25CA1097 Bruschi v 24 Hour Fitness 04-09-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1097 Arapahoe County District Court No. 24CV227 Honorable Thomas Henderson, Judge
Denise Bruschi,
Plaintiff-Appellant,
v.
24 Hour Fitness USA, LLC d/b/a 24 Hour Fitness,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHUTZ Freyre and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026
Denise Bruschi, Pro Se
Dietze and Davis, P.C., William A. Rogers, III, Nathan A. Klotz, Lauren N. Davis, Boulder, Colorado, for Defendant-Appellee ¶1 This case arises from a complaint Denise Bruschi filed against
24 Hour Fitness (24 Hour), after she allegedly sustained a severe
injury while exiting its facility. 24 Hour filed a motion to dismiss,
which the district court converted to a motion for summary
judgment. After full briefing, the court granted the motion.
Bruschi appeals that judgment. We affirm.
I. Background
¶2 The following factual recitation is gathered from the parties’
pleadings and evidentiary submissions and the undisputed facts
acknowledged by the parties and accepted by the district court.
¶3 24 Hour is a commercial establishment that provides various
equipment and instructional programs focused on achieving
physical fitness. Bruschi, a senior citizen, was a member of 24
Hour and thus allowed to use 24 Hour’s fitness facilities. Bruschi’s
membership was apparently part of a Medicare-funded program
designed to encourage fitness activities by senior citizens. Incident
to becoming a member, Bruschi signed a release agreement (the
waiver) that included the following language:
RELEASE OF LIABILITY AND ASSUMPTION OF RISK
1 Using the 24 Hour Fitness, USA, Inc. (24 Hour) facilities involves the risk of injury to you or your guest, whether you or someone else causes it. Specific risks vary from one activity to another and the risks range from minor injuries to major injuries, such as catastrophic injuries including death. In consideration of your use of 24 Hour’s facilities and/or participation in the activities offered by 24 Hour, you understand and voluntarily accept this risk and agree that 24 Hour, its officers, directors, employees, volunteers, agents and independent contractors will not be liable for any injury, or any other damages, to you, your spouse, guests, unborn child, or relatives resulting from the actions or inactions, including negligence, of 24 Hour or anyone on 24 Hour’s behalf or anyone using the facilities, including, without limitation, personal, bodily, or mental injury, or economic loss, whether said use or said injury is related to exercise or not and whether using 24 Hour’s services on its premises or not. This Release of Liability includes, without limitation, claims against 24 Hour for negligence, premises liability, and products liability. Further, you understand and acknowledge that 24 Hour does not manufacture fitness or other equipment at its facilities, but purchases and/or leases equipment. You understand and acknowledge that 24 Hour is providing recreational services and may not be held liable for defective products.
¶4 The timeline below summarizes Bruschi’s activities on the
morning of December 26, 2022:
2 • 7:21 a.m.: Bruschi arrived at 24 Hour.
• 7:21 a.m. to approximately 9 a.m.: Bruschi worked out or
otherwise used 24 Hour’s facilities.
• 9 a.m. or shortly before: Bruschi completed her workout
and walked through 24 Hour’s front lobby and into iCryo,
a business that is separate from 24 Hour, but which is
accessible from 24 Hour’s lobby. While at iCryo, Bruschi
completed red-light therapy, a fifteen-minute session
designed to achieve desired health and beauty benefits.
• 9:15 a.m. or shortly thereafter: Bruschi completed her
red-light therapy at iCryo, which did not have a
bathroom facility on its premises. Bruschi then walked
through iCryo’s lobby and through 24 Hour’s adjoining
lobby to use 24 Hour’s bathroom.
• Approximately 9:15 to 9:30 a.m.: After using the
bathroom, Bruschi walked through 24 Hour’s lobby
toward the exit. Shortly before reaching the door,
Bruschi slipped and fell on the wet tile floor. As a
consequence of the fall, Bruschi fractured her patella.
