FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 7, 2013
                                      PUBLISH                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                  UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT


 KIMBERLY N. SQUIRES,

             Plaintiff - Appellant,
 v.                                                     No. 12-1199

 BRECKENRIDGE OUTDOOR
 EDUCATION CENTER,

             Defendant - Appellee.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. No. 1:10-CV-00309-CBS-BNB)


Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and
Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of
The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier
of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for
Plaintiff - Appellant.

David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the
brief) of Grund • Dagner, P.C., Denver, Colorado, for Defendant - Appellee.


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


McKAY, Circuit Judge.


      Plaintiff Kimberly Squires filed this diversity action against Defendant
Breckenridge Outdoor Education Center asserting claims for negligence and gross

negligence following a ski accident in which she was injured. The magistrate

judge granted Defendant’s motion for summary judgment in part, concluding

Plaintiff’s mother, Sara Squires, had validly released any claim for negligence

against Defendant by signing an acknowledgment of risk and release of liability.

Plaintiff now appeals, arguing summary judgment was inappropriate because the

Release is unenforceable for three reasons: (1) the Release is as an invalid

exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not

voluntary and informed, as required by Colorado Revised Statute Section 13-22-

107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless

voidable because it was procured through fraud.

                                   B ACKGROUND

      In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive

delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado.

Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-

profit organization dedicated to providing children, including children with

disabilities, with opportunities and experiences for growth. Camp Fire USA had

contracted with Defendant for a five-day wilderness program that included skiing,

a ropes course, and snow tubing.

      Before the trip, Defendant sent documents regarding the trip to Camp Fire

USA, which in turn circulated them to the participants’ parents, including Mrs.

                                         -2-
Squires. The documents included a “Letter to Students, Parents and Guardians”

(App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment

of Risk & Release of Liability” (App. at 210 (capitalization omitted)).1 The

Letter states, in pertinent part:

              LETTER TO STUDENTS, PARENTS AND GUARDIANS

      Greetings from Breckenridge! The BOEC staff looks forward to having
      you, your child or your family member join us on a course and would
      like to share the following information about who we are, what we do
      and the risks involved.

      The Breckenridge Outdoor Education Center (BOEC), a non-profit
      organization in operation since 1976, provides outdoor adventure
      programs for people of all abilities. We offer programs for groups and
      individuals. All courses are tailored to the specific goals and abilities
      of our students.

      ....

      All of our activities are conducted in a manner consistent with the


      1
          It is somewhat unclear whether the Release signed by Mrs. Squires was
presented to her as a separate document from the Letter or as a single document
with the Letter printed on one side and the Release printed on the reverse. The
Letter itself refers to the Release “on the reverse side of this letter.” (App. at
209.) Plaintiff likewise initially represented the Release appeared on the reverse
of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover
letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . .
.).) However, during oral argument, Plaintiff’s counsel maintained this was a
disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are
standalone copies, and one copy happens to have a bleed-over language from the
cover letter. It’s not clear . . . that that’s how that actually occurred when the
Release was given to [Mrs. Squires] for signature.”) It is undisputed, however,
that the Release the director of Camp Fire USA sent to the participants “included
the cover letter that explained the waiver” (App. at 207), and that the two
documents were sent as a single attachment (App. at 404, 407, 408).

                                         -3-
      highest standards, as defined by the Association for Experiential
      Education (AEE). The BOEC is accredited by AEE, who independently
      reviews the policies, practices and educational components of applicant
      organizations and accredits those that meet their high standards. All
      activities offered are designed to pose appropriate challenges for
      students. These challenges provide a medium for adventure, learning
      and personal growth. Your ski lesson or course will involve risk, which
      may be greater than most people encounter in their daily lives.
      Providing high quality programs in a risk-managed environment is a
      priority at the BOEC. It is, however, impossible to eliminate all risks.
      It is very important that you follow all directions given by staff and that
      you ask questions whenever a procedure or activity is unclear to you.

