Colorado’s "Ski Safety Act," located at Colo. Rev. Stat. Ann. §§ 33-44-101 to -114 provides for skier assumption of inherent dangers, and creates statutory duties for skiers and operators. Skiers, inclusive of sledders and snowboarders, have duties to ski within their abilities, with uphill skiers having a primary duty to avoid collision. Breach of skier duties constitutes negligence.
No distinction is drawn between young children and adults in application of the Act, such that the common law, particularly that young children can not commit negligence nor assume a risk, has been arguably abrogated. In a 2003 statutory amendment, parents were expressly permitted to waive or release a child’s claim in negligence. Colo. Rev. Stat. Ann. §§ 13-22-107, as added by Laws 2003, Ch. 262, § 1, eff. May 14, 2003 (reversing the conclusion ofCooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002) that such a waiver violated public policy and created an unacceptable conflict between parent and child).
In actions arising from skier/skier collisions, such a collision is considered neither an inherent or assumed risk. Id. at § 33-44-109(1). Ski area operators have specific duties to mark trails and provide some other warnings. There is no duty to pad lift towers. Operator breach of a statutory duty constitutes negligence, and is not considered an inherent danger to which liability limitations apply. Id. at §§ 33-44-103(3.5), 33-44-104(2).
Limitations are imposed on damages collectible against ski area operators for downhill skiing accidents, but no such limitation on damages exists for lift accidents. A tramway board is separately formed by Colo. Rev. Stat. Ann. §§ 24-34-101 et seq, and tramways are otherwise regulated under the "Passenger Tramway Safety Act," Colo. Rev. Stat. Ann. §§ 25-5-701 et seq. Volunteer ski patrol members are granted civil immunity for acts or omissions in the provision of emergency services or assistance, so long as members act in good faith. Colo. Rev. Stat. Ann. § 13-21-108(3).
Snowmobile use is subject to the duties enumerated in Colo. Rev. Stat. Ann. §§ 33-14-101 to -116, the breach of which is handled as negligence per se. The Ski Safety Act was amended in 2004 in several significant respects. Laws 2004, Ch. 341, § 3, eff. May 28, 2004. Skiers continue to assume the "inherent dangers and risks of skiing."
However, where such dangers and conditions were once only those that were an "integral part" of the sport, the 2004 amendments have modified the language to include all those that are "a part" of the sport. Colo. Rev. Stat Ann. § 33-44-103(3.5), as amended.
Arguably, the omission of the word "integral" could be read broadly to mean without regard to the negligence or lack of care by an operator assumption of practically all hazards. Under Colo. Rev. Stat. Ann. § 33-44-108(2), as amended, the operator’s duty to post a sign warning of maintenance equipment on an open slope or trail was narrowed to exclude maintenance equipment en route to or from a grooming project. The Amendments eliminate the ski area operator’s prior duty to mark "danger areas", and includes cliffs and other unmarked dangers as one of the "inherent dangers" of the sport.
Additionally, ski area operator immunities have been expanded to include all ski area property, not just those areas designated for skiing or competition.
Johnson v. Bodenhausen, 835 F.Supp.2d 1092 (D.Colo. 2011)
Plaintiff Kane F. Johnson, a nine-year-old child who was skiing with his father at Breckenridge Ski Resort on March 19, 2009, was struck and injured by Defendant Seth Bodenhausen, a Breckenridge ski instructor. Kane Johnson was allegedly skiing slowly and in a controlled manner at the time of the accident, and was readily visible to uphill skiers. Bodenhausen was allegedly skiing unreasonably fast, approached Kane Johnson from uphill, and collided with him.
Kane Johnson and his parents brought a claim against Bodenhausen for negligence per se under the Colorado Ski Safety Act, Colo.Rev.Stat. § 33-44-102 et seq. The Johnsons also filed a claim against Breckenridge under the theory of respondeat superior, alleging that Bodenhausen was skiing within the course and scope of his employment at the time of the accident.