3 • After 9:30 a.m.: Subsequent to her fall, Bruschi was
tended to by 24 Hour personnel. Bruschi alleges that the
responding 24 Hour staff were untrained in medical
matters and used a refrigerated, canned drink in an
attempt to reduce the swelling and pain in her knee.
Eventually, Bruschi was escorted back to iCryo, where an
iCryo nurse gave her an IV solution in an effort to temper
her nausea. Thereafter, Bruschi was assisted to her
vehicle. During this time, no ambulance was called and
no trained emergency responders were on scene.
¶5 Bruschi was eventually seen at Swedish Medical Center and
diagnosed with a fractured patella. She underwent surgery to
repair the fracture on January 5, 2023.1
1 Bruschi notes that 24 Hour has criticized some of her allegations
as factually unsupported, while at the same time 24 Hour has not produced certain information — such as incident reports and videos of the incident — that may exist and support her claim. But because of the procedural posture of this case, no discovery or disclosures have yet occurred. And for purposes of this appeal, 24 Hour concedes that Bruschi has alleged and factually supported a viable claim under the Premises Liability Act. See § 13-21-115, C.R.S. 2025. Therefore, we do not need to address Bruschi’s nondisclosure contentions, and we instead focus on the waiver issue.
4 ¶6 In her original complaint, Bruschi alleged separate claims for
common law negligence and violation of the Premises Liability Act
(PLA). 24 Hour moved to dismiss, arguing that the negligence claim
was superseded by the PLA and that the PLA claim was barred by
the waiver, which 24 Hour attached to its motion. Bruschi moved
to amend her complaint to dismiss the negligence claim and to
submit additional exhibits. The court granted that request and
subsequently converted 24 Hour’s motion to dismiss into a motion
for summary judgment. After the completion of briefing, the district
court entered summary judgment in favor of 24 Hour, concluding
that the waiver was enforceable and extended to Bruschi’s claims.
¶7 Bruschi appeals the district court’s final judgment.
II. Enforceability of the Waiver
¶8 We begin our analysis by setting forth the applicable standard
of review and controlling law. We then turn to the parties’ specific
arguments raised on appeal.
A. Applicable Law
1. Standard of Review
¶9 We review a district court’s interpretation of a written contract
de novo. Shive v. 24 Hour Fitness USA, LLC, 2025 COA 87, ¶ 13.
5 Likewise, we review a district court’s grant of summary judgment de
novo. Bryant v. Cmty. Choice Credit Union, 160 P.3d 266, 276 (Colo.
App. 2007).
¶ 10 Summary judgment is only appropriate when there are “no
disputed issue[s] of material fact and the moving party is entitled to
judgment as a matter of law.” Chase v. Farmers Ins. Exch., 129
P.3d 1011, 1014 (Colo. App. 2004). “The moving party has the
initial burden to show that there is no genuine issue as to material
fact, but once that initial burden is met, the burden shifts to the
nonmoving party to show that there is a triable issue of fact.”
Bryant, 160 P.3d at 276 (citing McCormick v. Union Pac. Res. Co., 14
P.3d 346 (Colo. 2000)). “In determining whether summary
judgment is proper, we grant the nonmoving party any favorable
inferences reasonably drawn from the evidence, and we resolve all
doubts in favor of the nonmoving party.” Sanderson v. Am. Fam.
Mut. Ins. Co., 251 P.3d 1213, 1216 (Colo. App. 2010).
2. Pro Se Pleadings
¶ 11 “Pleadings by pro se litigants must be broadly construed to
ensure that they are not denied review of important issues because
of their inability to articulate their argument like a lawyer.” Jones
6 v. Williams, 2019 CO 61, ¶ 5. While doing so, however, we may not
rewrite a pro se litigant’s arguments, advocate for them, or invent
arguments not made. See People v. Cali, 2020 CO 20, ¶ 34.
