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Update On Recreational Accident CasesTorts & Damages UpdateCLE In Colorado, Inc. Colorado Bar Association CLE
PrefaceTourism is the largest component of Colorado's economy. The "timorous" no longer stay at home. If they did, our economy would suffer a grievous blow. Recreational and tourist activities are so pervasive throughout Colorado that each Colorado tort lawyer inevitably will have a case involving a recreational accident. Colorado attracts the full compass of participant involvement in recreation. The participants (and thus, the tort plaintiffs) have a wide range of ability, conditioning, and risk expectations: from beginner to expert. Participants include children, adults, senior citizens. Our tourists and recreational participants include persons of all abilities and disabilities, from the extremely well conditioned, professional athlete, to the "weekend warrior" and the "flat lander," just visiting from a major urban center. People from all walks of life have found themselves, suddenly, as plaintiffs in recreational accident cases. Businesses, individuals, and governmental entities provide a wide variety of access to recreational activities, such as skiing, cycling, golfing, climbing, hunting, rafting, boating, hiking, etc. Within each activity, one can find an extremely wide range of training, certification, permitting, licensing, interest, and athletic conditioning of the recreation service provider. Recreational accident cases invoke fundamental questions of tort law. Does a duty exist? Is the duty founded on a statute which creates per se duty? Or, is the duty founded upon the traditional common law notions of foreseeability of unnecessary risk to participants? Given the pervasive use of waivers, will such a document be enforced to relieve a provider of a duty, even in the face of contrary public policy expressed as a statutory mandate that a provider exercise due care? Typically, in a recreational accident case, the duty analysis requires either a combination of, or a reconciliation of statutory provisions, and traditional theories of foreseeability of harm and proximate cause. The spectrum of duty includes, on one hand, a "no duty" rule under the inherent danger analysis. On the other hand, Colorado law demands the highest duty of care in connection with the operation and maintenance of ski lifts. Balanced against the common law and statutory questions of duty and causation are the competing policy considerations of immunity, limitations of damages, and waiver. These policies are expressed principally in statutes, or under judicial enforcement of written waivers and releases which are subject to interpretation by the courts. More difficult to identify are the specific considerations of policy and economics that guide legislative and judicial choices between precedent, statute, and logic on one hand and on the other hand, the several public policy interests which themselves are often in conflict, e.g., the economic interests of the industry against the protection of the public safety. The public policy itself is often in discussion, at once favoring the State's vital economic interests while simultaneously attempting to vindicate long standing rules of negligence law. Arguably, in Colorado, cases stand for both propositions, and often under the same analysis, will reach differing results. The cases thus demonstrate an ad hoc, pragmatic trend in which individual rights are given weight, while the industry is still protected. In the past year, there has been no legislation which impacts recreational accident cases. The General Assembly studied and discarded several bills relating to the duty of care in connection with bicycle riding, but no bills touching the subject became law. See, H.B. 99-1103, S.B. 99-041. However, a critical piece of legislation, with a general effect across all tort cases was enacted and effective on September 1, 2000. This was H.B. 00-1169, amending and adding provisions to the Title concerning Restitution in Criminal actions. C.R.S. § 16-18.5-101, et seq. This law provides guidelines and mandates for entry of orders of restitution