Anderson v. Eby, 91-1291
| Decision Date | 09 July 1993 |
| Docket Number | No. 91-1291,91-1291 |
| Citation | 998 F.2d 858 |
| Parties | Debra K. ANDERSON, Plaintiff-Appellant, v. William R. EBY; Cheri Eby; Jane Doe, whose true name is unknown; Wilderness Adventures, Ltd., a suspended corporation doing business as Mountain Meadow Tours, Ltd., doing business as Lost Lake Lodge and Resort, Ltd., doing business as Rendezvous Outfitters and Guides, Ltd., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Norman R. Mueller of Haddon, Morgan & Foreman, P.C., Denver, CO (Jim Levanthal of Leventhal & Bogue, P.C., with him on the briefs), for plaintiff-appellant.
Christina M. Habas of Watson, Nathan & Bremer, P.C., Denver, CO, for defendants-appellees.
Before McKAY, Chief Judge, SETH and BRORBY, Circuit Judges.
During a snowmobile trip organized by Defendants in Crested Butte, Colorado, in February 1990, Plaintiff's snowmobile crashed, and she suffered major injuries. She brought this diversity action, claiming that the crash resulted from Defendants' negligence.
Defendants moved for summary judgment, claiming that a release Plaintiff signed absolved them of any liability for their alleged negligence. The release stated, in pertinent part:
RELEASE AND INDEMNITY AGREEMENT
....
IN CONSIDERATION OF being permitted to rent a snowmobile and thereafter participate in a snowmobile tour, skiing tour or snow cat tour or other tour conducted by Mountain Meadow Tours, Ltd., Releasor, for himself, his spouse, legal representatives, heirs and assigns, hereby releases, waives and discharges WILLIAM R. EBY, CHERI EBY, WILDERNESS VENTURES, LTD., MOUNTAIN MEADOW TOURS, LTD., AND LOST LAKE LODGE LTD., its officers, directors, agents, shareholders and employees, and each of them, hereinafter referred to as "Releasees", from all liability to the undersigned, his spouse, legal representatives, heirs and assigns, for any and all loss, personal injury or damage, and any claim or damages resulting therefrom, on account of injury to Releasor's person or property, whether caused by the negligence of Releasees or otherwise while the Releasor is participating in the rental of snowmobiles or other equipment and participating in a snow tour or other activity of Releasees.
Releasor, by his signature, hereby assumes full responsibility for the risk of bodily injury, death or property damage while participating in snowmobile, snow cat, skiing or other type tours with Releasees.
....
Releasor expressly agrees that this release, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the laws of the State of Colorado, and that any portion hereof is later found to be invalid or unenforceable [sic], it is agreed that the balance of this agreement shall, notwithstanding, continue in full legal force and effect.
The district court granted summary judgment to Defendants on the basis of the agreement, and Plaintiff appeals.
Plaintiff argues that the release is unclear and ambiguous, and, as such, is void under Colorado law. As proof of the confusing nature of the contract, Plaintiff cites deposition testimony of one Defendant and two employees of Defendants in which they express incorrect views on the scope of the release. She also claims that, as a novice in the sport, she lacked an adequate understanding of the risks involved for the nature of the release to be clear to her.
Under Colorado law, "[a]greements attempting to exculpate a party from that party's own negligence have long been disfavored." Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo.1989). Nevertheless, they are not per se invalid, and will be upheld subject to the conditions the Supreme Court of Colorado outlined in Jones v. Dressel, 623 P.2d 370 (Colo.1981):
An exculpatory agreement, which attempts to insulate a party from liability from his own negligence, must be closely scrutinized, and in no event will such an agreement provide a shield against a claim for willful and wanton negligence. In determining whether an exculpatory agreement is valid, there are four factors which a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.
Id. at 376 (citations omitted). The parties agree that only the fourth Jones factor is at issue in this appeal.
Initially, we must determine if the issue of ambiguity is one of law or of fact. While the Colorado courts have not specifically addressed this question in release cases, they have generally treated it as one of law. For example, in Heil Valley the Colorado Supreme Court did not defer in any way to the determination of the trial court relating to whether the waiver in that case was ambiguous. A look at more general principles of Colorado contract law confirms this view.
