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Whitewater river rafting can be dangerous -- that's part of the allure for most rafters and a risk that most guides will repeat early and often to their guests. In addition, many, if not all rafting companies will have rafters sign liability waivers, acknowledging these dangers and agreeing to indemnify the companies in the case of injury or death.
One waiver in particular may stand in the way of a Colorado widow's negligence lawsuit after her husband was ejected from a raft in Hell's Half Mile rapids on the Green River, and died of accidental drowning and asphyxia.
According to the Aspen Daily News, the waiver attorney Paul Sizemore signed with Blazing Adventures rafting company acknowledges that "[r]afts/kayaks could turn over or I could be 'washed' overboard ... Exposure to the natural elements can be uncomfortable and/or harmful ... Prolonged exposure to cold water can result in hypothermia and in extreme cases death and accidental drowning are also possibilities." A person signing the waiver agrees to "accept and assume all of the risks existing in the activity," and "release, indemnify and discharge Blazing ... to the fullest extent permitted by law, on behalf of myself, my children, my heirs, assigns, personal representatives and estate."
The extent permitted by Colorado law may be tested after Sizemore's widow, Jennifer Lenze, who is also an attorney, sued the company for negligence. While some states, like Oregon, are more hostile to blanket liability waivers, Colorado generally enforces unambiguous waivers that are entered into fairly and involve non-essential services. While waivers will generally protect a company and its employees from lawsuits based on negligence, they don't cover willful or wanton conduct.
After Sizemore was washed overboard, he "was unable to reach for or grab the T-grip of a paddle extended to him, nor a throw bag tossed to him," according to Blazing's attorney. The Aspen Daily News reported on the efforts of Dallas Blaney, the trip's safety kayaker, to save Sizemore:
Blaney reached him twice, but the victim was unable to hold onto the kayak initially. Blaney was able to bring him to Lewis' raft, where he was lifted in by others on the boat. Sizemore said he could not breathe and became unresponsive. CPR and other life-saving measures were employed, but he was pronounced dead at the scene.
A subsequent Colorado Parks and Wildlife investigation concluded Blazing conducted the trip and responded to the tragedy within industry standards, and a coroner's report ruled that Sizemore's death may have been related to coronary artery disease. Lenze is accusing Blazing of negligence in Sizemore's death, and Blazing has filed a motion to dismiss the suit. A judge will now decide if the case will move forward.
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