      While the BOEC maintains rigorous standards, it is in everyone’s best
      interest that risks are disclosed, understood, and assumed prior to
      participation. After you have reviewed the acknowledg[]ment of risk
      and waiver of liability on the reverse side of this letter and if you
      understand and agree with its contents, please sign in the appropriate
      places. If you are the parent or legal guardian of a student, please read
      both sides of this document to the student, and if you both agree and
      understand their content, place YOUR signature in the three appropriate
      places.

      If you have any questions or comments, please do not hesitate to
      contact us. We welcome your suggestions and feedback.

(App. at 209.)

      The accompanying Release provides:

       ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY
                       (REQUIRED)

      In consideration of being allowed to participate in any way in
      Breckenridge Outdoor Education Center (BOEC) programs, and related
      events and activities . . . I, and/or the minor student, . . . the
      undersigned:

      1.    Understand that although the BOEC has taken precautions to
      provide proper organization, supervision, instruction and equipment for
      each course, it is impossible for the BOEC to guarantee absolute safety.

                                         -4-
      Also, I understand that I share the responsibility for safety during all
      activities, and I assume that responsibility. I will make my instructors
      aware to the best of my ability of any questions or concerns regarding
      my understanding of safety standards, guidelines, procedures and my
      ability to participate at any point during any activity.
      2. Understand that risks during outdoor programs include but are not
      limited to loss or damage to personal property, injury, permanent
      disability, fatality, exposure to inclement weather, slipping, falling,
      insect or animal bites, being struck by falling objects, immersion in
      cold water, hypothermia (cold exposure), hyperthermia (heat exposure),
      and severe social or economic losses that may result from any such
      incident. I also understand that such accidents or illnesses may occur
      in remote areas without easy access to medical facilities or while
      traveling to and from the activity sites. Further, there may be other
      risks not known to me or not reasonably foreseeable at this time.
      3.    Agree that prior to participation, I will inspect, to the best of my
      ability, the facilities and equipment to be used. If I believe anything is
      unsafe, I will immediately advise the BOEC staff present of such
      condition and refuse to participate.
      4.    Assume all the foregoing risks and accept personal responsibility
      for the damages due to such injury, permanent disability or death
      resulting from participating in any BOEC activity.

      I hereby release the BOEC, its successors, representatives, assigns, and
      employees from any and all claims, demands, and causes of action,
      whether resulting from negligence or otherwise, of every nature and in
      conjunction with a BOEC activity.

(App. at 210.)

      Plaintiff and her mother signed the Release on January 13, 2008. On that

date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge

and participation in Defendant’s program would include skiing, although she

claims she was unaware of the precise equipment and methods her daughter would

be using. Once in Breckenridge, Plaintiff was paired with a BOEC instructor and

equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was

                                         -5-
injured when another, unrelated, skier lost control and skied into the tethers

connecting Plaintiff and her instructor. The force of the collision caused the

instructor to lose control of the tethers, and Plaintiff continued unrestrained down

the trail and into a group of trees. She was injured when her bi-ski collided with

a tree.

          Following the accident, Plaintiff filed this action claiming Defendant’s

negligence and gross negligence caused her injuries. Defendant moved for

summary judgment, arguing the Release barred Plaintiff’s negligence claim and

there was no evidence to support her gross negligence claim. The magistrate

judge granted summary judgment in favor of Defendant on Plaintiff’s negligence

claim, concluding Plaintiff’s mother had executed an enforceable exculpatory

agreement that clearly and unambiguously expressed the parties’ intent to

extinguish Defendant’s liability, and her decision to do so was voluntary and

informed. The magistrate judge, however, denied Defendant’s motion on

Plaintiff’s gross negligence claim. This claim proceeded to a jury, which found

Defendant not liable. Plaintiff now appeals the grant of summary judgment on

her negligence claim.

                                       D ISCUSSION

          “We review a district court’s decision to grant summary judgment de novo,

applying the same standard as the district court.” Lundstrom v. Romero, 

, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary

                                            -6-
judgment is appropriate if “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Colorado law applies in this diversity case.

