2020 COA 176
Colo. Ct. App.2021Background:
- Plaintiff Charlotte Redden, an experienced skier, was injured while disembarking the Ptarmigan chairlift at Loveland Ski Area when a preceding fallen skier blocked the exit and the lift attendant did not slow or stop the lift.
- Redden sued Clear Creek Skiing Corporation for common-law negligence and negligence per se under the Colorado Passenger Tramway Safety Act (PTSA) and the Ski Safety Act (SSA).
- Clear Creek moved for summary judgment relying on two exculpatory waivers: a signed equipment-purchase/release form (covering use of lifts and "assume all risks") and disclaimer language printed on the back of Redden’s lift ticket.
- The district court granted summary judgment for Clear Creek; the court of appeals reviewed de novo the legal validity of the waivers and the public-policy issues raised.
- The signed waiver released "any and all liability" including for alleged negligence; Redden acknowledged prior familiarity with the ticket-back language and had opportunities to review the signed form.
- The court evaluated the waivers under Jones v. Dressel (four-factor test) and considered whether enforcement would conflict with the PTSA/SSA public policy; one judge concurred in part and dissented as to the statutory negligence-per-se claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of waivers under Jones v. Dressel (four factors) | Waivers were not fairly entered and were procedurally unconscionable (tiny print, nonrefundable ticket, coerced at point of sale) | Recreational activity; no decisive bargaining power; waivers were readable and plaintiff had opportunity to review and was familiar with ticket language | Waivers valid under Jones: skiing is recreational, no unfair bargaining, waivers fairly entered and readable |
| Do waivers clearly and unambiguously cover operator negligence (fourth Jones factor) | Signed waiver could be read as limited to boot shop/equipment; ticket covers only inherent risks | Waivers use broad unambiguous language ("ASSUME ALL RISKS," "ANY AND ALL LIABILITY") covering lift use and negligence | Waivers unambiguously covered lift use and operator negligence; enforceable |
| Do waivers violate public policy embodied in PTSA/SSA? | Waivers undermine statutory safety scheme and statutory duties; cannot contract away statutory protections | PTSA/SSA do not expressly prohibit private waivers; Colorado precedent and legislative silence permit recreational releases | Majority: enforcement does not conflict with PTSA/SSA public policy; legislative silence and precedent support enforcement |
| Do waivers bar negligence per se claim under SSA (statutory duties) | Statutory negligence-per-se claim (violation of tramway rules) cannot be waived; public policy requires statutory remedy remain available | Waivers bar claims in this case; the statutory duties do not show intent to preclude contractual waiver | Majority: summary judgment affirmed (waivers barred the claims); Dissent: would allow negligence-per-se claim to proceed and remand |
Key Cases Cited
- 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) (enforcing recreational waivers against negligence claims and reasoning that SSA/PTSA do not preclude private releases)
- Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo. 1998) (PTSA/SSA supplement common-law negligence; legislature did not lower common-law standard of care for lifts)
- Boles v. Sun Ergoline, Inc., 223 P.3d 724 (Colo. 2010) (exculpatory agreements are not per se void)
- Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989) (exculpatory agreements disfavored; must be scrutinized)
- Patterson v. PowderMonarch, LLC, 926 F.3d 633 (10th Cir. 2019) (nonrefundable ticket and small font do not automatically invalidate recreational waivers)
- Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150 (10th Cir. 2016) (Colorado has a permissive public policy toward recreational releases; legislative action required to displace common law)
- Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002) (historical decision prompting later legislative change regarding parental waiver of minors' claims)
- Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983) (court excluded an exculpatory agreement that purported to alter statutorily allocated duties)