FILED
United States Court of Appeals
Tenth Circuit
May 7, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
KIMBERLY N. SQUIRES,
Plaintiff - Appellant,
v. No. 12-1199
BRECKENRIDGE OUTDOOR
EDUCATION CENTER,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:10-CV-00309-CBS-BNB)
Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and
Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of
The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier
of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for
Plaintiff - Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the
brief) of Grund • Dagner, P.C., Denver, Colorado, for Defendant - Appellee.
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
McKAY, Circuit Judge.
Plaintiff Kimberly Squires filed this diversity action against Defendant
Breckenridge Outdoor Education Center asserting claims for negligence and gross
negligence following a ski accident in which she was injured. The magistrate
judge granted Defendant’s motion for summary judgment in part, concluding
Plaintiff’s mother, Sara Squires, had validly released any claim for negligence
against Defendant by signing an acknowledgment of risk and release of liability.
Plaintiff now appeals, arguing summary judgment was inappropriate because the
Release is unenforceable for three reasons: (1) the Release is as an invalid
exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not
voluntary and informed, as required by Colorado Revised Statute Section 13-22-
107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless
voidable because it was procured through fraud.
B ACKGROUND
In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive
delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado.
Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-
profit organization dedicated to providing children, including children with
disabilities, with opportunities and experiences for growth. Camp Fire USA had
contracted with Defendant for a five-day wilderness program that included skiing,
a ropes course, and snow tubing.
Before the trip, Defendant sent documents regarding the trip to Camp Fire
USA, which in turn circulated them to the participants’ parents, including Mrs.
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Squires. The documents included a “Letter to Students, Parents and Guardians”
(App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment
of Risk & Release of Liability” (App. at 210 (capitalization omitted)).1 The
Letter states, in pertinent part:
LETTER TO STUDENTS, PARENTS AND GUARDIANS
Greetings from Breckenridge! The BOEC staff looks forward to having
you, your child or your family member join us on a course and would
like to share the following information about who we are, what we do
and the risks involved.
The Breckenridge Outdoor Education Center (BOEC), a non-profit
organization in operation since 1976, provides outdoor adventure
programs for people of all abilities. We offer programs for groups and
individuals. All courses are tailored to the specific goals and abilities
of our students.
....
All of our activities are conducted in a manner consistent with the
1
It is somewhat unclear whether the Release signed by Mrs. Squires was
presented to her as a separate document from the Letter or as a single document
with the Letter printed on one side and the Release printed on the reverse. The
Letter itself refers to the Release “on the reverse side of this letter.” (App. at
209.) Plaintiff likewise initially represented the Release appeared on the reverse
of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover
letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . .
.).) However, during oral argument, Plaintiff’s counsel maintained this was a
disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are
standalone copies, and one copy happens to have a bleed-over language from the
cover letter. It’s not clear . . . that that’s how that actually occurred when the
Release was given to [Mrs. Squires] for signature.”) It is undisputed, however,
that the Release the director of Camp Fire USA sent to the participants “included
the cover letter that explained the waiver” (App. at 207), and that the two
documents were sent as a single attachment (App. at 404, 407, 408).
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highest standards, as defined by the Association for Experiential
Education (AEE). The BOEC is accredited by AEE, who independently
reviews the policies, practices and educational components of applicant
organizations and accredits those that meet their high standards. All
activities offered are designed to pose appropriate challenges for
students. These challenges provide a medium for adventure, learning
and personal growth. Your ski lesson or course will involve risk, which
may be greater than most people encounter in their daily lives.
Providing high quality programs in a risk-managed environment is a
priority at the BOEC. It is, however, impossible to eliminate all risks.
It is very important that you follow all directions given by staff and that
you ask questions whenever a procedure or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best
interest that risks are disclosed, understood, and assumed prior to
participation. After you have reviewed the acknowledg[]ment of risk
and waiver of liability on the reverse side of this letter and if you
understand and agree with its contents, please sign in the appropriate
places. If you are the parent or legal guardian of a student, please read
both sides of this document to the student, and if you both agree and
understand their content, place YOUR signature in the three appropriate
places.
If you have any questions or comments, please do not hesitate to
contact us. We welcome your suggestions and feedback.
(App. at 209.)
