Tenth Circuit upholds rafting company’s liability waiver in wrongful death case

Sue Ann Apolinar signed up for a rafting trip on the Arkansas River in Colorado. Tragically, while her raft was passing through a rapid called Seidel’s Suck Hole, it capsized. Other passengers were pulled out, but Ms. Apolinar became stuck in a logjam, and drowned despite multiple efforts to save her.

Ms. Apolinar’s son sued the rafting company for negligence per se and fraud, but the rafting company moved for summary judgment because Ms. Apolinar signed a waiver of liability for negligence, and because the release she signed provided adequate warning of the dangers, thus defeating her fraud claim.

In Espinoza v. Arkansas Valley Adventures, LLC, the Tenth Circuit affirmed. Judge Gorsuch’s opinion notes that the Colorado Supreme Court has approved the validity of liability waivers for negligence in the context of recreational businesses, which do not provide “essential” services to the public.

The plaintiff also argued that the rafting company misrepresented the risks of the trip on its website, but the Court rejected this claim because even if there were a dispute of material fact about whether the dangers were initially misrepresented, the release that Ms. Apolinar signed provided a vivid description of the risks: “a party cannot — as a matter of law — continue to rely on a previously expressed false statement after the truth is aired.”

Judge Harris Hartz dissented from the ruling on the fraud claim because although the rafting company’s warning listed the potential risks, “the description of the rapids is what would convey the probability of those risks. It is not enough to list a risk if the customer has been misled about its probability.”

I think it’s unsurprising that Colorado gives effect to liability waivers for recreational activities, given that such activities bring a lot of business into the state. I would also not be surprised if out-of-state plaintiffs were to try to bring claims in their own states (assuming personal jurisdiction could be obtained over the defendant) and argue that Colorado’s policy favoring liability waivers violate their own states’ public policies.

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