The lift accident took place on the Saturday of Thanksgiving weekend, 2006. The Donohues were staying in Breckenridge with a family friend who owns a cabin near the ski area. According to the incident reports the accident took place at 11:45 am, at the top terminal, on the unloading ramp of the Quicksilver ski lift. Loading ramps are integral to the safe operation of the chairlift per ASTM standards, which are incorporated into the per se standards of negligence by the Colorado Ski Act. C.R.S. §33-44-104

Prior to Mrs. Donohue’s chair unloading, a snowboarder fell on the unloading ramp, directly in the path of where she was to unload. As Mrs. Donohue’s chair reached the "unload here" point, the lift attendant was standing to the right of the snowboarder, assisting her up and off of the ramp. The time interval between the chairs is about six seconds, and the stopping distance of the chair would permit the chair to be stopped within that period. Further, the lift can be stopped or slowed at the touch of a button, it is not something that only happens in an "emergency," and in fact it is customarily stopped or slowed several times per day for any number of different reasons. Yet, in this instance, and despite the presence of a lift attendant at the control box, the lift was not stopped or slowed. As such, Mrs. Donahue was forced to unload the chair with the fallen snowboarder and the lift attendant in her path. Her ski became entangled with the snowboarder, and she fell. The fall severely injured her knee.

Because of the lift accident, Mrs. Donohue sustained severe injuries to her left knee, including a total rupture of her left anterior cruciate ligament, a second degree tear of her left medial cruciate ligament, an associated left patellar subluxation/dislocation, and significant posterior lateral bone bruising. Her anterior cruciate ligament had to be completely reconstructed using bone and tendon grafts and she underwent extensive physical therapy. Mrs. Donohue’s economic loss is comprised of approximately $70,000.00 in medical expenses

In addition to the permanent impairment that she will suffer in her left knee, Mrs. Donohue is also at risk for developing degenerative joint disease in her left knee, due to the significant bone bruising that she suffered in the accident.

In Colorado, a ski lift operator is required to "exercise the highest degree of care commensurate with the practical operation of the ski lift." Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo. 1998). Here, the standard for practical operation of the Quicksilver lift is well-established by the Breckenridge Lift Operations Manual. The following requirements are taken directly from the Breckenridge Lift Operations Manual. All of these requirements are applicable to the lift operations staff in handling the incident at issue here:

* LOADING / UNLOADING GUESTS: assist passengers in unloading as necessary, anticipate problems and respond, slow and stop when needed or requested, maintain easily accessible loading, unloading, and maze areas.
* Three actions that can be taken if a loading or unloading problem occurs: (1) Provide verbal or physical assistance, (2) Slow the Lift, (3) Stop the Lift.
* Return Station Duties: At any unloading station, the Lift Attendant or Operator has the responsibility of monitoring unloading passengers. Alertness and attention to detail characterize the duties at this station. Skiers and snowboarders may have difficulty unloading from the lift and negotiation the ramp. This is particularly true at those lifts that serve beginner terrain and teaching areas.
* Return Station Duties: Anticipating the needs of each person is also important. Offer to slow the lift and physically assist the person in unloading. Provide instruction and be ready to activate a stop if a guest falls in the path of the lift.
* Return Station Duties: Alertness is extremely important at this station since guests are sometimes unable to load properly. . . Be ready to slow or stop the lift if an unloading guest falls on the ramp in the path of the chair. Advise guests to move out of the unloading area quickly to avoid being run into by other unloading skiers or snowboarders.
* LIFT INCIDENTS: If a guest is hurt loading, unloading, in the maze or any perimeter area of a lift station it is the responsibility of the staff to provide assistance as necessary. Inquire if the person is hurt, can the person move, and if in the path of the lift, shut it off.

