Eburn v. Capitol Peak Outfitters, Inc.
ORDER denying 22 Motion for Summary Judgment and granting CPOs 26 Cross Motion for Partial Summary Judgment by Judge Christine M. Arguello on 7/30/12.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-02578-CMA-CBS
CAPITOL PEAK OUTFITTERS, INC.,
ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT AND GRANTING DEFENDANT’S
CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Plaintiff’s Motion and Memorandum Brief
for Summary Judgment Re: Defense of Exculpatory Agreement (Doc. # 22) and
Defendant’s Response to Plaintiff’s Motion for Summary Judgment and Memorandum
Brief in Support of Defendant’s Cross Motion for Summary Judgment (Doc. # 26).1 The
narrow issue presented is whether Defendant, Capitol Peak Outfitters, Inc. (“CPO”), is
precluded from liability for the allegedly negligent acts or omissions attributed to it by
Plaintiff, Beth Eburn (“Eburn”), because of an exculpatory agreement she signed.2
The Court notes that Defendant improperly combined its response to Plaintiff’s motion with its
own cross motion. See D.C.COLO.LCivR 7.1C. (“A motion shall not be included in a response
or reply to the original motion. A motion shall be made in a separate paper.”). Nonetheless,
and despite Plaintiff’s failure to file a response, the Court will accept Defendant’s cross motion
as filed, because it does not raise any new issues on which the Court bases its ruling.
Because both parties seek summary judgment only on the exculpatory agreement issue
without addressing Eburn’s other claims for relief, their motions are actually for partial summary
judgment and, therefore, the Court will refer to them as such.
Jurisdiction is proper pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). For the
reasons that follow, the Court determines that the exculpatory agreement protects CPO
from liability for any alleged negligence and, therefore, (1) denies Eburn’s motion for
partial summary judgment and (2) grants CPO’s cross motion for partial summary
judgment on its affirmative defense of waiver and release.
In August, 2010, Eburn participated in a horseback ride arranged by CPO, which
is an “equine activity sponsor” under Colorado law.3 (Doc. # 41 at 5-6.) Before the ride,
Eburn signed at least two forms: one is entitled “Participant Release of Liability and
Assumption of Risk Agreement,” and the other, “Protective Headgear Refusal”
(collectively, “the exculpatory agreement”). (Doc. # 26-1.) Toward the top of the
exculpatory agreement are the typewritten words “Organization Name,” followed by
“Capitol Peak Outfitters inc [sic],” in longhand. Below that is typewritten “Participant
Name,” followed by several handwritten names,4 including that of “Beth Eburn.” (Id.)
The body of the exculpatory agreement provides on the first page, in pertinent
“‘Equine activity sponsor’ means an individual, group, club, partnership, or corporation,
whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or
provides the facilities for, an equine activity . . . .” Colo. Rev. Stat. § 13-21-119(2)(d).
The other names are those of family members who joined Eburn for the ride.
In consideration of being allowed to participate in any way in the program,
related events and activities, the undersigned acknowledge, appreciate,
and agree that:
1. The risk of injury from the activities involved in this program is
significant, including the potential for permanent paralysis and death.
2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both
known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF
THE RELEASEES or others, and assume full responsibility for my
[. . .]
4. I . . . HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE
___________________, its officers, officials, agents and/or employees,
other participants, sponsors, advertisers, and, if applicable, owners and
lessors of premises used to conduct the event (RELEASEES), from any
and all claims, demands, losses, and liability arising out of or related to
any INJURY, DISABILITY OR DEATH I may suffer, or loss or damage to
person or property, WHETHER ARISING FROM THE NEGLIGENCE OF
THE RELEASEES OR OTHERWISE, to the fullest extent permitted by
I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF
RISK AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND
THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND
SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.
(Id. (emphasis in original).) Eburn’s signature follows the above-quoted language. (Id.)
