                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               January 5, 2016
                                         PUBLISH            Elisabeth A. Shumaker
                                                                Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT


 JESUS ESPINOZA, JR.,

        Plaintiff - Appellant,

 v.

 ARKANSAS VALLEY
 ADVENTURES, LLC,
                                                       No. 14-1444
        Defendant - Appellee.

 -------------------------------------

 COLORADO TRIAL LAWYERS
 ASSOCIATION,

        Amicus Curiae.


                    Appeal from the United States District Court
                            for the District of Colorado
                       (D.C. No. 1:13-CV-01421-MSK-BNB)


William J. Hansen of McDermott & McDermott, LLP, Denver, CO (George E.
McLaughlin of Warshauer McLaughlin Law Group, P.C., Denver, CO, with him
on the briefs), for Plaintiff-Appellant.

Alan Epstein (Ryan L. Winter and Conor P. Boyle, with him on the brief), of Hall
& Evans, L.L.C., Denver, CO, for Defendant-Appellee.

Russell R. Hatten and Evan P. Banker of Chalat Hatten Koupal & Banker PC,
Denver, CO, on the brief for amicus curiae Colorado Trial Lawyers Association,
in support of Plaintiff-Appellant.
Before KELLY, HARTZ, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.


      This case arises from a summer rafting trip gone tragically wrong. It began

when Sue Ann Apolinar hired a guide for a family adventure in the Colorado

Rockies: an overnight rafting and camping excursion on a popular stretch of the

Arkansas River running through Brown’s Canyon. After she arrived at the

outfitter’s office, Ms. Apolinar and the other rafters received the usual guidance,

made the usual preparations, and signed the usual release before heading down

river. The next day, while maneuvering around a rapid known locally as Seidel’s

Suck Hole, the raft capsized. Everyone else was fished out of the water soon

enough. But in a heartbreaking turn of events, the current swept Ms. Apolinar

into a logjam where, despite repeated efforts to save her, she drowned.

Eventually, Ms. Apolinar’s son, Jesus Espinoza, Jr., brought a lawsuit against the

rafting company alleging negligence per se and fraud (and other claims no longer

in dispute). In reply, the company sought summary judgment, arguing that the

release Ms. Apolinar signed shielded it from liability. With this the district court

agreed and proceeded to enter judgment for the company. It’s the propriety of

this ruling that we’re asked to assess in this appeal.




                                          2
      No one before us doubts that Ms. Apolinar signed a release. Or that the

release purported to absolve the rafting company from any claim of negligence.

The only question in this appeal is whether Colorado law permits private parties

to enforce a contract like this. Under Colorado common law, it’s long settled that

courts will not give effect to contracts purporting to release claims for intentional,

knowing, or reckless misconduct. See, e.g., Boles v. Sun Ergoline, Inc., 223 P.3d

724, 726 (Colo. 2010). But claims of negligence are a different matter. Colorado

common law does not categorically prohibit the enforcement of contracts seeking

to release claims of negligence. Instead, and at the most general level, the

Colorado Supreme Court has instructed courts to weigh four factors when

deciding whether to give effect to agreements along these lines: “(1) the existence

[or nonexistence] 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.” Jones v. Dressel,

623 P.2d 370, 376 (Colo. 1981).

      Even more specifically, the Colorado Supreme Court has explained that the

first two Jones factors focus on public policy questions — asking whether “[t]he

party seeking exculpation is engaged in performing a service of great importance

to the public, which is often a matter of practical necessity [and] . . . [a]s a result

of the essential nature of the service . . . the party invoking exculpation possesses

a decisive advantage of bargaining strength against any member of the public who

                                           3
seeks his services.” Id. (quoting Tunkl v. Regents of Univ. of Cal., 383 P.2d 441,

444 (Cal. 1963)). Meanwhile, the latter two factors focus on more party- and

contract-specific questions — asking whether the release was fairly obtained and

clearly and unambiguously expressed. Id. at 378. If the release satisfies both sets

of questions — the more general and the more particular — it may be enforced.

(Provided, of course, that it is otherwise a valid contract, involving, for example,

mutual assent and consideration, matters not in dispute here).

      When it comes to the first two Jones factors, the Colorado Supreme Court

has offered even more specific guidance yet. Though some businesses perform

essential public services and owe special duties to the public, the court has held

that “businesses engaged in recreational activities” generally do not. Chadwick v.

Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004); see also Boles, 223

P.3d at 726 (“More than a quarter century ago, this court rejected the assertion

that any agreement purporting to shield a party from liability for its own tortious

conduct” in the provision of recreational services “would violate . . . public policy

. . . .”). So while businesses providing, say, water, electricity, or sanitary services

usually may not shield themselves from claims of negligence, recreational service

providers often can. Though, of course, they must still face and satisfy the latter

two case-specific Jones factors.

      This relatively permissive public policy toward recreational releases may

not be unique to Colorado common law but it does seem to be one of its

                                           4
distinguishing features. We don’t doubt other states may rationally choose to

pursue different lines when it comes to recreational releases: certainly the parties

before us cite an array of cases from other jurisdictions taking an array of views.

But in our federal system, states are usually permitted (and encouraged) to pursue

their own paths on policy matters like these. And it’s clear enough that Colorado

allows private parties to assume some of the risks associated with their

recreational pursuits. It’s a policy choice that, no doubt, means some losses go

uncompensated but one that also promotes the output and diversity of recreational

services consumers may enjoy. Of course, the Colorado Supreme Court and the

Colorado General Assembly may change their judgment on this score at any time.

And maybe someday they will prefer a policy that shifts the burden of loss to the

service provider, ensuring compensation in cases like this even if also impairing

to some degree individual choice and output. But that decision is their decision to

make, not ours, and their current policy is clear. Indeed, following the Colorado

Supreme Court’s guidance in this area, this court and many Colorado courts have

upheld many releases in many recreational activities over many years. Only some

examples of which we include in the margin. 1


      1
        See, e.g., Lahey v. Covington, 964 F. Supp. 1440, 1444-46 (D. Colo.
1996) (whitewater rafting), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc.,
113 F.3d 1246 (10th Cir. 1997); Forman v. Brown, 944 P.2d 559, 563-64 (Colo.
App. 1996) (same); Robinette v. Aspen Skiing Co., No. 08-cv-00052-MSK-MJW,
2009 WL 1108093, at *3-5 (D. Colo. Apr. 23, 2009) (skiing), aff’d, 363 F. App’x
547 (10th Cir. 2010); Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 WL

                                          5
      Still, Mr. Espinoza submits, his case is categorically different. Yes, Ms.

Apolinar signed a document purporting to release the rafting company from all

claims of negligence. Yes, Colorado public policy generally permits the release

of claims of negligence in recreational pursuits like the one here. But, Mr.

Espinoza argues, the release Ms. Apolinar signed should still be held to violate

state public policy — it should still be held to run afoul of the first two Jones

factors — because his claim is one for negligence per se rather than common law

negligence. He observes that the Colorado River Outfitters Act (CROA) makes it

a misdemeanor for rafting companies to operate any raft in a “careless or

imprudent manner.” Colo. Rev. Stat. § 33-32-107(2)(b). And from this, he

reasons, negligence by rafting companies has become a matter of public concern

and a public service within the meaning of the first two Jones factors.




95421, at *3 (10th Cir. Apr. 29, 1992) (same); Potter v. Nat’l. Handicapped
Sports, 849 F. Supp. 1407, 1409-11 (D. Colo. 1994) (same); Bauer v. Aspen
Highlands Skiing Corp., 788 F. Supp. 472, 474-75 (D. Colo. 1992) (same);
Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (mountain
biking); Chadwick, 100 P.3d at 468-70 (horseback riding); B & B Livery, Inc. v.
Riehl, 960 P.2d 134, 137-38 (Colo. 1998) (same); see also William R. Rapson &
Stephen A. Bain, Recreational Waivers in Colorado: Playing at Your Own Risk,
32 Colo. Law. 77, 77 (2003) (noting that “Colorado law generally supports
waivers of liability in connection with recreational activities”); James H. Chalat,
Colorado Ski Law, 27 Colo. Law. 5, 14 (1998) (noting that “courts generally hold
[ski racing] waivers to be enforceable”); Jordan Lipp, Horse Law — A Look at the
Equine Statute and Liability Law, 41 Colo. Law. 95, 99 (2012) (“Releases have
been upheld in a number of horseback riding cases.”).


                                           6
      We find ourselves unable to agree for a number of related reasons.

      First, we think this argument mistakes the nature of the inquiry called for

by the first two Jones factors. By their terms, those factors don’t ask whether the

activity in question is the subject of some sort of state regulation. Instead, they

ask whether the service provided is of “great importance to the public,” a matter

of “practical necessity” as opposed to (among other things) a “recreational” one.

