Release of liability waivers are generally enforceable in Colorado. They are meant to warn people of the risks of an activity. They disclaim liability by getting people to agree to assume the risk of doing something. Liability waivers used to be used by recreational activity businesses. However, more and more companies are using them to avoid paying for an accident, including:
A signed release of liability waiver form can make it more difficult for victims of an accident to recover compensation. Signing a waiver can keep you from getting reimbursed for your:
In this article, our Colorado personal injury lawyers will explain:
1. What are liability waivers?
A release of liability waiver is an agreement to not hold someone else liable for your bodily injuries or property damage to personal property. It is a legally binding contract. Liability waivers are often used by companies that provide services or run events. If you get hurt while participating, you can struggle to get compensation if you signed a waiver.
Liability waivers are used as proof that you were warned of the risks of participation. They are also used as proof that you agreed to assume those risks.
Signing a liability waiver is often a condition of participating in an activity or event. If you refuse to sign the waiver provided, you are often barred from participating.
Liability waivers are also known as:
- Release of liability,
- Exemption from liability,
- Disclaimer,
- Exculpatory agreement,
- Waiver of rights, or
- Assumption of the risk.
The terms of each liability waiver are different. They are often tailored to each service that the business provides. All of them, however, disclaim someone’s liability for minor or serious injuries caused by their negligence or poor conduct.
2. When are liability waivers unenforceable in Colorado?
Release of liability waivers are generally enforceable in Colorado. Courts will only declare them invalid if any of the following factors apply:
- The waiver involves a public or an essential service,
- You did not fairly enter into the agreement, or
- The agreement does not clearly express the waiver of your rights.1
Additionally, courts will not enforce waivers that disclaim liability for willful or wanton negligence. Disclaimers for ordinary negligence are frowned upon, but can be valid.2
If a liability waiver is deemed invalid, courts will not enforce it. If the court does not enforce a liability waiver, it will not stop you from filing a lawsuit.
2.1. The service is a public or essential one
A liability waiver can be unenforceable if you have to sign it in order to use a public or essential service.
Most liability waiver cases have involved participating in recreational activities. Courts have repeatedly said that these activities are not public or essential:
- Skydiving,3
- Whitewater rafting,4
- Horseback riding,5
- Mountain biking,6
- Skiing,7 and
- Snowmobiling tours.8
Factors that can make a service public or essential include whether:
- It is suitable for regulation by the government,
- The service is important and a practical necessity for a lot of people,
- The provider says they will let anyone use the service, and
- It would be difficult to find someone else to provide the service.9
A liability waiver in a residential lease was deemed invalid because it involved a public service.10
Other examples of essential or public services could include:
- Common carriers, or
- Commercial airlines.11
2.2. You did not fairly enter into the agreement
If you did not have a meaningful choice about whether to sign the agreement, it could be deemed invalid. The bargaining power that you and the company have is important. If there is a wide discrepancy, it can make the liability waiver unenforceable.
The following factors matter:
- Whether the liability waiver describes the risks of the activities is covers,12
- You could not get the service elsewhere,13 and
- You needed the service that was provided so much that you could not reasonably bargain for it.14
Examples of indemnity agreements that are invalid for this reason are:
- Employment contracts,
- Contracts for common carriers, or
- Agreements for services from public utility companies.15
2.3. The agreement does not clearly express the waiver of your rights
Liability waivers have to clearly and expressly tell people that they are giving up their legal rights. If they fail to do this, courts can deem them invalid and hold them unenforceable.
Many of the liability waivers that are deemed unenforceable fail on this point.16
To be enforceable, the release of liability forms has to be unambiguous about the rights being waived. They cannot hide these disclaimers in formatting tricks.
Factors that can make a liability waiver unenforceable for being unclear include agreements that:
- Were full of legal jargon,17
- Written in very small print,18
- Referred to laws that did not exist,19 and
- Are too long to read before participating in the activity they cover.20
Acknowledging that you understood the agreement after being hurt can make it valid.21
Call us for help…
Contact us for additional help.
If you have been hurt in Colorado after signing a liability waiver, it can be difficult to recover the compensation you deserve. It is not impossible, though. Our personal injury lawyers can help you. Contact us today to get started on your case. With our help, we can fight the waiver of liability and raise your rights. (For cases in California or Nevada, please see our articles on liability waivers under California law and liability waivers under Nevada law).
References:
- Jones v. Dressel, 623 P. 2d 370 (Colo. 1981) (while Jones lays out four factors, courts frequently combine the first two – the duty to the public and the nature of the services provided – into one factor. See e.g., Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945 (Colo. App. 2011)); also see the state of Colorado Department of Revenue (Division of Motor Vehicles / DMV) Release of Liability Form for motor vehicle accidents under C.R.S. 42-7-301. It asks for the person’s printed name, date of birth, emergency contact, and driver’s license number, among other information.
- Jones v. Dressel, Supra, and Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo. 2004).
- Jones v. Dressel, Supra.
- Lahey v. Covington, 964 F. Supp. 1440 (D. Colo. 1996).
- Hamill v. Cheley Colorado Camps, Inc., Supra.
- Mincin v. Vail Holdings, Inc., 308 F.3d 1105 (10th Cir. 2002).
- Patterson v. Powdermonarch, LLC, No. 18-1008 (10th Cir. 2019).
- Brooks v. Timberline Tours, Inc., 941 F. Supp. 959 (D. Colo. 1996).
- See Jones v. Dressel, Supra.
- Stanley v. Creighton Co., 911 P.2d 705 (Colo. App. 1996).
- See Jones v. Dressel, Supra.
- Wycoff v. Grace Community Church, 251 P.3d 1260 (Colo. App. 2010).
- Stone v. Life Time Fitness, Inc., 411 P.3d 225 (Colo. App. 2016).
- Jones v. Dressel, Supra.
- Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989).
- Stone v. Life Time Fitness, Inc., Supra.
- Stone v. Life Time Fitness, Inc., Supra.
- See Stone v. Life Time Fitness, Inc., Supra, and Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243 (10th Cir. 2018).
- Stone v. Life Time Fitness, Inc., Supra.
- B & B Livery, Inc., v. Riehl, 960 P.2d 134 (Colo. 1998).
- Heil Valley Ranch, Inc. v. Simkin, Supra.