Moreover, pro se litigants must comply with the same procedural
rules as licensed attorneys. See Adams v. Sagee, 2017 COA 133,
¶ 10.
3. Exculpatory Agreements
¶ 12 Exculpatory agreements “have long been disfavored.” Stone v.
Life Time Fitness, Inc., 2016 COA 189M, ¶ 14 (quoting B & B Livery,
Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)). The enforceability of
an exculpatory agreement presents a question of law that we review
de novo. Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 948
(Colo. App. 2011). “[I]n no event will such an agreement provide a
shield against a claim for willful and wanton negligence.” Jones v.
Dressel, 623 P.2d 370, 376 (Colo. 1981). An agreement designed to
shield a party from liability “for his own simple negligence is also
disfavored, [but] it is not necessarily void” provided that “one party
is not ‘at such obvious disadvantage in bargaining power that the
effect of the contract is to put him at the mercy of the other’s
negligence.’” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465,
7 467 (Colo. 2004) (quoting Heil Valley Ranch, Inc. v. Simkin, 784 P.2d
781, 784 (Colo. 1989)).
¶ 13 Because of their disfavor, exculpatory agreements require
“additional consideration” and “must be strictly construed against
the party seeking to limit its liability.” McShane v. Stirling Ranch
Prop. Owners Ass’n, 2017 CO 38, ¶ 18. Our close scrutiny is
designed “to ensure that the intent of the parties is expressed in
clear and unambiguous language and that the circumstances and
the nature of the service involved indicate that the contract was
fairly entered into.” Chadwick, 100 P.3d at 467.
¶ 14 The supreme court has established a four-factor test to
determine whether a contractual exculpatory clause is enforceable:
“(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.” Jones, 623 P.2d at 376.
¶ 15 A division of the court of appeals addressed the enforceability
of an exculpatory clause in the context of an injury suffered at a
fitness center in Stone. In that case, one of the fitness center’s
members, after washing her hands in the bathroom, tripped on a
8 hairdryer cord and sustained injuries to her ankle. Stone, ¶¶ 3-4.
The member alleged that the exculpatory clause she had signed did
not extend to negligently maintained restrooms in the fitness club,
and that the exculpatory clause’s application to such circumstances
was unclear. Id. at ¶¶ 4-7. The division concluded that the
exculpatory clause was not clear and did not “unequivocally bar
Stone’s PLA claim based on the injuries she allege[d] she
sustained.” Id. at ¶ 35. Accordingly, it reversed the district court’s
summary judgment. Id.
¶ 16 The division in Stone briefly analyzed the first three Jones
factors and ultimately concluded that “no public duty is implicated
if a business provides recreational services.” Id. at ¶ 16. In
reaching this conclusion, the division cited supreme court cases
holding that guided hunting trip services and skydiving do not
implicate a public duty. See Chadwick, 100 P.3d at 467; Jones,
623 P.2d at 376-78. Citing similar authority, the division
concluded that “recreational services [are] neither essential nor a
matter of practical necessity.” Stone, ¶ 17. As to the third factor,
the division concluded that the provision of recreational services
9 does not present an unfair disparity in bargaining power between
the parties. Id. at ¶ 18.
¶ 17 Nonetheless, the division in Stone found the exculpatory
clause unenforceable based on the fourth Jones factor. Specifically,
the division concluded that the exculpatory clause at issue in that
case focused on “injury related to fitness activities, as opposed to
washing one’s hands.” Id. at ¶ 30. Thus, the court found it
inapplicable to the injuries Stone suffered while washing her hands
in the bathroom. Id. at ¶ 35.