                      I. E NFORCEABILITY OF THE R ELEASE

      Plaintiff argues the Release is unenforceable and, therefore, does not bar

her negligence claim. She reasons that the Release is invalid under the four-part

test articulated in Jones v. Dressel, 

(Colo. 1981), and that her

mother did not make an informed decision, as required by Colorado Revised

Statute Section 13-22-107.

                              A. Validity Under Jones

      In Colorado, “[a]greements attempting to exculpate a party from that

party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v.

Simkin, 

, 783 (Colo. 1989). However, “[e]xculpatory agreements are

not necessarily void.” 

determining whether an exculpatory

agreement is valid, Colorado courts consider four factors: “(1) the existence 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 intention of the parties is

expressed in clear and unambiguous language.” 

. Plaintiff

challenges only the magistrate judge’s conclusion on the fourth factor.

      Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach

of warranty’ are not invariably required for an exculpatory agreement to shield a

                                         -7-
party from claims based on negligence and breach of warranty.” Heil 

. Rather, “[t]he inquiry should be whether the intent of the parties was

to extinguish liability and whether this intent was clearly and unambiguously

expressed.” 

determination, Colorado courts examine “the

actual language of the agreement for legal jargon, length and complication, and

any likelihood of confusion or failure of a party to recognize the full extent of the

release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 

, 467

(Colo. 2004).

      The Release signed by Plaintiff and her mother clearly and unambiguously

waives any negligence claims Plaintiff might have brought against Defendant.

The Release begins by indicating it is signed “[i]n consideration of being allowed

to participate in any way in Breckenridge Outdoor Education Center (BOEC)

programs, and related events and activities.” (App. at 104.) It then warns that “it

is impossible for the BOEC to guarantee absolute safety,” and identifies the

potential risk of “loss or damage to personal property, injury, permanent

disability, [and] fatality.” (Id.) The Release concludes, after only five short

paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC,

its successors, representatives, assigns, and employees from any and all claims,

demands and causes of action, whether resulting from negligence or otherwise, of

every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).)

We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc.,

                                         -8-


, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims

I might state . . . including those claims based on negligence or breach of

warranty.’ . . . There is nothing ambiguous about this portion of the agreement.”

(first alteration in original)).

       Plaintiff, however, contends the Release does not satisfy the fourth Jones

factor because it failed to include that Plaintiff would be skiing using a bi-ski and

failed to disclose specific risks associated with this form of adaptive skiing. She

argues that Colorado law requires the Release to identify the specific activity

being engaged in and describe specific associated risks. In support of this

position, Plaintiff quotes from several other releases that have been upheld and

claims it was their adequate detailing of risks that led the courts to conclude they

were valid under the fourth Jones factor. However, even though the releases

quoted by Plaintiff contain more detailed descriptions of the associated risks,

their validity did not turn on this fact. Notably, none of the cases Plaintiff relies

on evaluated the sufficiency of the description of the risks.

       Contrary to Plaintiff’s argument, Colorado law does not require that

exculpatory agreements refer to the specific activity in which the plaintiff

participated and was injured. See Forman v. Brown, 

, 563-64 (Colo.

App. 1996) (concluding a release that did not mention the specific activity in

which the plaintiff was injured was nevertheless valid because it “unambiguously

released defendants from liability for injuries occurring during associated

                                          -9-
scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 

, 1274-75 (10th Cir. 1997) (concluding a release that did not include the

specific activity and referred only to “the activity I am about to voluntarily

engage in” was valid under Jones). Nor does it require “that an exculpatory

agreement describe in detail each specific risk that the signor might encounter.

Rather, an exculpatory agreement bars a claim if the agreement clearly reflects

the parties’ intent to extinguish liability for that type of claim.” Lahey v.

Covington, 

, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v.

Twin Lakes Expeditions, Inc., No. 96-1438, 

(10th Cir. May 20,

1997) (unpublished) (citation omitted). The Release clearly reflects precisely

such an intent—Plaintiff and her mother agreed, “[i]n consideration of being

allowed to participate in . . . [Defendant’s] programs, and related events and

activities” to “release [Defendant] from any and all claims . . . and causes of

action, whether resulting from negligence or otherwise, of every nature and in

conjunction with a [BOEC] activity.” (App. at 104.)

