At some point you’ve probably signed one. That official looking document with the small words that you need to sign before you can play softball, go whitewater rafting, or jump out an airplane. These waivers are supposed to protect recreational businesses in the event that you are injured or harmed while performing these activities. But are you really “signing your life away” when doing this?
In Colorado, courts have held that agreements to waive another’s negligent actions are disfavored. There are several public policy reasons for this. First, the consumer is assuming that the waiver only covers accidents, not negligent conduct by the operator. Second, the person signing the waiver is not in a position to negotiate. They can either sign the waiver or go home.
Colorado courts use a 3 part test to determine if a waiver is valid.
- Does it involve a person or activity that is prohibited from waiving liability? Minor children cannot sign waivers; common carriers like buses, trains and airplanes cannot waive liability; and conduct that is intentional, deliberate, and voluntary harmful cannot be waived.
- Does the waiver meet the 4 requirements set forth in Jones v. Dressel? In order for a waiver to avoid being invalid, all 4 requirements must be met. The four requirements the Court set out in Dressel are: (1) there is no existing duty to the public; (2) the service or activity to be performed is not essential; (3) the contract was entered into fairly; (4) the contract was not ambiguous.
- Is the contract valid? Waivers are essentially contracts, so all of the elements of a contract must be there. That means the person must be eligible to enter into a contract; the person signing the waiver must be getting something in return; and there is “meeting of the minds” where both parties knew what they were bargaining for.
There’s a lot of adventure to be had in Colorado, but if you’re injured by the negligence of someone else, don’t assume you’ve already signed your rights away. Contact the attorneys atBell & Pollock P.C. for a free consultation.