The accompanying Release provides:
ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY
(REQUIRED)
In consideration of being allowed to participate in any way in
Breckenridge Outdoor Education Center (BOEC) programs, and related
events and activities . . . I, and/or the minor student, . . . the
undersigned:
1. Understand that although the BOEC has taken precautions to
provide proper organization, supervision, instruction and equipment for
each course, it is impossible for the BOEC to guarantee absolute safety.
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Also, I understand that I share the responsibility for safety during all
activities, and I assume that responsibility. I will make my instructors
aware to the best of my ability of any questions or concerns regarding
my understanding of safety standards, guidelines, procedures and my
ability to participate at any point during any activity.
2. Understand that risks during outdoor programs include but are not
limited to loss or damage to personal property, injury, permanent
disability, fatality, exposure to inclement weather, slipping, falling,
insect or animal bites, being struck by falling objects, immersion in
cold water, hypothermia (cold exposure), hyperthermia (heat exposure),
and severe social or economic losses that may result from any such
incident. I also understand that such accidents or illnesses may occur
in remote areas without easy access to medical facilities or while
traveling to and from the activity sites. Further, there may be other
risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my
ability, the facilities and equipment to be used. If I believe anything is
unsafe, I will immediately advise the BOEC staff present of such
condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility
for the damages due to such injury, permanent disability or death
resulting from participating in any BOEC activity.
I hereby release the BOEC, its successors, representatives, assigns, and
employees from any and all claims, demands, and causes of action,
whether resulting from negligence or otherwise, of every nature and in
conjunction with a BOEC activity.
(App. at 210.)
Plaintiff and her mother signed the Release on January 13, 2008. On that
date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge
and participation in Defendant’s program would include skiing, although she
claims she was unaware of the precise equipment and methods her daughter would
be using. Once in Breckenridge, Plaintiff was paired with a BOEC instructor and
equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was
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injured when another, unrelated, skier lost control and skied into the tethers
connecting Plaintiff and her instructor. The force of the collision caused the
instructor to lose control of the tethers, and Plaintiff continued unrestrained down
the trail and into a group of trees. She was injured when her bi-ski collided with
a tree.
Following the accident, Plaintiff filed this action claiming Defendant’s
negligence and gross negligence caused her injuries. Defendant moved for
summary judgment, arguing the Release barred Plaintiff’s negligence claim and
there was no evidence to support her gross negligence claim. The magistrate
judge granted summary judgment in favor of Defendant on Plaintiff’s negligence
claim, concluding Plaintiff’s mother had executed an enforceable exculpatory
agreement that clearly and unambiguously expressed the parties’ intent to
extinguish Defendant’s liability, and her decision to do so was voluntary and
informed. The magistrate judge, however, denied Defendant’s motion on
Plaintiff’s gross negligence claim. This claim proceeded to a jury, which found
Defendant not liable. Plaintiff now appeals the grant of summary judgment on
her negligence claim.
D ISCUSSION
“We review a district court’s decision to grant summary judgment de novo,
applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d
1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary
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judgment is appropriate if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Colorado law applies in this diversity case.
I. E NFORCEABILITY OF THE R ELEASE
Plaintiff argues the Release is unenforceable and, therefore, does not bar
her negligence claim. She reasons that the Release is invalid under the four-part
test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her
mother did not make an informed decision, as required by Colorado Revised
Statute Section 13-22-107.
A. Validity Under Jones
In Colorado, “[a]greements attempting to exculpate a party from that
party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v.
Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are
not necessarily void.” Id. at 784. In determining whether an exculpatory
agreement is valid, Colorado courts 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, 623 P.2d at 376. Plaintiff
challenges only the magistrate judge’s conclusion on the fourth factor.
Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach
of warranty’ are not invariably required for an exculpatory agreement to shield a
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party from claims based on negligence and breach of warranty.” Heil Valley, 784
P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was
to extinguish liability and whether this intent was clearly and unambiguously
expressed.” Id. In making this determination, Colorado courts examine “the
actual language of the agreement for legal jargon, length and complication, and
any likelihood of confusion or failure of a party to recognize the full extent of the
release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467
(Colo. 2004).
The Release signed by Plaintiff and her mother clearly and unambiguously
waives any negligence claims Plaintiff might have brought against Defendant.
