How Colorado encourages outdoor access while protecting landowners from personal injury lawsuits

Coloradans know that one of our favorite things about living in Colorado is the amazing breadth of outdoor activities. And it’s not just skiing! After all, with about 300 days of sunshine each year, we were born to love the outdoors. 

Some of the most popular outdoor activities in Colorado include hiking and backpacking, skiing and snowboarding, mountain biking and road cycling, whitewater rafting and kayaking, rock climbing and bouldering, camping, horseback riding, hunting and fishing, paragliding and other adventure sports, and wildlife viewing. 

Most people will engage in these outdoor activities and walk away with great stories, better memories, and a sense of accomplishment and adventure. But occasionally, outdoor activities—like anything—can lead to injury. 

The question then becomes, if you’re injured while engaging in an outdoor activity like hiking, who’s liable for your losses? And, if you’re the owner of property where people like to go for these types of activities, are you legally responsible? 

Let’s take a look at these questions, and others, related to hiking accidents and liability.

Colorado Recreational Use Statute (CRUS)

The Colorado Recreational Use Statute (CRUS) protects landowners from liability for injuries to hikers on their property. The intent is to encourage landowners to open the property for public recreation because there are limits on legal responsibility. (Colorado Revised Statutes Title 33, Article 41, §§ 33-41-101—33-41-106)

However, there are exceptions and the protection isn’t absolute. A property owner could be liable for an injury resulting from a willful or malicious failure to guard or warn against a known dangerous condition that’s likely to cause harm. 

A hiker should be aware of the inherent risks of outdoor recreation, and should comply if requested to sign a liability waiver. 

There are a couple of considerations relevant to this law:

• Willful or malicious failure. As mentioned, if the property owner fails to guard or warn of a dangerous condition, they could be held liable. This typically refers to a deliberate act or failure to act despite knowing about a significant danger. For example, if the property owner knows about an area that could develop into a potential landslide, or they’re aware of falling tree branches, or some other issue, they’re responsible for alerting hikers to avoid those areas.
• Warning signs or signals. The landowner is responsible for posting clear warning signs at access points for clear dangers. The landowner could be protected against liability if there is a sign that specifically warns of a danger and an injury happens that’s specifically related to the danger.
• Designated trails. Hikers should stay on designated trails. They could be considered trespassers if they leave designated hiking areas, in which case the amount of liability on the property owner would be diminished.
• Government immunity. The Colorado Governmental Immunity Act (CGIA) protects government entities and their employees from liability, although there are exceptions. For example, if it’s a known dangerous condition or negligent maintenance, the agency could still be held liable.
• Liability waivers. A landlowner is permitted to require a hiker to sign a liability waiver, and this can further protect the owner from being named in a lawsuit for injuries. The Colorado courts typically uphold these waivers for recreational activites.

Colorado assumption of risk doctrine

The Colorado assumption of risk doctrine is a legal defense in some personal injury cases. It could limit the plaintiff’s ability to recover damages if they voluntarily engaged in an activity they knew was dangerous. 

Assumption of risk means the injured person:

1. Was aware of the specific risk involved in the activity; and 
2. Chose to participate in the activity anyway.

This defense is used frequently for claims related to injuries suffered during high-risk activities like skiing, rock climbing, whitewater rafting, and could be applied to hiking under certain conditions. 

Are there exceptions to the assumption of risk defense? 

Yes, the court could find the defendant liable, even if the plaintiff engaged in a high-risk activity, if the injury was not reasonably foreseeable, the defendant’s actions were grossly negligent or with reckless disregard, or a signed waiver was ambiguous or unconscionable. 

Assumption of risk in Colorado falls into two categories:

• Express assumption of the risk
  • The injured person (plaintiff) signed a waiver or agreement acknowledging the risk.
  • The courts usually enforce these if the waiver is clear and not against public policy.
• Implied assumption of the risk
  • The injured plaintiff voluntarily participated in an activity they knew was risky (like climbing a clearly marked dangerous trail). 
  • This can be used as a defense in recreational or sports injury lawsuits.

Colorado modified comparative fault rule

Colorado follows a modified comparative fault rule, C.R.S. § 13-21-111.

If the plaintiff bears some liability for their own injury, their damages are reduced according to their percentage of fault. They can recover damages only if they are less than 50% at fault—if the plaintiff is more than 50% at fault, they cannot recover any damages. 

Colorado merged assumption of risk into comparative negligence in 1989 for most cases, but express assumption of risk remains a valid defense.

When does the Colorado Recreational Use Statute apply?

The statute applies only if:

• The landowner allows public use of the land for outdoor recreational purposes, and
• No fee is charged for entry or use (with some exceptions), and
• The injury occurs on land that’s undeveloped or minimally developed.

The statute covers activities besides hiking. Activities could include camping, fishing, biking, hunting, wildlife viewing, horseback riding, cross-country skiing, snowshoeing, swimming, and similar.

Basic negligence is typically not enough to hold a property owner liable under this law. They must have been grossly negligent or reckless.

What’s not covered by the CRUS?

The Recreational Use Statute does not protect a property owner if:

• They are running a commercial operation (like a ski resort or guided rafting company), or 
• The land has been intensively developed or maintained, or 
• The owner charges users for access. There are some exceptions for parking or permits, however.

Colorado’s Recreational Use Statute strikes a careful balance between encouraging outdoor recreation and protecting private landowners from unnecessary legal risk. By limiting liability for those who open their land to the public for free, the law helps keep Colorado’s trails, forests, and open spaces accessible to everyone. However, not all land or situations qualify for this protection, and landowners must still act responsibly to avoid willful or reckless harm. For injured individuals, understanding whether the statute applies is key to determining if a Colorado personal injury lawsuit is possible. As always, both landowners and recreationists should be aware of their rights and responsibilities before heading outdoors.

If you’ve been injured while participating in this type of activity, you can contact the team at Babcock Tucker for more information and assistance in pursuing your legal claim.