API Summer 2021

How does all this play out in the real world? A recent Colorado case involving a zip line collision illustrates well the intricacies of events such as we have described. The Cowles Case Lisa Cowles v. Bonsai Design LLC, et al, was filed on July 5, 2019, in the U.S. Dis- trict Court of Colorado. The facts below are as recited in the court’s published Order On Pending Motions, dated June 5, 2020. They are largely drawn from Plaintiff’s Second Amended Complaint. We focus on those assertions, knowing that some were disputed by the defen- dants, as they can help us understand, and meet, our duties to our zippers. The background. One of the defendants, Bonsai, designed and built a canopy tour for The Vail Corporation. The proj- ect included a number of zip lines and a custom braking system with primary and secondary (emergency) braking components. There were no compo- nents which allowed zippers to control

their speed or to stop.

According to the plaintiff, after com- pletion of construction and licensing in the fall of 2015, Bosai continued to provide maintenance and inspection services related to the braking system. In addition, Bonsai developed training protocols for the use of the lines, includ- ing 1) for retrieving and redeploying the braking system to its “proper settings”; 2) requiring staff to radio each other to advise when it was safe to send the next zipper; and 3) requiring the staff to instruct riders to look for colored flags at the receiving platform indicating the readiness and appropriate resetting of the braking system (to avoid the incom- ing rider’s crashing into the equipment). Bonsai performed an annual inspec- tion of the course on or about June 5, 2017, and certified that the course and components and equipment were in an “operable state.” In the following several weeks, however, two riders were injured on the course, including as a result of a braking system failure.

The incident that led to Cowles’ suit occurred on July 7, 2017. Plaintiff Lisa Cowles and her husband were part of a group of “six to eight” participants. Plaintiff, and presumably other mem- bers of the group, signed an agreement which purported to be a waiver of claims against the “Activity Operator.... (and) equipment manufacturer.” (The existence of the release was not men- tioned by plaintiff in her complaint, but was considered by the court—over the objections of plaintiff’s counsel.) The group then received “a short instruc- tion” by staff and assurances about the

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