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Simkin v. Heil Valley Ranch Inc.3/17/1988
Opinion by JUDGE SMITH
Roane Simkin (Simkin) appeals a partial summary judgment holding that a certain release, if it were found to have been executed by her, would exculpate Heil Valley Ranch, Inc., (Ranch) from liability to her based on her fall from a horse. We reverse and remand for further proceedings.
Simkin filed a personal injury action which alleged that Ranch's negligence and breach of warranty caused injuries to her when she fell from a horse provided by Ranch. The trial court entered a partial summary judgment in favor of Ranch based on a release or exculpatory agreement which it concluded operated to relieve defendant from any liability to plaintiff for either breach of warranty or negligence. It further found that the language of the agreement was clearly printed on the front of the release in language which Simkin could understand. Therefore, she knew, or had reason to know, the risks before signing such release.
The release at issue states:
"THIS IS A RELEASE OF LIABILITY. PLEASE READ BEFORE SIGNING. Upon my acceptance of horse and equipment, I acknowledge that the use, handling and riding of a horse involves a risk of physical injury to any individual undertaking such activities; and that a horse irrespective of its training and usual past behavior and characteristics may act or react unpredictably at times based upon instinct or fright which, likewise, is an inherent risk assumed by a horseback rider. The undersigned expressly assumes such risk and waives any claim he/she might state against the stables as a result of physical injury incurred in said activities."
Simkin argues that the release was not exculpatory, as a matter of law, because it did not contain language which unambiguously released Ranch from liability for its own negligence and breach of warranty. She asserts that Ranch should have known that the horse provided to her was unsafe and unreasonably dangerous.
In determining whether an exculpatory agreement is valid, the court must consider 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. Jones v. Dressel, 623 P.2d 370 (Colo. 1981). The fourth factor is at issue here.
In Jones, the clause which exempted liability was found to be explicit in expressing the parties' intent when it specifically released the corporation from any liability, claims, demands, or causes of actions, whatsoever, while plaintiff was upon the premises or aircraft of the corporation, while plaintiff participated in any of its activities, and whether or not loss, damage, or injury resulted from the negligence of the corporation. No Colorado case addresses the effect of exculpatory language in a release when the word "negligence" is not used.
Jones v. Dressel, supra, relied on the case of Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 (1979). Gross held that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. In Gross, the release alerted the plaintiff to the dangers inherent in parachute jumping, and expressly stated that he entered into the sport with apprehensions of its risks. However, nowhere did the release explicitly express the intention to exempt defendant from liability for injury which resulted from defendant's failure to use due care, either in his training methods or in his furnishing safe equipment. Consequently, despite the much broader language
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