Charlotte Redden v. Clear Creek Skiing Corporation
No. 19CA0512
Colorado Court of Appeals
December 31, 2020
2020COA176
Opinion by JUDGE DAILEY
Clear Creek County District Court No. 18CV30003; Honorable Wayne Patton, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
December 31, 2020
2020COA176
No. 19CA0512, Redden v. Clear Creek Skiing Corporation — Contracts — Exculpatory Agreements; Professions and Occupations — Public Tramways; Parks and Wildlife — Ski Safety and Liability — Ski Safety Act of 1979
A division of the court of appeals considers whether ski area operators can, by means of exculpatory agreements, protect themselves from lawsuits arising from the alleged negligence of their employees. At issue in this case is the validity of two exculpatory agreements — one in connection with a purchase of ski equipment, the other on the back of a lift ticket — purporting to bar claims by a skier injured while getting off a ski lift.
A majority of the division concludes that the exculpatory agreements are not only valid under Jones v. Dressel, 623 P.2d 370 (Colo. 1981), but that they also do not undermine public policies
Division I
Opinion by JUDGE DAILEY
Hawthorne*, J., concurs
Davidson*, J., concurs in part and dissents in part
Announced December 31, 2020
Levin Sitcoff, P.C., Bradley A. Levin, Nelson A. Waneka, Susan S. Minamizono, Denver, Colorado, for Plaintiff-Appellant
The Rietz Law Firm, L.L.C., Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado, for Defendant-Appellee
Leventhal Puga Braley, P.C., Timothy J. Luetkemeyer, Bruce L. Braley, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association
*Sitting by assignment of the Chief Justice under provisions of
¶ 2 In this case, we address whether ski area operators can, by using exculpatory agreements, protect themselves from personal injury lawsuits arising from the alleged negligence of their employees. Because we determine that they may protect themselves in this manner, we affirm the district court‘s entry of summary judgment in favor of defendant, Clear Creek Skiing Corporation (Clear Creek), and against plaintiff, Charlotte Redden.
I. Background
¶ 3 Clear Creek owns the Ptarmigan ski lift at, and has operational responsibility for, the Loveland Ski Area.1 Redden, an experienced skier living in Colorado, was hurt as she attempted to get off that lift. Unbeknownst to her, a skier on the chair ahead of her had fallen while getting off the lift. When Redden tried to get off her chair by standing up at the top of the exit ramp, she saw — but
¶ 4 Redden brought the present action against Clear Creek, asserting claims for negligence and negligence per se under, as pertinent here, the Colorado Passenger Tramway Safety Act (the PTSA), sections
¶ 5 Clear Creek moved for summary judgment based on two exculpatory agreements: one Redden signed nearly a year before the incident when she purchased a pair of ski boots and had her ski bindings adjusted at Clear Creek‘s ski shop (signed waiver), and
¶ 6 The signed waiver was titled “RELEASE of LIABILITY, and INDEMNIFICATION AGREEMENT.” In its first paragraph, the signed waiver defined a term it would use — “ACTIVITY” — as including “using ski area facilities, including the lifts.” In accord with Colorado statutes, it advised the purchaser of equipment that, by law, a skier voluntarily assumes the risk of injury in connection with certain inherent dangers and risks of skiing. It then provided,
5. . . . . THE UNDERSIGNED acknowledge and understand that a skier ASSUMES THE RISKS of the inherent dangers and risks of skiing. THE UNDERSIGNED recognize that falls and collisions occur and injuries are a common and ordinary occurrence of the ACTIVITY. THE UNDERSIGNED hereby VOLUNTARILY ASSUME ALL RISKS associated with the PURCHASER‘S participation in the ACTIVITY and use of this equipment.
6. Additionally, THE UNDERSIGNED HEREBY AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY Clear Creek Ski Corporation d/b/a Loveland Ski Areas, the equipment manufacturers and distributors, their successors in interest, their affiliated organizations and companies, and each of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders (each hereinafter a “RELEASED PARTY“) for ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to property arising from the PURCHASER‘s use of this equipment, including those claims based on any RELEASED PARTY‘s alleged or actual NEGLIGENCE OR BREACH OF any express or implied WARRANTY. 7. THE UNDERSIGNED take full responsibility for any injury or loss to PURCHASER, including death, which PURCHASER may suffer, arising in whole or in part out of the ACTIVITY. By signing this release, THE UNDERSIGNED AGREE NOT TO SUE any RELEASED PARTY and agree they are releasing any right to make a claim or file a
lawsuit against any RELEASED PARTY. THE UNDERSIGNED further AGREE TO DEFEND AND INDEMNIFY each RELEASED PARTY for any and all claims of THE UNDERSIGNED and/or a THIRD PARTY arising in whole or in part from the PURCHASER‘s use of this equipment and/or PURCHASER‘s participation in the ACTIVITY. THE UNDERSIGNED agree to pay all costs and attorney‘s fees incurred by any RELEASED PARTY in defending a claim or suit brought by or on behalf of THE UNDERSIGNED.
