Brooks v. Timberline Tours, Inc., Civil Action No. 95-B-115.

• Decision Date: 03 October 1996
• Docket Number: Civil Action No. 95-B-115.
• Citation: 941 F.Supp. 959
• Parties: Martha M. BROOKS and D. Gregory Brooks, Plaintiffs, v. TIMBERLINE TOURS, INC., a Colorado corporation, a/k/a Timberline Tours, Inc., d/b/a Kelchner Enterprises, Inc., Gregory A. Kelchner, d/b/a Timberline Tours, Ted A. Keleske, and Michael A. Van Luven, Defendants.
• Court: U.S. District Court — District of Colorado

941 F.Supp. 959

Martha M. BROOKS and D. Gregory Brooks, Plaintiffs, v. TIMBERLINE TOURS, INC., a Colorado corporation, a/k/a Timberline Tours, Inc., d/b/a Kelchner Enterprises, Inc., Gregory A. Kelchner, d/b/a Timberline Tours, Ted A. Keleske, and Michael A. Van Luven, Defendants.

Civil Action No. 95-B-115.

United States District Court, D. Colorado.

October 3, 1996.

Cuba Y. Holloway, Gerald R. Blixt, Bennett and Hollaway, Colorado Springs, CO, for Plaintiffs.

R. Eric Peterson, Monty L. Barnett, White and Steele, P.C., Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

In this diversity action, defendants, Timberline Tours, Inc., a Colorado corporation, a/k/a Timberline Tours, Inc., d/b/a Kelchner Enterprises, Inc., Gregory A. Kelchner, d/b/a Timberline Tours, Ted A. Keleske and Michael A. Van Luven (collectively, defendants) move for summary judgment on the claims of plaintiffs, Martha M. Brooks and D. Gregory Brooks (the Brooks). After consideration of the motion, briefs, and oral argument, I will grant defendants' motion for summary judgment. Plaintiff's cross-motion for summary judgment is denied.

I.

Unless otherwise noted, the following facts are undisputed. On January 20, 1993, Martha Brooks was injured and the Brooks' minor son Andrew was killed in a snowmobile accident. The Brooks family were participants in a guided snowmobile tour conducted by Timberline Tours. Defendant Michael A. Van Luven (Van Luven), an employee of Timberline Tours, was the guide assigned to lead plaintiffs' snowmobile tour.

Before leaving on the tour, the Brooks signed agreements (the Agreement) which included a paragraph titled "RELEASE" (the Release) that provides in part:

I hereby voluntarily release Timberline Tours, Inc., ... their agents or employees, and all other persons or entities from any and all liability, claims, demands, actions or rights of action, which are related to or are in any way connected with my participation in this activity, including specifically but not limited to the negligent acts or omissions of Timberline Tours, Inc., ... their agents or employees, and all other persons or entities, for any injury, death and damage to myself or to my property ... (emphasis supplied).

. . . . .

I further agree, promise and covenant not to sue, assert or otherwise maintain or assert any claim against Timberline Tours, Inc., ..., their agents or employees, and all other persons or entities, for any injury, death or damage to myself or to my property, arising from or connected with my participation in this activity ... (emphasis supplied). IN SIGNING THIS DOCUMENT, I FULLY RECOGNIZE THAT IF ANYONE IS HURT OR PROPERTY IS DAMAGED WHILE I AM ENGAGED IN THIS EVENT, I WILL HAVE NO RIGHT TO MAKE A CLAIM OR FILE A LAWSUIT AGAINST TIMBERLINE TOURS, INC., ... OR THEIR OFFICERS, AGENTS, OR EMPLOYEES, EVEN IF THEY OR ANY OF THEM NEGLIGENTLY CAUSE THE BODILY INJURY OR PROPERTY DAMAGE.... (emphasis in originals).

Exhs. F, G, H.

There is no dispute that each Agreement contains either Mr. or Mrs. Brooks' signature individually or on behalf of their minor son.

