Now that Spring has arrived, many Colorado cyclists will begin participating in races, fun rides, charitable events, and other organized rides for which the ride sponsor or promoter will be requesting a signed waiver in order to participate in the ride. If you are an avid and experienced cyclist, you have likely signed dozens, if not hundreds, of these over the years. You’ve probably even been in line with others at the registration table and heard someone say, “Sure, I’ll sign it, these things aren’t enforceable anyway.” Perhaps you have even made that comment yourself. Is that a true assertion? In Colorado, the answer is quite possibly not.
These types of written waivers or releases are commonly referred to in the law as exculpatory agreements. Potentially, these agreements are enforceable contracts that can significantly impact the duties, obligations and rights of those who sign them.
In my bike law practice, I am often asked by ride promoters, clubs, and local bike shops if they should be using waivers on their sanctioned or promoted rides. Because these agreements can be written in a way that creates a legally enforceable contract, they are an excellent tool for limiting the liability of a ride or event sponsor. Any promoter, shop or club who wishes to limit its liability would be wise to use them.
In Colorado, the determination of the sufficiency and validity of an exculpatory agreement is a matter of law for the court to determine. The validity of an exculpatory agreement must be determined by the following four criteria.
- The existence of a duty to the public;
- The nature of the service performed;
- Whether the contract was fairly entered into; and
- Whether the intention of the parties is expressed in clear and unambiguous language.
In the context of a cycling event, attacks against the validity of an agreement typically are made with respect to the fourth prong of the factors listed above. If the agreement clearly explains the risks involved and the limitation of liability against those released, the enforceability of the agreement is likely.
Years ago, a Colorado Supreme Court case held that a parent could not execute an exculpatory agreement on behalf of a minor child. In reaction to that court decision, the Colorado General Assembly passed a bill that was signed into law specifically creating a statutory provision that allows a parent of a child, on behalf of the child, to release or waive the child’s prospective claim for negligence associated with participating in youth sporting, recreational and educational activities where certain risks may exist. Accordingly, exculpatory agreements signed by parents on behalf of their minor children are now likewise enforceable if the standard criteria for enforceability are met.
Enforceable exculpatory agreements cannot be used to shield liability for all conduct. Generally, their use is limited to acts of negligence. Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect one’s self or others from injury or damage. Simply put, most negligence cases are ones involving an accident, involving carelessness, a bad decision, or bad judgment. Exculpatory agreements cannot be used to shield a released party from their reckless, intentional, willful and/or wanton conduct. Signing an exculpatory agreement, therefore, does not create a scenario where the released parties are insulated from any harmful conduct. Accordingly, efforts to argue against enforceability often require an attempt to show that the released party’s conduct was more than negligent, and was at least reckless.
Because exculpatory agreements are potentially enforceable in Colorado, clubs, shops and promoters are wise to use them. Further, participants in cycling events would be wise to carefully read and understand the document they are signing, as it quite possibly is worth considerably more than the paper it is printed on.