Chadwick v. Colt Ross Outfitters, Inc.

COATS, Justice.

Charles Chadwick, the plaintiff in the underlying personal injury action, sought review of the court of appeals unpublished opinion affirming summary judgment for the defendant, Colt Ross Outfitters. The district court found that an exculpatory agreement executed by Chadwick validly released Colt Ross from liability for the injuries Chadwick suffered during a hunting expedition, even if those injuries resulted from the Outfitter’s negligence. The court of appeals affirmed, upholding the applicability and validity of the exculpatory agreement, after determining that it unambiguously expressed the intent of the parties and did not violate public policy. Because the agreement executed by Chadwick and Colt Ross Outfitters does unambiguously express the parties’ intent to release Colt Ross from liability for Chadwick’s injuries, and because it is not otherwise void as against public policy, the judgment of the court of appeals is affirmed.

I.

The suit arises from an incident that occurred during a hunting expedition, guided by Colt Ross Outfitters, Inc., in which Charles Chadwick was thrown from a mule and sustained severe injuries. Chadwick sued Colt Ross for negligently failing to supervise the hunt and, in particular, for failing to provide the proper equipment to secure his saddle. After unsuccessfully moving to dismiss, Colt Ross moved for summary judgment on the basis of a release provision included in the contract of the parties.

Chadwick, a resident of Texas, asserted in his pleadings that he contracted for and participated in an elk hunt organized by Colt Ross, a Colorado corporation engaged in the business of organizing, guiding, and supervising back-country hunting trips. Chadwick further asserted that several days after the hunt began, and well after he had complained that the horse assigned to him was ill, the wrangler removed the saddle from Chadwick’s horse and placed it on one of the pack mules, instructing Chadwick to ride the mule for the rest of the trip. That same day, while Chadwick and a companion hunted without immediate supervision, the saddle began to slide down the mule’s neck. When Chadwick attempted to dismount, the mule bucked, throwing him down a hill and causing serious injuries, including several fractures in his neck.

Colt Ross denied many of the allegations of the complaint but also asserted as a defense that Chadwick’s claims were barred by the release agreement he signed before embarking on the hunt. In a motion for summary judgment, Colt Ross therefore asserted that the issues of fact disputed by the parties were not material to Chadwick’s claims for relief. In granting the motion and dismissing the lawsuit, the district court found that the release agreement of the parties clearly and unambiguously expressed their intent to release the defendant from all claims for injury associated with the agreed-to hunting trip, and that Chadwick expressly acknowledged his understanding that he would be permitted to participate only if he agreed to this condition. The district court also rejected Chadwick’s claim that in light of legislative regulation, public policy barred release of the Outfitter from liability for any but the inherent risks of equine activities and that, in any event, the agreement was inapplicable to injuries caused while Chadwick was riding a mule, rather than a horse.

The court of appeals affirmed. Relying on previous holdings of this court involving recreational activities, and particularly equine activities, the appellate court found that the release agreement was not void as against public policy. It held that the language of the agreement reflected a clear and unambiguous intent to release the Outfitter from all liability for any injury resulting from Chadwick’s participation in activities of the guided hunt; that the agreement contained the warnings expressly required by section 13-21-119, 5 C.R.S. (2003); and that riding a mule fell within the statutory definition of equine activities, as well as the broad language of the agreement concerning the use of animals while participating in the activities of the hunt.

Chadwick petitioned for a writ of certiora-ri.

II.

In no event will an exculpatory agreement be permitted to shield against a claim of willful and wanton negligence. Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981). Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence is also disfavored, it is not necessarily void as against the public policy of this jurisdiction, “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.’ ” See Heil Valley Ranch v. Simkin, 784 P.2d 781, 784 (Colo.1989) (citation omitted); Jones, 623 P.2d at 376. In determining the validity of such agreements, we have held that they must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into. Id.

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. See Heil, 784 P.2d at 785. We have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision. See Heil, 784 P.2d at 785; cf. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo.1998) (finding a release agreement valid where plaintiff admitted awareness that she was signing a release without reading it). Although the agreement must be clear, unambiguous, and unequivocal, we have also made clear that the specific terms “negligence” and “breach of warranty” are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty. Heil, 784 P.2d at 785.