      Plaintiff additionally argues the Release is ambiguous because it does not

specifically release claims resulting from the negligence of third parties, such as

the skier who collided with Plaintiff, and because it inconsistently allocates risks

between herself and Defendant. Plaintiff raises her first theory of ambiguity for

the first time on appeal. Because this argument was not properly preserved, we

do not consider it. Lyons v. Jefferson Bank & Trust, 

, 721 (10th Cir.

                                         -10-
1993) (“[A] party may not lose in the district court on one theory of the case, and

then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second

theory of ambiguity, we agree with the magistrate judge’s conclusion that the

Release is not reasonably susceptible to her interpretation, which strains logic.

Plaintiff specifically argues the portion of the Release that releases Defendant

from liability is rendered ambiguous by the following sentence: “I understand

that I share the responsibility for safety during all activities, and I assume that

responsibility.” (App. at 104.) She contends that by “discussing two alternate

allocations of risk in the same document, the Release does not clearly and

unambiguously express the intent of the parties, and thus, is unenforceable.”

(Appellant’s Opening Br. at 23.) However, these two provisions create no such

ambiguity. The sentence on which Plaintiff relies clearly expresses the

participant’s agreement to share in the responsibility of participating in a safe

manner, whereas the release provision clearly expresses the participant’s intent to

release Defendant from liability. As the magistrate judge concluded, the two are

not mutually exclusive, and the first provision makes it no less clear that

Plaintiff’s mother intended to release Defendant from liability for any negligence

claim.

         Because the Release contains clear and unambiguous language

demonstrating Plaintiff’s mother intended to release any negligence claims

Plaintiff might have against Defendant, it is valid and enforceable under Jones.

                                          -11-
     B. Informed Decision Under Colorado Revised Statute Section 13-22-107

      We turn then to whether Mrs. Squires’s consent to the Release was

voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was

not because her mother did not understand the risks involved with adaptive skiing

and, specifically, the use of bi-skis.

      In 2002, the Colorado Supreme Court held “that Colorado’s public policy

disallows a parent or guardian to execute exculpatory provisions on behalf of his

minor child for a prospective claim based on negligence.” Cooper v. Aspen

Skiing Co., 

, 1237 (Colo. 2002), superseded by statute, Colo. Rev.

Stat. § 13-22-107(3). The following year, the General Assembly superseded

Cooper through enactment of Section 13-22-107(3). Under this section, “[a]

parent of a child may, on behalf of the child, release or waive the child’s

prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute

“declare[s] that parents have a fundamental right to make decisions on behalf of

their children, including deciding whether the children should participate in risky

activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 

, 1264 (Colo. App. 2010). “So long as the decision is voluntary and

informed, the decision should be given the same dignity as decisions regarding

schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. §

13-22-107(1)(a)(V).

                                         -12-
      The Colorado Court of Appeals has “assume[d] that the General Assembly

was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but

required something more for the waiver of a minor’s prospective negligence

claims.” Hamill v. Cheley Colo. Camps, Inc., 

, 952 (Colo. App.

2011) (citation omitted). In addition to the Jones factors, “[t]he General

Assembly required that the consent to waiver by a parent be ‘voluntary and

informed.’” 

is informed when the parent has sufficient

information to assess the potential degree of risks involved, and the extent of

possible injury.” 

of Section 13-22-107, the Colorado Supreme Court has

not addressed whether a release satisfies the voluntary and informed requirement

of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how

Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann,

, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from

the Colorado Court of Appeals only as they may aid our ability to predict how the

Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co.,

396 F. App’x 496, 502 n.14 (10th Cir. 2010).

      The Colorado Court of Appeals has twice considered whether a parent’s

consent to release prospective negligence claims on behalf of a minor child was

voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first

occasion, the Colorado Court of Appeals determined it “need not set forth . . .

                                        -13-
precisely how much information is required for a parental release to satisfy the

statute” because “[t]here is no information in [the] one-page registration form

describing the event activities, much less their associated risks.” 