¶ 18 In Shive, a division of this court again addressed the
enforceability of an exculpatory clause in the context of a fitness
center. At issue in Shive was the identical waiver at issue in this
case. There, a 24 Hour member fell on the icy sidewalk just outside
24 Hour’s exit door as he proceeded to his car. Shive, ¶ 6. The
division concluded that the identical waiver did “not express an
intention of Shive and 24 Hour to waive 24 Hour’s liability for risks
outside the club building ‘in clear and unambiguous language.’” Id.
at ¶ 45 (quoting Jones, 623 P.2d at 376). Thus, the division
reversed the district court’s decision that the identical waiver barred
Shive’s PLA claim. Id. at ¶¶ 46-48.
10 ¶ 19 In reaching this conclusion, the division focused on the fourth
Jones factor, stating:
We agree with 24 Hour that the exculpatory clause waives liability for claims arising from a slip and fall that occurred within its “facilities” — the recreational spaces located inside its building, such as a gym floor, a basketball court, a pool deck, or a wet locker room floor. But the mere reference to “premises liability” in the exculpatory clause does not overcome the clause’s clear limiting language or expand its scope to cover claims arising from injuries sustained outside the club building.
Id. at ¶ 43. Because it rejected 24 Hour’s argument based on the
fourth Jones factor, the division did not address whether the
identical waiver was “invalid as matter of public policy.” Id. at ¶ 47.
¶ 20 In another recent case, the supreme court considered whether
a father’s execution of an exculpatory clause on behalf of his minor
child barred her claims against a ski resort under both negligence
per se and common law negligence theories. Miller v. Crested Butte,
LLC, 2024 CO 30, ¶¶ 1-3. Miller involved a minor child who was
unable to get properly seated on an automatic ski lift. Id. at ¶ 9.
As a result, she was dangling from the chair as the lift ascended the
mountain, and there was no lift attendant or operator present to
slow or stop the lift. Id. The child eventually fell thirty feet and
11 sustained serious injuries. Id. at ¶¶ 9-10. The father brought a
suit against the ski resort on his daughter’s behalf alleging, among
other claims, a negligence per se claim. Id. at ¶ 11.
¶ 21 The supreme court determined that the ski resort was bound
by state regulations regarding the use of ski lifts, which required lift
attendants to monitor and assist passengers, including slowing or
stopping the lift if necessary. Id. at ¶ 30. Because of these specific
regulations, which the resort was obligated by statute to abide, the
supreme court concluded that the exculpatory clause did not bar
the claims. Id. at ¶ 43. In reaching this conclusion, the court
reasoned as follows:
First, settled precedent from this court has established that a party cannot discharge its obligation to perform a statutory duty by way of an exculpatory agreement. See, e.g., Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998) (“Parties may not privately contract to abrogate statutory requirements or contravene the public policy of this state.”); Gonzales v. Indus. Comm’n, 740 P.2d 999, 1002 (Colo. 1987) (“Private parties may not by agreement or rule render ineffectual the rules and standards provided by statute.”).
Id. at ¶ 36.
12 ¶ 22 Bruschi also cites Walters v. YMCA, a case from the Appellate
Division of the Superior Court of New Jersey. 96 A.3d 323 (N.J.
Super. Ct. App. Div. 2014). Although case law from other
jurisdictions is not binding on us, we may consider it for its
persuasive value. See People v. Weiss, 133 P.3d 1180, 1187 (Colo.
2006) (“Although not binding as precedent, we may look to
decisions of other jurisdictions for persuasive guidance on matters
that are of first impression to us.”). In Walters, the plaintiff suffered
an injury from a negligently maintained stair tread that led to an
indoor swimming pool. 96 A.3d at 324. The New Jersey appellate
court determined that the exculpatory agreement Walters had
signed did not apply to the injury he sustained after slipping on the
staircase because the injury had not occurred while using exercise
equipment in the building or while exercising. Id. at 328-29. In
reaching this conclusion, the court reasoned as follows: “Any
ambiguities in language about the scope of an exculpatory
agreement’s coverage, or doubts about its enforceability, should be
resolved in favor of holding a tortfeasor accountable. ‘The law does
not favor exculpatory agreements because they encourage a lack of
care.’” Id. at 328 (citations omitted).
