dissenting.
Plaintiff was seriously injured at a youth retreat (Winterama 2005) sponsored by Grace Community Church. She sued Grace for negligence. The jury returned verdicts against Grace totaling more than $4 million. I disagree with the majority as to
(1) the duties Grace owed plaintiff under the premises liability statute,
(2) the interpretation of the parental waiver statute, and
(3) various evidentiary errors.
Therefore, I respectfully dissent.
*1271I. Colorado's Premises Liability Statute
I agree with the majority that Grace was a landowner under Colorado's premises liability statute. Section 18-21-115(1), C.R.8.2010, of Colorado's premises liability statute provides: "For the purposes of this section, 'landowner' includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsi-bie for the condition of real property or for the activities conducted or cireumstances existing on real property." See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1221 (Colo.2002) (construing the word "and" to distinguish between two broad classes of landowners).
As a landowner, Grace owed plaintiff duties depending on whether plaintiff was a "licensee" or an "invitee." Subsections (8)(b) and (c) of section 18-21-1115 state, in relevant part:
(8)(b) A licensee may recover only for damages caused:
(I) By the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew.... (c)(I) ... [Aln invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.
The landowner's intent in offering the invitation determines the status of the visitor and establishes the duty of care the landowner owes the visitor. See § 18-21-115(5)(a), (b); see also Carter v. Kinney, 896 S.W.2d 926, 928 (Mo.1995). The status of the visitor and duty of care the landowner owes are questions of law for the court to decide. § 13-21-115(4) ("In any action to which this seetion applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee. ...").
If a landowner invites a person to enter his land, and the landowner either expects a commercial benefit from that person or has extended an invitation to the public at large, the person is an invitee. Restatement (See-ond) of Torts § 882(2), (8) & emts. c, d, e (1965); see Carter, 896 S.W.2d at 928; see also Wolfson v. Chelist, 284 S.W.2d 447, 448 (Mo.1955)(invitee status arises "when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convemence," and when this occurs, "the duty to take ordinary care to prevent [the invitee's] injury is at onee raised and for the breach of that duty an action lies" {emphasis in original)(quoting Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 3, (1909))). Conversely, if a landowner either permits a person's entry onto his land or invites that person as his social guest, but the landowner does not expect a commercial benefit, that person is a licensee. Restatement (Second) of Torts § 830 emts. a, h (1965). I conclude plaintiff was not an invitee because Grace neither expected a commercial benefit from plaintiff nor extended an invitation to the public at large.
A. Invitee Status
Section 18-21-115(5)(a) defines "invitee" as a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain.
The two categories of invitees in section 13-21-115(5)(a) track those identified in the Second Restatement of Torts. See Restatement (Second) of Torts § 382(2), (8) (creating categories of "business visitor" and "public invitee"). I conclude plaintiff did not satisfy either category.
1. Business Visitor
Concerning the "business visitor" category, the majority concludes noncommercial activity can confer invitee status. However, the majority's conclusion conflicts with the opinion of another division of this court, which expressly recognized that "the General Assembly intended the 'invitee' status to apply in cireumstances in which the "landowner receives a financial benefit from the relationship." Maes v. Lakeview Assocs., Ltd., 892 P.2d 375, 377 (Colo.App.1994) (citing legislative history), aff'd, 907 P.2d 580 (Colo.1995); *1272see also Wolfson, 284 S.W.2d at 450 (invitation to invitee must confer some "material benefit motive"); Bryan A. Garner, Black's Law Dictionary 226 (Oth ed.2009)(defining "business" as "[a]) commercial enterprise carried on for profit," "commercial enterprises," or "[a] [clommereial transaction").
The majority quotes a portion of Black's definition of "business" for the proposition that " 'business' can include "transactions or matters of a noncommercial nature.'" However, that definition has as its example, "the courts' criminal business occasionally overshadows its civil business." Hence, in that context, "business" means some type of purposeful activity not related to the other party, rather than business transactions "in which the parties are mutually interested." § 18-21-115(5)(a).
