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Colorado Court of Appeals Opinions
October 10, 2013

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2013 COA 138. No. 12CA1013. Berenson v. USA Hockey, Inc.
Summary Judgment—Best Evidence Rule—Exculpatory Agreement in Online Registration Process.

Annette Berenson appealed the summary judgment in favor of USA Hockey, Inc. and the Colorado Ice Hockey Referees Association (collectively, USA Hockey). The judgment was affirmed.

Berenson played in an amateur hockey league that required participants to register annually through the USA Hockey website. Players were required to signify agreement to the league’s terms by inserting their initials on a Web page with a liability waiver and release. Berenson was injured during a game and sued, seeking to hold USA Hockey liable for her injuries.

USA Hockey filed a motion for summary judgment based on the liability waiver and release Berenson had executed. Berenson testified that she could not remember whether she had agreed to the terms. USA Hockey submitted an affidavit from an employee stating that the online registration process could not be completed without executing the page with the waiver and release and confirming that Berenson had registered the year she was injured. The district court granted USA Hockey’s motion for summary judgment.

On appeal, Berenson argued that the facts stated in the employee’s affidavit were inadmissible as a matter of law and should not have been considered by the court. She contended that under the best evidence rule (codified in CRE 1002), the only admissible evidence showing she had executed the waiver and release would have been a printout of it, which was never produced. The Court of Appeals disagreed.

The Court noted that the primary purpose of the rule is “to prevent error and to guard against fraud in the ascertainment of content.” [See 5 Mueller and Kirkpatrick, Federal Evidence § 10:17 (3d ed., 2007).] Based on the employee’s affidavit as to how the online registration process worked, there could be no issue of material fact as to whether Berenson had executed an exculpatory agreement with USA Hockey; she had to execute the liability waiver and release to complete the registration process and play in the league.

Colorado Court of Appeals Opinions