13 ¶ 23 It should be noted that the Appellate Division of the Superior
Court of New Jersey was applying New Jersey common law
concerning negligence claims. In Colorado, however, common law
negligence claims have been usurped by the PLA. See Vigil v.
Franklin, 103 P.3d 322, 329-30 (Colo. 2004) (concluding that the
PLA abrogated common law negligence duties applicable to
landowners and common law defenses to the existence of such
duties).
4 PLA Duty to Invitees
¶ 24 Under the PLA, a landowner owes defined duties to a person
on their premises, depending on the purpose for which the person
is present. No one disputes that Bruschi was 24 Hour’s invitee at
the time she was injured, which is the most protected status under
the PLA. See § 13-21-115(7)(a), C.R.S. 2025 (“‘Invitee’ means a
person who enters or remains on the land of another to transact
business in which the parties are mutually interested . . . .”). Thus,
Bruschi could recover against 24 Hour “for damages caused by [24
Hour’s] unreasonable failure to exercise reasonable care to protect
against dangers [that 24 Hour] actually knew about or should have
known about.” § 13-21-115(4)(c)(I).
14 ¶ 25 With these authorities in mind, we return to Bruschi’s
particular arguments.
B. Analysis
¶ 26 Bruschi contends that the waiver was not enforceable because
(1) it violated public policy as interpreted by Colorado’s appellate
courts; (2) its language did not extend to her use of 24 Hour’s
bathroom facilities or to the care 24 Hour provided immediately
following her fall; and (3) if interpreted as 24 Hour urges, the waiver
would effectively obviate the duties landowners owe to invitees
under the PLA. § 13-21-115.
1. Public Policy Argument
¶ 27 Bruschi argues that the waiver is inconsistent with the Jones
public policy factor and is therefore unenforceable. She states that
“a commercial gym serving seniors through health-care programs
may not contract away its duty to maintain safe walkways.” But
aside from loose references to “senior-based Medicare fitness
programs,” she does not provide us with the details of how the
program works and why it renders the waiver contrary to public
policy. Moreover, Bruschi does not point us to any contractual,
statutory, or regulatory provision that would prevent a fitness
15 center that provides services to senior citizens from requiring its
members to waive any liability claims brought under the PLA.
¶ 28 The absence of any citation to specific regulatory or statutory
requirements distinguishes this case from Miller. Recall that in
Miller, the plaintiffs grounded their negligence per se argument on
specific state statutes and rules that were promulgated thereunder.
See Miller, ¶¶ 27-32. But Bruschi points to no statute or
regulations concerning the provision of services to senior citizens or
the maintenance of public entryways that 24 Hour violated.
Moreover, the claims at issue in Miller were based on negligence
theories, not PLA claims.
¶ 29 And Bruschi fails to distinguish the many Colorado cases that
have applied the supreme court’s holding that waivers in the
recreational services context do not violate public policy. True, a
number of these cases — including Chadwick, Miller, and Jones —
did not involve premises liability claims. Moreover, Stone and
Shive, which did involve PLA claims, found the exculpatory clauses
did not extend to the particular activities at issue in those cases.
Thus, neither Stone nor Shive was required to reach the public
policy question, as Shive expressly says. Shive, ¶ 47.
16 ¶ 30 As 24 Hour notes, Shive does state that the division agreed
“that the exculpatory clause waives liability for claims arising from
a slip and fall that occurred within its ‘facilities’ — the recreational
spaces located inside its building, such as a gym floor, a basketball
court, a pool deck, or a wet locker room floor.” Id. at ¶ 43. 24 Hour
seizes on this language to suggest that the waiver is not contrary to
public policy and encompasses any use of its interior facilities. By
contrast, Bruschi seems to rely on Shive’s statement that “the mere
reference to ‘premises liability’ in the exculpatory clause does not
overcome the clause’s clear limiting language or expand its scope to
cover claims arising from injuries sustained outside the club
building.” Id. Bruschi suggests that her injury — suffered while
proceeding through the lobby to the exit — was more akin to Shive’s
injury.