Thus, I believe the majority's holding that the "business" contemplated by section 13-21-115(5)(a) includes "transactions or matters of a noncommercial nature" (an activity that confers no commercial benefit) irreconcilably conflicts with the legislature's carefully chosen language. Moreover, in the two out-of-state cases relied on by the majority, there is little to no analysis of this issue. In Thomas v. St. Mary's Roman Catholic Church, the court baldly concludes the plaintiff was a "business invitee." 283 N.W.2d 254, 258 (S.D.1979). And in Home v. North Kitsap School District, the court merely recites its adoption of the Second Restatement to conclude that the plaintiff was an invitee without discussing the fact that the activity was noncommercial. 92 Wash.App. 709, 965 P.2d 1112, 1118 (1998); see id. at 1117 nn. 17-19.
Grace's then-youth pastor testified at trial, and it is not disputed, that when Grace received the monies from the youth for Winter-ama, he transferred those monies to SDA as a matter of course. Grace was thus a mere intermediary for the business transaction that occurred between plaintiff and SDA. Accordingly, because Grace derived no commercial benefit from the visit, I conclude plaintiff was not a business visitor. See Maes, 892 P.2d at 377; see also Mooney v. Robinson, 98 Idaho 676, 471 P.2d 63, 65 (1970) (holding that the "rendition by a social guest of an incidental economic benefit to the occupier of the premises will not change the licensee's status to that of an invitee").
Moreover, no evidence was adduced at trial to support the trial court's finding that plaintiff rendered financial compensation-a commercial benefit-to Grace for its supervision of her. Rather, the undisputed evidence demonstrates that every dollar Grace received it remitted to SDA, and that the chaperones were not compensated. Thus, the trial court's conclusion that plaintiff was an invitee because "she entered on the property to transact business which was namely the promotion of spirituality, positive youth relationships for which she paid Grace to provide the supervision," which conferred no commercial benefit on Grace, was error. See Maes, 892 P.2d at 377; see also Carter, 896 S.W.2d at 928.
2. Public Invitee
Concerning the "public invitee" category, the majority concludes invitee status may lie where the invitation applies merely to "classes or members of" the public.
However, in discussing situations where a landowner extends an invitation to "classes or members of" the public, the Second Restatement includes the term "classes or members of" in the context of a variety of landowners inviting the public at large to enter:
The nature of the use to which the possessor puts his land is often sufficient to express to the reasonable understanding of the public, or classes or members of #, a willingness or unwillingness to receive them. Thus the fact that a building is used as a shop gives the public reason to believe that the shopkeeper desires them to enter or is willing to permit their entrance, not only for the purpose of buying, but also for the purpose of looking at the goods displayed therein or even for the purpose of passing through the shop.
Restatement (Second) of Torts § 332 emt. c (emphasis added).
Moreover, section 18-21-115(5)(a) defines "invitee" as "a person who enters or remains on the land of another ... in response to the *1273landowner's express or implied representation that the public is requested, expected, or intended to enter or remain." The commonly accepted and understood meaning of "public" is "the people as a whole: populace, masses." Webster's Third New International Dictionary 1836 (2002). Hence, in a "public invitee" situation the landowner must invite the public at large or imply that the public at large is expected to enter or remain. This construction satisfies the legislative purpose "to clarify and to narrow private landowners' liability." Pierson, 48 P.3d at 1219.
Trial evidence reveals Grace did not extend its invitation to attend Winterama 2005 to the public at large, but limited its invitation to Grace's youth group and their friends. Grace's then-youth pastor testified that the Winterama waiver forms were mailed only to those youth who were on a list that the church had on file, that youth group students "would pick [the forms] up Wednesday night during a program," and that "[slome students took permission slips home to give to their friends." Likewise, when plaintiff was asked how she perceived Winterama 2005 before the event occurred, she confirmed that she understood Winterama to be "essentially a church retreat." Accordingly, I conclude plaintiff could not be a "public invitee" because there simply was no invitation to the public at large.
The majority's reliance on out-of-state cases, to conclude the invitation may apply only to select classes or members of the public, is misplaced. In Post v. Lunney, the plaintiff was declared to be a public invitee because she had been "invited to enter [land] which had been opened to those members of the public" who were on a tour of area homes. 261 So.2d 146, 148 (Fla.1972). There is no indication that the small subset of the public of which the plaintiff was a part was the only group or type of group that was allowed to tour the homes. The Post court expressly relied on subsection 2 of section 332 of the Restatement (Second) of Torts, which reads, "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public" Id. {emphasis added). And in McKinnon v. Washington Federal Savings & Loan Ass'n, where the court determined the plaintiff also was a public invitee, the defendant held its premises open "for the free use of local elubs and organized groups for meetings and conferences, either during regular office hours or in the evenings," 68 Wash.2d 644, 414 P.2d 773, 774 (1966), and not solely for the plaintiffs select group. Thus, in both Post and McKinnon, the premises were otherwise held open to the public at large.