Even if the intent of the parties is unambiguously expressed in the contract, however, a release agreement may still violate public policy if it involves a service that the defendant is obligated to provide for the public or was entered into in an unfair manner. Jones, 623 P.2d at 376. Although we have not specified the precise circumstances in which a release agreement will be barred for affecting the public interest, we have noted that such agreements generally involve businesses suitable for public regulation; that are engaged in performing a public service of great importance, or even of practical necessity; that offer a service that is generally available to any members of the public who seek it; and that possess a decisive advantage of bargaining strength, enabling them to confront the public with a standardized adhesion contract of exculpation. See id. (quoting favorably from Tunkl v. Regents of the Univ. of Cal., 60 Cal.2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (1963)). From this class of businesses, however, we have previously distinguished businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public. See, e.g., Jones, 623 P.2d at 377; Barker v. Colo. Region-Sports Car Club of Am., Inc., 35 Colo.App. 73, 79-80, 532 P.2d 372, 377 (1974).

In particular, we have previously considered recreational endeavors involving equine activities and have upheld broad exculpatory agreements in contracts related to such activities. See, e.g., B & B Livery, 960 P.2d 134; Heil, 784 P.2d 781. After our judgment in Heil, the General Assembly enacted section 13-21-119, limiting the civil liability of those involved in, among other things, equine activities. See B & B Livery, 960 P.2d 134. Apart from imposing a general requirement to give notice of the inherent risks to be assumed by a participant, see § 13-21-119(5)(a)-(b),¹ the legislature has, however, done nothing to regulate equine activities or to impose additional duties on equine activity sponsors. Rather, the statute recognizes the inherent risks involved in equine activities and protects sponsors of equine activities by limiting their liability, except under specified circumstances. See § 13 — 21—119(4)(b). The statute itself imposes no liability on the sponsors for injuries beyond those for which liability is specifically limited, and this court has made clear that parties may, consistent with the statute, contract separately to release sponsors even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract. See B & B Livery, 960 P.2d at 138.

III.

The contract between Chadwick and Colt Ross was entitled, “Fully Guided Hunt Contract of Agreement.” Its terms indicate that the sponsor agrees to provide the participant with a hunt, including a horse for each client, and that the participant agrees to assume the risk of “any activity associated with the type of trip agreed to.” It contains a separately enumerated, emboldened section entitled, “Disclosures, Disclaimers and Waivers.” Included among the enumerated risks and dangers of the “described sport or activity” is the “use of animals,” accompanied by the warning that “[sjhould animals ever be used or are present as part of our activities, ... an animal ... may act or react unpred-ietably at times based upon instinct or fright which likewise is and [sic] inherent risk to be assumed by each participant.” In addition to the statutorily required warning that the Outfitter will not be liable for injury or death resulting from “inherent risks” of equine activities, this section includes a separately enumerated clause indicating in capital, emboldened letters Chadwick’s agreement to “RELEASE FROM ANY LEGAL LIABILITY ... the Outfitter ... for any injury or death caused by or resulting from [his] participation in the activities described.” The words, “THIS IS A RELEASE OF LIABILITY,” appear in capital, emboldened letters just above Chadwick’s signature.

The organization of the contract and the placement of this release language make it unrealistic that these provisions could be missed or misunderstood by the reader. The release provision is not inordinately long. It is uncomplicated and free from legal jargon. Separate from, and in sharp contrast to, the statutorily required notice of the inherent risks assumed by Chadwick upon participating in equine activities generally, the release agreement specifies that “[a]s [l]awful [consideration for” being permitted to participate in the guided hunt, Chadwick also releases the Outfitter from “any legal liability.” While this agreement, like the agreement in Heil, never uses the word “negligence,” the language in which it expresses itself cannot reasonably be understood as expressing anything other than an intent to release from “any” liability for injuries “caused by or resulting from” Chadwick’s “participation” in the eontracted-for hunting expedition.

