The Aspen rafting company sued by the widow of a California man who died after falling out of a boat on the Roaring Fork River in 2014 contends the victim signed a waiver releasing it from liability.
The attorney for Blazing Adventures on July 7 filed a motion for summary judgment, seeking a pretrial ruling in the company’s favor based on the waiver signed by Paul Sizemore.
The 44-year-old was ejected from a raft on July 16, 2014, in the Hell’s Half Mile rapid on the Roaring Fork River. His wife, Jennifer Lenze, and the Sizemore estate last year sued Blazing Adventures, owner Dan McMahon and river guides Michael Lewis and Graeme Singleton, and Dallas Blaney, who was acting as the trip’s safety kayaker. The lawsuit includes claims for negligence and wrongful death.
As all adult customers do, Sizemore, an attorney, signed his name and the name of his wife, who is also an attorney, to a form titled, “Participant Agreement, Release and Acknowledgment of Risk.”
It reads, in part, “I hereby agree to release, indemnify and discharge Blazing … to the fullest extent permitted by law, on behalf of myself, my children, my heirs, assigns, personal representatives and estate …”
In signing the document, customers acknowledge that rafting and kayaking on rivers entails “known and unanticipated risk, which could result in physical or emotional injury, paralysis, death, or damage to myself, to property or to third parties.
“Whitewater rapids will be encountered, [and] I can be jolted, jarred, bounced, [thrown] to and fro and shaken about during rides through some of these rapids,” the waiver says. “Rafts/kayaks could turn over or I could be ‘washed’ overboard … Exposure to the natural elements can be uncomfortable and/or harmful … Prolonged exposure to cold water can result in hypothermia and in extreme cases death and accidental drowning are also possibilities.”
Those signing the waiver are informed that while guides seek safety, they are not infallible, and that customers agree to “accept and assume all of the risks existing in the activity.”
“Well-settled Colorado law establishes that the release precludes plaintiffs from maintaining negligence claims against the defendants,” the filing says.
Aspen attorney Ryan Kalamaya, who is not involved in the lawsuit, said he agrees that state law has generally prohibited the pursuit of negligence cases when a waiver was signed.
He cited a Colorado Supreme Court decision in 1981 that established a four-pronged approach to waivers. A waiver is valid if: there is no existing duty to the public, such as that owed by a governmental agency; the service or activity to be performed is not essential; the contract was entered into fairly; and the contract was not ambiguous.
One exception is for intentional harm involving willful and wanton conduct, Kalamaya said.
The website of the Denver law firm Caplan and Earnest says “Colorado has a relatively permissive approach in this area, allowing greater enforceability of recreational liability waivers than some other states.
“Colorado’s policy places a significant share of responsibility on the participant,” the website says.
In the summary judgment motion, Blazing attorney Peter Middleton of Denver wrote that the company waiver meets the four prongs, and that there is also no evidence that would support any claim for willful and wanton conduct by Blazing or its guides.
A brief, deadly swim
Blazing customers receive a safety talk that describes the risks of whitewater rafting, including the particular dangers of the trip they’re about to embark upon, as well as safety precautions, the motion says.
Blaney discussed with the plaintiffs self-rescue, rope-based rescue and swimmer rescue techniques. He cautioned that the water was cold and stressed the urgency of getting back to the boat, or to shore, if one falls out of the raft.
Additional safety precautions were discussed at the put-in, the motion says.
The rafters completed two series of Class IV rapids and took a break. But in the Hell’s Half Mile rapid, the raft stalled in a hole on a steep ledge and then turned left, ejecting Sizemore and another man. The man swam to shore, but Sizemore was unable to reach for or grab the T-grip of a paddle extended to him, nor a throw bag tossed to him, Middleton wrote.
Blaney reached him twice, but the victim was unable to hold onto the kayak initially. Blaney was able to bring him to Lewis’ raft, where he was lifted in by others on the boat. Sizemore said he could not breathe and became unresponsive. CPR and other life-saving measures were employed, but he was pronounced dead at the scene.
He died of accidental drowning and asphyxia, with complication from coronary artery disease, according to the Pitkin County Coroner’s Office.
Colorado Parks and Wildlife investigated. A CPW officer interviewed multiple witnesses, inspected equipment and verified the guides’ qualifications, Middleton wrote. The officer concluded Blazing conducted the trip and handled the tragedy within industry standards, and that no state law was broken.
In addition to the numerous safety instructions and equipment, the river that day was running at 1,300 cubic feet per second, well within a normal range, the motion says.
Sizemore had on a personal flotation device, booties, splash jacket and a wet suit, and there is no indication any of that gear failed, Middleton wrote.
“In no way, shape or form can it be rationally argued that [the guides] intended to harm Sizemore or recklessly disregarded his safety,” the motion says. “The most that could possibly be said (even though it is denied) is that Blazing’s inability to rescue him was negligent or unreasonable.”
But Middleton again pointed to the CPW investigation that concluded Blazing acted reasonably.
The Denver Post last year, citing the CPW report, wrote that Sizemore was in the water for two-and-a-half minutes that involved a “short but violent swim.”
Lenze told the paper that her husband was the most fit man she’s ever known, having run marathons and other long-distance races.
The motion says Lenze and Sizemore voluntarily signed the waiver and fairly entered into the agreement. They were, by all accounts, “intelligent and sophisticated attorneys, [who] certainly would understand this language and the risks inherent in whitewater rafting in Class IV rapids,” Middleton wrote. He added that Sizemore had apparent authority to sign the waiver for his wife.
The lawsuit says Blazing “expressly represented on its website that its guided rafting trips were safe,” and that Blazing employees made similar statements at company headquarters.
But the summary judgment motion says Blazing’s promotional materials describe their trip, which included the Slaughterhouse section, as an “extreme” and “advanced” expedition with Class IV rapids.
Attempts to reach attorneys representing the plaintiffs were not successful. Middleton wrote the plaintiffs are opposing the motion, but that their attorneys indicated they may dismiss certain claims and certain defendants.