¶ 7 The ticket waiver provided, “HOLDER AGREES AND UNDERSTANDS THAT SKIING, SNOWBOARDING, AND USING LOVELAND SKI AREA, INCLUDING ITS LIFTS, FOR ANY PURPOSE CAN BE HAZARDOUS.” Then, after warning the ticket holder that, by law, “a skier assumes the risks of any injury . . . resulting from any of the listed inherent risks of skiing,”4 the ticket waiver provided:
Holder understands that he/she is responsible for using the ski area safely and for having physical dexterity to safely load, ride, and unload the lifts . . . . In consideration of using
the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS Loveland Ski Area and its representatives for all claims to injury to person or property.
¶ 8 In her response to Clear Creek‘s motion for summary judgment, Redden asserted that the two exculpatory agreements were unenforceable because (1) the signed waiver was not fairly entered into; (2) the two agreements did not clearly and unequivocally evidence an intent to waive a claim of negligence against Clear Creek; and (3) they were contrary to the public policy expressed in the SSA and PTSA.
¶ 9 In a written order, the district court rejected Redden‘s arguments and granted summary judgment for Clear Creek.
¶ 10 Redden now appeals.
II. The District Court Properly Granted Summary Judgment for Clear Creek
¶ 11 Redden contends the district court erred by entering summary judgment for Clear Creek. We disagree.
¶ 12 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and judgment should be entered as a matter of law.
¶ 13 Here, the court granted summary judgment based solely on the exculpatory agreements, the validity of which is a question of law that we review de novo. Id.; see Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010).
¶ 14 Exculpatory agreements purporting to shield a party from liability for its own simple negligence are disfavored. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, they are not necessarily void. Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010); Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). They stand at the crossroads of two competing principles — freedom of contract and responsibility for damages caused by a party‘s negligent acts. Heil, 784 P.2d at 784.
¶ 15 On appeal, Redden contends that the exculpatory agreements were invalid (1) under Jones v. Dressel, 623 P.2d 370, 373 (Colo. 1981) and (2) because they undermine public policies underlying the PTSA and SSA. We address — and reject — these contentions in turn.
¶ 16 Exculpatory agreements are closely scrutinized under four factors (the Jones factors) to determine whether they are valid: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376.
¶ 17 The first two factors focus on public policy questions, asking whether the service provided is of “great importance to the public” or is a matter of “practical necessity,” as opposed to (among other things) a recreational one. Id. at 376-77 (citation omitted). The latter two factors focus, respectively, on the agreement‘s fairness and clarity.
1. The First Two Jones Factors
¶ 18 For good reason Redden does not contest the district court‘s conclusion that the exculpatory agreements were not objectionable based on the first two Jones factors: “Although skiing is a recreational activity enjoyed by many, by definition and common sense, it is neither a matter of great public importance nor a matter of practical necessity.” Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (applying Jones); accord Patterson v. PowderMonarch, LLC, 926 F.3d 633, 639 (10th Cir. 2019) (concluding skiing satisfies the first two Jones factors); Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1250-53 (10th Cir. 2018) (same); Raup v. Vail Summit Resorts, Inc., 734 F. App‘x 543, 546 (10th Cir. 2018) (same); Rumpf v. Sunlight, Inc., No. 14-CV-03328-WYD-KLM, 2016 WL 4275386, at *1-4 (D. Colo. Aug. 3, 2016) (unpublished opinion) (applying Jones); Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational service, not an essential service“), aff‘d sub nom. Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867 (10th Cir. 2013).