623 P.2d at 376-77. And the distinction the Jones factors draw between essential

and recreational services would break down pretty quickly if the presence of some

state regulation were enough to convert an otherwise obviously “recreational”

service into a “practically necessary” one. After all, state law imposes various

rules and regulations on service providers in most every field these days —

including on service providers who operate in a variety of clearly recreational

fields. See, e.g., Colo. Rev. Stat. § 33-14-116 (snowmobiling); id. § 33-44-104(2)

(skiing); id. § 13-21-119(4)(b)(I) (equine activities).

      Second, Mr. Espinoza’s argument suggests a firmer analytical line can be

drawn between claims of negligence and negligence per se than we think the

circumstances here will fairly allow. As we’ve seen, Colorado law has long

permitted parties to contract away negligence claims in the recreational context.

And negligence per se claims often differ very little from their common law

cousins: they usually just substitute a common law duty or standard of care with

one prescribed by statute and all other elements remain the same. See Lombard v.

                                          7
Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 573 (Colo. 2008). In fact, in the

case before us it’s not even clear what duty of care CROA adds to the common

law. Mr. Espinoza says the rafting company violated the statutory duty to avoid

operating a raft in a “careless or imprudent manner.” Mr. Espinoza points as well

to implementing regulations that suggest a company should offer things like a

“basic orientation” for rafters and help when accidents occur. But Mr. Espinoza

does not suggest how these provisions create any distinctly new duty of care.

Indeed, they appear to be more or less coextensive with the preexisting common

law standard of care, which requires parties to act with “reasonable care . . . i.e.,

that which a person of common prudence would use under the circumstances.”

Christensen v. Hoover, 643 P.2d 525, 529 (Colo. 1982). And given this it seems

hard to see a rational basis on which the law might treat such similar (identical?)

claims so differently based merely on how they are pleaded, rewarding the crafty

but penalizing the pedestrian pleader. 2

      Third, Mr. Espinoza’s interpretation of CROA would require us to read into

that statute a good deal more than it says. CROA imposes criminal misdemeanor

sanctions for violating the duties it prescribes. It does not speak, one way or the

other, to the question of civil liability — let alone suggest that private parties are



      2
         Though we do not rely on the fact in our analysis above, Colorado
authorities did conduct an investigation of the accident in this case pursuant to
CROA and ultimately decided not to pursue any sanction.

                                           8
forbidden from contractually releasing potential negligence claims. Neither is it

obviously irrational that the General Assembly might choose to pass legislation

about public (criminal) liability but leave private (civil) liability to preexisting

common law principles. Indeed, courts generally will not assume that the General

Assembly means to displace background common law principles absent some

clear legislative expression of that intent. See Robbins v. People, 107 P.3d 384,

387 (Colo. 2005). The General Assembly, too, has shown that — when it wishes

— it well knows how to displace background common law norms and preclude

the release of civil claims. See, e.g., Stanley v. Creighton Co., 911 P.2d 705, 707-

09 (Colo. App. 1996). Given all this, we do not think it our place to adorn the

General Assembly’s handiwork with revisions to the common law that it easily

could have but declined to undertake for itself.

      Finally, we find it noteworthy that Colorado courts faced with similar

challenges seem to have resolved them much as we resolve this one today. For

example, the General Assembly has adopted a statute holding that “equine

professional[s]” may not be held civilly liable for “the inherent risks of equine

activities.” Colo. Rev. Stat. § 13-21-119(3). But that statute goes on to state that

the immunity it provides does not extinguish civil liability in cases where the

equine professional supplied equipment or tack it should have known was faulty

or failed to make reasonable efforts to determine the ability of the rider before the

excursion began. Id. § 13-21-119(4)(b)(I). And despite the General Assembly’s

                                           9
express solicitude toward these latter classes of claims, the Colorado Supreme

Court has allowed private parties to contract away claims of negligence on both

fronts. B & B Livery, 960 P.2d at 135, 137-38. Maybe even more pointedly still,

since the enactment of CROA and its misdemeanor criminal penalties, various

Colorado courts have enforced releases of civil negligence claims obtained by

whitewater rafting companies. See, e.g., Lahey, 964 F. Supp. at 1444-46;

Forman, 944 P.2d at 563-64. This court has upheld, too, a release a snowboarder

gave to a ski area absolving its employees of negligence even when the area’s

employee allegedly operated a snowmobile in a negligent manner and a state

statute made that very behavior a misdemeanor. See Robinette, 2009 WL

1108093, at *3-5.