as to all convictions, including "felony, misdemeanor, petty, or traffic misdemeanor offense(s)." Because many statutes governing recreational statutes include a criminal component to the framework, these amendments need to be carefully considered by counsel in a civil proceeding as the restitution hearing may become a substitute in whole or in part for proving the element of pecuniary loss damages, while the two categories of non-pecuniary loss, pain and suffering damages and damages for disability and disfigurement, are still left exclusively to the civil action. Several important cases were decided in the past twelve months which concern recreational accident cases. Primarily, these relate to the core questions of duty and waiver, and statutory interpretation. Thus, to be fully informed on behalf of a client, attorneys should study both the statutory and case law. In certain matters, especially ski lift accident cases, an administrative body may have enacted regulations and rules which are pertinent to establishing a duty, breach or arguing causation. The following outline only touches upon recent developments in recreational accident law. For more information, see: Chalat, "Colorado Ski Law," 27 Colo.Law. 5 (Feb. 1998); Chalat and Schoen, "Colorado Narrows Construction of the Inherent Danger Rule" 45 Trial Talk 10 (April 1996); "Recreational Use Of Agricultural Lands," 23 Colo. Law. 529 (1994); Ferguson, "Allocation of the Risks of Skiing," 67 Den. U. L. Rev. 165 (1990); Bernstein, "Snowballing Cost of Skiing," 7 Cardozo Arts & Entertainment L. J. 153 (1988) Chalat, "The Development of the Standard of Care in Colorado Ski Cases" 15 Colo.Law. 373 (1986); "Legal Aspects of Health and Fitness Clubs: A Healthy and Dangerous Industry," 15 Colo. Law. 1787 (1986) Back to TopOutline updating Recreational Accident Cases Torts & Damages Update
IntroductionA. This outline focuses on the past year, but notes recent critical developments. The practitioner must have familiarity with the principal sources of law relating to recreational accident—case law, and statutory. B. Cases decided over the past year, touch upon numerous activities, including: skiing, ski racing, golf, spectator sports, bicycling & terrain - bicycle parks. C. The nature of the activity may be important if there is a body of law on the subject for instance, ski lifts, Bayer v. Crested Butte Mountain Resorts, 960 P.2d 70 (Colo. 1998); also Cf., Stroud v. River Runners, Ltd., 182 F.3d 933 (10th Circ., 1999, unpublished disposition). D. On the other hand, decisions in recreational accident cases may have effect across the entire field of tort law. See e.g., Cooper v. United States Ski Association, et al., ____ P.2d ___, 2000 Colo. App. LEXIS 1448; 2000 Colo. J. C.A.R. 4847 (Colo. App. No. 99CA0187, August 17, 2000) enforcing a pre-injury waiver and release against a child, when signed by a parent. E. Colorado statutes touching upon recreational liability: 1. C.R.S. § 25-5-701, et seq., Colorado Passenger Tramway Safety Act; 2. See, Title 33, Colorado Revised Statutes, Wildlife and Parks and Outdoor Recreation. a. Search and Rescue Fund, C.R.S. § 33-1-112.5 b. C.R.S. § 33-6-122. Hunting in a careless manner. "It is unlawful for any person to hunt or take wildlife in a careless manner or to discharge a firearm or release an arrow in a careless manner which endangers human life or property. For the purposes of this section, "careless" means failing to exercise the degree of reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstances in consideration of the probable danger of injury or damage.” c. Regulation of due care on water vessels: C.R.S. § 33-13-108. d. Snowmobile Act , C.R.S. § 33-14-101, et seq., due care required: 33-14-116 e. River outfitters—prohibited operations—penalties C.R.S. § 33-32-107. f. Colorado Recreational Area Liability Act (CRLA), C.R.S. § 33-41-101 et seq. g. Ski Safety Act of 1979, C.R.S. § 33-44-101, et seq. 3. See, C.R.S. §, Title 13, Article 21, Damages a. Equine activities—llama activities—legislative declaration—exemption from civil liability. C.R.S. § 13-21-119. b. Good Samaritan Protection for Volunteer Ski Patrol, C.R.S. § 13-21-108.