In fact, the release agreement in this case is so unambiguously broad that, on its face, it includes a release from even willful and wanton negligence. Enforcing a release from willful negligence would clearly not be consistent with public policy; however, rather than rendering the entire agreement void, similarly broad language has, in the past, been construed to extend only as far as would be consistent with public policy. See B & B Livery, 960 P.2d at 138-39 (reading language that protected the defendant “from any liability in the event of any injury or damage of any nature” as shielding against negligence claims but remanding for further proceedings concerning the plaintiffs willful and wanton/gross negligence claims); Barker, 35 Colo.App. at 82-83, 532 P.2d at 378-79 (enforcing an exculpatory agreement to prevent recovery for injuries caused by the simple negligence of two defendants, but permitting a claim for another defendant’s willful and wanton negligence to stand); see also Murphy v. N. Am. River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504, 511 (1991) (declaring that an exculpatory clause releasing the defendant “from all liability for any future loss” applies only to simple negligence and will not be construed to release the defendant from injury resulting from intentional or reckless misconduct).

Nor can the contract reasonably be understood — as Chadwick intended, according to his deposition — to make the release provisions effective only upon satisfactory fulfillment by the Outfitter of its contractual obligations. Nothing in the contract suggests that the release agreement is in any way contingent. To the contrary, the contract spells out the client’s available remedies for breach by the Outfitter, which are limited to return of a pro rata portion of his fee. Furthermore, such an interpretation would provide the Outfitter with virtually no protection and would render the release essentially meaningless. It therefore could not be considered a reasonable interpretation. See Heil, 784 P.2d at 785.

The applicability of the release agreement is therefore limited to the question whether Chadwick was injured while participating in the activities described in the contract. Whether or not a failure to properly supervise or to provide Chadwick a riding horse on the day in question could amount to a breach by the Outfitter under these circumstances, neither eventuality could alter the fact that Chadwick was injured while participating in the guided hunt that was the subject of the contract, or activities associated with it. The very basis of Chadwick’s lawsuit is that he was injured while using equipment and riding an animal provided by Colt Ross, in the wilderness, on a hunting expedition organized, supervised, and guided by Colt Ross and its employee. Chadwick’s express assumption of the risk of “any activity associated with the type of trip agreed to” can hardly be understood to be inapplicable for the reason that he was hunting on a mule at the time of his injuries.

Although perhaps too broad on its face, the release in this case unambiguously contemplated release from at least the simple negligence of the Outfitter, and as applied to Chadwick’s allegations of negligence, the contract was therefore not necessarily void as against public policy.² Furthermore, apart from falling within the statutory immunity provisions governing equine activities,³ riding a mule during the guided hunt provided by Colt Ross was clearly an activity “associated with the type of trip agreed to,” with regard to which Chadwick assumed all risks of injury.

Finally, the contract does not fail for other policy reasons. There was no indication that the contract was unfairly entered into. It was delivered to Chadwick in Texas and was signed by him in his home more than ten months before the trip. There is no suggestion that Chadwick is not competent and educated; his initials appear in the blank spaces after each clause of the “Disclosures, Disclaimers and Waivers” section of the contract; and he admitted in his deposition that he read the contract and understood that he was executing a release of liability when he signed it. Moreover, the Outfitter had no duty to the public that would be violated by the release agreement. Like the skydiving company in Jones, Colt Ross provides a recreational service, neither publicly regulated nor of great public importance, and therefore the contract between Chadwick and Colt Ross “does not fall within the category of agreements affecting the public interest.” Jones, 623 P.2d at 377.

IV.

Because the contract executed by Chadwick and Colt Ross Outfitters clearly and unambiguously expresses the intent of the parties to release Colt Ross from all liability for injuries resulting from the contracted-for hunt, and does not otherwise violate public policy, we affirm the judgment of the court of appeals.

Justice HOBBS dissents. Justice KOURLIS does not participate.

1 . Subsections (5) (a) and (b) require the following warning notice:

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.

2 . Although language in the complaint could be interpreted to separately allege willful and wanton negligence, Chadwick has not challenged the court of appeals judgment, affirming dismissal of the entire lawsuit, on this ground.

3 . " 'Equine' means a horse, pony, mule, donkey, or hinny.” § 13 — 21—119(2)(b).