In the February hearing of HB3140 before the House Economic, Small Business and Trade Committee, a personal injury attorney testified that the Colorado Supreme Court found releases of ordinary negligence unconscionable. That attorney made a similar statement again today on OPB’s Think Out Loud program. Her statements are demonstrably false. We feel obligated to point out the facts to anyone who may be ill informed or naïve in this matter.
On Think Out Loud, the attorney said, “Colorado has the exact same law”, but then also back-peddled, saying, “I only practice in Oregon, so I have not done a survey of all the western states or the states all over the country”.
We have done a survey of all the western states, and the country. Here are the receipts.
In fact, the Colorado Supreme Court did not rule that releases are invalid or unconscionable in Colorado—indeed, it ruled the exact opposite.
In May 2024, in a lawsuit involving a fall from a chairlift, the Colorado Supreme Court actually enforced the releases in Miller vs. Crested Butte for the plaintiff’s claim of negligence. The Court ruled: “[W]e conclude that the district court did not err in applying [the release caselaw] in this case and that therefore the releases at issue were enforceable and barred Miller’s cause of action for negligence.” (pg. 23-24 of opinion). However, the Court declined to enforce the releases for a separate claim alleging a violation of a statutory duty (a Colorado-specific statute about chairlift operations).
The plaintiff in that case had asked the Colorado Supreme Court to overturn the use of all releases—in any context—and, contrary to the attorney’s statements, the Court unanimously rejected the plaintiff’s request in a 7-0 vote, upholding long-standing law in Colorado that such releases are enforceable.
Notably, this is an important reminder that even in states like Colorado, that enforce releases, plaintiffs still have numerous opportunities to challenge a release of liability for a variety of reasons, including alleged violations of state statutes—plaintiffs still have multiple opportunities for their day in court in states that enforce releases.
You can read the case here at Justia Law.
If HB 3140 passes, Oregon courts would still weigh any release against all existing statutory duties—just as they did in Colorado. We are not asking for statutory duties to be waived, and we are not asking for blanket immunity. We are simply asking for commonsense legislation to align Oregon’s liability laws with all other Western states, including Colorado, and federal law.
