Legal experts said that if the parents of a 6-year-old girl sign the waiver required by the park on her behalf, the parents who died while cycling in Glenwood Caverns Amusement Park will find it difficult to hold the park responsible for her death.
Colorado law states that the park and its employees cannot act recklessly, but according to Tom Russell, a professor at the Sturm School of Law at the University of Denver, the person who signed the waiver agreed to “let the company be negligent.”
In Colorado, “parents can be exempt from responsibility for their children,” Russell said, noting that other states such as New Jersey do not allow this. “Colorado allows this to be unethical. It ignores children.”
Russell said that parents may sign a waiver, believing that it is not actually enforceable. They are wrong.
“If drafted properly, exemptions are often enforceable,” Russell said. “If the exemption includes a negligence clause, then it is an exemption from the inherent risks of the activity and business negligence. This is the problem.”
Thousands of people take amusement park attractions every year, from the largest resorts to the smallest carnivals. Almost everyone will sign or passively accept liability waivers by purchasing tickets.
For example, Elitch Gardens’ website lists its terms and conditions on a link away from its ticket purchase page. Above, the guests are told in capital letters that by purchasing tickets, they agree to protect the park from all claims caused by negligence, including negligent death.
Russell said that Colorado’s laws governing negligent death claims also limit any non-economic losses to approximately $571,000.
The need to recover more shows that the company is deliberately reckless, such as knowing that seat belts are not fastened or deferring critical maintenance to a less busy day. Otherwise, the liability exemption will apply and compensate the company.
“If you are going to choose the injured state, Colorado is a bad state,” he said.
A copy of the Glenwood Caverns liability waiver obtained from its website shows that anyone who wants to use any of the 15 different attractions (including Mine Drop) clearly admits that it is dangerous and “involves the risk of personal injury or death” .
More importantly, the exemption stipulates that the rider is “full responsibility for any injury…including death” and waives all legal claims against Glenwood Caverns, including “actual or alleged negligence.”
Shanin Specter, a professor at the University of California Hastings School of Law, a Pennsylvania lawyer, and an expert on liability law, stated that although the enforceability of exemptions is “an unresolved and evolving legal field, the But different”, but he thinks that there is some problem with an amusement park where the child is dead.
“If the design, maintenance or operation of the amusement device is improperly designed, so that a 6-year-old child may fall from a height of 100 feet to death, then there is at least a superficial recklessness problem,” Spector said. “Regardless of whether Colorado law allows claims…A 6-year-old child cannot be responsible for his own safety while riding in an amusement park.”
But Russell said it is difficult to prove reckless behavior.
“It’s important to understand the meaning of negligence. This is unreasonable behavior,” Russell said. “It is expected that the release of immunity from harm caused by negligence will only allow the business to operate unreasonably without consequences. Few judges in Colorado would say that such behavior is reckless.”
Wongel Estifanos died on Sunday while riding the Haunted Mine Drop in the park, a vertical free fall that fell into the mine in about 2.5 seconds. The investigation into her death is ongoing. The Garfield County Coroner’s Office said on Tuesday that she had died of multiple blunt trauma.
Details of the accident have not yet been announced, but a 911 operator said that according to a copy of a videotape released by law enforcement on Tuesday, the girl fell from a height of 110 feet.
This amusement device is specially designed to have no shoulder straps, which is the main safety function of most other vertical drop amusement devices in the world. State records show that the amusement facility has passed security inspections since it opened in 2017.
The park’s liability exemption recognizes that seat belts are “in no way a guarantee of safety,” and riders may still be injured by “strength beyond the limits of protection provided by seat belts”.
“If the belt is loose and they don’t know it, this is not a winning proposition,” Russell said. “Even if someone helps them get in the car and shows irrationality and carelessness during a busy day, this is not what they can ask for.”
The state’s pro-business attitude comes from years of lawsuits in which ski resorts have been sued for the actions of skiers who ventured off the slopes. This suddenly extends to chair lifts, just like an amusement park, where customers are more controlled by the resort.
Russell said that legislators have repeatedly amended the law, which makes it difficult to hold companies in question accountable and limits the amount of damage that can be assessed.
“The argument has always been that if you don’t give up all exemptions, the business will not be able to operate,” he said. “If a company really can’t operate unless the cost of negligence damage is pushed to the customer, then I think the company lacks social utility and should not exist.”
Spector said that much of the Glenwood case may depend on what happened.
“I don’t know what will happen to the Glenwood Caverns case, but it will be very sensitive,” he said. “But my experience as a practitioner and law professor is that where there is a mistake, there are usually remedies.”