Torts

Zip-Lining: Not an "Essential Service"

|The Volokh Conspiracy |

An interesting little decision on whether contractual waivers of negligence liability are enforceable in recreational contexts: Yes as to zip-lining, under Colorado law, says Judge William J. Martinez in today's Cowles v. Bonsai Design, LLC (D. Colo.):

Colorado law "distinguishe[s] businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public." Chadwick v. Colt Ross Outfitters, Inc. (Colo. 2004). Numerous prior cases have confirmed that exculpatory waivers may be enforced in the context of recreational services and activities because such activities do not involve a duty to the public of a kind that would make enforcement of such contractual waivers against public policy. Zip-lining, which involves no matter of great public importance, is clearly recreational in nature. Thus, there is no duty to the public preventing enforcement of the Waiver.

Note that such waivers may be unenforceable in some other states—and may be unenforceable even in Colorado to the extent the plaintiff can show gross negligence, as the court suggests in allowing plaintiff to amend the complaint to add a gross negligence claim.

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  1. It seems that as a policy matter, it should be just the opposite. Zip-lining businesses lure individuals to participate in an activity that is non-essential and which many would not otherwise engage in but for the marketing efforts and convenience of zip-lining businesses. So, a fortiori, we should not allow such businesses to waive their duty to provide the care that a decent and reasonable person would in operating such a business.

    If not allowing such a waiver causes prices to rise and fewer people to participate in zip-lining by businesses that refuse to abide by the duty to take the care that a decent and reasonable person would, that sounds like a feature, not a bug. Businesses that exercise more care and more efficiently would have fewer accidents, and this would tend to be reflected in lower prices relative to their more dangerous and reckless competitors. With limits on liability, in sharp contrast, the true cost of zip-lining is concealed from the unsuspecting customer. Market signals are muffled. Worse, the price of using responsible zip-lining businesses would tend to be higher, since taking precautions may involve the expenditure of money, but the benefits of such precautions cannot be captured by the business in the form of reduced liability.

    Also lost on the court. People tend not to read or think about the implications of waivers when they are just looking to engage in a simple transaction before a horrible accident and do something fun. As such, what is really happening here isn’t two parties seeking to order their affairs in a thoughtful manner that maximized their liberty so much as a business seeking to minimize personal responsibility as much as possible and distorting market signals in the process. All at the expense of the public and zip-lining businesses that would prefer to operate in a more decent and responsible manner.

    1. I agree — but isn’t there some way that the lawyers on both sides can lose?

    2. It seems that as a policy matter, it should be just the opposite.

      No, it doesn’t. We don’t want a person being told, “You can’t buy groceries unless you agree not to sue us,” because someone might feel coerced to agree to that solely so they can get essential groceries. But nobody is coerced to recreationally zipline, so people can weigh the risks against the rewards.

      So, a fortiori, we should not allow such businesses to waive their duty to provide the care that a decent and reasonable person would in operating such a business.

      Setting aside the tendentious language, this is backwards. We’re allowing the customers to waive this.

      1. You may be required to eat, but you aren’t required to go to a particular grocery store. And outside of Costco or Sams Club, I have never really heard of someone entering into an agreement before shopping for groceries.

        The waiver of right does not customers who give close to zero thought to what they are signing. As argued in the rest of the post, any price savings passed on to customers due to the waiver conceal the true cost of the activity.

        1. “The waiver of right does not customers who give close to zero thought to what they are signing.”

          I think there’s a word missing in there.

          The fundamental thing here is that people want to be able to do dangerous things occasionally, and given our tort system, the only way they can have that *choice* is if waivers are enforceable. Refuse to enforce waivers, and you deprive people of choices.

          And I don’t give a damn if they’re being deprived of choices you don’t think they should make, so long as those choices don’t violate somebody else’s rights. People are entitled to do stupid stuff and accept the consequences.

          1. You don’t deprive people of choice. Instead, the price of activities more accurately reflects the risk. Also, businesses that enable the activity while minimizing the risk earn more profits and are able to charge lower prices to customers. In contrast, safer businesses enjoy no cost advantage over unsafe businesses, and even worse, are at a cost disadvantage.

            Waivers distort price signals that would otherwise guide consumers to make better decisions. They also prevent businesses from competing on safety to the extent that consumers do not actually read the contracts and prefer vendors who do not require waivers. (In other words, in the real world.)

            1. You’re exactly depriving them of a choice: The choice between normal ziplining at normal prices, and hypothetical ultra-safe ziplining at a price nobody can afford, but wouldn’t be offered anyway.

              With our tort system, you just can’t do inherently risky activities without waivers. No sane person would open a zipline park without them, because no matter how safe they operated it, some idiot might undo their straps halfway through a run.

              1. I do not believe your assumption that the risk from zip-lining is so high no one could afford it if liability attached is true.

                But even if it was true, you certainly would not want to suppress the price signal that would cause fewer people to engage in this hypothetically ultra hazardous activity in that case. And which also would create an incentive for companies to make it much safer.