      In saying this much, we take care to emphasize what we do not mean to

say. We do not mean to suggest that some future statute could not — or even that

some other current statute might not — preclude the enforcement of releases like

the one here. Neither do we mean to suggest that the Colorado Supreme Court

could not alter its common law policy with respect to recreational releases. In

particular, we do not pass on the question whether the General Assembly’s

enactment of the Colorado Consumer Protection Act (CCPA), Colo. Rev. Stat.

§§ 6-1-101 to 6-1-1001, might preclude the enforcement of recreational releases

when the plaintiff pleads a valid claim under that statute. See Rapson & Bain,

supra, at 77-78 (noting that while Colorado law “generally supports” recreational

                                        10
waivers, it’s an open question whether a statutory CCPA claim can be waived).

In this case, we merely hold that the CROA provisions cited to us do not satisfy

and do not overrule the first two factors of the common law Jones test.

      Of course, that takes us only half way. Having decided that the release

survives Jones’s public-policy factors, we must still consider its case-specific

factors. The third Jones factor requires us to ask whether “the circumstances and

the nature of the service involved indicate that the contract was fairly entered

into.” Chadwick, 100 P.3d at 467. Relatedly, the fourth Jones factor addresses

the terms of the contract itself, inviting us to “examine[] the actual language of

the [release] for legal jargon, length and complication” and any other evidence

that a party might not “recognize the full extent of the release provisions.” Id.

The district court held that the release before us satisfied both of these conditions

— that it was fairly entered into and clear in its terms. And in the end we find we

agree with its assessment on this score too.

      Mr. Espinoza trains most of his attention on the third factor. He contends

that the rafting company misrepresented the nature of the trip to Ms. Apolinar.

He points for support to testimony suggesting that, when Ms. Apolinar first made

her reservation, she was told by company representatives and read on its website

that the trip was appropriate for beginners and involved at most only class III

rapids. He points as well to his expert witness who testified that Seidel’s Suck

Hole is really a class IV rapid, not a class III rapid, according to the

                                           11
“International Scale of River Difficulty.” 3 But at the same time Mr. Espinoza

must acknowledge that another of his witnesses — a state ranger charged with

overseeing the stretch of river in question — testified that he believes the trip is

indeed appropriate for families with children. So the facts Mr. Espinoza himself

offers are mixed at best on whether the rafting company actually ever made a

material misstatement about the nature of the trip. 4

      Still, even if we might assume (without deciding) that the facts here are

enough to create a material dispute of fact regarding whether the rafting company

initially misrepresented the nature of the trip, it’s still hard to see how we could

say the release was unfairly secured or unclear in its terms — at least within the

meaning Colorado law gives to the third and fourth Jones factors. That’s because



      3
        That scale describes class III rapids as requiring (among other things)
“[c]omplex maneuvers in fast current and good boat control in tight passages or
around ledges” and notes that “[i]njuries while swimming are rare.” The scale
describes class IV rapids as involving “[i]ntense, powerful but predictable rapids
requiring precise boat handling in turbulent water. . . . [and] fast maneuvers under
pressure” and notes that the “[r]isk of injury to swimmers is moderate to high.”
      4
          On appeal, Mr. Espinoza offers another theory why the circumstances
surrounding the release were unfair. He alleges that the rafting company refused
to reschedule the trip and might have refused to refund Ms. Apolinar’s deposit if
she declined to sign the release. And this, he says, imposed unfair pressure on
her to sign the release. But Mr. Espinoza’s argument along these lines before the
district court consisted of only two sentences so it’s not surprising or improper
that the district court declined to pass upon it. Neither will we pass on this
argument for the first time now, leaving its development instead to future cases
where it might prove relevant and more fully presented. See generally Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998); Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).

                                          12
of what happened next. Whatever the rafting company said about the trip earlier

on, when Ms. Apolinar arrived at the outfitter’s office she received a vivid

description of the risks she could face. The rafting company provided — and Ms.

Apolinar signed — a document titled in part “RAFTING WARNING” explaining

that rafting can be “HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL

INJURY AND/OR DEATH.” The document proceeded to offer a detailed picture

of the sorts of problems that could be (and sadly were) encountered: “cold water

immersion, hidden underwater obstacles, trees or other above water obstacles, . . .

changing and unpredictable currents, drowning, exposure, swimming, overturning,

. . . entrapment of feet or other body parts under rocks or other objects . . . .” It

added that “THE UNDERSIGNED ACKNOWLEDGE[S] AND

UNDERSTAND[S] THAT THE DESCRIPTION OF THE RISKS LISTED

ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE

ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS.”