. There, the plaintiff was injured while being towed in an innertube

behind an ATV on a frozen lake as part of her participation in a three-day event

called “Winterama 2005.” 

attending the event, the plaintiff’s

mother signed a one-page registration and information form, which contained a

purported release in the following paragraph:

        I give permission for my child to participate in . . . Winterama 2005 and
        all activities associated with it. I further give consent for any medical
        treatment necessary to be given to my child in case of injury or
        sickness. I will not hold Grace Community Church or it’s [sic]
        participants responsible for any liability which may result from
        participation. I also agree to come and pick up my child should they
        not obey camp rules.

in original). Although the plaintiff knew the

Winterama activities would include riding on an ATV-towed innertube, her

mother did not. The court concluded that the mother’s waiver was not informed

because the registration and information form did “not indicate what the activities

would involve and certainly d[id] not suggest they would include ATV-towed

inner-tube excursions around a frozen lake.” 

a result, there was

no information from which the plaintiff’s parents could “assess the degree of risk

and the extent of possible injuries” from her participation in Winterama. 

      Shortly after the Wycoff decision, the Colorado Court of Appeals again

addressed whether a parent’s consent to release prospective negligence claims on

behalf of her child was informed. Borrowing from the language used in Wycoff,

the court began by stating, “A parent’s decision is informed when the parent has

sufficient information to assess the potential degree of risks involved, and the

extent of possible injury.” 

(citing 

). In addressing the degree of risk, the court concluded the plaintiff’s mother

was sufficiently informed about the risks involved in horseback riding, the

activity in which the plaintiff was injured, because she “knew her daughter would

be riding horses and she was advised that there were risks, known and unknown,

associated with the activity.” 

reaching this conclusion, the court

first relied on the undisputed fact that the plaintiff’s mother “knew the activities

[the camp] offered,” because her daughter “had attended [the camp] and ridden

the camp horses for two years before the accident.” 

addition, “[t]he

agreement clearly indicated that horseback riding was an activity available to

campers.” 

identified some of the “risks associated

with participation in any camping activities,” and emphasized that “a complete

listing of inherent and other risks is not possible” and there are even “risks which

cannot be anticipated.” 

omitted). The court finally

considered the fact that the plaintiff’s mother “never contacted [the camp] to

discuss the release form, and had no questions about the language of the release


                                         -15-
form when she signed it.” 

light of all of this evidence, the court

concluded the plaintiff’s mother was adequately informed of the risks involved

with horseback riding. The fact that she “may not have contemplated the precise

mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not

create a genuine issue of material fact.” 

was whether the

plaintiff’s mother was aware the plaintiff would be riding horses and was advised

there were risks associated with that activity, which she was.

      The court then turned to whether the plaintiff’s mother was provided with

sufficient information “to assess the extent of possible injuries to [her daughter].”

determination, the court again considered both the language of

the release and the plaintiff’s mother’s independent knowledge and experience.

The release contained broad language waiving “any claims of liability, for any

injury, even death.” 

omitted). The plaintiff’s

mother was further aware that Christopher Reeve, whom she knew personally, had

been injured falling off a horse, and was therefore “aware that there were

significant risks associated with horseback riding.” 

concluded

that the agreement adequately disclosed the extent of potential injuries; it “did not

need to include an exhaustive list of particularized injury scenarios to be

effective.” 

whether Plaintiff’s mother’s consent to release

prospective negligence claims against Defendant was informed, we must first


                                         -16-
address the scope of the evidence we may consider in making this determination.

The Colorado courts have yet to specifically address this issue. In Wycoff, the

court “assume[d] for purposes of th[e] case that a facially deficient exculpatory

contract could be cured by extrinsic 

. Relying on

this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V)

must be limited to the four corners of the Release unless we first determine that

the Release itself is facially deficient, in which case the Release would be invalid

under Jones. Defendant, on the other hand, maintains we may properly consider

the Letter that accompanied the Release as well as Mrs. Squires’s actual

knowledge on the day she signed the Release.