c. Assumption of risk, reduction of damages, C.R.S. § 13-21-111.7. 4. Colorado Governmental Immunity Act (GIA), C.R.S. § 24-10-101 et. seq. Back to TopCase Law DevelopmentsColorado—Duty of Care1. Bayer v. Crested Butte Mountain Resorts, 960 P.2d 70 (Colo. 1998). A young man fell off a lift which did not have a safety bar. The plaintiffs contended that the highest duty of care required a safety bar, and had a safety bar been installed on the chair lift, the accident would not have occurred. Relying on Summit County Development v. Bagnoli, 166 Colo. 27, 40, 441 P.2d 658, 664 (1968), in which the Court held that ski lift operators owed the highest degree of care commensurate with the practical operation of the lift, the plaintiff argued that the question of the necessity of the safety bar was properly one for the jury. Following an appeal from an adverse trial court ruling on the issue, the Court of Appeals referred the case to the Colorado Supreme Court. It held that neither the Tramway Act nor the Ski Safety Act preempted the common law standard requiring a ski lift operator to exercise the highest degree of care commensurate with the practical operation of the ski lift. The case was remanded for trial, and settled shortly beforehand. 2. Nugent v. Breckenridge, 99 M 457 (D. Colo., Order dated 4/24/2000) a. Order Denying Motion for Summary Judgment, held that the inherent risks of skiing do not include the negligence of a ski instructor. A snowboarder who was enrolled in the Breckenridge Ski and Snowboard school was instructed to ride down slope. A class of skiers also enrolled in the ski school was standing below the snowboard class. As the snowboarder followed his instructor’s explicit instructions, he descended down the slope with his blind side toward skier below. The snowboarder collided into the skier. The skier sued both the snowboarder and the ski school alleging negligence by the snowboard instructor. On the ski school’s motion for summary judgment, based upon an argument of "no duty” the Court held: "there are triable issues of fact in that the plaintiff is claiming that both the plaintiff and the (snowboard student) were under the control and supervision of employees of the (Ski area) in ski classes taught by those employees as ski instructors, and it being the court's view that the plaintiff's claims, if proved, would not be considered as within the inherent dangers and risks of skiing under the Colorado statute . . .” b. At trial, the Court instructed the jury that "Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability.” C.R.S. § 33-44-109. Jury verdict for defendant Breckenridge, which had argued that the skier/snowboarder involved had the full responsibility for the accident. 3. Gifford v. Vail Resorts, 99 B 43 (D. Colo., Order dated July 27, 2000) Snow filled gully in Vail back bowls into which an expert skier falls and is suffocated. Held: the gully is not an inherent risk of skiing, and may required to be marked with a "Danger Sign.” In this lengthy order, Chief Judge Babcock discusses the Act in detail, and concludes that the gully is similar to the drop off implicated in the Peer case. 4. Lee v. Aspen, 98 S 1235 (D. Colo., Sept. 1999) Judge Sparr held that a collision with a moving snowmobile was not an inherent risk of skiing, and instructed the jury solely on comparative negligence. The Ski Act provisions and the Colorado Snowmobile Act were given to the jury as per se rules of negligence. Jury verdict for plaintiff. 5. Teneyck v. Roller Hockey of Colorado, GP., ___P. 2d ___, 2000 Colo. App. LEXIS 1360; 2000 Colo. J. C.A.R. 4625 (Colo. App., No. 99CA1215 , August 3, 2000). a. While attending a roller hockey game, plaintiff was seriously injured when he was struck by a puck that flew into the spectator seating area. He sued the rink for having inadequate protection around the boards. The rink moved for summary judgment, contending that the common law "no duty” rule precluded recovery for injuries suffered by spectators at sporting events. The trial court granted the motion, and plaintiff appealed, arguing that the trial court erred in recognizing the "no duty" rule, rather than applying the premises liability statute, C.R.S. § 13-21-115 (1999). The appellate court reversed and remanded, holding that because the issue of spectator injuries at hockey games has not been explicitly addressed in the Colorado statutes, although the hazards of skiing, baseball and llama or equine activity have been, the premises liability statute provided the sole means of recovery for a plaintiff against a landowner and it was err for the trial court to apply the common law "no duty" rule. b. Comment. The narrow construction of the immunity provisions of the Act reflect a strong aversion of this panel of the Court, on policy grounds, to affirm a ruling of "no duty.” This panel, consisting of Judges Sternberg, Rothenberg and Tursi, reflect the competing policies which lead to inconsistent results by Appellate Court panels. Compare, the willingness of the panel in