B. Licensee (Social Guest) Status
A member of Grace's youth group asked plaintiff to attend Winterama 2005, and Grace provided its permission (after it received the parental consent form) before she could do so. Thus, I conclude plaintiff was a social guest (licensee) of Grace, and Grace owed plaintiff the duty to make safe dangers of which it was aware. § 18-21-115(@8)(b), (5)(b); see Carter, 896 S.W.2d at 928.
Section 18-21-115(5)(b) defines "licensee" as "a person who enters or remains on the land of another for the licensee's own convenience or to advance [the licensee's] own interests." A social guest is one who has received a social invitation, and is a subclass of licensees. § 18-21-115(5)(b) (" 'Licensee' includes a social guest."); see Carter, 896 S.W.2d at 928.
The majority concludes plaintiff was not a social guest because "social hosts do not typically require their guests to sign permission slips and pay for their hospitality." Although the majority implies that social hosts may require their guests to sign permission slips, I believe the majority's conclusion overlooks the important difference between "invitation" and "permission." When courts decide if an individual is an invitee or a licensee, the distinction between invitation and permission is critical:
Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in *1274believing that the possessor is willing that they shall enter if they desire to do so.... Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee ...; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor.
Restatement (Second) of Torts § 382 emt. b. Thus, if there is no invitation extended to the prospective plaintiff as would be extended to the general public, he or she is not an invitee, but rather a licensee who is on the land "pursuant to the landowner's permission or consent." § 18-21-115(5)(b).
Grace restricted its permission to attend Winterama 2005 to its own youth and their friends whose parents had waived in writing their right to hold Grace responsible for "any lability which may result from participation." Grace consented to the attendance of the youth on condition that the waiver was signed. The precondition of a waiver demonstrates that the Winterama participants were permitted to come rather than invited, which "is sufficient to make the visitor a licensee." Restatement (Second) of Torts § 882 emt. b.
The Second Restatement's definition of "social guest" affirms that:
[Allthough a social guest normally is invited, and even urged to come, he is not an "invitee," within the legal meaning of that term.... He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him.
Restatement (Second) of Torts § 830 emt. h(8).
Plaintiff was not a member of Grace, and her attendance at Winterama 2005 was due solely to the influence of a male classmate of hers at the Denver School of the Arts, who expressly persuaded her to come to Wintera-ma. She testified that her perception of Winterama 2005 was that "we would leave our everyday lives and go try to further our spiritual enlightenment." See Garner, Black's Law Dictionary TTG (social guest is "[a] guest who is invited to enter or remain on another person's property primarily for private entertainment as opposed to entertainment open to the general public"); Webster's Third New International Dictionary at 1008 (a guest is "a person to whom hospitality ... is extended").
Further, the majority surmises that Grace's invitation carried an "implicit or explicit assurance" that Grace would act with reasonable care to protect plaintiff. The majority reasons that "[flew youths would attend-and even fewer parents would allow and pay for their child's attendance at-an overnight event whose sponsor disclaimed any intent or ability to make the event reasonably safe." However, in its section on licensees, the Second Restatement explains that
there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family.
Restatement (Second) of Torts § 880 emt. h(8). Thus, as a social guest, plaintiff could rely on precautions that a landowner would take as he would for himself or for his family.
The evidence reveals the leaders regarded the youth attending Winterama 2005 as "social guests" because the leaders took precautions for the safety of the attendees as they would for their own safety. One chaperone testified he personally rode the inner tube towed by the ATV around the lake three or four times before plaintiff rode the inner tube. And the then-youth pastor testified that the leaders "walk[ed] pretty much the entirety of the lake, or [they] [would] get on the ATVs and drive it, too," to inspect the lake for "potential hazards" exhaustively before the ATV activity started. He said these hazards were the type that "could cause a safety issue with the activities that [they] were going to do on the ice" and that included sharp objects that could "cause the tube to puncture."
