Riehl v. B & B LIVERY, INC.

Chief Judge STERNBERG

concurring in part and dissenting in part.

I agree with part II of the majority opinion which holds that plaintiffs claims based upon wanton and willful conduct or gross negligence were not barred by the agreement; however, I disagree with the majority’s holding in Part I that the agreement was ambiguous and did not bar plaintiffs claims based upon simple negligence. Therefore, I respectfully concur in part and dissent in part.

The majority finds an ambiguity in the exculpatory agreement created by two different parts of the agreement. The first of these releases defendant from “any liability in the event of any injury or damage of any nature ... to me or anyone caused by my electing to mount and then ride a horse owned and operated by defendant.” The last paragraph of the agreement makes reference to § 13-21-119, C.R.S (1996 Cum.Supp.) and provides that the participant has read or been advised of a warning that under Colorado law “an equine professional is not liable for an injury to ... a participant in equine activities resulting from the inherent risks of equine activities.... ”

The majority correctly focuses on the issue whether the intention of the parties is expressed in clear, non-ambiguous language as required by Jones v. Dressel, 623 P.2d 370 (Colo.1981). However, I respectfully disagree with its conclusion that the language quoted above creates an ambiguity. I do not detect any conflict between the two provisions of the agreement. As noted in Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989): “[T]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” In my view, it is obvious that the parties did intend that defendant be absolved of liability for a broad range of conduct, including the negligent acts alleged here.

Further, as to the second part of the agreement that the majority finds so troubling, I consider it merely defendant’s attempt to comply with the dictates of § 13-21 — 119(5)(a), C.R.S. (1996 Cum.Supp.) and conclude that, as such, it should not be used as a springboard into a sea of ambiguity.

Finally, I cannot accept an interpretation of the statute that bars individuals from entering into a contract of the type we are dealing with here.

For these reasons, I would hold that the simple negligence claim is barred by the exculpatory agreement.