In Colorado, a ski area operator is held to a higher degree of care because "(1) passengers give up their freedom of action and movement, surrendering themselves to the care and custody of the ski lift operator, (2) there is usually nothing passengers can do to cause or prevent the accident, and (3) the operator has exclusive possession and control of the ski lift." Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo. 1998), citing Summit County Development v. Bagnoli, 441 P.2d 658, 664 (Colo. 1968).

This reasoning mitigated against a finding of contributory negligence on the part of Mrs. Donohue. Here, Mrs. Donohue and the other passengers truly gave up their freedom of action and movement in the same manner contemplated by the Courts in Bayer and Bagnoli in imposing a higher degree of care on a ski lift operator. As noted above, the deposition testimony conclusively established that there was an unskiable pile of snow to Mrs. Donahue’s right, that other passengers were unloading to her left, that the snowboarder and lift attendant were in front of her, and that the chair continued to move behind her after she unloaded.

Also, there was little Ms. Donohue could have done to prevent the accident, other than to perhaps yell ahead to the lift operator to stop the lift. However, even accepting this to be true, the primary duty nonetheless remains on the lift operator to stop or slow the lift. Finally, there is no dispute that Breckenridge had exclusive control over stopping the lift. Wade Bradseth, the only Breckenridge employee to even make a written statement, did not do so until late January, 2007 – over 2 months following the incident.

The defendant has named Margaret Horsfield as a non-party at fault, on the basis of the following written statement from Sonja Hanschu, both of whom were friends skiing with Mrs. Donahue:

"a snowboarder was being helped out of the way from the lift by an attendant and to avoid a crash julie ran into margaret (skier) and they went down."

The defendant also filed a motion for leave to file a notice naming the unidentified snowboarder as a non-party. Prior to settling, counsel for plaintiff intended to file a motion to strike this notice on the basis that there is insufficient admissible evidence in the record to support a finding of negligence or negligence per se on the part of this unidentified individual. See e.g., Barton v. Adams Rental, Inc. 938 P.2d 532 (Colo. 1997)(instruction regarding nonparty liability should only be submitted to jury when there is evidence in record to support such a claim, and thus, where defendant designates nonparty at fault but presents no evidence of liability, court should not submit that claim to jury). See also, Ramirez v. Mixsooke, 907 P.2d 617 (Colo.App. 1994)(nonparty instruction was improper where there was insufficient evidence to establish per se negligence claim against anonymous non-party).

In this case, the defense advanced a theory that this was truly not a chairlift accident which would impose a higher (or any) duty of care on Breckenridge, but rather a simple collision between two skiers that occurred on the unloading ramp of a chairlift. This theory is based in large part on the unpublished Tenth Circuit decision of Peck v. Vail, 1995 WL 18278 (10th Cir. 1995). The opinion is only four paragraphs and clearly was not dispositive.

The Peck case was wrongly decided, in that it is contrary to contemporary ANSI Standards, adopted by The Colorado Passenger Tramway Safety Board and incorporated by reference into the Passenger Tramway Safety Board Rules and Regulations which govern the operation of chairlifts in Colorado. See, 3 Colo. Code Regs. 718-1. The Court in Peck either failed to recognize, or disregarded, the clear mandate of the ANSI Standards which have been adopted by The Colorado Passenger Tramway Safety Board. As to detachable grip aerial lifts such as the Quicksilver ski lift, the standards plainly state:

"platforms, ramps, corrals, and mazes comprising the loading and unloading areas of an aerial lift are integrally related to its operation."
ansi standard b77.1-2006 § 3.1.1.9 (loading and unloading areas)

The Peck case, and the theory advanced by the defendant that this is somehow a "skier / skier" case and not a "lift case," were without merit as the plain language of the standard governing the operation of the Quicksilver lift indicates that unloading ramps are integral to the operation of the ski lift, thus imposing a higher duty of care on ski areas even for accidents which occur in the loading or unloading areas of a ski lift.

The matter settled just weeks before the jury trial was scheduled to begin for a confidential amount.

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