Jerry Kopel

Be careful when you enter agricultural land on or after July 1. It will be turned into a "twilight zone" where innocent consumers can be negligently harmed with impunity arising from immunity.

Let's assume your teenage child has entered a contest with his or her own horse jumping barriers, a sort of modified steeple chase. The child has practiced jumping over these barriers set up at the facility on agricultural land, knows how to do the jumps, but does not possess the skill of an experienced adult.

The barriers are all the same height and directly horizontal to the oncoming horse. The barriers are supposed to be checked before each contest. But in this jump, one barrier was not checked by the persons in charge. It is nine inches off center on the right side. For a skilled horseman, jumping the slightly-off barrier would not cause an accident.

Your child is first up in the contest. Your child's horse catches the barrier with a hind leg. The child is tossed and the horse falls on top, severely crippling your child. Can you sue the facility for negligence? Not after July 1, if Gov. Owens lets HB 1003 become law.

The bill, sponsored by Rep. Greg Brophy and Sen. Jack Taylor, sets out its purpose in the opening section. In summary there is an inherent risk in some agricultural recreational activities and a participant may be injured. On the other hand, there are economic benefits to be gained by these activities. The legislative intent is "to encourage these activities by limiting the civil liability of certain persons involved in providing the opportunity to participate in these activities."

"Certain persons" immune include businesses as well as human beings, their employees and volunteers. "Recreational activities" includes but is not limited to hunting, shooting, swimming, diving, tubing, riding or operating a motorized recreational vehicle, planting, cultivation, irrigation, harvesting of crops, rodeo and livestock activities. "Agriculture" means a place where plants and animals useful to man are produced.

When you take your child to the event, you will likely not even know about this change in the law. The original bill required clearly readable signs to be posted stating: "Under Colorado law, activity instructors or equipment providers and facility persons are not liable for the injury or death of a participant resulting from the inherent risks of agricultural recreational activities (as set out in the statute)."

That language was stricken. It might have caused you to think twice about letting your child in the contest. Instead the facility operator "shall give warning of any dangers that are ordinarily present on the property." The law doesn't say "how" or "when". There is an "inherent risk" in jumping barriers, but it should not be made more risky by negligence.

If the court decides the reason for the injury was "gross" negligence or willful disregard for safety. you could sue. Or if a bystander negligently caused the horse to bolt, you could sue the bystander.

HB 1003 was controversial. Its final passage in the House and Senate was strictly partisan, 38 to 27 in the House, with 36 Republicans and 2 Democrats voting "yes". The Senate vote was 21 to 12, with 4 Democrats joining 17 Republicans to vote "yes". One Republican was not present.

This bill was not unusual. There has been a consistent eroding of consumer rights to sue for actual damages for negligence over which the injured person had no control. The question is why have we so prioritized economic gain over protection of the innocent?

(Jerry Kopel served 22 years in the Colorado House.)



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