*1275Another chaperone who drove the ATV- and who also participated in the inspection of the lake-testified that he had used an ATV and inner tubes to tow people "700 to 1000 times" and that he had in fact towed his own daughter behind the ATV on the lake such that "[he] treated [his daughter] just like any of the other students." Because the evidence shows Grace's chaperones not only took precautions that they would have for their own safety, but also took the same care for members of their own families as for other attendees, plaintiff was a licensee of Grace at Winterama 2005.
Because plaintiff was a Heensee, Grace was entitled to additional protections under the premises liability statute. See Pierson, 48 P.3d at 1219 (overriding purpose of premises liability statute was "to clarify and to narrow private landowners' liability to persons entering their land, based upon whether the entrant is a ... licensee[ ] or invitee"). Accordingly, Grace was liable to plaintiff only "with respect to dangers created by the landowner of which the landowner actually knew." § 18-21-115(8)(b)(I). Because the jury was not so instructed, I would reverse the judgment and remand for a new trial
IL Colorado's Parental Waiver Statute
The majority interprets the word "informed" in section 18-22-107, C.R.S.2010, Colorado's parental waiver statute, to mean "made with full knowledge of the risks involved and the alternatives" (quoting Garner, Black's Law Dictionary at 346). The majority implies Grace's waiver form was facially deficient because it delineated neither the specific activities in which the youth would engage nor the risks associated with each activity. Because I conclude the majority's resolution of this issue vitiates the legislative intent expressed in the statute, I respectfully dissent.
The legislature explicitly stated the purpose of Colorado's parental waiver statute:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. 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; and
(VTI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child....
§ 13-22-107(1)(a)(D-(V1I). Henee, the legislature intended (1) to afford children the "maximum opportunity" to engage in "essential activities" having "certain risks"; (2) to uphold and effectuate the choices of parents for their children "concerning the risks and benefits of participation in" potentially risky activities; and (8) to give "public, private, and non-profit entities ... a measure of protection" by insulating them from liability for negligent conduct during "activities that may involve risk." Id. Based on these purposes, the legislature stated, "A parent of a child may, on behalf of the child, release or waive the child's prospective claim for negligence." § 13-22-107(8). Accordingly, the word "informed" ought to be construed in light of the statutory scheme, which is geared toward expanding children's access to activities involving risk yet simultaneously contracting the liability exposure of entities providing those activities, so that those entities might *1276have a "measure of protection" and not be "unwilling or unable to provide the activities." § 13-22-107(1)(a)(D), (ID), (VD)..
A. Informed Consent
Section 13-22-107 does not define the term "informed." I agree with the majority that "informed" as defined in Black's Law Dictionary at 346-"made with full knowledge of the risks involved and the alternatives" should govern this analysis. Accordingly, I conclude the term "informed" in section 13-22-107 means only that a parent be "informed" as to the possible risks involved.
Applying this definition, I conclude the waiver in this case was sufficient, for several reasons. First, the waiver identified the general nature of the activities to which the waiver applied: "Winterama 2005 and all activities associated with it." Second, the waiver identified the possible risks associated with Winterama 2005-"injury or sickness"- and even required the parent to consent to any medical treatment Grace might need to administer or pay for in the event of such injury or sickness. Third, even though the waiver did not state verbatim, "I recognize I have the right to sue Grace in the event the negligence of Grace or its agents causes my child personal injury, but I give up that right voluntarily," the waiver nevertheless more than accomplished this purpose-by stating the signing parent "will not hold [Grace] or it's [sic] participants responsible for any liability which may result from participation." Thus, I conclude the waiver was sufficient to give Grace the "measure of protection" from legal liability that section 18-22-107 envisions.
In canvassing the case law where the supreme court upheld the validity of waivers, the majority concludes that a waiver must "contain|[ ] some reference to waiving personal injury claims based on the activity being engaged in." I disagree with this conclusion because I believe the majority reads the statute more broadly than the legislature intended. The majority would require public, private, or nonprofit organizations to include in their waiver forms a plethora of activities and, with respect to each, "assess the degree of risk and the extent of possible injuries from any activity." I believe the logical result would be absurd disclosure requirements, such as,
Children attending Winterama 2005 will be staying in cabins. The paths and steps leading to each cabin may be snow-packed and iey. There is a risk that your child may slip and fall on the paths or steps and a fall may result in serious injuries including, without limitation, broken bones, concussions, and paralysis,
or lengthy booklets describing every conceivable activity and associated possible injury. I disagree with this approach because, in my opinion, it would unduly expose those entities to liability for activities that the entities inadvertently failed to identify and include in their parental waiver forms, or for activities that they could not possibly know or anticipate. Further, such an approach runs contrary to the legislative intent of providing "a measure of protection against lawsuits," and without that measure of protection, these entities may be unwilling or unable to provide these "essential activities" to children in Colorado. I believe it is not reasonable to expect organizations operating under section 13-22-107 to anticipate every permutation of a recreational event.