Cooper, infra, comprised of Chief Judge Hume, and Judges Ney and Davidson, to regress the rule of law protecting children from the execution by their parents of exculpatory agreements, granting a "no duty” rule based upon a mute document, putting the cost of injury on a child, while in the Teneyck case, a spectator at a roller hockey game is afforded greater protection. Back to TopWaivers1. Rowan v. Vail, 31 F. Supp. 2d 889; LEXIS 20157 (D. Colo. 1998). Ski racer testing waxes for Salomon crashes into bleachers placed immediately at the end of downhill race course at Beaver Creek. a. Motion for summary judgment on basis of waiver, denied. Judge Daniels found that the waiver and release was entered into after over-reaching by the ski area and was made a late condition of employment. b. At trial, the court instructs the jury as a preliminary matter, using the entire section relating to inherent dangers of skiing, that the jury "must first determine whether the claim is barred because of one of the inherent dangers and risks of skiing." c. Verdict for defendant. Query, in a case being tried on the Graven v. Vail theory that the hazard was not "inherent,” should the inherent danger instruction be given in the same order as with comparative and assumption of risk instructions? Second, can inherent danger work in the same way as assumption of risk and comparative negligence, as a reduction to or apportioned to the plaintiff, rather than as a complete bar? 2. Cooper v. United States Ski Association, et al., ____ P.2d ___, 2000 Colo. App. LEXIS 1448; 2000 Colo. J. C.A.R. 4847 (Colo. App. No. 99CA0187, August 17, 2000) a. David Cooper, age 16, was a member of a ski race club. Each year the Club had required David and a parent to sign a waiver and release. David was blinded in a crash which occurred while practicing. He alleged the gates were set dangerously close to trees, and that he was being encouraged to push the envelope around a particularly dangerous turn which was unprotected. David sued the ski area, the sanctioning body for the Club, and the Club, alleging negligence. On the basis of the release form, the trial court granted summary judgment in favor of the ski defendants. The Court of Appeals affirmed, holding that a waiver and release signed by a parent was enforceable against a child and that the plaintiffs failed to demonstrate that defendants undertook any duty to assure the safety of their members, including the minor, from the risk of physical harm from engaging in skiing activities. Governmental Immunity Act1. Jaffe v. City and County of Denver, ___ P. 2d ___, 2000 Colo. App. LEXIS 1088; 2000 Colo. J. C.A.R. 3683 (Colo. App., No. 98 CA1960, June 22, 2000) Golfer struck by lightning, made claim against City for failure to protect. The City did not have a formal medical assistance system, an automatic lightning system, a foul weather detection system, or an evacuation plan. Nevertheless, the Court held the City was immune as it did not "create” the dangerous condition. 2. Luenberger v. City of Golden, 990 P.2d 1145; 1999 Colo. App. LEXIS 276; 1999 Colo. J. C.A.R. 5947 (Colo. App. 1999). (Summary - courtesy of Lexis Publishing) Plaintiff's child was injured when he fell from his bicycle while riding a half-pipe located in defendant city's park. Plaintiff sought compensation from defendant. At trial, defendant moved to dismiss plaintiff's complaint, arguing that the trial court lacked subject matter jurisdiction because plaintiff's claims were barred by the Colorado Governmental Immunity Act (GIA), C.R.S. §24-10-101 (1999) et. seq., and because plaintiff's claim came within the Colorado Recreational Area Liability Act (CRLA), C.R.S. §33-41-101 (1999) et seq. The trial court found that the CRLA applied to municipalities and dismissed plaintiff's claims. On appeal, plaintiff contended that the trial court erred in determining that the CRLA was applicable. The court vacated the judgment dismissing plaintiff's complaint and remanded with directions that the trial court first make findings regarding the trial court's jurisdiction to decide the action under the GIA, and then determine applicability of the CRLA. 3. Dezona v. City and County of Denver, 222 F.3d 1229; 2000 U.S. App. LEXIS 18392; 2000 Colo. J. C.A.R. 4577 (10th Circ. August 2, 2000). Toddler who was enrolled in City sponsored and operated daycare/daycamp, wandered off into a pond at City Park and drowned. Held, the City was immune from any claim pursuant to the Governmental Immunity Act. Out of State Case Law Developments1. No duty to snowboarder in "terrain park” under Michigan Ski Act. i, 166 F. 848 (6th Circ. 1999) 2. Hansen v. Sunday River Skiway Corp, 726 A.2d 220 (Maine 1999) failure to properly mark an icy trail and a precipitous drop off, were questions for the jury. Verdict of $600,000.00 for skier was affirmed. 