                Besides, you don’t see private companies creating baseball-type activities, only with grenades instead of baseballs either. This is because ultra hazardous recreational activities are not attractive to most people.

                Most people zip-line because they generally believe it is both a fun and a low-risk activity. Of course, low-risk isn’t no risk, and that is fine. The question is, do you want to create a financial incentive for those in the best position to lower risk or not? If you want to create that incentive, you can’t allow waivers.

                1. “I do not believe your assumption that the risk from zip-lining is so high no one could afford it if liability attached is true.”

                  That’s not my assumption. My assumption is that the tort risk from selling zip-lining without liability waivers is hugely greater than the risk from zip-lining, due to a whacked out tort system that makes lawsuits into lottery tickets.

                  “Besides, you don’t see private companies creating baseball-type activities, only with grenades instead of baseballs either. This is because ultra hazardous recreational activities are not attractive to most people.”

                  Right, that’s why nobody does base jumping, right?

                  No, the reason you don’t see that, aside from it just not being an entertaining hazardous recreational activity, is that the legal system would almost certainly not respect liability waivers in the case of activities which actually were hyper-hazardous.

                  Zip-lining isn’t actually all that hazardous. The only reason that waivers of liability are required is that the legal system in the US doesn’t accept that every activity involves some degree of risk, in the case of activities that people don’t do every day.

                  1. I think your belief that the tort system consisting of lottery tickets is misinformed.

                    But if that was right, the answer would be to fix the tort system, not eliminate access to it.

                    1. Yes, the tort system is screwed up. I listen on the radio to lawyers trolling for clients, (Used to be called “ambulance chasing”) and severely frowned on. Now it’s a major segment of the practice of law.) on the basis of their having used Roundup at some time, and later getting cancer, when I know damned well that the science says Roundup doesn’t cause cancer! But they’re winning enough cases anyway to make the racket profitable. And that’s ton the only tort racket out there, it’s distorting our whole economy.

                      Significant sectors of that economy survive only because people are allowed to opt out of that tort system. Abolishing waivers wouldn’t make those sectors safer, it would make them go away.

                    2. David,

                      You are wrong and Brett is right, up to a point. The only thing a waiver, or its absence, does is determine who bears the risk of an accident – the customer or the operator. The risk, and attendant costs, never go away.

                      That said, the issue of gross negligence remains, and I don’t think the waiver ought to cover that. I don’t know if Brett agrees or not. The customer, it seems to me, has the right to assume that the operator has taken normal, reasonable, safety precautions – maintained the equipment, etc. The customer can’t be expected to conduct a careful inspection before signing up.

                      But with that qualification I fail to see the problem.

                    3. bernard11:

                      The problem with that is the customer has no real control over the safety measures taken, having neither time nor the knowledge to be sure they are implemented. The business DOES have such control.

                      Since the business can make the activity more safe and the customer cannot, the business should bear the risk so they have a financial incentive to improve safety.

                    4. Brett:

                      I think it is much harder to successfully bring lawsuits than you do. That said, if you were right, again, the answer would be to fix the tort system, not selectively abolish it for some people.

                      There is no opportunity for a company like Monsanto/Bayer to get a waiver for something like Roundup, since this is sold off-the-shelf at stores. So, your support of waivers due to the Roundup litigation doesn’t even make sense.

                      Finally, I should note that jury’s, who had an opportunity to hear the evidence including testimony from expert witnesses, have found a link between Roundup and cancer. I am supposed to take YOUR word on this over their judgment?

                      I will take a pass on that, for now. In any case, I do not expect the tort system to be perfect. I do not think that lack of perfection is an argument for effectively abolishing it, which is what you seem like you would like to do.

  2. IANAL. With regard to my then minor children, over the past 20 years I have signed what must have been a hundred or more documents like this, with lots of all-caps language about waiving, indemnifying and the like. I did so with the thought that it seemed largely against public policy that a minor could have their individual rights extinguished by a third party (me, their parent), and that such a waiver would not have been any material barrier should a lawyer be required after some unfortunate event.

    What do the lawyers amongst the conspiracy opine as to whether such waivers would ever be applied with regards to minors? What is a parent to do when faced with such documents that purport to their minors.

    1. “I did so with the thought that it seemed largely against public policy that a minor could have their individual rights extinguished by a third party (me, their parent)”

      The problem here is that your idea of public policy, and actual public policy, are rather different. Parents don’t *extinguish* the rights of children, they exercise them in the children’s place until the children are of age to be considered competent adults. A principle that rather significantly predates all modern governments applying it.

      1. So I am not closer to an understanding of the pragmatics.
        Do such waivers, when applied to minors, have any meaningful impact with respect to civil suit. Are courts more likely to allow minors to proceed with a suit than an adult given the same signed waiver?

        1. The child could certainly sue the Parent but, it’s unlikely there are deep pockets involved. Good luck finding a Lawyer willing to contract with a legal Minor.

        2. Normally minors can’t proceed with lawsuits anyway, their parents would have to sue on their behalf.

          I’m getting the impression you’ve got some problems with the concept of a “minor”. Never raised a kid, or had much to do with children, maybe?

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