Forman v. Brown , 1996 Colo. App. LEXIS 343 ( 1996 )

Judge TURSI

concurring in part and dissenting in part.

I concur in Parts I and III of the majority opinion and dissent as to Part II.

This matter is before us on summary judgment. The majority adequately sets forth the rules governing review of summary judgments. However, as to Part II, it misapplies them.

In Part II, the majority concludes that the documents which defendant had plaintiff execute were unambiguous. I disagree.

Plaintiff was presented with two documents by the defendants and was required to execute them simultaneously. These are the Agreement to Participate, quoted at length in the majority opinion, and the On River Prohibitions, which although mentioned, are not quoted.

It is axiomatic that if simultaneously executed agreements between the same parties and relating to the same subject matter are contained in more than one instrument, the documents must be construed together. Bledsoe v. Hill, 747 P.2d 10 (Colo.App.1987).

The On River Prohibitions contained a prohibition that stated: “No diving or jumping into the river. (There are rocks under the surface of the river),”

By affidavit and by a statement appended to defendant’s motion for summary judgment, facts were presented that the guide had instructed plaintiff to “jump in” the river. In plaintiffs affidavit (referred to by the majority), plaintiff further stated that the guide “indicated that we should jump into the water at that point.”

Plaintiff correctly argues that she was confronted with the requirement that she follow the instruction of the guide as required by the Agreement to Participate, but that this conflicted with a specific provision of the On River Prohibitions. The patently conflicting provision was, at a minimum, ambiguous and placed plaintiff in a situation that gave rise to a genuine issue of material fact; See Heil Valley Ranch, Inc. v. Simkin, supra; Jones v. Dressel, supra.

Clearly, the provision in the Agreement to Participate stating that participants “agree to follow the instruction ... of the guides” creates a conflict when a participant is instructed by the guide to violate the specific prohibition against jumping into the river. Under these circumstances, an ambiguity arises which creates a genuine issue of material fact and thus, renders the entry of summary judgment reversible error.

Finally, after giving the entire agreement a fair reading, I am unable to comprehend how the majority can conclude that a prohibited activity is a foreseeable “unscheduled” activity. See Heil Valley Ranch, Inc. v. Simkin, supra.

Therefore, in view of the ambiguity that arose under the documents based upon the material facts herein, I would reverse and remand to the trial court to proceed on the issues addressed in Part II of the majority opinion.