      We predict the Colorado Supreme Court would likely follow the approach

advocated by Defendant and adopted by the Colorado Court of Appeals in

Hamill—in determining whether a parent’s consent to release prospective

negligence claims is voluntary and informed, the parent’s actual knowledge and

the information provided in connection with the release should be considered in

addition to the language of the release itself. Unlike the fourth factor of the

common-law Jones test, which focuses on whether the agreement itself expressed

the parties’ intention in clear and unambiguous terms, the focus of the voluntary

and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s

decision. If we were to limit our review to the language of the Release itself, we

would not be in a position to adequately evaluate whether the parent’s decision


                                         -17-
was informed. To “give[] effect to the General Assembly’s intent in enacting”

Section 13-22-107, Carlson v. Ferris, 

, 508 (Colo. 2003)—that a

parent’s decision to release his or her child’s prospective negligence claims be

honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. §

13-22-107(1)(a)(V)—we must be able to consider the relevant information the

parent had and was provided in order to make that decision. Indeed, were we to

limit our review to the language of the Release itself, it would put the General

Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of

recreational activities would be required to incorporate all relevant information

they supplied to parents within the release itself while simultaneously ensuring

the release is not “inordinately long or complicated,” Heil 

. To avoid such a result and give the fullest effect to the General Assembly’s

intent, we consider not only the language of the Release, but also the information

Defendant provided to Plaintiff and Mrs. Squires in connection with the Release

as well as Mrs. Squire’s actual knowledge on the date she signed the Release.

      Considering this evidence, we conclude Mrs. Squires’s decision to release

Plaintiff’s prospective negligence claims against Defendant was informed. Mrs.

Squires had sufficient information from which to evaluate the degree of risk

Plaintiff faced. She admittedly knew “when she signed the document . . . that her

daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the

students and their parents specifically referred to “[y]our ski lesson” (App. at


                                         -18-
209), and the accompanying participant application identified “Sit-Down” and

“Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by

Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson .

. . will involve risk, which may be greater than most people encounter in their

daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for

BOEC to guarantee absolute safety,” and warned that in addition to the “risks

during outdoor programs,” including “falling,” “there may be other risks not

known . . . or not reasonable foreseeable at this time.” (App. at 210.) After

receiving this information, Mrs. Squires did not contact Defendant to discuss the

Release and did not inquire as to the risks that were going to be involved with the

ski trip. Although Mrs. Squires “may not have contemplated the precise

mechanics of her daughter’s fall,” including the precise mechanics of skiing with

a bi-ski, this fact “does not invalidate the release.” 

. Like

the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she

was advised that there were risks, known and unknown, associated with the

activity.” 

had sufficient information from which to assess the

extent of possible injuries to Plaintiff. The Release contained broad language

releasing “any and all claims,” “of every nature,” “whether resulting from

negligence or otherwise.” (App. at 210.) The Release additionally specifically

warned of the possibility of “injury, permanent disability, fatality . . . and severe


                                         -19-
social or economic losses that may result from any such incident.” (Id.) Contrary

to Plaintiff’s argument, the Release “did not need to include an exhaustive list of

particularized injury scenarios,” such as the possibility of colliding with a tree

after the instructor lost control of the tethers, “to be effective.” 

.

      We conclude the Release satisfies both the Jones test and the voluntary and

informed requirement of Section 13-22-107 and is, therefore, enforceable.

                          II. F RAUDULENT I NDUCEMENT

      Plaintiff argues in the alternative that even if the Release is enforceable, it

should nevertheless be set aside because it was procured through fraud. 2 “A

release is an agreement to which the general contract rules of interpretation and

construction apply. Like any contract, a release procured through fraud can be set

aside.” Chase v. Dow Chem. Co., 

, 281 (10th Cir. 1989) (internal

quotation marks and citation omitted). To establish fraud, a plaintiff must prove

      (1) a fraudulent misrepresentation of material fact was made by the
      defendant; (2) at the time the representation was made, the defendant
      knew the representation was false or was aware that he did not know

      2
        Plaintiff first alluded to this argument in the hearing on Defendant’s
motion for summary judgment. The magistrate judge then allowed supplemental
briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant
argued Plaintiff’s late reliance on the fraud defense “is neither proper nor
excusable.” (App. at 378.) In its order, the magistrate judge considered
Plaintiff’s fraud defense without discussing its timeliness or procedural propriety.
Defendant has not argued on appeal that the magistrate judge erred in considering
Plaintiff’s argument. We therefore have no occasion to address whether
Plaintiff’s belated fraud defense was properly considered in the first instance.

