dissenting:
I respectfully dissent. The majority holds that the agreement Chadwick signed for an outfitted, horseback elk hunt released Colt Ross from any liability for the severe injuries caused him. In reaching this result, the majority finds that the liability release provisions of the agreement unambiguously exculpate Colt Ross from all acts of negligence it committed in the course of causing Chadwick’s injuries.
I disagree. Properly construed in light of the applicable law, the release language, in my view, did not validly put Chadwick on notice that he was waiving the statutory duty of care the Colorado General Assembly placed on Colt Ross to supply proper tack for the mule the outfitter provided Chadwick when his horse became sick. The contract and release did not clearly and adequately specify that it applied to any animal other than a horse, which had been guaranteed to Chadwick by the contract for the duration of the trip.
Section 13-21-119 immunizes an outfitter from liability for injuries resulting from the inherent risks of equine activities, see section 13-21-119(3), C.R.S. (2004), but excludes from this immunity certain types of negligent behavior of an equine professional. See § 13-21-119(4). Specifically, supplying faulty riding equipment is not immunized; outfitters are required to use tack designed for the animal assigned the rider. See § 13-21-119(4)(b)(I)(A). Here, the release language did not sufficiently notify Chadwick that he was releasing liability for negligence relating to the failure to provide the proper tack for riding any animal other than a horse.
The facts of this case are particularly egregious. Chadwick, a Texas resident, contracted for an outfitted, horseback elk hunt into the Colorado wilderness. According to Chadwick’s allegations, when Chadwick’s assigned horse became sick during the course of the journey, those responsible for his safety required him to ride a pack mule improperly equipped with a horse saddle. The horse saddle did not contain either a breast collar or a croupier, which are required for safely riding a mule. Not designed for a mule, the horse saddle was slipping off the animal when Chadwick attempted to dismount and was thrown, sustaining great injury that included multiple neck fractures. A mule saddle had been available, but a Colt Ross employee continued to use it rather than offering it to Chadwick.
In choosing to jeopardize the safety of its client, Colt Ross violated both the specific terms of its agreement with Chadwick and section 13-21-119(4)(b)(I)(A) it’s duty to provide an animal properly equipped for riding. Instead of making its client whole, Colt Ross claims Chadwick should have known the release he was signing excused it from supplying a properly equipped mule for riding.
We have recognized that a written agreement can release an outfitter of the obligation to comply with a duty of care, but such release must clearly and unambiguously put the client on notice that he or she is surrendering the right to hold the outfitter to that duty. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo.1998); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.1990); Jones v. Dressel, 623 P.2d 370, 378 (Colo.1981).
Agreements that attempt to insulate a party from liability from negligence are disfavored and must be closely scrutinized. See Heil Valley Ranch, 784 P.2d at 783; Jones, 623 P.2d at 376. We construe an exculpatory agreement strictly against the drafter. See Heil Valley Ranch, 784 P.2d at 784. Our inquiry is contract-specific and focuses on “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785.
In determining whether an exculpatory release is valid, we consider four factors: (1) the existence of a duty to the public; (2) the *471nature 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. B & B Livery, 960 P.2d at 136. As in B & B Livery, the fourth factor is at issue here. We must determine whether the parties’ intent was to extinguish liability for Colt Ross’s acts of negligence, and whether this intent was clearly and unambiguously expressed.
Three portions of the contract at issue here release Colt Ross of liability. The first two portions state:
1. The described sport or activity and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and that I am cognizant of the risks and dangers inherent with camping and in particular in the mountains of Colorado, and that I and/or my family, including any minor children, are fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility, including loss of control or balance in walking or climbing, use of firearms, use of animals, weather, collisions with trees, rocks and other man-made or natural obstacles, whether they are obvious or not obvious.
2. Any route or activity, chosen as part of the Trip in which I and/or my family am participating may not be the safest but has or will be chosen for its interest, challenge or best meeting the goals of the services for which I am contracting. Should animals ever be used or are present as part of our activities, I and my family understand that an animal 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 to be assumed by each participant in the activity. WARNING — Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes. (emphasis added).
These two sections are directed at the inherent risks involved in equine activities, risks which were clearly noticed in the contract and which Chadwick accepted. However, these two sections do not address the possibility of Colt Ross breaching its duty of care in the course of outfitting and guiding the hunting trip; rather, the third section addresses this topic:
AS LAWFUL CONSIDERATION for being permitted by Outfitter to participate in the referenced activities, I do hereby RELEASE FROM ANY LEGAL LIABILITY, AGREE NOT TO SUE, CLAIM AGAINST, ATTACH THE PROPERTY OF OR PROSECUTE, AND FURTHER AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS the Outfitter, the owner of leased private lands, the United States Forest Service or Parks Department, the BLM, any governmental agency whose property any activity scheduled may be required to utilize, and all of their officers, members, organizations, agents and employees for any injury or death caused by or resulting from my participation in the activities described above. Also to allow all use of photos, etc. for the use of advertisement, brochures, shows, etc. (emphasis added).
This section effectuates a general release of liability, but limits itself to injury or death caused by or resulting from “participation in the activities described above.” The Contract of Agreement, set forth before the release language, specifically describes the contracted “activity” as including the duty of Colt Ross to provide “Riding horses for each client for the duration of the trip.” Colt Ross breached this provision of the contract part of the way into the trip by assigning Chadwick a mule to ride.
The contract’s “Disclosures, Disclaimers and Waivers” provisions do not provide any notice that Chadwick might be required to ride an animal other than a horse or that such an animal might not be outfitted properly with appropriate riding equipment. To the contrary, the plain, logical, and common sense reading of the general release is that Chadwick foregoes any and all claims for injury related to riding a horse on the trip.
*472Although Colt Ross argues that the release provisions cover all “animals,” this term appears only in the first two provisions of the release, which pertain to the client’s cognizance of the “risks and dangers inherent with ... the use of animals.” The general release paragraph, on the other hand, refers back to the general contract wherein the activities are described as specifically including the riding of a horse.
As in Heil Valley Ranch, the contract here clearly states that the essential service the outfitter must provide is an outfitted hunt by horseback for the duration of the trip; the contract also clearly states that the associated risk Chadwick accepts, and for which he waives liability, is any risk related to that service.
However, the risk to which Colt Ross exposed Chadwick by placing him on an incorrectly equipped mule is not clearly and unambiguously expressed in the release, and Chadwick did not waive that risk. Discharging our duty to construe the exculpatory provisions of the contract against their drafter and in favor of the injured client should lead this court to allow Chadwick’s negligence action in this case.
Section 13-21-119 is a carefully-crafted combination of protections for both an outfitter and for participants in outdoor activities, recognizing that recreation is an important economic activity for the State of Colorado, its citizens, and visitors. See People v. Schafer, 946 P.2d 938, 944 (Colo.1997). Under contract principles, visitors and citizens of Colorado, with adequate disclosure, may consciously contract away statutory and common law duties of care — but not willful and wanton or gross negligence — and may expose themselves to recreational risks without violating public policy. The release in this ease, however, failed to disclose to Chadwick that he might be riding an animal other than a horse and that he would be waiving the outfitter’s duty of care to properly equip that animal for riding.
I conclude that Colt Ross is not immunized from Chadwick’s claim for damages in this case, either by the statute or the contract he signed. Accordingly, Colorado courts should hear his suit, and I respectfully dissent.