The second page further states, in relevant part:
NOTICE OF INHERENT RISKS: Equines have the propensity to behave
in ways that may result in injury, harm or death to persons on or around
the equine; have unpredictable reactions to such things as sounds,
sudden movement and unfamiliar objects, persons or other animals; are
susceptible to certain hazards such as surface or subsurface conditions;
collisions with other equines or objects. Propensities include kicking,
biting, stamping, stumbling, rearing, and others. Tack equipment can fail,
resulting in falling or loss of control. Participants could act in a negligent
manner that may contribute to injury to the participant or others, such
as failing to maintain control over the equine or not acting within the
participant’s ability. Equine activities are INHERENTLY DANGEROUS.
[. . .]
We realize that we are subject to injury from this activity and that no form
of preplanning can remove all of the danger to which we are exposing
[. . .]
I . . . the undersigned, have read the foregoing statement carefully before
signing and do understand its warnings and assumption of risks.
(Id. (emphasis in original).) Again, Eburn’s signature follows this language. (Id.) She
admits to having signed the agreement. (Doc. # 26-2 at 3.)
During the ride, Eburn fell from her horse and sustained injuries when her saddle
rotated to the side of the horse as it accelerated. (Doc. # 41 at 2-4.) Thereafter, she
filed a Complaint in this Court, alleging three claims for relief, though only her first claim,
for negligence, is at issue here.5 (See Doc. # 1.) She asserts that CPO caused her
damages in failing to: (1) “make reasonable and prudent efforts to determine [her] ability
to safely engage in the scheduled mountain trail horseback ride”; (2) “provide a horse
suitable for [her] to safely manage based upon her ability”; (3) “properly secure the
equipment used on [her] horse”; and (4) “have in place an emergency medical response
plan for emergency medical care to an injured person.” (Docs. ## 1 at 7; 41 at 2.) The
When valid, exculpatory agreements only shield against claims of simple negligence. See,
e.g., Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).
only issue currently before the Court is whether the exculpatory agreement precludes
CPO’s liability for these allegedly negligent failures.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party demonstrates that there
is Ano genuine dispute as to any material fact@ and that it is Aentitled to judgment as
a matter of law.@ Fed. R. Civ. P. 56(a). Summary judgment is not a Adisfavored
procedural shortcut@; rather, it is an important procedure Adesigned >to secure the just,
speedy and inexpensive determination of every action.=@ Celotex Corp. v. Catrett, 477
U.S. 317, 327 (quoting Fed. R. Civ. P. 1). For purpose of the motions currently pending,
no facts are in dispute, and the parties agree that the Court’s determination of whether
the exculpatory agreement is valid and enforceable presents a purely legal question.
See, e.g., Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 948 (Colo. App. 2011)
(noting that determining the validity of an exculpatory agreement raises a “question of
Before the Court can address the validity of CPO’s assertion that the exculpatory
agreement precludes Eburn’s negligence claim, the Court must address whether CPO
sufficiently apprised Eburn of the affirmative defense it asserts here.
WHETHER CPO ADEQUATELY RAISED ITS AFFIRMATIVE DEFENSE
Eburn argues, CPO does not deny, and the Court agrees that CPO “failed to
assert in its Answer any affirmative defense based on execution of any exculpatory
agreement by Ms. Eburn.” (Doc. # 22 at 1.) Nonetheless, the Court determines that, for
at least the following two reasons, consideration of the exculpatory agreement on the
merits is appropriate here. First, as Eburn concedes, the February 10, 2011 scheduling
order states that “Defendant maintains Plaintiff waived all rights to any litigation by
signing an appropriately authored release.” (Doc. # 11 at 3.) Thus, Eburn has been on
notice for well over one year as to CPO’s argument. Second, the March 9, 2012 Final
Pretrial Order, in which the pleadings were deemed merged, includes the following
description of CPO’s defense:
Plaintiff’s claims are barred by the doctrines of waiver and release. Prior
to going on the horseback trail ride, the [P]laintiff signed [CPO’s]
‘Participant Release of Liability and Assumption of Risk Agreement.’ In
accordance with this release, the Plaintiff knowingly and voluntarily agreed
to release, indemnify and hold harmless Capitol Peak Outfitters, Inc. and
its employees from any and all claims, demands and liability for any and
all injuries suffered by her while participating in the horseback riding event.