After some preliminary instruction, the group, including the Brooks family, led by tour guide Van Luven, started up the mountain from the base camp on their snowmobiles. Andrew Brooks, 2 months short of his fourteenth birthday, was operating one snowmobile with his mother as his passenger. Mr. Brooks was driving another snowmobile. Shortly after the tour started, approximately one mile from the base camp, the snowmobile driven by Andrew with his mother riding as passenger ended up off the packed trail in deep snow on the right uphill side of the trail. Def. Motion for SJ p. 2; Miranda Aff. ¶ 5. It is disputed whether Andrew's snowmobile was stopped in the snow or moving along in the ditch on the right side of the trail. (Keleske Depo. p. 71; Miranda Aff. ¶ 5). In either event, while the snowmobile was off the trail, it then turned sharply to the left, crossed the packed trail and went over a steep embankment on the left side of the road coming to a stop some 450 feet down the embankment. Martha Brooks was seriously injured in the accident and Andrew Brooks died several hours later from the injuries he sustained.

Plaintiffs concede that they have no personal knowledge about the events immediately before or during the accident. Mrs. Brooks has no recollection of events after she left the base camp and Mr. Brooks was ahead on the trail out of sight of his wife and son when the accident occurred. Plaintiffs' Brief p. 5. However, plaintiffs proffer testimony from several persons that shortly after the tour began, tour guide Van Luven who was ahead of everyone in his group, speeded up and was out of sight of Andrew and his mother when the accident occurred. Mr. Brooks testified that Van Luven "was going at a very rapid rate of speed ..." and he had to occasionally "gun it to try to catch up with [Van Luven]." D.G. Brooks Depo. p. 68. Another member of the Brooks' group submitted an affidavit in which he states that "when the trip started, [the group] proceeded up a relatively steep incline ... traveling in excess of thirty (30) miles per hour ... up to thirty-five (35) miles per hour." Allen Aff. ¶ 12. Van Luven testified, however, that he was going "15, 20 miles an hour — normal speed." Van Luven Depo. p. 28. Allen also swears that "Andrew Brooks and his mother fell behind because the guide at the front of the group traveled at a speed clearly not suited for inexperienced operators. It appeared our guide at the front of our group was trying to drive as fast as he could.... [The] guide never looked back to observe the significant distance between the various members of our group." Id. at ¶ 14. Also, when Van Luven stopped, Andrew and his mother were out of his sight. Id.

In the meantime, defendant Keleske, the tour guide for the snowmobile tour group following the Brooks' group, testified that when he noticed the Brooks snowmobile in the deeper snow on the right, he pulled alongside them to get their attention and to give them a focal point to get back onto the groomed portion of the road. Exh. E. p. 68-69. When Keleske could not get Andrew and Mrs. Brooks' attention, he pulled ahead of them and stopped in the middle of the road. When he turned around, they had disappeared down the embankment. Exh. E. p. 105-06. According to Keleske, he passed them and stopped so that he could tell them to get back on the packed portion of the road and keep up with their group. Exh. E. p. 105. Keleske's testimony is undisputed.

II. SUMMARY JUDGMENT STANDARD

The very purpose of a summary judgment motion is to assess whether a trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir.1980); Fed.R.Civ.P. 56(e).

III.

The parties have filed cross-motions for summary judgment contesting whether the Release sections contained in the Agreements are valid and, if valid, whether they apply to the facts of this case.

A. Validity of the Release sections

In this diversity action, the resolution of the summary judgment motions turns on the application of Colorado law. Day v. Snowmass Stables, Inc., 810 F.Supp. 289 (D.Colo.1993). The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. Jones v. Dressel, 623 P.2d 370, 375 (Colo.1981).

Exculpatory agreements have long been disfavored. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989). Also, they are strictly construed against the drafter because of their one-sidedness. Rosen v. LTV Recreational Development, Inc., 569 F.2d 1117, 1122 (10th Cir.1978).

"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.

A duty to the public contemplates a party "`engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.'" Id. quoting Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 36, 383 P.2d 441, 444 (1963). Providing...