Ashley Stamp, a thirteen year old participating in Vail Resort’s ski racing program, was taking a warm-up run down the side of the Golden Peak Race Arena. At the same time, an employee was driving a snowmobile up the same trail. The two collided at a blind knoll, killing Ashley.

The Colorado Supreme Court examined the language of both the Skier Safety Act (SSA) and the Wrongful Death Act (WDA) to determine how the two should be reconciled. The SSA provides in its plain language that it supercedes contradictory statutes. Under the SSA, compensatory damages for any injury or death are capped at $1,000,000. This cap applies to any ski case despite the inclusion of a provision for unlimited compensatory damages for felonious killings in the WDA. The SSA limits non-economic damages to $250,000.

However, because the SSA makes no mention of exemplary damages, the Court determined that the SSA "manifests no legislative intent to abolish the applicability" of the WDA in this area. A claim for exemplary damages related to a skier injury or death is therefore properly asserted under the WDA. To do so, a party must show "fraud, malice, or willful and wanton conduct." The "willful and wanton" standard requires a plaintiff to show the defendant undertook "a dangerous course of action that is consciously chosen with knowledge of the facts, which to a reasonable mind creates a strong probability that injury to others will result." Steeves v. Smiley, 354 P.2d 1011, 1014 (Colo. 1960).

Colorado’s Skier Safety Act, C.R.S. §33-44-101 et seq. is the governing law for ski related wrongful death actions, but the Wrongful Death Act, C.R.S. §13-21-103, applies to all claims for exemplary damages. The Court determined that the facts of the case as gleaned from discovery documents contain evidence sufficient to make a prima facie case for willful and wanton conduct. If a jury found the employee knew of the blind knoll, did not have the snowmobile’s siren on, or was traveling at an excessive rate of speed, it could properly award exemplary damages under the WDA.

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