¶ 31 But recall that the division in Shive ultimately concluded that
the waiver language did not unambiguously extend to injuries
suffered outside its building. Thus, the quoted language from
Shive, including any suggestion that it was consistent with public
policy, was arguably dicta. And, most critically, the division in
Shive expressly declined to reach the question of whether the waiver
17 was contrary to public policy. Id. at ¶ 47. For these reasons, we
conclude that Shive is not instructive on whether the waiver violates
public policy.
¶ 32 Finally, Bruschi does not develop an argument that the
reasoning of Miller, Chadwick, and Jones — permitting the use of
exculpatory clauses in connection with recreational services — does
not apply to PLA claims. See Stone, ¶ 17 (“[C]ourts have
consistently deemed recreational services to be neither essential nor
a matter of practical necessity.”). And we cannot make such an
argument for her. See Cali, ¶ 34; see also Dep’t of Nat. Res. v. 5
Star Feedlot, Inc., 2021 CO 27, ¶ 39 n.15 (“[The] adversarial system
of justice . . . puts the onus on the parties to frame the issues to be
decided while assigning to courts the role of neutral arbiters of the
matters raised by the parties.”). Therefore, Bruschi has not
presented — and we may not create — a developed argument for
declining to apply the Jones factors to enforce an exculpatory
clause that waives premises liability claims.
2. The Release Covers Bruschi’s Fall and Treatment
¶ 33 Next, Bruschi appears to argue that the release should not be
extended to her use of 24 Hour’s bathroom after completing her
18 treatment at iCryo. True, as Bruschi notes, the undisputed facts
seem to support the conclusion that she had completed her
workout at 24 Hour. Recall that Bruschi then walked into the 24
Hour entryway and over to iCryo. She completed her iCryo
appointment and then returned to 24 Hour to use the bathroom.
Her injury occurred after she exited the bathroom and walked
toward 24 Hour’s exit. Thus, we agree with her that her injury was
not suffered during, or incident to, her workout program.
¶ 34 But, unlike the exculpatory clause at issue in Stone, the
waiver at issue in this case stated that Bruschi released all her PLA
claims for injuries resulting from her “use of 24 Hour’s facilities”
whether “related to exercise or not, and whether using 24 Hour’s
services on its premises or not.” So even though Bruschi was not
using 24 Hour’s workout facilities when she was injured, her
injuries still arose from her “use of 24 Hour’s facilities” and are
therefore covered by the release. And unlike the plaintiff in Shive,
Bruschi’s injury occurred within 24 Hour’s facilities rather than on
the exterior sidewalk.
¶ 35 For similar reasons, we reject Bruschi’s contention that the
waiver did not cover whatever negligence or “unreasonable failure to
19 exercise reasonable care to protect against dangers [24 Hour]
actually knew about or should have known about,” § 13-21-
115(4)(c)(I), that may have existed with respect to the treatment that
24 Hour employees provided or failed to provide after she fell. The
waiver expressly extended to any “actions or inactions . . . of 24
Hour or anyone on 24 Hour’s behalf.” This language encompasses
damages or complications Bruschi suffered because of the
treatment or lack of treatment provided to her at 24 Hour.
¶ 36 We conclude that the waiver encompassed the activities
Bruschi was engaged in when she suffered her injuries, and the
care provided to her by 24 Hour staff after her fall.