3. Mahdessian v. Stratton, 210 F.3d 355, 2000 WL 302781 (Unpublished Disposition, 2nd Cir.Vt. March 21, 2000) Whether a danger is inherent or "obvious and necessary" to a sport is a "threshold question of fact [to be] decided by the jury. Back to TopStatutory DevelopmentsA. H.B. 1169 amended and added sections to Colorado’s law concerning restitution in criminal cases. The statute could provide a parallel forum in which to litigate pecuniary loss damages in a matter in which a criminal proceedings is pending arising out of a matter on which a civil matter for damages would also be based. B. The Act now provides: 1. C.R.S. § 16-18.5-102 Definitions . . . (3) (A) "Restitution" means any pecuniary loss suffered by a victim, and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, adjustment expenses, and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money. . .” (Emphasis supplied) 2. C. R. S. §16-18.5-103(1) Every order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office, shall include consideration of restitution. Each such order shall include one or more of the following . . . 3. The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. a. Any order for restitution entered pursuant to this section shall be a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment shall remain in force until the restitution is paid in full. b. Any order for restitution made pursuant to this section shall also be deemed to order that: • The defendant owes interest from the date of the entry of the order at the rate of twelve percent per annum; and • The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant's nonpayment. c. The entry of an order for restitution under this section creates a lien by operation of law against the defendant's personal property and any interest that the defendant may have in any personal property. d. Any order of restitution imposed shall be considered a debt for "willful and malicious" injury for purposes of exceptions to discharge in bankruptcy as provided in 11 U.S.C. sec. 523. 4. If more than one defendant owes restitution to the same victim for the same pecuniary loss, the orders for restitution shall be joint and several obligations of the defendants. 5. Any amount paid to a victim under an order of restitution shall be set off against any amount later recovered as compensatory damages by such victim in any federal or state civil proceeding. Back to TopPeople v. Hall: Its Implications for Torts and Damages CasesA. People v. Hall, 999 P.2d 207 (Colo. 2000) 1. Facts and procedural history: While skiing on Vail mountain, Hall flew off of a knoll and collided with Allen Cobb, who was traversing the slope below Hall. Cobb sustained traumatic brain injuries and died as a result of the collision. The People charged Hall with felony reckless manslaughter. The County Court, and the District Court held Hall's conduct "did not rise to the level of dangerousness” required under Colorado law to uphold a conviction for manslaughter and the court dismissed the charges. On appeal, the district court affirmed the county court's decision. The district court determined that in order for Hall's conduct to have been reckless, it must have been "at least more likely than not” that death would result. Because the court found that "skiing too fast for the conditions” is not "likely" to cause a person's death, the court concluded that Hall's conduct did not constitute a "substantial and unjustifiable” risk of death. Thus, the district court affirmed the finding of no probable cause. 2. The Supreme Court granted certiorari. It reversed and held that "under the particular circumstances of this case, whether Hall committed the crime of reckless manslaughter must be determined by the trier of fact. Viewed in the light most favorable to the prosecution, Hall's conduct----skiing straight down a steep and bumpy slope, back on his skis, arms out to his sides, off-balance, being thrown from mogul to mogul, out of control for a considerable distance and period of time, and at such a high speed that the force of the impact between his ski and the victim's head fractured the thickest part of the victim's skull----created a substantial and unjustifiable risk of death to another person. A reasonable person could infer that the defendant, a former ski racer trained in skier safety, consciously disregarded that risk. For the limited purposes of a preliminary hearing, the prosecution provided sufficient evidence to show probable cause that the defendant recklessly caused the victim's death. Thus, we reverse the district court's finding of no probable cause and we remand the case to that court for trial.” 3. The Court’s holding gave gravitas to the philosophical view that a skier injured by another participant’s recklessness was the victim of wrongdoing. By demonstrating a willingness to find criminal conduct under the circumstances described, the court sanctioned the civil action for damages. Implicit in the decision is the holding that an innocent victim of a co-participant’s recklessness did not assume the risk of such an accident simply by coming to the ski slope. 2001 Worldwide Copyright of Chalat Law Offices, P.C., Revised 8/1/01, LJC |
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