Warning of what might happen if it let other states regulate Colorado’s outdoor recreation economy, the federal appeals court based in Denver has rejected a wrongful death lawsuit from the family of a Texas man who died while rappelling in Lake County.
A three-judge panel for the U.S. Court of Appeals for the 10th Circuit found that Gerald Hamric had, indeed, released Salida-based Wilderness Expeditions, Inc. from liability, and that a lower court judge had appropriately evaluated the claim pursuant to Colorado law, and not Texas law.
“Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado,” wrote Judge Carolyn B. McHugh in the panel’s July 26 opinion.
“If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical,” she added.
Hamric and his church group used WEI for their recreation trip to Colorado in July 2017. Once in Salida, WEI guides took the group to a rappelling course called “Quarry High.” On his descent, Hamric became inverted and could not right himself. He died before he could be rescued.
His wife, Alicia Hamric, sued WEI, arguing Hamric was not skilled at rappelling, should have been warned about potential difficulties, and that WEI was slow to rescue him.
A magistrate judge sided with WEI, but Hamric appealed, arguing in part that the court relied on the wrong state’s law. In Colorado, release agreements can protect a party against claims of negligence, as long as the intent of the agreement was to unambiguously waive liability.
Texas, by contrast, requires a liability wavier to be conspicuous, meaning a “reasonable person” should notice it.
“Texas law, which should have been applied, says you must expressly release negligence and you must expressly state negligence in a manner that is conspicuous and clear. And that, under Texas law, requires different fonts, different color, bolding, underlining, italics,” attorney William J. Dunleavy argued to the appellate judges.
The 10th Circuit decided to uphold the lower court judge’s handling of the lawsuit, and concluded that WEI’s waiver was enforceable. The form that Hamric acknowledged before his death read, in part, “I agree to defend, indemnify, and hold harmless Wilderness Expeditions, Inc…for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause.”
WEI noted that Hamric had three months to consider the paperwork between when he signed the forms in Texas and when he arrived in Colorado. Although the lawsuit contended that Texas law should apply because of where Hamric signed, McHugh explained that such a rule would deter recreation companies from providing release forms until customers arrive in Colorado.
Such a practice, she wrote, “would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.”
Despite unambiguous waivers of liability, there are multiple legal grounds to challenge the wavier, including allegations of misleading representations, fraudulent claims or the lack of a clear intent from the parties to the agreement.
The case is Hamric v. Wilderness Expeditions, Inc.