The Release begins by indicating it is signed “[i]n consideration of being allowed
to participate in any way in Breckenridge Outdoor Education Center (BOEC)
programs, and related events and activities.” (App. at 104.) It then warns that “it
is impossible for the BOEC to guarantee absolute safety,” and identifies the
potential risk of “loss or damage to personal property, injury, permanent
disability, [and] fatality.” (Id.) The Release concludes, after only five short
paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC,
its successors, representatives, assigns, and employees from any and all claims,
demands and causes of action, whether resulting from negligence or otherwise, of
every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).)
We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc.,
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308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims
I might state . . . including those claims based on negligence or breach of
warranty.’ . . . There is nothing ambiguous about this portion of the agreement.”
(first alteration in original)).
Plaintiff, however, contends the Release does not satisfy the fourth Jones
factor because it failed to include that Plaintiff would be skiing using a bi-ski and
failed to disclose specific risks associated with this form of adaptive skiing. She
argues that Colorado law requires the Release to identify the specific activity
being engaged in and describe specific associated risks. In support of this
position, Plaintiff quotes from several other releases that have been upheld and
claims it was their adequate detailing of risks that led the courts to conclude they
were valid under the fourth Jones factor. However, even though the releases
quoted by Plaintiff contain more detailed descriptions of the associated risks,
their validity did not turn on this fact. Notably, none of the cases Plaintiff relies
on evaluated the sufficiency of the description of the risks.
Contrary to Plaintiff’s argument, Colorado law does not require that
exculpatory agreements refer to the specific activity in which the plaintiff
participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo.
App. 1996) (concluding a release that did not mention the specific activity in
which the plaintiff was injured was nevertheless valid because it “unambiguously
released defendants from liability for injuries occurring during associated
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scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d
1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the
specific activity and referred only to “the activity I am about to voluntarily
engage in” was valid under Jones). Nor does it require “that an exculpatory
agreement describe in detail each specific risk that the signor might encounter.
Rather, an exculpatory agreement bars a claim if the agreement clearly reflects
the parties’ intent to extinguish liability for that type of claim.” Lahey v.
Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v.
Twin Lakes Expeditions, Inc., No. 96-1438, 1997 WL 265093 (10th Cir. May 20,
1997) (unpublished) (citation omitted). The Release clearly reflects precisely
such an intent—Plaintiff and her mother agreed, “[i]n consideration of being
allowed to participate in . . . [Defendant’s] programs, and related events and
activities” to “release [Defendant] from any and all claims . . . and causes of
action, whether resulting from negligence or otherwise, of every nature and in
conjunction with a [BOEC] activity.” (App. at 104.)
Plaintiff additionally argues the Release is ambiguous because it does not
specifically release claims resulting from the negligence of third parties, such as
the skier who collided with Plaintiff, and because it inconsistently allocates risks
between herself and Defendant. Plaintiff raises her first theory of ambiguity for
the first time on appeal. Because this argument was not properly preserved, we
do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir.
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1993) (“[A] party may not lose in the district court on one theory of the case, and
then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second
theory of ambiguity, we agree with the magistrate judge’s conclusion that the
Release is not reasonably susceptible to her interpretation, which strains logic.
Plaintiff specifically argues the portion of the Release that releases Defendant
from liability is rendered ambiguous by the following sentence: “I understand
that I share the responsibility for safety during all activities, and I assume that
responsibility.” (App. at 104.) She contends that by “discussing two alternate
allocations of risk in the same document, the Release does not clearly and
unambiguously express the intent of the parties, and thus, is unenforceable.”
(Appellant’s Opening Br. at 23.) However, these two provisions create no such
ambiguity. The sentence on which Plaintiff relies clearly expresses the
participant’s agreement to share in the responsibility of participating in a safe
manner, whereas the release provision clearly expresses the participant’s intent to
release Defendant from liability. As the magistrate judge concluded, the two are
not mutually exclusive, and the first provision makes it no less clear that
Plaintiff’s mother intended to release Defendant from liability for any negligence
claim.
Because the Release contains clear and unambiguous language
demonstrating Plaintiff’s mother intended to release any negligence claims
Plaintiff might have against Defendant, it is valid and enforceable under Jones.
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B. Informed Decision Under Colorado Revised Statute Section 13-22-107
We turn then to whether Mrs. Squires’s consent to the Release was
voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was
not because her mother did not understand the risks involved with adaptive skiing
and, specifically, the use of bi-skis.
In 2002, the Colorado Supreme Court held “that Colorado’s public policy
disallows a parent or guardian to execute exculpatory provisions on behalf of his
minor child for a prospective claim based on negligence.” Cooper v. Aspen
Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev.
