dissenting:
This case presents the issue of whether a release of liability signed by the plaintiff, Roane Simkin, was effective to absolve the defendant, Heil Valley Ranch, Incorporated (Heil Valley), from liability for any negligence or breach of warranty in connection with the rental of a horse to the plaintiff for a recreational ride. The majority opinion holds that the release was clear and unambiguous, and that it was effective to release Heil Valley from liability for the injury suffered by Simkin when the horse she had rented reared and fell backward on her. The majority opinion therefore reverses the judgment of the Colorado Court of Appeals, which held that the release of liability was ambiguous, and directs reinstatement of the judgment issued by the district court in favor of Heil Valley. I am persuaded that the release did not clearly absolve Heil Valley from liability for the conduct alleged by Simkin, and therefore respectfully dissent.
I.
Roane Simkin rented a horse from Heil Valley on July 17, 1983, to participate in a breakfast ride at Heil Valley’s ranch in Boulder County. Before entering upon the ride, Simkin signed a “Stable Ride Record” on which the places for signatures were prefaced by a “Reléase of Liability” in the following terms:
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. EXCEPT TO THE EXTENT SUCH CLAIM MIGHT BE BASED UPON THE SOLE AND EXCLUSIVE NEGLIGENCE OF THE STABLES THE UNDERSIGNED FURTHER AGREES TO HOLD THE STABLES HARMLESS FOR PHYSICAL INJURY TO OTHERS, OR FOR PROPERTY DAMAGE, WHICH RESULTS FROM RIDERS USE OF STABLES HORSE IN VIOLATION OF ANY STABLES’ RULES OR THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING UPON THE PARTIES HERETO FOR THE DATE INDICATED. THE PARTIES HERETO ACKNOWLEDGE HAVING READ AND UNDERSTOOD THIS AGREEMENT.
(The “release agreement”). After signing the release agreement, Simkin mounted her horse to commence the ride. At that time, Simkin’s mount reared and fell on her. Simkin was severely injured and brought an action in Boulder County District Court, alleging negligence and breach of warranty by Heil Valley. The gravamen of each of the claims for relief was that the horse assigned to Simkin was unsafe and unreasonably dangerous and that these qualities were known to Heil Valley before the horse was rented to Simkin. See maj. op. at 783 nn. 3-4. In addition, the negligence claim specifically stated that Heil Valley Ranch failed to provide Simkin with a horse matched to her abilities as a rider.
Heil Valley moved for summary judgment, asserting the release agreement as a complete defense to Simkin’s claims. The district court, relying on Jones v. Dressel, 623 P.2d 370 (Colo.1981), granted partial summary judgment for Heil Valley, holding the release agreement valid and enforceable. The court determined, however, that there was a genuine issue of material fact as to whether Simkin had signed the agreement. After a trial to the court on that *787issue, the court found that Simkin had signed the release agreement. The court then entered judgment for Heil Valley. On appeal, a divided panel of the Colorado Court of Appeals concluded that the release agreement was ambiguous and reversed the district court’s judgment. Simkin v. Heil Valley Ranch, Inc., 765 P.2d 582 (Colo.App.1988).
II.
As the majority acknowledges, agreements attempting to absolve a party from liability for that party’s own negligence have long been disfavored. Maj. op. at 783. In Jones v. Dressel, we addressed the validity of exculpatory agreements. We held that the determination of the sufficiency and validity of such an agreement is a question of law for the court and that an exculpatory agreement must be closely scrutinized. Jones, 623 P.2d at 376. An exculpatory agreement must be strictly construed against the party seeking to limit its liability for negligence. E.g., Barker v. Colorado Region—Sports Car Club of America, Inc., 35 Colo.App. 73, 80, 532 P.2d 372, 377 (1974); Falkner v. Hinckley Parachute Center, Inc., 178 Ill.App.3d 597, 127 Ill.Dec. 859, 863, 533 N.E.2d 941, 945 (1989); Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Company, Inc., 200 Cal.App.3d 1518, 246 Cal.Rptr. 823, 835 (1988). In Jones, we set forth four factors that must be considered by a court in determining whether an exculpatory agreement is valid:
(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. In the present case, we granted certiorari to consider only the fourth factor as it applies to the release agreement at issue.1
The majority holds that the terms “negligence” and “breach of warranty” “are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty. The inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Maj. op. at 785. I agree with this test. I disagree, however, with the result reached by the majority in applying the test to the facts of the present case.
The release agreement begins with an acknowledgment that the “use, handling and riding of a horse” involves a risk of physical injury. It then states that a horse may act or react unpredictably based on instinct or fright notwithstanding its training and usual past behavior and that such “inherent risk” is assumed by the rider. The rider then “expressly assumes” such risk and waives any claim against the stables as a result of physical injury incurred in such activities. The risks described in the release do not extend beyond injuries resulting from the risks inherent in the nature of the activity and the unpre-dictableness of a horse.
Simkin, however, grounds her claims on specific negligent conduct of Heil Valley. She alleges that the defendant knew the particular horse assigned to her was uncontrollable and dangerous and that on the day of the ill-fated ride, the horse had “shown such propensities by milling around, kicking, and acting in a dangerous manner.” Simkin alleged that Heil Valley failed to exercise care in providing her a reasonably safe horse to ride and in failing to furnish a horse matched to her abilities as a rider. The same alleged misconduct supplied the basis for Simkin’s breach of warranty claim.
The misconduct alleged by Simkin is not referred to among the risks that the release agreement describes. That agreement simply acknowledges the existence of inherent risks because of the nature of horseback riding, including the unpredicta*788bility of the behavior of any horse. It does not purport to absolve Heil Valley from using care to provide a horse suited to the abilities of the rider or to assure that a rider is not assigned a horse that has displayed characteristics making it unsuitable for recreational riding. See O’Connell v. Walt Disney World Co., 413 So.2d 444, 448-49 (Fla.App.1982) (agreement to assume risks inherent in horseback riding did not encompass risk created by negligence of persons conducting the ride). Accordingly, the release did not purport to absolve Heil Valley from liability for the types of negligence and breach of warranty alleged by Simkin.2
Heil Valley relies upon the portion of the release stating that the rider waives “any claim” against the stables as a result of physical injury incurred in the use, handling and riding of a horse. This waiver must be read, however, in the context of the preceding language referring to risks inherent in horseback riding but making no mention of risks avoidable by the exercise of due care by the stables. This makes it at least ambiguous whether the release can be read to absolve Heil Valley from its own negligent acts in supplying a horse having characteristics unsuitable for recreational riding in general or by the person signing the release agreement in particular, as alleged by Simkin in this case. Any such ambiguity must be construed against Heil Valley, with the result that the release agreement does not provide a complete defense to Simkin’s claims.
I dissent and would affirm the judgment of the court of appeals.
QUINN, C.J., and MULLARKEY, J., join in this dissent.. The majority opinion contains a "factual" discussion of the supposed negligence of Simkin and lack of negligence of Heil Valley. These "facts” are not relevant to the issue before us, which is simply the effectiveness of the release agreement by its own terms to absolve Heil Valley from any liability for negligence or breach of warranty.
. The majority opinion reads the court of appeals' opinion to be based on cases that specifically require the use of the word "negligence” in an exculpatory agreement if such an agreement is to be effective to shield a party from a claim based on negligent conduct. See maj. op. at 784-785. Although there is language in the court of appeals’ opinion that is supportive of that reading, I read the opinion to be based on a careful consideration of the particular language of the release agreement in the present case and not solely on the absence of the word "negligence" in the language of the release. See Simkin, 765 P.2d at 584.