Bruschi v. 24 Hour Fitness USA LLC - Judgment Affirmed

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April 9, 2026 Get Citation Alerts Download PDF Add Note

Bruschi v. 24 Hour Fitness

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA1097

• Precedential Status: Non-Precedential

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (37.1K)

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Combined Opinion

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).

1. 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.

1. 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.

1. 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.

1. 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.

24