August 19, 2019

Archives for June 1, 2016

Colorado Supreme Court: Announcement Sheet, 5/31/2016

On Tuesday, May 31, 2016, the Colorado Supreme Court issued three published opinions.

Fleury v. IntraWest Winter Park Operations Corp.

Concerning the Application for Water Rights of the Upper Eagle Water Authority

Martinez v. Mintz Law Firm

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.


Tenth Circuit: Release of Liability for Recreational Activity Precludes Claims for Negligence Per Se

The Tenth Circuit Court of Appeals issued its opinion in Espinoza v. Arkansas Valley Adventures, LLC on Tuesday, January 5, 2016.

Sue Ann Apolinar hired a guide through Arkansas Valley Adventures, LLC, for a family rafting trip and camping excursion in the Colorado Rocky Mountains. Ms. Apolinar and the family received guidance and signed a release before navigating the rapids. However, while maneuvering around a rapid known locally as Seidel’s Suck Hole, the raft capsized. The current swept Ms. Apolinar into a logjam, and despite efforts to save her, she drowned. Ms. Apolinar’s son, Jesus Espinoza, Jr., brought suit against the rafting company, alleging negligence per se and fraud. The company moved for summary judgment, averring that the release signed by Ms. Apolinar shielded them from liability, and the district court granted their motion. Mr. Espinoza appealed.

On appeal, the Tenth Circuit addressed whether Colorado law allows parties to contract away claims of negligence. The Tenth Circuit evaluated the four Jones factors in determining whether to respect agreements of the sort Ms. Apolinar entered into: (1) the existence or lack thereof of a duty to the public, (2) the nature of the service performed, (3) whether the contract was fairly entered into, and (4) whether the parties’ intention is expressed in clear and unambiguous language. The Tenth Circuit noted that the first two factors tend to focus on public policy while the second two focus on party- and contract-specific questions. The Tenth Circuit noted that the Colorado Supreme Court has generally held that businesses engaged in recreational activities generally owe no special duties to the public.

Mr. Espinoza attempted to distinguish his claim from those disallowed by the Colorado courts, noting that his claim was for negligence per se, noting that rafting companies may face criminal liability for careless or imprudent operation of a raft and therefore rafting has become a matter of public concern. The Tenth Circuit disagreed, finding that Mr. Espinoza’s argument conflated state regulation with matters of public importance—whether an activity is of practical necessity or recreational in nature. The Tenth Circuit found that Colorado courts have upheld releases of liability for other recreational activities, and noted that the General Assembly was free to amend the statutes in the future to address contractual releases of liability for negligence. The Tenth Circuit also noted that the Colorado Consumer Protection Act may preclude enforcement of releases where plaintiffs plead viable claims under that statute.

Turning to the third and fourth Jones factors, the Tenth Circuit again found that they favored the rafting company. Mr. Espinoza argued that his mother was not fairly apprised of the dangers of the rafting trip, but the release she signed clearly indicated that rafting can cause “physical injury and/or death.” The Tenth Circuit found the disclosures in the release sufficient to satisfy the third and fourth Jones factors. The Tenth Circuit further agreed with the district court that the release resolved Mr. Espinoza’s fraud claim, concluding that even if the company misrepresented the danger of the rafting excursion in Ms. Apolinar’s initial phone call, the release she signed clearly enumerated the risks.

The Tenth Circuit affirmed the district court. Judge Hartz concurred in part and dissented in part; he would have allowed a jury to determine whether the third Jones factor was satisfied.

Tenth Circuit: Arbitration Agreement Requiring Parties to Pay Own Costs Prohibitive to Plaintiff

The Tenth Circuit Court of Appeals issued its opinion in Nesbitt v. FCNH, Inc. on Tuesday, January 5, 2016.

Rhonda Nesbitt was a student at the Denver School of Massage Therapy (DSMT), and as such was required to provide massage therapy services to the public without compensation. Nesbitt filed a class action against DSMT’s parent companies (defendants) in April 2014, alleging that the students were effectively acting as employees in providing services to the public and, as such, were entitled to compensation under the Fair Labor Standards Act and wage and hour laws. Defendants moved the district court to stay the proceedings and compel arbitration pursuant to the arbitration agreement contained in plaintiffs’ student contract. The district court denied defendants’ motion, noting that although the agreement was not unconscionable, it effectively precluded Nesbitt from pursuing her claims because the cost of arbitration was prohibitive. The district court determined that because the arbitration agreement contained no savings clause, the entire agreement was unenforceable. Defendants filed an interlocutory appeal.

The Tenth Circuit first determined that the dispute was governed by the Federal Arbitration Act (FAA), and discussed the effective vindication exception, where plaintiffs are effectively prohibited from pursuing their claims because the prohibitive cost limits use of the arbitral forum. In this case, defendants argued that Nesbitt failed to carry her burden to show that arbitration would be prohibitively expensive. The Tenth Circuit disagreed. The Tenth Circuit found Nesbitt’s argument persuasive that the possibility of fee-shifting later in the arbitration is not the same as FLSA protection. The Tenth Circuit also rejected the defendants’ arguments that the arbitration agreement was silent as to fees and costs, noting it explicitly invoked the American Arbitration Association’s Commercial Rules, which address the allocation of fees and costs. The Tenth Circuit concluded that forcing an employee to pay for arbitration with the mere possibility of future reimbursement constituted prohibitive costs.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 5/31/2016

On Tuesday, May 31, 2016, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

United States v. Pace

Pretlow v. James

Requena v. Roberts

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.