The court determined that the crucial question was whether Kane Johnson’s injury " result[ed] from any of the inherent dangers and risks of skiing." If it did, Breckenridge is immune from liability under section 33-44-112. The court concluded that Kane Johnson’s injury resulted from a " collision[ ] with [an]other skier[ ]." Bodenhausen was also a " skier" under the statute at the time of the accident, see Colo.Rev.Stat. § 33-44-103(8), and Kane Johnson’s injuries resulted from the collision with Bodenhausen. Kane Johnson is attempting to " make a[ ] claim against or recover from [Breckenridge] for injury resulting from" the collision with Bodenhausen. Under the plain and clear language of these statutory provisions, the court found that Kane Johnson was statutorily barred from bringing this action against Breckenridge to recover for his injuries.
Wiener v. Sunlight, Inc., 08-cv-01483-CBS-BNB United States District Court, Tenth Circuit (2011)
Court held that jury award to plaintiff for lift accident was to be reduced from the amount the jury awarded Plaintiff $1,100,000 as non-economic damages. Defendant Sunlight argued that the amount of the verdict exceeds the $250,000 cap applicable to non-economic damages recovered from a ski area operator, as set forth in Colo. Rev. Stat. § 33-44-113. Court agreed and reduced award accordingly.
As part of the Ski Safety Act of 1979 ("SSA"), the Colorado legislature limited the damages injured skiers may obtain against ski area operators. Colo. Rev. Stat. § 33-44-113. Section 33-44-113 caps at $250,000.00 damages "attributable to noneconomic loss or injury." However, the SSA excludes from the cap damages "associated with an injury occurring to a passenger while riding on a passenger tramway."
Kumar v. Copper Mountain, Inc., 09-1559 United States Court of Appeals, Tenth Circuit (2011)
On March 16, 2006, Kumar was skiing at Copper Mountain ski resort in an area where an "intermediate" run called Timber Ridge converged with two "expert" runs known as Retreat and Gold Digger. Near the intersection, snow naturally accumulates to form a feature referred to as "Celebrity Cornice." As Kumar approached Celebrity Cornice he apparently did not see the edge of the drop-off. He unintentionally skied off of the cornice, fell, and suffered serious injuries as a result.
Although Copper Mountain employees knew of Celebrity Cornice, it was not marked on trail maps given to skiers by the resort. Instead, "Celebrity Cornice" appears to be a name informally adopted by skiers and ski patrol personnel. The parties dispute whether the cornice was marked such that approaching skiers would have been made aware of its presence on the day of the accident. It is undisputed, however, that Celebrity Cornice and the trails on which it was located were not marked as "freestyle terrain."
Kumar sued Copper Mountain, alleging negligence and negligence per se. He claims that Copper Mountain is liable under the common-law doctrine of assumed duty for failing to adequately mark Celebrity Cornice, and that Colorado’s Ski Safety Act ("SSA") required Copper Mountain to mark Celebrity Cornice as "freestyle terrain." The district court granted summary judgment in favor of Copper Mountain. Kumar appealed and the appeals court held that (1) the SSA, not the common law, controls the case and thus there was no cause of action under the assumed duty doctrine; and (2) Celebrity Cornice did not qualify as a "specified freestyle terrain area," thus affirming the district court’s grant of summary judgment.
Squires v. Goodwin, 829 F.Supp.2d 1062 (D.Colo. 2011)
BOEC employed Jennifer Phillips as a para-ski instructor and on the morning of the accident, Ms. Squires, a disabled skier, was paired with Ms. Phillips and placed in a bi-ski. Ms. Phillips and Ms. Squires went to Peak 9 at Breckenridge Ski Resort. Ms. Phillips utilized tethers as a means to control the bi-ski. On their second run, Ms. Squires and Ms. Phillips skied down Cashier trail. Defendant Goodwin was also skiing down Cashier trail, lost control and skied into the tethers between Ms. Squires and Ms. Phillips. Due to the force of the collision with Defendant Goodwin, Ms. Phillips lost control of the tethers and the bi-ski containing Ms. Squires continued down Cashier trail unrestrained until it collided with a tree. Ms. Squires was injured when the bi-ski collided with a tree
Release held valid, but the parties acknowledge that the Release cannot bar civil liability for gross negligence. There is thus some evidence in the record that it may have been reckless for Ms. Phillips to take Ms. Squires on Cashier, a blue run, on the day of the accident. Ms. Squires was a blind, first-time skier strapped to a bi-ski with no means to control her own speed or direction. It was BOEC policy to start such a student on a green run. Also, whether there was a purposeful or conscious failure to use a slipknot or tie the tether properly. The use of a slipknot with a bi-ski is the established BOEC policy. Witnesses who were asked agreed that it could be reckless to conduct a bi-ski lesson without a properly-tied slip knot tethering a bi-ski with fixed outriggers. This evidence and these conclusions by the expert witnesses could demonstrate reckless, grossly negligent, and willful and wanton acts and omissions. A jury could conclude there was purposeful conduct committed recklessly with conscious disregard for the rights and safety of Ms. Squires. Court held that the evidence, viewed in a light most favorable to Ms. Squires, might lead a reasonable jury to conclude that BOEC was conscious of its conduct and the existing conditions and knew there was a strong probability that injury to Ms. Squires would result.
