Hamill v. Cheley Colo. Camps Inc.

• Decision Date: 31 March 2011
• Docket Number: No. 10CA0138.,10CA0138.
• Citation: 262 P.3d 945
• Parties: Chelsea E. HAMILL, Plaintiff–Appellant,v.CHELEY COLORADO CAMPS, INC., a Colorado corporation, Defendant–Appellee.
• Court: Colorado Court of Appeals

262 P.3d 945

Chelsea E. HAMILL, Plaintiff–Appellant,

v.CHELEY COLORADO CAMPS, INC., a Colorado corporation, Defendant–Appellee.

No. 10CA0138.

Colorado Court of Appeals, Div. II.

March 31, 2011.

Roberts, Levin, Rosenberg, PC, Ross B.H. Buchanan, Bradley A. Levin, Denver, Colorado, for Plaintiff–Appellant.White and Steele, P.C., John M. Lesback, John P. Craver, Denver, Colorado, for Defendant–Appellee.Opinion by Judge FOX.

Plaintiff, Chelsea E. Hamill (Hamill), appeals the district court's grant of summary judgment in favor of defendant, Cheley Colorado Camps, Inc. (Cheley). We affirm the judgment.

I. Facts and Procedural History

Hamill attended summer camp at Cheley in 2002, 2003, and 2004. Before attending camp each summer, Hamill and her parents signed a Liability/Risk Form (the agreement).

In July 2004, when Hamill was fifteen years old, she fell off a Cheley horse and broke her arm. Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had inappropriately saddled the horse she rode. The district court granted Cheley's motion for summary judgment on the two negligence claims, ruling that although Hamill was a minor, the agreement barred her claims and that there was no gross negligence as a matter of law.¹

Hamill appeals the district court's judgment, claiming that because she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim. We disagree and therefore affirm the judgment.

II. Standard of Review

Summary judgment is appropriate where the pleadings, admissions, depositions, answers to interrogatories, and affidavits confirm that no genuine issue of material fact exists and judgment should be entered as a matter of law. C.R.C.P. 56(c); Jones v. Dressel, 623 P.2d 370, 373 (Colo.1981). When asked to grant summary judgment, the district court “must resolve all doubts as to whether an issue of fact exists against the moving party.” Jones, 623 P.2d at 373. We review a summary judgment ruling de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).

Exculpatory agreements are construed strictly against the party seeking to limit its liability. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.1989). However, the validity of such waivers is a question of law, which we review de novo. Jones, 623 P.2d at 376; Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo.App.1996).

III. Parental Consent to Exculpatory Agreements Affecting Minors

Hamill argues that the exculpatory clauses in the agreement do not bar her negligence claims. She reasons that the agreement is invalid under the four-part test articulated in Jones, 623 P.2d at 376, and that her mother did not make an informed decision under section 13–22–107, C.R.S.2010, to release her prospective negligence claims. This statute states that “[s]o long as [a parent's] decision [to waive the child's claims] is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13–22–107(1)(a)(V), C.R.S.2010 (emphasis added).

We disagree with Hamill's position.

The agreement, and our interpretation of section 13–22–107(1)(a)(V), direct our decision.

The release language in the agreement states:

Release, Waiver of Liability and Indemnification

I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley ... with respect to any injury ... occurring to my child while he/she participates in any and all camp programs and activities.

I hereby agree to indemnify and hold harmless Cheley ... with respect to any claim asserted by or on behalf of my child as a result of injury....

I HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.

(Emphasis by italics added.)

Another section of the agreement, labeled “Acknowledgment & Assumption of Risks and Waiver of Claims for Minors,” states:

PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.

....

Acknowledgment of Risks I understand there are numerous risks associated with participation in any camping activities, including ... horseback riding.... Many, but not all of these risks are inherent in these and other activities....

