Pre-Injury Liability Waivers in Colorado
Likelihood of Enforcement: Moderate
While Colorado expressly states that waivers are disfavored, and that they can be voided for public policy reasons, they are not necessarily so. Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). Colorado courts are willing to enforce a well-written waiver for simple negligence, as long as the contract is fairly entered into and the intention of the parties to waive liability is clearly expressed. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).
In Jones v. Dressel the court outlined a four-factor test in order to determine whether or not a waiver is valid Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981):
(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
Requirements 1 and 2 of the Jones test point to the fact that even if a wavier is clear and well-written, the court will disallow it in cases involving businesses held to have certain duties to the public. This generally involves business which provide highly important or necessary services, which are open to all members of the public. Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963). The court in Tunkl outlined six factors for determining whether or not a waiver affects the public interest, and while the court in Jones has said that it is “not necessary for a contract to embody all of the characteristics set forth in Tunkl,” it must meet at least some number of them in order to be considered as having sufficiently affected the public interest for the purposes of determining its validity Jones, 623 P.2d at 377 (Colo. 1981).
Importantly, however, given the prevalence of the recreational industry in the state, Colorado courts have said that businesses engaged in recreational activities are generally not businesses of this type, and thus their waivers, if well-written and fairly entered into, may be enforced Barker v. Colorado Region-Sports Car Club of America, Inc., 532 P.2d 372, 377, 35 Colo.App. 73, 81 (Colo.App. 1974)
In a later case, Chadwick, the Colorado court clarified the fourth Jones factor, claiming that in determining the clarity of a waiver’s language, the court looks at length, complication, the presence of legal jargon, and the likelihood that the reader will become confused or fail to recognize the extent of the liability waived. Chadwick, 100 P.3d at 467 (Colo.,2004). Colorado does not, however, go as far as to necessitate the use of the terms “negligence” or “breach of warranty” like certain other states. id.
In one of the Colorado’s most recent waiver cases, Boles v. Sun Ergoline, the court emphasized the strict scrutiny the state applies to waivers:
“We designed the Jones factors to ensure that agreements to release a party from liability for its simple negligence, although not void as against public policy in every instance, are closely scrutinized for particular circumstances or context that might nevertheless render them invalid.” 223 P.3d at 726
The Colorado Courts do not consider waivers that purport to release one from “willful or wanton” conduct or strict products liability claims as enforceable. id.
In 2002, the Colorado court ruled that parental waivers were void against public policy, but explicitly stated that the question of parental waivers was one of “legislative prerogative” which the Generally Assembly could choose to address differently. Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232 (Colo. 2002) The following year, the legislature took the court up on its offer and passed a statute that allows such waivers to be enforced, citing the need for firms to have such protection and the fundamental right of parents to make certain decisions for their children as long as that decision was both “voluntary and informed” (CRS 13-22-107).
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.