The Volokh Conspiracy

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Zip-Lining: Not an "Essential Service"


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.