                                         -20-
         whether the representation was true or false; (3) the plaintiff relied on
         the misrepresentation; (4) the plaintiff had the right to rely on, or was
         justified in relying on, the misrepresentation; and (5) the reliance
         resulted in damages.

Barfield v. Hall Realty, Inc., 

, 290 (Colo. App. 2010). Furthermore,

“[t]he misrepresentation must be made with the intent to deceive.” Club Valencia

Homeowners Ass’n, Inc. v. Valencia Assocs., 

, 1026 (Colo. App.

1985).

         Plaintiff contends the Letter, which accompanied the Release, contained

three fraudulent misrepresentations: (1) “All of [Defendant’s] activities are

conducted in a manner consistent with the highest standards, as defined by the

Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by

AEE”; and (3) AEE “independently reviews the policies, practices and

educational components of applicant organizations and accredits those that meet

their high standards.” (App. at 209.) However, Plaintiff has offered no evidence

that statements two and three were false; that is, Plaintiff has pointed to no

evidence that Defendant, generally, was not accredited by AEE or that AEE does

not perform the functions described in statement three. Plaintiff’s argument then,

hinges on the allegedly fraudulent misrepresentation in the first statement.

         Plaintiff maintains the first statement constitutes a fraudulent

misrepresentation because AEE does not have standards for adaptive skiing, and

Defendant’s adaptive ski program is therefore at least one activity that is not


                                           -21-
“conducted in a manner consistent with the highest standards, as defined by

[AEE].” (Id.) Accepting, without deciding, that this statement constitutes a

fraudulent material misrepresentation, Plaintiff has failed to provide any evidence

that Mrs. Squires relied on this misrepresentation in deciding to sign the Release.

Plaintiff points to no evidence that Mrs. Squires relied on the representation that

Defendant’s adaptive ski program was conducted in a manner consistent with

AEE standards. Rather, she relies on her mother’s statements that she “believed

that BOEC was an accredited program” (App. at 354), and “that they had an [sic]

accredited certified instructors that would manage a safe program” (App. at 357).

(See also App. at 353 (“[T]hey were, you know, accredited and certified and

they’d been doing it for a number of years.”), 356 (“That she would be with

certified accredited people in a safe program that they could supervise

appropriately.”).) These statements, even when viewed in the light most

favorable to Plaintiff, do not support her position that Mrs. Squires relied on the

representation that Defendant’s adaptive ski program was conducted in a manner

consistent with AEE’s standards. 3 Notably, Mrs. Squires made no mention of


      3
         While Mrs. Squires’s testimony may suggest she believed that
Defendant’s adaptive ski program was accredited by AEE, the Letter made no
such representation. Rather, this purported representation was inferred by Mrs.
Squires from the three statements listed above in connection with the
representation that “all courses are tailored to the specific goals and abilities of
[the] students, all activities offered are designed to pose appropriate challenges
for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening
                                                                        (continued...)

                                         -22-
AEE or its standards when discussing her beliefs about Defendant’s program.

Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a

material misrepresentation made by Defendant in the Letter, the magistrate judge

properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently

induced to sign the Release.

                                   C ONCLUSION

      For the foregoing reasons, we AFFIRM the magistrate judge’s order

granting summary judgment to Defendant on Plaintiff’s negligence claim.




      3
        (...continued)
Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s
misunderstanding of Defendant’s Letter does not excuse her from the
consequences of signing the Release. See Shoels v. Klebold, 

, 1070
(10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for
Appellants’ acceptance, and so they cannot evade the normal limitations on relief
from the consequences of their mistake.”).

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