exculpatory clause in Colorado

2025Because Shive did not contest the first three Jones factors, the court focused on the fourth Jones factor — “whether the intention of the parties” to “insulate a party from liability from his own negligence” was expressed in “clear and unambiguous language.” Id. ¶ 10 The court concluded that the exculpatory clause in Shive’s membership agreement was “clear, broad[,] and mostly free of legalese,” and it found that, through the clause, Shive released 24 Hour from “liability for all injuries, regardless of whether the injury was related to exercise.” The court said that, because “entry and exit o

2025The Case Law Governing the Enforceability of Exculpatory Clauses ¶ 14 In Jones, the supreme court identified four factors that courts must consider when determining the validity of an exculpatory clause: “(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.” Id.

2025Instead, a court must examine “the actual language of the agreement for legal jargon, length[,]. . . 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). ¶ 16 The parties primarily rest their arguments regarding the validity of the exculpatory clause on three recent cases.

2025See Jones, 623 P.2d at 378 (concluding that an exculpatory clause “expressed the parties’ intention in clear and unambiguous language” to waive the plaintiff’s claim for personal injuries sustained in an airplane crash because such clause “specifically included injuries sustained ‘while upon [a corporation’s] aircraft’”); Chadwick, 100 P.3d at 468 (determining that an exculpatory clause expressed a clear intent to release a corporation that guided the plaintiff on a hunting expedition from “‘any’ liability for injuries ‘caused by or resulting from’ [the plaintiff]’s ‘participation’ in the cont

2015See B & B Livery, Inc. v. Riehl, 960 P.2d 134 , 136 (Colo. 1998).

2008Id. at 468 ; B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138-39 (Colo.1998) (enforcing an exculpatory clause for simple negligence but remanding for findings on willful and wanton negligence claims); White v. Hansen, 837 P.2d 1229, 1233 (Colo.1992)(separating willful and wanton conduct conceptually from ordinary negligence); Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981).

2010See, e.g., Chadwick, 100 P.3d at 468 (release detailed risks of hunting trip with animals and participant agreed to "`RELEASE [outfitter] FROM ANY LEGAL LIABILITY . . . for any injury or death caused by or resulting from'" participation in hunt); Heil Valley Ranch, 784 P.2d at 782 (release form stated that riding horse involved inherent risks, and participant "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"); Jones, 623 P.2d at 372 (skydiving plaintiff released company "from any and all liabilit

2010See, e.g., Chadwick, 100 P.3d at 468 (release detailed risks of hunting trip with animals and participant agreed to "'RELEASE [outfitter} FROM ANY LEGAL LIABILITY ... for any injury or death caused by or resulting from'" participation in hunt); Heil Valley Ranch, 784 P.2d at 782 (release form stated that riding horse involved inherent risks, and participant "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"); Jones, 623 P.2d at 372 (skydiving plaintiff released company "from any and all liability,

2025Accordingly, the division concluded that the release did not “clearly, unambiguously, and unequivocally bar [the plaintiff]’s PLA claim based on the injuries she allege[d] she sustained after she washed her hands in the women’s locker room.” Id. at ¶ 35, 411 P.3d at 232 . ¶ 24 The division in Doe also determined that an exculpatory clause in an athletic club’s membership agreement did not bar the plaintiffs’ claims.

2025See Stone, ¶ 35, 411 P.3d at 232 (holding that the assumption of risk did not “clearly, unambiguously, and unequivocally bar [the plaintiff]’s PLA claim”); Doe, ¶ 15, 525 P.3d at 686 (concluding that the exculpatory language did not bar the plaintiff’s claims because it did not “express the parties’ intention to waive [sexual abuse] claims in clear, unambiguous, and unequivocal language”). ¶ 29 Given that Stone and Doe are consistent with Miller, we next consider the reasoning in those cases to determine whether the exculpatory clause in Shive’s membership agreement bars his PLA claim. ¶ 30 (T

2022See also Monitronics Int’l, Inc. v. Veasley, 746 S.E.2d 793, 802-03 (Ga. Ct. App. 2013) (concluding that, because an exculpatory clause was not explicit and prominent, it did not bar a homeowner’s negligence claim against her home security company related to her sexual assault by an intruder).