Stat. § 13-22-107(3). The following year, the General Assembly superseded
Cooper through enactment of Section 13-22-107(3). Under this section, “[a]
parent of a child may, on behalf of the child, release or waive the child’s
prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute
“declare[s] that parents have a fundamental right to make decisions on behalf of
their children, including deciding whether the children should participate in risky
activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d
1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and
informed, the decision should be given the same dignity as decisions regarding
schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. §
13-22-107(1)(a)(V).
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The Colorado Court of Appeals has “assume[d] that the General Assembly
was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but
required something more for the waiver of a minor’s prospective negligence
claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App.
2011) (citation omitted). In addition to the Jones factors, “[t]he General
Assembly required that the consent to waiver by a parent be ‘voluntary and
informed.’” Id. “A parent’s decision is informed when the parent has sufficient
information to assess the potential degree of risks involved, and the extent of
possible injury.” Id.
Since the enactment of Section 13-22-107, the Colorado Supreme Court has
not addressed whether a release satisfies the voluntary and informed requirement
of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how
Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann,
235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from
the Colorado Court of Appeals only as they may aid our ability to predict how the
Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co.,
396 F. App’x 496, 502 n.14 (10th Cir. 2010).
The Colorado Court of Appeals has twice considered whether a parent’s
consent to release prospective negligence claims on behalf of a minor child was
voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first
occasion, the Colorado Court of Appeals determined it “need not set forth . . .
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precisely how much information is required for a parental release to satisfy the
statute” because “[t]here is no information in [the] one-page registration form
describing the event activities, much less their associated risks.” Wycoff, 251
P.3d at 1264. There, the plaintiff was injured while being towed in an innertube
behind an ATV on a frozen lake as part of her participation in a three-day event
called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s
mother signed a one-page registration and information form, which contained a
purported release in the following paragraph:
I give permission for my child to participate in . . . Winterama 2005 and
all activities associated with it. I further give consent for any medical
treatment necessary to be given to my child in case of injury or
sickness. I will not hold Grace Community Church or it’s [sic]
participants responsible for any liability which may result from
participation. I also agree to come and pick up my child should they
not obey camp rules.
Id. (emphasis and correction in original). Although the plaintiff knew the
Winterama activities would include riding on an ATV-towed innertube, her
mother did not. The court concluded that the mother’s waiver was not informed
because the registration and information form did “not indicate what the activities
would involve and certainly d[id] not suggest they would include ATV-towed
inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was
no information from which the plaintiff’s parents could “assess the degree of risk
and the extent of possible injuries” from her participation in Winterama. Id. at
1265.
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Shortly after the Wycoff decision, the Colorado Court of Appeals again
addressed whether a parent’s consent to release prospective negligence claims on
behalf of her child was informed. Borrowing from the language used in Wycoff,
the court began by stating, “A parent’s decision is informed when the parent has
sufficient information to assess the potential degree of risks involved, and the
extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at
1265). In addressing the degree of risk, the court concluded the plaintiff’s mother
was sufficiently informed about the risks involved in horseback riding, the
activity in which the plaintiff was injured, because she “knew her daughter would
be riding horses and she was advised that there were risks, known and unknown,
associated with the activity.” Id. at 953. In reaching this conclusion, the court
first relied on the undisputed fact that the plaintiff’s mother “knew the activities
[the camp] offered,” because her daughter “had attended [the camp] and ridden
the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he
agreement clearly indicated that horseback riding was an activity available to
campers.” Id. The agreement further identified some of the “risks associated
with participation in any camping activities,” and emphasized that “a complete
listing of inherent and other risks is not possible” and there are even “risks which
cannot be anticipated.” Id. at 949 (emphasis omitted). The court finally
considered the fact that the plaintiff’s mother “never contacted [the camp] to
discuss the release form, and had no questions about the language of the release
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form when she signed it.” Id. at 953. In light of all of this evidence, the court
concluded the plaintiff’s mother was adequately informed of the risks involved
with horseback riding. The fact that she “may not have contemplated the precise
mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not
create a genuine issue of material fact.” Id. The relevant inquiry was whether the
plaintiff’s mother was aware the plaintiff would be riding horses and was advised
there were risks associated with that activity, which she was.
The court then turned to whether the plaintiff’s mother was provided with
sufficient information “to assess the extent of possible injuries to [her daughter].”
