A judge has ruled that a ski pass waiver does not provide Aspen Skiing Co. immunity for an alleged fall in a mountain restaurant.

On Jan. 8, 2012, Genevieve Fulton came off a ski lift, placed her skis at the back entrance and went inside Cloud 9 through the kitchen. After about an hour, Fulton put her ski boots back on and walked back through the kitchen, where she slipped on water and broke her left elbow.

The lawsuit says SkiCo did not provide any type of warning, such as signs or cones, that the kitchen floor was wet, and failed to place a rubber non-slip mat which had been in place during previous ski seasons.
Fulton sued under the claim of premises liability, and SkiCo countered that she signed an agreement when she bought a Classic Pass that waives her right to hold the company responsible for “all claims of any sort whatsoever arising out of or related to my use of the facilities, ski area and ski lifts” at the four Aspen-area mountains.
Senior Judge Thomas Ossola of the 9th Judicial District disagreed. Judge Ossola noted that SkiCo contends the exculpatory clause in the pass agreement specifically waives all claims “arising out of or related to the use of the facilities” at Aspen Highlands.

But, Judge Ossola considered that immediately underneath the heading of “Conditions,” the pass agreement states that “these regulations apply to alpine and Nordic skiing and snowboarding.” Citing case law, the judge also found that a valid waiver must contain some reference to waiving claims “based on the activity being engaged in.”

“Accordingly, the court concludes that the exculpatory clause is ambiguous because it is susceptible to more than one reasonable interpretation,” Ossola wrote. “The risks identified in the agreement solely relate to skiing and snowboarding.”

Fulton, instead, was injured by a hazard that isn’t identified in the pass agreement, meaning the waiver she signed does not bar her lawsuit from going forward.

Dates for a jury trial have been set for March 30 through April 3.

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