Brigance v. Vail Summit Resorts, Inc.
883 F.3d 1243
| 10th Cir. | 2018Background
- While on a ski lesson at Keystone (operated by Vail Summit Resorts, Inc. — VSRI) Dr. Teresa Brigance’s ski boot became wedged during unloading from a chairlift and she suffered a femur fracture. She sued VSRI alleging negligence, negligence per se, negligent supervision/training, respondeat superior, negligent hiring, and violation of Colorado Premises Liability Act.
- Before the lesson adults were required to sign a Ski School Waiver; her husband also purchased a lift ticket containing a waiver on its reverse. VSRI could not produce a signed copy of the Ski School Waiver, but the district court found Brigance’s assent to the waiver effectively conceded for purposes of the case.
- The district court dismissed Brigance’s negligence and negligence-per-se claims at the motion-to-dismiss stage, and after discovery granted VSRI summary judgment on remaining claims, holding both the Ski School Waiver and Lift Ticket Waiver enforceable and broadly applicable to bar her claims.
- On appeal the Tenth Circuit applied Colorado substantive law to determine waiver enforceability under Colorado’s four-factor Jones v. Dressel test and considered whether the Colorado Ski Safety Act (SSA) and Passenger Tramway Safety Act (PTSA) or public policy voided the waivers.
- The court concluded the waivers were enforceable: (1) ski services are recreational and do not implicate a public duty; (2) the services are not essential; (3) the contracts were fairly entered into; and (4) the waivers clearly and unambiguously expressed intent to release negligence claims (including language releasing liability for actual or alleged negligence).
- The court rejected arguments that the SSA or PTSA, or Colorado public policy, precluded enforcement of these recreational exculpatory waivers, and affirmed the district court’s grant of summary judgment for VSRI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of Ski School Waiver and Lift Ticket Waiver under Colorado law (Jones factors) | Brigance: waivers are unenforceable under Jones because ski/lift services implicate public duty, are regulated, and bargaining strength/unfair assent exist | VSRI: waivers are enforceable — skiing is recreational (not essential), parties fairly entered contracts, language is clear and unambiguous | Waivers enforceable: all four Jones factors do not invalidate the waivers (recreational activity, not essential; no unfair bargaining; clear release language) |
| Scope of the waivers — do they release claims for negligence (including non-inherent risks)? | Brigance: waiver language is ambiguous and may conflict with SSA (statutory limitation covers only "inherent" risks), so cannot be read to release broader negligence | VSRI: waiver language expressly releases claims arising in whole or in part from participation, including alleged or actual negligence; plain reading covers non-inherent risks | Held: release language is clear and unambiguous, covering negligence generally (including non-inherent risks); not rendered ambiguous by SSA reference |
| Effect of Colorado statutes (SSA and PTSA) and public policy on waivers | Brigance: SSA/PTSA and public policy governing ski lifts/statutory duties disallow contractual release of operator duties or otherwise invalidate waivers | VSRI: statutes regulate safety but do not expressly or implicitly prohibit private waiver of negligence claims in recreational context; enforcement consistent with Colorado precedent and legislative action | Held: SSA and PTSA do not bar enforcement of exculpatory waivers in the recreational skiing context; public policy does not preclude these waivers under existing Colorado law |
| Procedural challenge to whether plaintiff signed Ski School Waiver | Brigance: disputes that she signed the Ski School Waiver; VSRI could not produce signed copy | VSRI/district court: plaintiff’s prior discovery responses and deposition (and concession) treated as assent; plaintiff forfeited challenge by not pressing below | Held: Brigance forfeited argument she never signed; even if considered, record insufficient to create genuine dispute to defeat summary judgment |
Key Cases Cited
- Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (announces four-factor test for enforceability of exculpatory agreements)
- B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998) (releases may validly extend beyond statutorily defined inherent-risk protections)
- Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150 (10th Cir. 2015) (applying Colorado law: recreational releases generally enforceable; negligence releases not categorically barred)
- Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo. 2004) (analysis of recreational exculpatory agreements and Jones factors)
- Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002) (parental release of minor’s negligence claims barred by public policy; later addressed by statute)
- Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo. 1998) (describes SSA and PTSA framework preserving common-law negligence while limiting recovery for inherent ski risks)
- Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989) (discusses fairness in contracting and adhesion concerns)