Id. In making this determination, the court again considered both the language of
the release and the plaintiff’s mother’s independent knowledge and experience.
The release contained broad language waiving “any claims of liability, for any
injury, even death.” Id. (internal quotation marks omitted). The plaintiff’s
mother was further aware that Christopher Reeve, whom she knew personally, had
been injured falling off a horse, and was therefore “aware that there were
significant risks associated with horseback riding.” Id. The court thus concluded
that the agreement adequately disclosed the extent of potential injuries; it “did not
need to include an exhaustive list of particularized injury scenarios to be
effective.” Id.
Before turning to whether Plaintiff’s mother’s consent to release
prospective negligence claims against Defendant was informed, we must first
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address the scope of the evidence we may consider in making this determination.
The Colorado courts have yet to specifically address this issue. In Wycoff, the
court “assume[d] for purposes of th[e] case that a facially deficient exculpatory
contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on
this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V)
must be limited to the four corners of the Release unless we first determine that
the Release itself is facially deficient, in which case the Release would be invalid
under Jones. Defendant, on the other hand, maintains we may properly consider
the Letter that accompanied the Release as well as Mrs. Squires’s actual
knowledge on the day she signed the Release.
We predict the Colorado Supreme Court would likely follow the approach
advocated by Defendant and adopted by the Colorado Court of Appeals in
Hamill—in determining whether a parent’s consent to release prospective
negligence claims is voluntary and informed, the parent’s actual knowledge and
the information provided in connection with the release should be considered in
addition to the language of the release itself. Unlike the fourth factor of the
common-law Jones test, which focuses on whether the agreement itself expressed
the parties’ intention in clear and unambiguous terms, the focus of the voluntary
and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s
decision. If we were to limit our review to the language of the Release itself, we
would not be in a position to adequately evaluate whether the parent’s decision
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was informed. To “give[] effect to the General Assembly’s intent in enacting”
Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a
parent’s decision to release his or her child’s prospective negligence claims be
honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. §
13-22-107(1)(a)(V)—we must be able to consider the relevant information the
parent had and was provided in order to make that decision. Indeed, were we to
limit our review to the language of the Release itself, it would put the General
Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of
recreational activities would be required to incorporate all relevant information
they supplied to parents within the release itself while simultaneously ensuring
the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at
785. To avoid such a result and give the fullest effect to the General Assembly’s
intent, we consider not only the language of the Release, but also the information
Defendant provided to Plaintiff and Mrs. Squires in connection with the Release
as well as Mrs. Squire’s actual knowledge on the date she signed the Release.
Considering this evidence, we conclude Mrs. Squires’s decision to release
Plaintiff’s prospective negligence claims against Defendant was informed. Mrs.
Squires had sufficient information from which to evaluate the degree of risk
Plaintiff faced. She admittedly knew “when she signed the document . . . that her
daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the
students and their parents specifically referred to “[y]our ski lesson” (App. at
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209), and the accompanying participant application identified “Sit-Down” and
“Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by
Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson .
. . will involve risk, which may be greater than most people encounter in their
daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for
BOEC to guarantee absolute safety,” and warned that in addition to the “risks
during outdoor programs,” including “falling,” “there may be other risks not
known . . . or not reasonable foreseeable at this time.” (App. at 210.) After
receiving this information, Mrs. Squires did not contact Defendant to discuss the
Release and did not inquire as to the risks that were going to be involved with the
ski trip. Although Mrs. Squires “may not have contemplated the precise
mechanics of her daughter’s fall,” including the precise mechanics of skiing with
a bi-ski, this fact “does not invalidate the release.” Hamill, 262 P.3d at 953. Like
the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she
was advised that there were risks, known and unknown, associated with the
activity.” Id.
Mrs. Squires likewise had sufficient information from which to assess the
extent of possible injuries to Plaintiff. The Release contained broad language
releasing “any and all claims,” “of every nature,” “whether resulting from
negligence or otherwise.” (App. at 210.) The Release additionally specifically
warned of the possibility of “injury, permanent disability, fatality . . . and severe
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social or economic losses that may result from any such incident.” (Id.) Contrary
to Plaintiff’s argument, the Release “did not need to include an exhaustive list of
particularized injury scenarios,” such as the possibility of colliding with a tree
after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d
at 953.
We conclude the Release satisfies both the Jones test and the voluntary and
informed requirement of Section 13-22-107 and is, therefore, enforceable.
