The
ous to Plaintiff
others
inducing
a.
Plaintiff to mount the fur-
In
further breached said warranties
or should
Defendant
nished horse when Defendant knew
supplied
horse
an uncon-
Defendant
and
have known that said
was of
when the
furnished
unreasonably
nature and at times had an unsafe
an
trollable
unsafe and
Plaintiff
dangerous disposition
failing
and
knew,
Defendant also
dangerous
and
to
horse
ascer-
and/or
known,
have
said horse
or should
that
for
such horse was in fact unsafe
tain that
day
accident
had
the same
of Plaintiffs
purpose intended.
around,
by milling
propensities
shown such
kicking,
the horse the Plaintiff mounted to
3. That
acting
dangerous
in a
manner.
and
purpose
not suitable for the
for
ride was
failing
provide
b.
commen-
In
a horse
ability.
was hired.
which it
serate
with Plaintiff's
[sic]
proximate
and
conse-
4. That
direct
providing
c.
Plaintiff with a horse
In
Ranch,
Defendant’s,
quence
In-
knew or
have known
which Defendant
should
warranties,
corporated’s,
as afore-
breach of
unreasonably dangerous
purpose
was
for
said,
has
the Plaintiff Roane
suffered
provided
for
horse was
to Plaintiff
which said
inju-
consequential damages and
and
direct
and
like Plaintiff.
others
...
ries.
failing
d.
to exercise care to furnish
In
reasonably
with a
safe horse to ride.
Plaintiff
had in fact
issue of whether Simkin
The
failing warn
e.
Plaintiff of
sub-
disputed
was
signed
and
re-
horse
of harm to Plaintiff
said
stantial risk
injuries
of her
Simkin
served for trial. Because
knew or should have known
when Defendant
signed
not.
if she
it or
did not remember
extremely dangerous
said horse
agreed
parties
the issue to the court
submit
displayed
unreasonably
an
dan-
had at times
jury.
holding
hearing,
sitting
a
without a
After
gerous
propensity.
disposition and
that Simkin had
knew
have
the district
concluded
f.
Defendant
or should
That
accordingly
signed
entered a
horse was
suitable and
the release and
known that the
did not advise or otherwise
in favor of Heil
Defendant
final
getting
signing
a
horse or
assist Plaintiff in
different
the issue of
the release on
has not raised
controlling same horse.
appeal.
war-
4. claim for relief for breach of
second
complaint
ranty
a
part:
did not state
cause of
Simkin’s
stated
negligence.
Ranch,
Defendant,
action for willful
wanton
In-
2.That
Cf.
(”[I]n
623 P.2d
no
warranty
Jones
corporated,
implied
breached
exculpatory] agreement provide
event will
express warranty
[an
and also breached a warran-
ty
particular
a claim
willful and wanton
purpose
shield
for
of fitness for a
when
negligence.”).
supplied
furnished
Plaintiff
Defendant
provi
Validity
determining
contractual
notation,
whether an
valid,
employ
carrier or
is
four factors
by one other than
there are
sion
(1) the
court must
ex-
liability,
which a
consider:
exemption
or indem
er
(2)
duty to
public;
istence of
consequences
negli
own
nification,
(3)
performed;
nature
the service
gence,
(1948). They stand
175 A.L.R.
fairly
entered
contract was
competing princi
the crossroads of two
into;
(4)
whether the intention
responsibili
ples: freedom of contract
expressed
is
in clear and unam-
negli
damages
one’s own
ty for
caused
biguous language.
Walker, 119 Ill.2d at
gent acts. Harris v.
Only
factor
at 376.
the fourth
549,
In Harris v.
LOHR, J.,
Ill.2d
dissents,
QUINN,
(1988),
C.J.,
Ill.Dec.
519 N.E.2d
MULLARKEY, J.,
join
court held that a rider who fell off his
dissent.
risk,”
my
rides at
own
insulated defendant from 11. As an alternative reason for its decision re-
liability
stirrup strap
plaintiff
court,
where
broke and
versing
appeals
the district
the court of
ground);
was thrown to the
Schutkowski v. Car
stated that even if the
was a valid
ey,
(Wyo.1986) (absence
725 P.2d
1060-62
risk,
assumption of the
it would still not be a
"negligence”
clearly
of term
not fatal if contract
comparative negligence
total defense under
extinguish liability).
shows intent to
Simkin,
However,
principles.