(Doc. # 41 at 5, 16.) Eburn did not subsequently file a motion or otherwise indicate that
CPO had not sufficiently raised this issue. As such, the Court concludes that Eburn has
been on notice for many months as to CPO’s defense of waiver and release and that,
therefore, it can reasonably be considered here.
WHETHER THE EXCULPATORY AGREEMENT PRECLUDES EBURN’S
As Colorado courts often state, “exculpatory agreements have long been
disfavored.” B & B Livery, Inc., v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Such
agreements “stand at the crossroads of two competing principles: freedom of contract
and responsibility for damages caused by one’s own negligent acts.” Heil Valley Ranch,
Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). However, they are not per se void, so
long as “one party is not ‘at such obvious disadvantage in bargaining power that the
effect of the contract is to put him at the mercy of the other’s negligence.’” Id. (internal
quotation marks and citation omitted). In determining the sufficiency and validity of
an exculpatory agreement under Colorado law, the Court normally considers: “(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.” Jones v. Dressel, 623 P.2d 370, 376 (Colo.
1981). However, Eburn contends, and the Court agrees, that only the fourth factor is
at issue here. (See Doc. # 22 at 4.)
Contractual terms are ambiguous when “they are susceptible to more than one
reasonable interpretation.” Riehl, 960 P.2d at 136. Mere disagreement between the
parties “over the meaning does not in and of itself create an ambiguity in the contract.”
Hamill, 262 P.3d at 950. Ultimately, if unambiguous, “a contract will be enforced
according to the express provision of the agreement.” Riehl, 960 P.2d at 136. In
determining whether the intent of the parties has been clearly and unambiguously
expressed, the Colorado Supreme Court looks to:
1) whether the agreement is written in simple and clear terms that are free
from legal jargon; 2) whether the agreement is inordinately long or
complicated; 3) whether the release specifically addresses the risk that
caused the plaintiff’s injury; 4) whether the contract contains any emphasis
to highlight the importance of the information it contains; and 5) whether
the plaintiff was experienced in the activity making risk of that particular
injury reasonably foreseeable.
Salazar v. On the Trail Rentals, Inc., No. 11-cv-00320, 2012 WL 934240, at *4 (D. Colo.
Mar. 20, 2012) (unpublished).
In the instant case, the Court finds that the language of the exculpatory
agreement clearly and unambiguously expresses the parties’ intent to preclude CPO’s
liability for negligent acts. To begin with, as is evident from the language quoted above,
the agreement is written in relatively simple and clear, non-legal terms. Also, the
agreement comprises less than two full pages and is otherwise not very complicated.
Additionally, it specifically addresses the reality that “[t]ack equipment can fail, resulting
in falling or loss of control” and explicitly states that the signor assumes all risks from
the activities involved, “including the potential for permanent paralysis and death . . .
even if arising from the negligence of [CPO] . . . .” (Doc. # 26-1 (emphasis deleted).)
With her signature, Eburn also agreed that “no form of preplanning can remove all of
the danger to which [she was] exposing [herself].” (Id.) Further, the agreement
emphasizes important information in several places through the use of capitalization.
See Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (noting
that the use of capital letters in exculpatory agreement highlighted “the importance of
the information contained in it”).
The only factor that weighs in Eburn’s favor is that she was an inexperienced
horseback rider and was, therefore, at least theoretically less knowledgeable about
the potential injuries she could suffer. However, this factor alone is not dispositive.