II. F RAUDULENT I NDUCEMENT
Plaintiff argues in the alternative that even if the Release is enforceable, it
should nevertheless be set aside because it was procured through fraud. 2 “A
release is an agreement to which the general contract rules of interpretation and
construction apply. Like any contract, a release procured through fraud can be set
aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal
quotation marks and citation omitted). To establish fraud, a plaintiff must prove
(1) a fraudulent misrepresentation of material fact was made by the
defendant; (2) at the time the representation was made, the defendant
knew the representation was false or was aware that he did not know
2
Plaintiff first alluded to this argument in the hearing on Defendant’s
motion for summary judgment. The magistrate judge then allowed supplemental
briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant
argued Plaintiff’s late reliance on the fraud defense “is neither proper nor
excusable.” (App. at 378.) In its order, the magistrate judge considered
Plaintiff’s fraud defense without discussing its timeliness or procedural propriety.
Defendant has not argued on appeal that the magistrate judge erred in considering
Plaintiff’s argument. We therefore have no occasion to address whether
Plaintiff’s belated fraud defense was properly considered in the first instance.
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whether the representation was true or false; (3) the plaintiff relied on
the misrepresentation; (4) the plaintiff had the right to rely on, or was
justified in relying on, the misrepresentation; and (5) the reliance
resulted in damages.
Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore,
“[t]he misrepresentation must be made with the intent to deceive.” Club Valencia
Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App.
1985).
Plaintiff contends the Letter, which accompanied the Release, contained
three fraudulent misrepresentations: (1) “All of [Defendant’s] activities are
conducted in a manner consistent with the highest standards, as defined by the
Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by
AEE”; and (3) AEE “independently reviews the policies, practices and
educational components of applicant organizations and accredits those that meet
their high standards.” (App. at 209.) However, Plaintiff has offered no evidence
that statements two and three were false; that is, Plaintiff has pointed to no
evidence that Defendant, generally, was not accredited by AEE or that AEE does
not perform the functions described in statement three. Plaintiff’s argument then,
hinges on the allegedly fraudulent misrepresentation in the first statement.
Plaintiff maintains the first statement constitutes a fraudulent
misrepresentation because AEE does not have standards for adaptive skiing, and
Defendant’s adaptive ski program is therefore at least one activity that is not
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“conducted in a manner consistent with the highest standards, as defined by
[AEE].” (Id.) Accepting, without deciding, that this statement constitutes a
fraudulent material misrepresentation, Plaintiff has failed to provide any evidence
that Mrs. Squires relied on this misrepresentation in deciding to sign the Release.
Plaintiff points to no evidence that Mrs. Squires relied on the representation that
Defendant’s adaptive ski program was conducted in a manner consistent with
AEE standards. Rather, she relies on her mother’s statements that she “believed
that BOEC was an accredited program” (App. at 354), and “that they had an [sic]
accredited certified instructors that would manage a safe program” (App. at 357).
(See also App. at 353 (“[T]hey were, you know, accredited and certified and
they’d been doing it for a number of years.”), 356 (“That she would be with
certified accredited people in a safe program that they could supervise
appropriately.”).) These statements, even when viewed in the light most
favorable to Plaintiff, do not support her position that Mrs. Squires relied on the
representation that Defendant’s adaptive ski program was conducted in a manner
consistent with AEE’s standards. 3 Notably, Mrs. Squires made no mention of
3
While Mrs. Squires’s testimony may suggest she believed that
Defendant’s adaptive ski program was accredited by AEE, the Letter made no
such representation. Rather, this purported representation was inferred by Mrs.
Squires from the three statements listed above in connection with the
representation that “all courses are tailored to the specific goals and abilities of
[the] students, all activities offered are designed to pose appropriate challenges
for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening
(continued...)
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AEE or its standards when discussing her beliefs about Defendant’s program.
Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a
material misrepresentation made by Defendant in the Letter, the magistrate judge
properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently
induced to sign the Release.
C ONCLUSION
For the foregoing reasons, we AFFIRM the magistrate judge’s order
granting summary judgment to Defendant on Plaintiff’s negligence claim.
3
(...continued)
Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s
misunderstanding of Defendant’s Letter does not excuse her from the
consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070
(10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for
Appellants’ acceptance, and so they cannot evade the normal limitations on relief
from the consequences of their mistake.”).
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