3. Obviating the PLA
¶ 37 Finally, Bruschi argues that enforcing the waiver to bar her
claim would render meaningless and unenforceable the specific
duty that the General Assembly has imposed on a landowner such
as 24 Hour who receive a financial gain from inviting members of
the public to use their facilities and services. Recall that the PLA
imposes liability on a landowner for damages caused to an invitee
“by the landowner’s unreasonable failure to exercise reasonable
care to protect against dangers the landowner actually knew about
20 or should have known about.” § 13-21-115(4)(c)(I). Clearly,
Bruschi has alleged sufficient facts that, if proved, may support a
conclusion that her injuries resulted from 24 Hour’s unreasonable
failure to use reasonable care to protect against a risk about which
it knew or should have known. See id. Absent the waiver, she has
asserted facts that would allow her to proceed with a PLA claim.
This reality underlies her argument that the waiver effectively
obviates the PLA duty owed to her as an invitee.
¶ 38 Bruschi’s argument makes an important point. And her
citation to Walters brings that point home. Walters recognized that
the “expansive scope of the exculpatory clause” at issue there, if
applied literally, “would eviscerate the common law duty of care
owed by defendant to its invitees, regardless of the nature of the
business activity involved.” 96 A.3d at 328. As the New Jersey
Appellate Division noted, such a result is, at least arguably,
“inimical to the public interest because it would transfer the redress
of civil wrongs from the responsible tortfeasor to either the innocent
injured party or to society at large, in the form of taxpayer-
supported institutions.” Id.
21 ¶ 39 But the Walters opinion makes these observations and
declines to enforce the exculpatory clause while interpreting a
common law negligence claim and defenses thereto. But the
Colorado General Assembly has, as previously noted, chosen to
abrogate common law negligence claims against landowners.
¶ 40 When interpreting the breadth of common law negligence
claims, courts have broad discretion and authority to consider
public policy arguments. See Jefferson Cnty. Sch. Dist. R-1 v.
Justus, 725 P.2d 767, 769 (Colo. 1986) (“The determination of
whether a duty of care exists in a particular situation involves
weighty policy questions whose resolution requires consideration of
a number of different factors.”). But, as noted, the General
Assembly chose to usurp landowners’ common law duties and
replace them with the PLA. Vigil, 103 P.3d at 330. So we are not
interpreting a common law duty, but rather a statutory duty
imposed by the General Assembly through its adoption of the PLA.
In these circumstances, the breadth of our ability to consider policy
arguments is more circumspect.
¶ 41 As Bruschi notes, strong public policy arguments exists that
suggest it may indeed be inimical to the public interest to permit
22 the use of an exculpatory clause to effectively abrogate the general
duty that the General Assembly has imposed on landowners who
invite people onto their property for commercial gain. And there
may well be countervailing public policy arguments to support such
broad exculpatory clauses in the context of invitees. But given its
adoption of the PLA, the General Assembly is the proper body to
consider these broad policy arguments.
¶ 42 Finally, we note that the General Assembly is presumably
aware of the decisions of Colorado’s appellate courts. See LaFond v.
Sweeney, 2015 CO 3, ¶ 12 (“Courts presume the legislature is
aware of its own enactments and existing case law precedent.”).
This includes the long line of cases holding that the use of
exculpatory clauses in the context of recreational services does not
violate public policy. And the General Assembly has demonstrated
its capacity to address what type of liability releases are permissible
or not permissible in other contexts. See, e.g., § 13-22-107(3)-(4),
C.R.S. 2025 (A parent may release a child’s prospective claim for
negligence but not claims based on a “willful and wanton act or
omission, a reckless act or omission, or a grossly negligent act or
omission.”).
23 ¶ 43 To date, the General Assembly has not chosen to limit the use
of exculpatory clauses in the context of commercial recreational
facilities, whether those facilities are used by senior citizens or
anyone else. In this context, we conclude that the public policy
concerns surrounding whether an exculpatory clause should be
permitted to effectively obviate a landowner’s duty to an invitee is
entrusted to the General Assembly rather than the courts.
III. Disposition
¶ 44 We affirm the district court’s judgment.
JUDGE FREYRE and JUDGE BROWN concur.