2014See Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186 , 1191 (Colo.App.2008) (noting, "[a]s a general rule, courts will uphold an exculpatory provision in a contract between two established and sophisticated business entities that have negotiated their agreement at arm's length," but adding, "[m]ost courts will not enforce exculpatory and limiting provisions if ... they purport to relieve parties from their own willful, wanton, reckless, or intentional conduct"); see also 1745 Wazee LLC v. Castle Builders Inc ., 89 P.3d 422 , 426 (Colo.App.2003) (rejecting the plaintiff's argument that public policy

2014See City of Golden, 138 P.3d at 290 . ¶ 28 We are not persuaded otherwise by Taylor's and amicus Homeowners Against Deficient Dwellings' (HADD's) argument that because the construction industry is heavily regulated, Terracon should have expected that the limitation of liability clauses might not be enforced.

2014See Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186 , 1191 (Colo.App.2008) (noting, "[a]s a general rule, courts will uphold an exculpatory provision in a contract between two established and sophisticated business entities that have negotiated their agreement at arm's length," but adding, "[m]ost courts will not enforce exculpatory and limiting provisions if ... they purport to relieve parties from their own willful, wanton, reckless, or intentional conduct"); see also 1745 Wazee LLC v. Castle Builders Inc ., 89 P.3d 422 , 426 (Colo.App.2003) (rejecting the plaintiff's argument that public policy

2012Honeywell, Inc. v. Ruby Tuesday, Inc., 43 F.Supp.2d 1074, 1079-80 (D.Minn.1999) (applying Alabama and Minnesota law) (because an exculpatory clause cannot release a party from liability for willful or wanton acts, a limitation of liability clause also does not apply to such acts); Lenny's, Inc. v. Allied Sign Erectors, Inc., 170 Ga. App. 706 , 318 S.E.2d 140, 142 (1984); see Campmor, Inc. v. Brulant, LLC, 2011 WL 2745922 , *6 (D.N.J.

2012No. 09-5465(WHW), July 12, 2011) (unpublished opinion) (applying Ohio law) (a limitation of liability provision will be upheld " 'so long as the party invoking the provision has not committed a wil[l]ful or reckless breach'" (quoting Nahra v. Honeywell, Inc., 892 F.Supp. 962, 969-70 (N.D.Ohio 1995))); cf. Onconome, Inc. v. University of Pittsburgh, 2010 WL 1133425 , *3 (W.D.Pa.

2012Honeywell, Inc. v. Ruby Tuesday, Inc., 43 F.Supp.2d 1074, 1079-80 (D.Minn.1999) (applying Alabama and Minnesota law) (because an exculpatory clause cannot release a party from liability for willful or wanton acts, a limitation of liability clause also does not apply to such acts); Lenny's, Inc. v. Allied Sign Erectors, Inc., 170 Ga. App. 706 , 318 S.E.2d 140, 142 (1984); see Campmor, Inc. v. Brulant, LLC, 2011 WL 2745922 , *6 (D.N.J.

2012Honeywell, Inc. v. Ruby Tuesday, Inc., 43 F.Supp.2d 1074, 1079-80 (D.Minn.1999) (applying Alabama and Minnesota law) (because an exculpatory clause cannot release a party from liability for willful or wanton acts, a limitation of liability clause also does not apply to such acts); Lenny's, Inc. v. Allied Sign Erectors, Inc., 170 Ga. App. 706 , 318 S.E.2d 140, 142 (1984); see Campmor, Inc. v. Brulant, LLC, 2011 WL 2745922 , *6 (D.N.J.

