An interesting observation in a recent ski case opinion from the Colorado Court of Appeals provides some hope that ski area operators are not really seeking complete immunity with those all-pervasive waivers attached to ski pass packages. In the case of Anderson v. Vail, the ski resort argued in the trial court that skiers’ claims were barred by the Season Pass Application, which included an exculpatory agreement that the plaintiff had signed.
The appeals court noted:
However, the ski resort conceded in its briefs on appeal, and in oral argument, that it “is not (and did not) attempt to contract away its statutory duties, rather, the exculpatory agreement precludes only those claims for negligence above and beyond the requirements with which [ski resort] was statutorily required to comply, and with which it did comply.” (Emphasis in original answer briefs.) The ski resort also admits that “[its] release does not supplant [its] statutory duties,” and that its “liability waiver does not dilute or limit the statutory duties with which it must comply. Rather, [its] waiver precludes any claim for negligence or liability beyond those statutory duties with which [it] is required by law to comply . . . .”
Therefore, the ski resort agrees with skiers on the scope of the exculpatory agreement and we need not address the issue further. It logically follows that we need not address skiers’ argument that the exculpatory agreement was ambiguous. (Emphasis added.)
It remains to be seen whether this is the universal view held by the ski industry – and for how long it will be so. Perhaps, the ski area operators are merely awaiting a better test case.
For the complete order, see Anderson v. Vail Corporation.