10. of Hillman that Simkin here, does constitute a total defense to an action rider, good sented herself as and that she said negligence. Arbegast based on Educ., v. Board Bill, appropriate she was the rider was not 161, 168-70, 65 N.Y.2d N.Y.S.2d Also, refuted. Simkin testified that she first seven, 480 N.E.2d see also age rode a horse at and continued to ride Prosser, (“an supra express assump- "quite junior high high § a bit" in school. by plaintiff tion of She rode with a risk should continue to school club. Simkin was a during Wyo- clerk comparative negligence reservations ming guest the summer at a serve as a total bar in cases.”). ranch and rode horses there. She years was 22 old at the time of the accident. dissenting: AND WAIVES ANY CLAIM HE SHE Justice LOHR THE MIGHT STATE AGAINST STA- the issue of whether a presents This case A RESULT OF BLES AS PHYSICAL plaintiff, liability signed release of INCURRED IN ACTIVI- INJURY SAID effective absolve the Roane TIES. EXCEPT TO THE EXTENT Ranch, defendant, Incorporated BE SUCH CLAIM MIGHT BASED (Heil liability negli- Valley), from THE SOLE AND UPON EXCLUSIVE warranty in connection gence or breach NEGLIGENCE OF THE STABLES THE plaintiff to the rental of a horse with the FURTHER UNDERSIGNED AGREES majority opin- ride. for a recreational THE TO HOLD STABLES HARMLESS release was clear and ion holds OTHERS, FOR PHYSICAL INJURY TO it was effective to unambiguous, and that DAMAGE, OR FOR PROPERTY liability Valley from for the release Heil RESULTS FROM RIDERS WHICH USE when the by Simkin horse injury suffered OF STABLES HORSE IN VIOLATION and fell backward on she had rented reared THE OF ANY STABLES’ RULES OR opinion majority therefore re- her. The TERMS AND THIS CONDITIONS OF judgment verses the Colorado Court AGREEMENT. Appeals, held that release of which BE EF- THIS AGREEMENT SHALL ambiguous, and directs rein- FECTIVE AND BINDING UPON THE issued statement HERETO THE DATE PARTIES FOR of Heil I am district court favor THE INDICATED. PARTIES HERETO persuaded clearly that the release did not READ *6 ACKNOWLEDGE HAVING Valley liability from for the absolve Heil AND UNDERSTOOD THIS AGREE- by alleged conduct and therefore MENT. respectfully dissent. (The agreement”). signing “release After
I. agreement, the release Simkin mounted her time, Roane Simkin rented a horse from Heil horse to commence the ride. At that participate in Valley July a Simkin’s mount reared and fell on her. Valley’s severely injured brought ride at Heil ranch in Simkin was breakfast Court, County. entering upon County the in Boulder Before an action Boulder District ride, signed alleging negligence warranty Ride Record” and breach of “Stable places signatures by Valley. gravamen on which the were The of each of prefaced by Liability” a “Reléase the claims for relief was that the horse following assigned terms: to Simkin was unsafe and unrea- sonably dangerous qualities and that these Liability
This is a Release of
Valley
were known to Heil
before the horse
Signing
Please Read Before
Simkin. maj. op.
rented to
at 783
MY
OF
UPON
ACCEPTANCE
HORSE
addition,
negligence
the
nn. 3-4.
claim
EQUIPMENT,
AND
I ACKNOWLEDGE
specifically
stated that Heil
Ranch
USE,
THAT THE
HANDLING AND
provide
failed to
Simkin with a horse
A HORSE
A
RIDING OF
INVOLVES
matched to her abilities as a rider.
RISK OF PHYSICAL INJURY TO ANY
INDIVIDUAL UNDERTAKING SUCH
summary judg
moved for
ACTIVITIES;
HORSE, ment,
A
asserting
AND THAT
the release
ITS
complete
IRRESPECTIVE OF
TRAINING
defense to Simkin’s claims. The
Dressel,
court, relying
AND
AND
on Jones v.
USUAL PAST BEHAVIOR
district
CHARACTERISTICS,
(Colo.1981),
MAY
granted partial
ACT OR
however,
the result reached
the ma-
II.
jority
applying
in
the test to the facts of the
present case.
acknowledges, agree
majority
As the
agreement begins
with an
party
attempting
ments
to absolve a
“use, handling
acknowledgment that
liability
party’s
for that
own
riding of a horse”
a risk of
involves
Maj. op.
long
have
disfavored.
been
physical injury. It then states that a horse
we addressed
Jones v.
unpredictably
may act or react
validity
exculpatory agreements.
fright notwithstanding
its train-
instinct
of the suffi
We held that the determination
ing
past
and usual
behavior and that such
ciency
validity
of such
rider.
“inherent risk” is assumed
question
of law for the court and that an
“expressly
then
assumes” such
The rider
closely
exculpatory agreement must be
against
risk and waives
claim
the sta-
Jones,
physical injury
incurred
scrutinized.
not PEOPLE the State to the provide horse suited using care Plaintiff-Appellant, that a assure the rider or to abilities that has dis- assigned horse is not rider TRUJILLO, Julian Arthur making it unsuitable played characteristics Defendant-Appellee. riding. O’Connell recreational Co., 413 So.2d Disney World Walt No. 89SA185. to as- (Fla.App.1982) (agreement Colorado, Supreme Court of riding did inherent in horseback risks sume En Banc. negligence encompass risk created ride). Accord- conducting the persons Jan. purport to absolve release did not ingly, the types of liability for the Valley from Heil warranty alleged and breach of
by Simkin.2 portion of upon relies
Heil “any waives stating that the rider
release result of against stables
claim” use, han- injury incurred physical riding This waiver of a horse.
dling and however, read, in context of
must be referring to risks preceding making no riding but in horseback
inherent by the exercise
mention of risks avoidable makes by the This it due care stables. the release can ambiguous whether
at least its own
be read to absolve having supplying in a horse
negligent acts for recreational unsuitable
characteristics signing person
riding general in as al- particular,
the release Any such
leged by Simkin this case.
ambiguity must be construed
Valley, result *8 complete not de- provide does claims.
fense to Simkin’s
I and would affirm the dissent appeals.
of the court MULLARKEY, J., C.J.,
QUINN,
join in this dissent. appeals’ supportive majority opinion ap opinion is the court of court of that
2. The reads reading, specifi opinion be based peals' opinion be I read the on a based on cases language "negligence” particular cally require use careful consideration of the of the word present case the release if such an solely "negli party on the of the word be effective to shield a from claim absence is to maj. op. gence" the release. See Sim conduct. kin, Although language in P.2d at 784-785. there