Whether a written instrument is inherently ambiguous is a question of law to be determined by the court....
In ascertaining whether provisions of a written agreement are ambiguous, the instrument's language must be examined in accord with the plain and generally accepted meaning of the words used.
Extrinsic evidence and presumptive rules in aid of construction may be used only if the instrument itself is ambiguous, unclear, or uncertain as to the meaning the parties intended by it.
....
[When] the agreement is clear, unequivocal, and unambiguous on its face[, it] must be enforced as written.
Barnes v. Van Schaack Mortgage, 787 P.2d 207, 209 (Colo.Ct.App.1990) (citations omitted).
Viewing Jones in light of these principles of Colorado contract law clarifies the application of the fourth Jones factor. The requirement that waivers be unambiguous merely bars defendants from proving the existence of waivers by extrinsic evidence or presumptive aids of construction. If the plain language of the waiver is clear and unambiguous, it is enforced as a matter of law. If the plain language is unclear or ambiguous, it is void as a matter of law. Thus, under Jones, courts are not permitted to look beyond the plain language of the waiver. 1
As such, we do not consider Plaintiff's citations to extrinsic evidence on various persons' understanding of the meaning of the contract. Similarly, Plaintiff's claim that her inexperience with snowmobiles prevented her from fully understanding the implications of the waiver is not relevant to our inquiry. Rather, we look only to the terms of the waiver itself.
Plaintiff claims that the release is inherently confusing because the main paragraph consists of one sentence, almost 150 words long, which has many technical legal terms. Thus, she claims, it is void under Jones.
Under Colorado law, those who draft releases face a difficult task. On the one hand, the releases must be clear and unambiguous or they are void per se. On the other hand, releases are disfavored and closely scrutinized, which requires their authors to make their parameters explicit and detailed. Otherwise, they run the risk that the releases will be construed too narrowly. 2
Because Colorado courts construe them so narrowly, waivers often must contain exhaustive lists of items covered and/or terms of art to effectuate their purpose. We cannot agree with Plaintiff that the use of long series of legal terms, such as "the undersigned, his spouse, legal representatives, heirs and assigns," in and of themselves render the agreement unclear and ambiguous. See Jones, 623 P.2d at 372, 378 (). Rather, they merely show an intent to draft a broad and valid waiver agreement.
Stripped of the various commas and terms of art, the release says "... Releasor ... hereby releases ... Wilderness Ventures, Ltd. ... from all liability ... for any loss ... on account of injury to Releasor's person ..., whether caused by the negligence of Releasees or otherwise while the Releasor is participating in the rental of snowmobiles...." (Appellant's App. at 29.) It would be difficult to draft a more plain statement of a waiver.
If the first paragraph left any confusion, it was clarified by the second, which states "Releasor, by his signature, hereby assumes full responsibility for the risk of bodily injury ... while participating in snowmobile ... tours with Releasees." (Id.) The intended breadth of the agreement was spelled out in a subsequent paragraph, which states, "Releasor expressly agrees that this release ... is intended to be as broad and inclusive as permitted by the laws of the State of Colorado...." (Id.)
We conclude that the plain language of the contract clearly and unambiguously states an intent to release Defendants from claims for negligence.
Plaintiff's alternative argument is that the Special Use Permit between the federal government and Defendants, which gave Defendants the right to conduct the tour across federal lands, prevents Defendants from enforcing the waiver.
Plaintiff primarily claims that because the waiver of liability is contrary to federal policy, the waiver is invalid under the Colorado doctrine that "[p]rivate parties may not by agreement or rule render ineffective rules and standards provided by statute." In re K.M.K., 780 P.2d 43, 45 (Colo.Ct.App.1989).
The difficulty in Plaintiff's argument lies in the lack of a clear policy expressed in federal statutes. While Plaintiff cites many cases in which Colorado courts have voided contracts that conflicted with laws, each of these cases referred to specific provisions of statutes. Plaintiff, however, does not cite any statute to support her argument.
Plaintiff places heavy emphasis on the terms of the Special Use Permit, which she contends embodies a policy that the waiver violates. In order to succeed in this argument, however, Plaintiff must show that the...
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