2012Moreover, limiting liability for "[al willful failure to monitor thfe] system or a deliberate disregard of a contractual duty would not be consistent with the intended protection service set forth in the contract." Carriage Meat Co., Inc. v. Honeywell, Inc., 442 So.2d 796, 798 (La.Ct.App.1983) (concluding that an exculpatory clause would not shield the defendant "if personnel failed to notify [the] plaintiff during many hours of the alarm's being triggered"; considering a tort action). 117 We reject Sonitrol's contention that refusing to enforce a limitation of lability provision in the contex

2010However, the language of an exculpatory clause must be "closely scrutinized." Jones, 628 P.2d at 376.

2008Fox Alarm Co. v. Wadsworth, 913 So.2d 1070, 1080 (Ala.2005) (applying analysis of wanton conduct to limitation of liability clause); Saia Food Distrib. & Club, Inc. v. SecurityLink from Ameritech, Inc., 902 So.2d 46, 49 (Ala.2004) (reading contract language as a limitation of liability provision and an exculpatory clause); see Royal Indem.

2008Id. at 468 ; B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138-39 (Colo.1998) (enforcing an exculpatory clause for simple negligence but remanding for findings on willful and wanton negligence claims); White v. Hansen, 837 P.2d 1229, 1233 (Colo.1992)(separating willful and wanton conduct conceptually from ordinary negligence); Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981).

2008Id. at 468 ; B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138-39 (Colo.1998) (enforcing an exculpatory clause for simple negligence but remanding for findings on willful and wanton negligence claims); White v. Hansen, 837 P.2d 1229, 1233 (Colo.1992)(separating willful and wanton conduct conceptually from ordinary negligence); Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981).

2008Fox Alarm Co. v. Wadsworth, 913 So.2d 1070, 1080 (Ala.2005) (applying analysis of wanton conduct to limitation of liability clause); Saia Food Distrib. & Club, Inc. v. SecurityLink from Ameritech, Inc., 902 So.2d 46, 49 (Ala.2004) (reading contract language as a limitation of liability provision and an exculpatory clause); see Royal Indem.

2004River Runners, Inc., 186 W.Va. 310 , 412 S.E.2d 504, 511 (1991) (declaring that an exculpatory clause releasing the defendant "from all liability for any future loss" applies only to simple negligence and will not be construed to release the defendant from injury resulting from intentional or reckless misconduct).

2004River Runners, Inc., 186 W.Va. 310 , 412 S.E.2d 504, 511 (1991) (declaring that an exculpatory clause releasing the defendant "from all liability for any future loss" applies only to simple negligence and will not be construed to release the defendant from injury resulting from intentional or reckless misconduct).

2003Our conclusion is supported by Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 625 , 419 A.2d 1111, 1114 (1980), in which the New Hampshire Supreme Court held that a contract clause identical to that at issue here operated to “allocate the insurance burdens of the parties” and did not violate public policy.

2003Our conclusion is supported by Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 625 , 419 A.2d 1111, 1114 (1980), in which the New Hampshire Supreme Court held that a contract clause identical to that at issue here operated to “allocate the insurance burdens of the parties” and did not violate public policy.

2003See United Paperworkers Int’l Union v. Misco, Inc., supra, 484 U.S. at 43 , 108 S.Ct. at 373 .

2003See United Paperworkers Int’l Union v. Misco, Inc., supra, 484 U.S. at 43 , 108 S.Ct. at 373 .

2002Id. at 8-9.

1996“Exculpatory agreements are not necessarily void ... as long as one party is not ‘at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.’ ” Heil Valley Ranch, Inc. v. Simkin, supra, 784 P.2d at 784 . “[Bjargains will be upheld ... so long as they are founded upon relatively equal bargaining positions and are not manifestly unjust or injurious to the general welfare.” Superior Oil Co. v. Western Slope Gas Co., 549 F.Supp. 463, 468 (D.Colo.1982) (emphasis added); see also B.D.