Anderson v. Vail Corp., 251 P.3d 1125 (Colo.App.Div. 3 2010)
Plaintiff, Jesse Anderson was skiing at Vail ski resort in a transitional area of the trails Overshoot, Primrose and Bittersweet trails. In this area there is an area of trees that separate the ski resort from private ski-in, ski-out residences. Plaintiff was skiing within the trees in this area when she skied over 19 ft. retaining wall and fell onto a residential road below. Plaintiff sued Vail for compensation of her injuries, stating that Defendant failed to properly mark the resorts boundary line and rope off the property line.
At trail the court found in favor of the Defendant’s summary judgment that the boundary signs were visible and under the release signed by Plaintiff, there was no liability on the part of Vail. In appellate court Plaintiff argued that the court misapplied the summary judgment standard. Although the boundary signs were visible from an uphill vantage point, there were no visible signs when crossing the trail from another trail. The appellate court found that Vail failed to place signs in visible areas therefore was negligent. Summary judgment was reversed and remand for further proceedings was ordered.
Robinette v. Aspen Skiing Company, 09-1223 United States Court of Appeals, Tenth Circuit (2008)
Plaintiff Robinette was snowboarding at Snowmass Ski Resort, on February 24, 2006. Mr. Robinette was snowboarding on a trail with a small incline, intending to perform a jump. As Plaintiff made the jump he collided with Eric Hill, a Snowmass employee, on a snowmobile he was driving up the trail. Plaintiff sustained serious injuries as a result of this accident.
Plaintiff sued Aspen asserting negligence in the form of their employee negligently driving the snowmobile. Aspen moved for a motion for summary judgment stating that the release signed by Plaintiff protected Aspen from any litigation. Plaintiff argued that the risks discussed in the signed release were beyond the scope of his “presumptive risks” of skiing. Plaintiff argued that the terms of the release did not clearly address the type of accident presented in this case. Although a collision with snowmobile is not explicitly a risk in the release, it is within the statement of “risks of skiing/snowboarding.” Therefore the court found in favor of Defendant and granted motion for summary judgment. Robinette appealed the district court’s grant of summary judgment, contending that the exculpatory agreement was unenforceable because: (1) it purports to cover reckless conduct; (2) it violates public policy; and (3) its terms are unclear and ambiguous. However, Robinette did not raise a claim of recklessness in the district court; therefore, he could do so on appeal absent extraordinary. Appeals court agreed with the decision reached by the district court on Mr. Robinette’s remaining claims.
Stamp v. Vail Corporation, 172 P.3d 437 (Colo. 2007)
Ashley Stamp, daughter of Plaintiffs, was skiing a warm up run down the Golden Peak race arena at Vail. Mark Chard an employee of Vail and driving a snowmobile up the same slope. Ashley and Chard approached the same blind knoll at the same time and collided, causing Ashley’s death. Plaintiffs sued Vail and was limited by the Ski Safety Act’s (SSA) damages cap provision to $250,000.
Plaintiffs petitioned for review of the rulings citing that the Wrongful Death Act (WDA) was applicable and under the WDA there is no cap on damages if the death was a “felonious killing.” Plaintiffs argued that the death of Ashley was a “felonious killing,” therefore there should be no cap to damages. Vail argued that Ashley’s death was a result of an injury while skiing therefore falls under a wrongful death in the SSA. The court ruled that the SSA itself mandates that its provisions prevail any inconsistent provision of law or statue, therefore over riding the use of the WDA. Therefore Plaintiffs were limited to recovery of $250,000 in the wrongful death claim.