Equipment used in the activity may break, fail or malfunction, despite reasonable maintenance and use. Some of the equipment used in activities may inflict injuries even when used as intended. Persons using equipment may lose control of such equipment and cause injury to themselves and to others.

....

Counselors and guides use their best judgment in determining how to react to circumstances including ... animal character.... The counselors and guides may misjudge such circumstances, an individual's capabilities and the like.

....

These are some, but not all, of the risks inherent in camping activities; a complete listing of inherent and other risks is not possible. There are also risks which cannot be anticipated.

I give my permission for my child to participate in all camp activities, including those described above. I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death ... resulting from such risks for myself and my child.

(Emphasis by italics added.)

Before deciding whether the agreement adequately “informed” Hamill's mother under section 13–22–107 regarding prospective negligence claims, we first address the validity of the agreement.

A. Validity of an Exculpatory Agreement Under Jones

We analyze the validity of an exculpatory agreement, including those involving a minor child, by examining four factors: (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. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo.1998) (citing Jones, 623 P.2d at 376).

1. First and Second Jones Factors: Duty and Nature of the Services

The first Jones factor requires that we determine whether a duty to the public existed in the instant case. Jones, 623 P.2d at 376. Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo.2004).

The second Jones factor examines the nature of the service performed. Jones, 623 P.2d at 376. Here, Cheley provided recreational camping services, including horseback riding. The services were “not a matter of practical necessity for even some members of the public,” because horseback riding is not “an essential service.” Jones, 623 P.2d at 377–78; see also Chadwick, 100 P.3d at 467; Day v. Snowmass Stables, Inc., 810 F.Supp. 289, 294 (D.Colo.1993) (recreational equine services offered by the stable were not essential); cf. Stanley, 911 P.2d 705 (residential lease was matter of public interest, and exculpatory clause was void). The General Assembly's enactment of section 13–21–119, C.R.S.2010, limiting the civil liability of those involved in equine activities, underscores the fact that horseback riding is a matter of choice rather than necessity. Chadwick, 100 P.3d at 467–68.

2. Third Jones Factor: Fairness

A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party's negligence. Heil Valley Ranch, Inc., 784 P.2d at 784; accord Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1111 (10th Cir.2002) (the second and third prongs of Jones inquire into the respective bargaining power of each party created by the “practical necessity” of the activity). Because horseback riding is not an essential activity, Hamill's mother was not “at the mercy” of Cheley's negligence when signing the agreement. See Chadwick, 100 P.3d at 469; see also Mincin, 308 F.3d at 1111 (because mountain biking was not an essential activity, no inferior bargaining power was identified); Day, 810 F.Supp. at 294 (defendants did not enjoy an unfair bargaining advantage in offering equine services).

By her own admission, Hamill's mother voluntarily chose to sign the agreement expressly giving permission for Hamill to participate in horseback riding activities. Cf. Wycoff v. Grace Community Church, 251 P.3d 1260, 1265 (Colo.App.2010) (a waiver was insufficient to allow parents to assess the degree of risk involved and extent of possible injuries because it did not describe the activity that resulted in injury).

In assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere. See Jones, 623 P.2d at 375 (that a contract is offered on a “take-it-or-leave-it” basis does not, by itself, cause it to be an adhesion contract). The availability of other camps and other providers of horseback riding excursions is highlighted by Hamill's mother's deposition testimony that Hamill previously attended other camps. The record supports the district court's conclusion that the agreement was entered into fairly.

3. Fourth Jones Factor: Intention of the Parties

Next, Hamill contends that the parties' intention was not clearly stated in the agreement. Her claim that she only intended to release claims for “things that Cheley would have no control over” does not create a fact issue and is contradicted by the record.

In reviewing a contract, we must enforce the plain meaning of the contract terms. USI Properties East, Inc. v. Simpson, 938 P.2d 168, 172 (Colo.1997); B & B Livery, Inc., 960 P.2d at 136. We must also determine whether its terms are ambiguous, that is, susceptible...