See, e.g., Riehl, 960 P.2d at 138-140 (upholding an exculpatory agreement signed by
a novice rider who had ridden a horse only once before). Also, Eburn’s statements
when she first arrived at CPO undercut to a certain extent the presumption that, as
a beginner, she was not informed about potential riding injuries. When she arrived,
Eburn “advised Defendant’s employee that she did not ride horses at all and needed
a horse suitable for a beginner.” (Doc. # 41 at 2.) This indicates that Eburn had some
awareness of the potential for problems to occur if she was matched with a horse not
suitable for her skill level. As such, consideration of the above factors leads the Court
to conclude that, even though Eburn was a novice, the exculpatory agreement clearly
and unambiguously expressed the parties’ intent to preclude CPO’s liability for negligent
The Court’s conclusion is supported by several cases in which either the
Colorado Supreme Court or the Colorado Court of Appeals enforced an exculpatory
agreement, similar to the one at issue here, concluding that it clearly expressed the
parties’ intent. For example, in Riehl, the plaintiff sued an equine activity sponsor to
recover for injuries she sustained after falling from a rented horse. She had signed an
exculpatory agreement containing language that released the sponsor from “any liability
in the event of any injury or damage of any nature (or perhaps even death) to [her] or
anyone else caused by [her] electing to mount and then ride a horse owned or operated
by [the sponsor].” Riehl, 960 P.2d at 135. The supreme court ruled that the agreement
was written in simple and clear terms, was not too long, and that the plaintiff was aware
she was signing a release, even though she stated that she “really didn’t read” it. Id. at
138 and n.5.
Similar reasoning was employed in Chadwick v. Colt Ross Outfitters, Inc., 100
P.3d 465, 467 (Colo. 2004), where the plaintiff was thrown off a mule and injured. The
plaintiff had signed an exculpatory agreement that included a “RELEASE FROM ANY
LEGAL LIABILITY . . . for any injury or death caused by or resulting from [his]
participation in the activities.” Id. at 468. The Colorado Supreme Court determined
that, although the agreement did not contain the word “negligence,” it was nonetheless
sufficient to preclude liability on the plaintiff’s negligence claims. Id. at 468-69. The
court reasoned that the release: was not too long; did not contain legal jargon; and
included language releasing the defendant from “any legal liability.” Id.
Likewise, in Hamill, a division of the Colorado Court of Appeals upheld a threeand-a-half page exculpatory agreement and precluded the plaintiff’s negligence claims,
which stemmed from injuries she sustained after falling off a horse at a summer camp.
262 P.3d at 951. The agreement contained broad language, covering “inherent and
other risks” and noted that “[m]any, but not all, of these risks are inherent.” Id.
(emphasis in original) (quotation marks deleted). The agreement also included
language releasing the defendant from “any legal liability,” “any injury,” and “any claim.”
Id. (emphasis in original) (quotation marks deleted). In upholding the agreement, the
division stated that it was not “inordinately long” and described the legal jargon as
“minimal.” Id. The three-judge division further reasoned that “[t]he breadth of the
release persuades us that the parties intended to disclaim legal liability for negligence
As in those cases, the exculpatory agreement Eburn signed contains broad
language, including a waiver of all risks of injury, “both known and unknown,” and a
release “from any and all claims, demands, losses, and liability arising out of or related
to any INJURY, DISABILITY OR DEATH[,] . . . to the fullest extent permitted by law.”
(Doc. # 26-1). Moreover, this waiver and release explicitly mentions CPO’s negligence
and is, for that reason alone, even clearer than those agreements in the above-cited
cases which did not specifically include the word “negligence.”
Eburn’s assorted arguments do not require a contrary conclusion. To begin with,
although Eburn aptly notes that CPO did not fill in the blank in paragraph four of the
exculpatory agreement (following the words “RELEASE, INDEMNIFY, AND HOLD
HARMLESS THE”), she is simply incorrect in asserting that “Defendant’s name appears
nowhere” on the exculpatory agreement. (Doc. # 22 at 5.) As previously mentioned,
CPO’s name is handwritten – in large letters, no less – toward the top of the agreement.
Such a designation clearly indicates the party to be released, indemnified, and held
harmless, notwithstanding the later absence of CPO’s name on the agreement.