Prior to 2006
Violation of a skier, ski area operator, or tramway operator duty established by statute constitutes negligence per se. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998) (unconscious skier injured in fall from lift that had no passenger restraints).
Doering ex. rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202 (10th Cir. 2001) found prejudicial error in instructing jury that a finding of inherent danger precluded recovery; an inquiry into operator’s violation of Ski Safety Act should have been performed first, as such a breach is excluded from the definition of inherent danger. The Doering children were sledding when they collided with an inadequately marked sno-cat; the 2004 amendments would require the court to determine whether the sno-cat was actively engaging in grooming activities, for which the operator could be held negligent for failing to mark it properly, or merely in transit, where no such duty is now owed.
In an unpublished case that distinguished Doering, the court in Gifford v. Vail Resorts, Inc., 37 Fed. Appx. 486 (10th Cir. 2002) noted that while the jury was instructed improperly as in Doering, such was not prejudicial because the operator’s breach was bound up together with an inherent risk. Under the 2004 amendments, the breach alleged in Gifford, that of failure to mark a gully in which skier asphyxiated in deep snow as a "danger" would be nonexistent. Similarly, the conclusion of Graven v. Vail Associates, Inc., 909 P.2d 514 (Colo. 1995) that "not all dangers encountered on the ski slopes, however, are inherent and integral to the sport, and this determination cannot always be made as a matter of law," is now in question. That case involved an unmarked, deep ravine adjacent to a ski slope.
Not only does an operator no longer have a duty to mark such a "danger area," but the ravine is likely now an inherent danger, and operator liability protection extends beyond the slopes to the entire ski area.
In skier/skier or skier/snowboarder collisions, ordinary duties of care apply. Ulissey v. Shvartsman, 61 F.3d 805 (10th Cir. 1995) determined that the duties created for all skiers and snowboarders under the Ski Safety Act established a presumption that the uphill skier has the last clear chance to avoid, and thus the primary duty to avoid collision; this case also established that amendments to the Act in 1990 explicitly abolished an inherent risk defense based on being hit by an out of control or unobservant skier.
Reckless skiing causing severe injury or death may result in a criminal felony prosecution. People v. Hall, 999 P.2d 207 (Colo. 2000). As to lift accidents, the Colorado Supreme Court has held that the ski area and tramway operator owes the "highest degree of care commiserate with its practical application." Summit County Dev. Corp. v. Bagnoli, 441 P.2d 658 (Colo. 1968) (citing Lewis v. Buckskin Joe’s, Inc., 396 P.2d 933 (Colo. 1964)). This doctrine of highest duty was reaffirmed in Bayer, above (holding that common law negligence claims against lift operator were not subrogated by tramway or ski safety Acts). In lift cases, proof that an operator complied with a safety statute is considered; however, it is only weighed against other factors, and is not, by itself, conclusive on the issue of due care or negligence. United Blood Serv. v. Quintana, 827 P.2d 509 (Colo. 1992). Once a rescue is initiated, ordinary care is required in the conduct of the rescue and the provision of care, notwithstanding how the skier first came to need care. See generally Spence v. Aspen Ski Co., 820 F.Supp. 542 (D. Colo. 1993) (jury instruction as to comparative negligence was improper absent proof of causation in case where skier’s negligent maintenance of a hypoglycemic condition was raised as a defense to an IV poorly-administered by ski patrol). Operators owe skiers a duty of reasonable care, but not the highest degree of care, in protecting them from avalanches. Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64 (Colo. Ct. App. 1983) (upholding reasonable care instruction in case where out-of-bounds skier and friends were responsible for causing avalanche). Under the FTCA, whether to allow and maintain skier access to the national forests and whether to warn of avalanche dangers, are decisions subject to the discretionary function exception precluding suit. Marquez v. United States of America, 1996 WL 588918 (D. Colo. 1996) (skier killed by avalanche in Arapahoe National Forest after accessing it from adjacent ski area).