Brooks v. Timberline Tours, Inc.
| Decision Date | 30 October 1997 |
| Docket Number | No. 96-1500,96-1500 |
| Citation | 127 F.3d 1273 |
| Parties | 97 CJ C.A.R. 2638 Martha M. BROOKS and D. Gregory Brooks, Plaintiffs--Appellants, v. TIMBERLINE TOURS, INC., a Colorado Corporation, a/k/a Kelchner Enterprises, Inc.; Gregory A. Kelchner, d/b/a Timberline Tours, Inc; Ted A. Keleske; and Michael A. Van Luven, Defendants--Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Cuba Y. Hollaway (Gerald R. Blixt with him on the briefs) of Bennett and Hollaway, Colorado Springs, CO, for Plaintiffs-Appellants.
R. Eric Peterson (John M. Lebsack with him on the brief) of White and Steele, P.C., Denver, CO, for Defendants-Appellees.
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.
Plaintiff, Mrs. Martha Brooks, was injured and her minor son was killed in a snowmobile accident while participating in a snowmobile tour conducted by Defendant Timberline Tours, Inc. Mrs. Brooks and her husband filed a diversity suit against Timberline Tours, Inc. and the other Defendants in the United States District Court for the District of Colorado. Plaintiffs alleged that the negligence of Defendants caused the accident in which their son drove off the trail and over an embankment with his mother as a passenger. The district court granted summary judgment to Defendants on the basis of a release agreement that the Brooks family signed before starting the tour which stated, in pertinent part:
RELEASE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGEMENT OF RISKS
ACKNOWLEDGEMENT OF RISKS--I understand and acknowledge that the activity I am about to voluntarily engage in bears certain known risks and unanticipated risks which could result in injury, death or damage to myself, to my property or to other third parties. I understand and acknowledge those risks may result in personal claims against Timberline Tours, Inc.,....
....
RELEASE--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, [sic] ... their agents or employees, and all other persons or entities, for any and all injury, death and damage to myself or to my property.
....
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.... 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 CAUSED THE BODILY INJURY OR PROPERTY DAMAGE.
R., Vol. II at 86-88. Plaintiffs appeal the district court's summary adjudication of their claims. For the reasons stated herein, we affirm.
Whether an exculpatory release is valid is a question of law for the court to determine. Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981). Therefore, the validity of an exculpatory release is an appropriate issue for summary adjudication. A court must consider four factors when determining the validity of an exculpatory agreement: (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. The parties agree that only the fourth Jones factor, the clarity of the language, is at issue in this appeal.
Under the standard expressed by the Colorado Supreme Court in Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo.1989), the release agreement in this case is clear and unambiguous. The release provisions are written in simple, clear terms that are free from legal jargon. The release is not inordinately long or complicated, and the capitalization of the third paragraph of the release highlights the importance of the information it contains. When the agreement was read to Plaintiffs at their depositions, they both indicated that they understood it. 1 R., Vol. II at 71, 74, 97-98. The agreement articulates a risk of injury or death and states that the signor bears that risk of injury or death "even if [Timberline Tours or its employees] negligently caused the bodily injury." 2 R., Vol. II at 86-88. After considering the factors mentioned in Heil Valley Ranch, we must join the district court in its affirmative answer to the central inquiry under Colorado law: In this case, the "intent of the parties was to extinguish liability and ... this intent was clearly and unambiguously expressed." Heil Valley Ranch, 784 P.2d at 785 (citation omitted).
Plaintiffs attempt to repackage their negligence claims that were waived by the release agreement into a breach of contract claim. From an advertising brochure, a guide manual, and Timberline Tours' agreement with the owner of the toured land, Plaintiffs try to construct a list of detailed agreements between themselves and Defendants that they claim Defendants breached. Plaintiffs further insist that the alleged breach of this contract released them from their express agreement to waive their claims. Plaintiffs' breach of contract argument does not provide them with relief because an integration clause in the written exculpatory agreement prevents them from presenting extrinsic evidence to prove the existence of their alleged prior agreements. Nelson v. Elway, 908 P.2d 102, 107 (Colo.1995).
The last full paragraph in the written release agreement at issue in this case provides: "I understand that this is the entire Agreement between myself and Timberline Tours, Inc., ... their agents or employees, and that it cannot be modified or changed in any way by the representations or statements of any employee or agent of Timberline Tours, Inc., ... or by me." R., Vol. II at 86-88. This clause clearly "limit[s] future contractual disputes to issues relating to the express provisions of the contract" signed by the Plaintiffs immediately before the snowmobile tour. Nelson, 908 P.2d at 107 (citing Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo.1991) (en banc)). Plaintiffs cannot construct additional contractual obligations through the extrinsic materials they have attempted to present. The written, completely integrated agreement between the parties was not breached by Defendants, and Plaintiffs are bound by their agreement to waive their claims against Defendants.
Despite the validity and enforceability of the release agreement, Plaintiffs make several arguments for the survival of some of their claims. They assert that according to Barker v. Colorado Region-Sports Car Club of America, Inc., 35 Colo.App. 73, 532 P.2d 372 (1974), their collateral source claims and wrongful death claims are not covered by the release agreements they signed. However, the Barker decision that a husband's exculpatory release does not bar his wife's claim for lack of consortium has no application to the present case. Id., 532 P.2d at 378. In this case, both Mr. and Mrs. Brooks signed copies of the agreement releasing Timberline Tours and its employees of all claims, and Mr. Brooks signed a copy of the agreement on behalf of his son. In contrast, the Barker spouse-plaintiff had not made any release agreement with the defendants. Barker is inapplicable to this case. The collateral source claims and wrongful...
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