The document provided, too, that its representations and warnings about the trip

superseded any prior “communications or representations” on these subjects.

Neither can there be any question that the document clearly communicated that a

signature would release civil claims for liability. At the outset it directed Ms.

Apolinar to “PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A

RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS.” And later it

provided that “THE UNDERSIGNED HEREBY IRREVOCABLY AND


                                           13
UNCONDITIONALLY RELEASE[S], FOREVER DISCHARGE[S], AND

AGREE[S] NOT TO SUE . . . with respect to any and all claims and causes of

action . . . which could be asserted [by] the Undersigned in connection with . . .

the Activity.”

      This disclosure and release suffices to satisfy the third and fourth Jones

factors. To be sure, we can imagine other states might choose to hold

circumstances and printed forms like these insufficiently fair or clear. But

Colorado courts have repeatedly emphasized that individuals engaged in

recreational activities are generally expected to read materials like these, and

because recreational businesses do not provide “essential” services of “practical

necessity” individuals are generally free to walk away if they do not wish to

assume the risks described. See, e.g., Jones, 623 P.2d at 377-78. Particularly

where, as here, the person confronted with the release is competent and

reasonably educated. Chadwick, 100 P.3d at 469. Indeed, Colorado courts and

this court have consistently found releases provided at the outset of a recreational

activity and containing language very much like the one now before us sufficient

as a matter of law to supply a fair and full warning within the meaning of the

latter two Jones factors. See, e.g., Jones, 623 P.2d at 377-78; Brooks v.

Timberline Tours, Inc., 127 F.3d 1273, 1274-76 (10th Cir. 1997); Heil Valley

Ranch, Inc. v. Simkin, 784 P.2d 781, 782, 785 (Colo. 1989); Chadwick, 100 P.3d

at 468-69.


                                         14
      As the district court recognized, too, this resolution of the third and fourth

Jones factors also resolves Mr. Espinoza’s fraud claim. To make out a claim for

fraud in Colorado, a plaintiff must establish actual and reasonable reliance on a

false statement; a party cannot — as a matter of law — continue to rely on a

previously expressed false statement after the truth is aired. And, of course, we

have just found that the rafting company’s written warnings accomplished just

that — adequately airing the truth about the nature of the risks Ms. Apolinar

faced. Neither do we see how we might arrive at a different result just because

this claim is denominated in fraud rather than negligence. The inquiries

prescribed for us by law are virtually indistinguishable (was the truth fairly and

fully disclosed?), the facts are the same (the release’s warnings), and it follows

that the result should be the same. See Vinton v. Virzi, 269 P.3d 1242, 1247

(Colo. 2012) (holding if a party “has access to information” that “would have led

to the true facts, that party has no right to rely on a [prior] false representation”);

Morrison v. Goodspeed, 68 P.2d 458, 462 (Colo. 1937) (same).

      Enduring the death of a close family member in tragic circumstances is

among life’s bitterest challenges. The loss Ms. Apolinar’s family has suffered is




                                          15
beyond words. But our charge is to follow the law. And in this case the law is

just as the district court described it, permitting the enforcement of the release in

this case and requiring the entry of summary judgment.

      Affirmed. 5




      5
         We decline Mr. Espinoza’s request for certification of his negligence per
se claim to the Colorado Supreme Court for decision. Not only is the request
fleetingly made (three sentences in the middle of a brief arguing state law
unambiguously supports his position), we generally do not trouble state supreme
courts where, as here, existing state law provides “a reasonably clear and
principled course” we may follow to resolve the case at hand. Pino v. United
States, 507 F.3d 1233, 1236 (10th Cir. 2007).

                                          16
14-1444, Espinoza v. Arkansas Valley Adventures

HARTZ, Circuit Judge, concurring and dissenting:

       I fully join all the opinion except the discussion of the third Jones factor. I

respectfully dissent, however, on that factor. In my view, a jury must resolve whether

Ms. Apolinar was misled about the danger of the rapids. Although the warning provided

to her at the outfitter’s office listed all the potential risks that she would face, the

description of the rapids is what would convey the probability of those risks. It is not

enough to list a risk if the customer has been misled about its probability.




                                                1