Moreover, I would not engage in what I respectfully believe to be the majority's parsing of the waiver. The waiver at issue is addressed to the everyday, commonsense parent. I submit the everyday, commonsense parent would not analyze what each sentence of a waiver specifically addresses apart from each other sentence, but rather would comprehend what the waiver addresses en toto: a release of his or her child's prospective claim for negligence. See § 183-22-107(8).
B. The Parental Waiver Affirmative Defense
In addition, I conclude the trial court committed reversible error when, on the morning of closing arguments, it sua sponte precluded the jury from considering the affirmative defense of parental waiver. See Pollock v. Highlands Ranch Community Ass'n, 140 P.3d 351, 354 (Colo.App.2006).
*1277The day before closing arguments occurred, the trial court originally determined that a jury instruction concerning the effect of the waiver could not be given because the supreme court assigned the determination of the effect of the waiver to the trial court as a question of law. Cf. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.1989). But after counsel for Grace pointed out the court's resolution of this issue essentially would be "to take that from the jury" and that the court "need[ed] to state the basis" for its ruling, the court said it would "hold off on the jury instruction piece."
When the issue arose again late that same day, after the close of evidence and during the jury instructions conference, plaintiff's counsel argued the language in the waiver did not suffice to make plaintiffs mother "informed." The court asked plaintiff's counsel to state his position on the affirmative defense of waiver, and he said,
What I think-what I would like to see the Court do, Your Honor, is to declare the effect of this release, and I think the effect of this permission slip doesn't say this, does not have the effect of releasing the defendant's [sic] from the premises liability claims.
The court responded, "I want to take a few minutes to think about this.... We'll be in recess." After that exchange and a brief statement from counsel for SDA, the record abruptly ceases. There is nothing about the court's thoughts on the waiver until early the next day during its instructions to the jury right before closing arguments. At this time, the court announced to the jury that "the Court has ruled as a matter of law that Exhibit 85 [the parental waiver] is not a defense to Plaintiff's claims in this case" and struck the waiver from the record with no further elaboration.
In my view, the trial court erred in taking the issue away from the jury. I acknowledge that "[the determination of the sufficiency and validity of an exculpatory agreement is [primarily] a question of law for the court to determine." Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981). However, contrary to the majority, I conclude Grace presented suffi-clent evidence for the trial court to submit to the jury the parental waiver as an affirmative defense.
"An affirmative defense 'is a legal argument that a defendant, who is capable of being sued, may assert to require the dismissal of a claim or to prevail at trial'" Paratransit Risk Retention Group Ins. Co. v. Kamins, 160 P.3d 307, 319 (Colo.App.2007) (quoting State v. Nieto, 993 P.2d 493, 507 (Colo.2000)). The parental waiver defense, if successful, would allow Grace to avoid premises liability. Accordingly, it is an affirmative defense.
Because waiver is an affirmative defense, the defendant has the burden to prove waiver. C.R.C.P. 8(c); see City of Westminster v. Centric-Jones Constructors, 100 P.3d 472, 480 (Colo.App.2008) ("Failure to mitigate damages is an affirmative defense under C.R.C.P. 8(c) on which the defendant bears the burden of proof."); see also Fidelity & Deposit Co. v. Colo. Ice & Storage Co., 45 Colo. 443, 449, 103 P. 383, 386 (1909) (defendant had burden of proof to sustain proffered affirmative defense); Tracz v. Charter Centennial Peaks Behavioral Health Sys., Inc., 9 P.3d 1168, 1174 (Colo.App.2000) (concluding defendants "met their initial burden of production to establish their affirmative defense"). And section 18-22-107 is an affirmative defense to premises liability because section 18-21-115 "does not exclusively limit defenses and does not abrogate statutorily created defenses, which were available to landowners before the 2006 amendment and afterward." Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708, 711 (Colo.App.2008), aff'd sub nom. Volunteers of Am. v. Gardenswartz, 242 P.3d 1080 (Colo.2010).
