926 F.3d 633
10th Cir.2019Background
- Brenda Patterson purchased a ski lift ticket online for Monarch Mountain (PowderMonarch) on March 18, 2014 and picked up the physical ticket at the resort on March 20, 2014.
- The back of the tear-away lift ticket contained a multi-paragraph “WARNING” with an exculpatory clause: ticket holder agreed to "assume all risks" and to "hold harmless and release" Monarch and its employees from any and all liability, including for negligence.
- Patterson did not read the tear-away back before using the lift. She fell while unloading a chairlift and was subsequently struck by another skier, sustaining injury to a nerve in her leg.
- Plaintiffs sued PowderMonarch in federal court (diversity) asserting negligence (Patterson) and loss of consortium (Welker). Defendant moved for summary judgment based on enforceability of the lift-ticket release; the district court granted summary judgment for Defendant and found alternative preemption under Colorado premises-liability law.
- On appeal, Plaintiffs argued (1) the release was a contract modification added after payment requiring new consideration, and (2) the release was invalid under Colorado’s Jones factors (not fairly entered into; not clear and unambiguous). They also argued their complaint should be read to assert statutory claims under the Ski Safety Act or Passenger Tramway Safety Act.
- The Tenth Circuit affirmed: it held no additional consideration was required and that the release satisfied the Jones factors (recreational context, fairly entered into, and clear/unambiguous application to the claimed negligence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the lift-ticket release was a contract modification requiring additional consideration because it was delivered after payment | Patterson: release added two days after payment; therefore a modification needing new consideration | PowderMonarch: the release was part of the same transaction (prepaid reservation then ticket pickup) and supported by original consideration | Held: not a modification; no additional consideration required (Mincin controlling) |
| Whether the exculpatory clause was "fairly entered into" under Colorado law (Jones factor 3) | Patterson: nonrefundable payment and travel costs meant she was not free to walk away, so the release was not fairly entered into | PowderMonarch: recreational context means parties can opt out; no coercion or special disadvantage here | Held: release fairly entered into; recreational nature and lack of compulsion satisfy factor 3 |
| Whether the exculpatory clause was expressed in clear and unambiguous language (Jones factor 4) | Patterson: undefined term "ACTIVITY," tiny font, legal jargon, and title "WARNING" made the release ambiguous and unclear as to lift-operator negligence | PowderMonarch: context (use of ski area facilities), bold/capitalized language, inclusion of negligence and employees in definitions makes the release plain | Held: clause is clear and unambiguous; applies to the claimed negligence |
| Whether statutory claims (Ski Safety Act or Passenger Tramway Safety Act) survive despite the release | Patterson: complaint should be construed to include statutory claims | PowderMonarch: any statutory claim would be barred by the enforceable release | Held: court declined to reach statutes because enforceable release bars claims; affirmed summary judgment for Defendant |
Key Cases Cited
- Mincin v. Vail Holdings, Inc., 308 F.3d 1105 (10th Cir. 2002) (exculpatory agreement received after payment but before activity is not a modification requiring new consideration)
- Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150 (10th Cir. 2016) (Colorado’s permissive approach to recreational releases; analysis of Jones factors)
- Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (four-factor test for enforceability of exculpatory agreements)
- Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243 (10th Cir. 2018) (upholding similar lift-ticket waiver and rejecting overbroad "legal jargon" ambiguity claims)
- B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998) (Colorado Supreme Court upholding equine activity release and rejecting ambiguity from mandatory warning)
- Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945 (Colo. App. 2011) (discussing when a contract is "fairly entered into" and bargaining-power concerns)