Additionally, contrary to Eburn’s assertion, a reading of both pages of the exculpatory
agreement indicates that the “activities involved in this program” included a horseback
ride, which is unquestionably an “equine activity.” (See, e.g., Doc. # 26-1 (“Equine
activities are inherently dangerous” (emphasis deleted)).) Also, Eburn herself states
that she went to CPO in order to go horseback riding. (Doc. # 1 at 3.) A somewhat
closer question is presented by Eburn’s assertion that the exculpatory agreement did
not cover CPO’s medical response. Again, however, the breadth of the agreement,
as well as language releasing CPO from injuries arising from its own negligence,
sufficiently included CPO’s medical response which, necessarily, followed her fall
from the horse.6
Further, the Court disagrees with Eburn’s assertion that the exculpatory
agreement did not contain “the required statutory warning language,” which is mandated
by Colo. Rev. Stat. § 13-21-119(5).7 The statutory language is: “Under Colorado Law,
an equine professional is not liable for an injury to or the death of a participant in equine
activities resulting from the inherent risks of equine activities, pursuant to section 13-21119, Colorado Revised Statutes.” Id. But the Colorado Supreme Court has construed
the statute merely to provide “that every release agreement between an equine
professional and a participant include the warning that the equine professional is not
Because the exculpatory agreement precludes Eburn from asserting a negligence claim
against CPO for its emergency medical response, the Court declines to address CPO’s
alternative argument that her claim is barred by Colorado’s “Good Samaritan Act,” Colo. Rev.
Stat. § 13-21-108.
Section 13-21-119, Colorado’s “Equine Statute,” provides an exemption from civil liability “for
sponsors of equine activities and equine professionals with respect to inherent risks of equine
activity. Subsection (4)(b) of the Equine Statute establishes exceptional circumstances where
common law civil liability still may be imposed.” Clyncke v. Waneka, 157 P.3d 1072, 1074
(Colo. 2007). CPO raised the Equine Statute as an affirmative defense (Doc. # 4 at 4), but it
is not implicated by the exculpatory agreement here, other than as to the mandatory warning
discussed in the text above.
liable for ‘inherent risks’ resulting from an equine activity.” Riehl, 960 P.2d at 137.
The exculpatory agreement here did so, especially in the section entitled “NOTICE
OF INHERENT RISKS[,]” which enumerates such risks pertaining to the behavior of
equines. (See Doc. # 26-1.) To the extent Eburn’s argument is that the language
proposed in § 13-21-119 must be employed verbatim in an exculpatory agreement, she
cites no authority supporting her position, nor is the Court aware of any. Moreover, a
broadly written exculpatory agreement, such as the one in this case, “evinces an intent
to extinguish liability above and beyond that provided in section 13-21-119.” Riehl, 960
P.2d at 138. Accordingly, the Court cannot conceive of how Eburn could have been
harmed by the absence of a verbatim statutory warning, when the exculpatory
agreement she signed waived CPO’s liability for more than just the “inherent risks
of equine activities” that the statutory warning mentions.
Finally, and perhaps most problematically for Eburn, is her reliance on Riehl v.
B & B Livery, Inc., 944 P.2d 642 (Colo. App. 1997), in which a division of the Colorado
Court of Appeals held that a broadly written exculpatory agreement was ambiguous
because it also contained a warning covering the inherent risks of equine activities.
That holding was reversed by the Colorado Supreme Court in the Riehl decision, 960
P.2d at 138-39, which has been cited several times above. For reasons too obvious to
articulate here, the Court is not persuaded by an argument based on a case that is no
longer good law.
For the foregoing reasons, it is ORDERED that Eburn’s motion for partial
summary judgment (Doc. # 22) is DENIED and CPO’s cross motion for partial summary
judgment (Doc. # 26) is GRANTED. As such, Eburn’s first claim, for negligence, is
DISMISSED, although her other claims for relief remain.
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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