At trial, under C.R.C.P. Sic) the trial court's only responsibility was to assess whether Grace presented sufficient evidence to support the affirmative defense of parental waiver. See Fair v. Red Lion Inn, 943 P.2d 431, 437 (Colo.1997)(holding that failure to mitigate damages, an affirmative defense under C.R.C.P. 8(c), "will not be presented to the jury unless the trial court determines there is sufficient evidence to support it"); cf. Stauffer v. Karabin, 80 Colo.App. 357, 363-64, 492 P.2d 862, 865 (1971)(where doctor in malpractice suit presented evidence that his *1278failure to inform plaintiff of all risks attendant to an operation was consistent with community medical standards, "the determination then becomes one for the jury and a directed verdict in favor of plaintiff would not be warranted").
I believe the trial court misapprehended its duty with regard to the legal sufficiency of Grace's parental waiver. The question whether a parental waiver is "voluntary" is answered if the parent is shown to have signed the waiver. The question whether a parental waiver is "informed" is answered if the waiver on its face defines the possible risks and the general nature of the activities to which the waiver applied. See Garner, Black's Law Dictionary at 346 ("informed" is "made with full knowledge of the risks involved and the alternatives"). To this end, the parental waiver statute focuses on the risks involved in recreational activities for children as it affirms the conscious choices that parents make for their children. § 183-22-107(1)(a)(I), (IV). Thus, if the parental waiver is both "voluntary" and "informed," the trial court must submit the affirmative defense of parental waiver to the jury.
I would conclude Grace presented sufficient evidence to support its affirmative defense of parental waiver. The parental waiver was signed voluntarily because, as plaintiff herself testified, her mother signed the waiver two days before Winterama 2005 occurred. And the parental waiver on its face not only informed mother of the possible risks associated with Winterama 2005-"injury or sickness"-but also revealed her willingness to "not hold [Grace] or it's [sic] participants responsible for any lability which may result from participation." Thus, I conclude the trial court should have permitted the jury to consider Grace's affirmative defense of parental waiver, and believe it erred in not doing so.
Moreover, the way the trial court ruled on the evidence of waiver throughout the case-until it removed Exhibit 85 from the trial evidence and jury's consideration-reveals that Grace had no reason to expect it had to clear up any lingering questions of fact for the jury to consider the affirmative defense of parental waiver. For example, before trial, Grace moved for summary judgment on the issue of waiver, but the court ruled there was a question of fact "as to whether a permission slip was signed on behalf of Plaintiff." (The original apparently was lost by the hospital.) In response, during plaintiff's case-in-chief, counsel for Grace established that plaintiff's mother in fact had signed the waiver, and that Grace received the waiver before the Winterama event.
Based on this uncontroverted testimony, at the close of plaintiff's case Grace moved for a directed verdict. But the court found "the jury could conclude that there was inadequate notice to the mother" and "a jury could conclude that the activity [in question] was a reckless act or grossly negligent act for which a parent is not permitted to waive the child's prospective claim for such conduct." The court concluded this despite the fact that plaintiff in her complaint did not assert any claim for tortious conduct rising above the level of simple negligence. Again, in response, Grace used both expert testimony and lay testimony in its case to establish that the ATV activity was done in a safe manner. Nevertheless, as noted, on the morning of closing arguments the court told the jury that it could not consider the parental waiver. At that point, its role should have been limited to deciding whether Grace had presented sufficient evidence to support the existence of the parental waiver as an affirmative defense. The court did not so limit its role.
Accordingly, I would reverse the judgment and remand for a new trial.
III. The ATV Rental Contract
The majority concludes the trial court did not abuse its discretion in allowing the ATV rental contract into evidence over Grace's objection. I respectfully disagree. There was nothing in the contract, and no evidence regarding the parties' intent was adduced, to suggest plaintiff's injury was a danger that Blue Sky Motors-who was not a party to this case-and Grace, the two parties to the ATV contract, knew about or should have known about in this premises liability case.
*1279For all these reasons, I would reverse the judgment and remand for a new trial.