2. The Third Jones Factor
¶ 19 “With respect to the third factor, a contract is fairly entered into if one party is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the other party‘s negligence.” Stone, ¶ 18. Because recreational activities like skiing are not essential activities, Clear Creek did not possess a decisive advantage of bargaining strength that put participants “at the mercy” of any
¶ 20 Nonetheless Redden asserts that the agreements were not fairly entered into because it‘s unfair (1) “to hold a person‘s property hostage until they sign a waiver“; (2) to sell, through the mail, an
¶ 21 As to Redden‘s first point, she says nothing in her opening brief beyond (1) what was said above and (2) one additional sentence — “After the boots had been adjusted [in the ski shop], and apparently in order to take possession of them, Redden was required to sign a waiver . . . .” (Emphasis added.) She neither cites any authority nor attempts to develop any cogent argument on this point. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“); People v. Hicks, 262 P.3d 916, 920 (Colo. App. 2011) (declining to address contention “because [the] defendant has neither articulated a cogent argument for review nor provided supporting legal authority“). In any event, as noted by Clear Creek, Redden proffered no evidence that her boots were “held hostage” or
¶ 22 As to Redden‘s second point, she made no argument about the effect of a nonrefundable ticket in the district court.5 Consequently,
¶ 23 In Patterson, the plaintiff argued that “the exculpatory agreement . . . was not fairly entered into due to the fact that [her] payment for the lift ticket was nonrefundable, and thus she was not ‘free to walk away.‘” 926 F.3d at 641 (footnote and citation omitted). The Tenth Circuit Court of Appeals, however, rejected this argument, for the same reasons we would:
[T]he term “free to walk away” [is used] to explain that an individual engaging in a recreational activity, unlike an individual who seeks to obtain housing or other necessities of life, is not constrained to participate and accordingly may opt out of an activity if he is unwilling to accept exculpatory terms. Plaintiffs do not cite to a single Colorado case — or federal case applying Colorado law — that would support Plaintiffs’ interpretation of “free to walk away” to mean free from all costs, rather than free from compulsion or coercion.
To the contrary, our cases have upheld exculpatory agreements for recreational activities even where the facts would suggest that the individual might well have lost money if she had chosen not to engage in the activity upon receipt of the exculpatory agreement. . . . We have found no cases from either this court or from a Colorado court suggesting that the third Jones factor can only be satisfied if an individual would have been able to back out of an optional activity without incurring any costs; rather, all of the pertinent authorities indicate that this factor will generally be satisfied where the contract relates to a non-essential recreational activity, absent evidence of unusual circumstances such as incompetency.
Id. at 640-41 (citations omitted).
¶ 24 Finally, in our view, Redden‘s argument about Clear Creek‘s “sneaking” broadly worded exculpation language into a document purportedly predominantly addressing Redden‘s equipment impacts the fourth Jones factor (interpreting the agreements) rather than the third. For purposes of the third factor, what is important is that in two separate locations on the signed waiver, Redden acknowledged that she had an opportunity to review the contents of
3. The Fourth Jones Factor
¶ 25 Turning to the fourth Jones factor, Redden contends that the agreements do not “clearly” and “unambiguously” express her intent to relieve Clear Creek of liability from negligence in operating its ski lifts. To this end, she asserts that a reasonable person could have interpreted (1) the signed waiver as limiting the liability of only the boot shop, the manufacturers, and distributors of the boots; and (2) the ticket waiver as limiting Clear Creek‘s liability for the
¶ 26 To determine whether the parties’ intent was clearly and unambiguously expressed, the agreements’ “language must be examined and construed in harmony with the plain and generally accepted meaning of the words employed.” Ad Two, Inc. v. City & Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000). Contract terms “are ambiguous when they are susceptible to more than one reasonable interpretation.” Id. “The inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Heil, 784 P.2d at 785; see also Stone, ¶ 21.
¶ 27 To the extent the fourth factor considers the character of the activity, it only focuses on whether the agreement‘s language, evidencing the parties’ intention, covers the activity in question. Compare Stone, ¶ 27 (the dominant focus of the exculpatory agreement was limited to the assumption of the risk of strenuous exercise and using exercise equipment at a fitness center), with Jones, 623 P.2d at 378 (the exculpatory agreement covered injuries sustained “while upon the aircraft of the Corporation“).
¶ 30 Similar language appears — achieving a similar effect — in the ticket waiver. In addition to the statutorily mandated warning of the inherent risks and dangers of skiing, the ticket waiver also includes (under the phraseology of an “understanding“) a warning in capital letters that the use of ski lifts can be hazardous. And, the ticket waiver provides that, “[i]n consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS Loveland Ski Area and its representatives for all claims for injury to person or property.”
¶ 31 We conclude that the two exculpatory agreements are clear: The purchaser of the boots and the holder of the ticket are “to assume all risks of skiing, whether inherent to skiing or not.” See Patterson, 926 F.3d at 643 (enforcing the agreement even though it
¶ 32 In so concluding, we reject Redden‘s misplaced reliance on Stone. There, the plaintiff sued a fitness club when she tripped on a hair dryer cord after washing her hands. Stone, ¶ 1. The district court granted summary judgment for the fitness club based on an exculpatory agreement. Id. On appeal, a division of this court reversed, after concluding, for seven reasons, that the agreement did not clearly and unequivocally bar the plaintiff‘s lawsuit. Id. at ¶ 35. In the division‘s view, the agreement “use[d] excessive legal jargon, [wa]s unnecessarily complex, and create[d] a likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Id. The division noted that
nothing in the Agreement refer[red] to risks of using sinks or locker rooms. The assumption of risk clause refer[red] to the “risk of loss,
theft or damage or personal property” for the member or her guests while “using any lockers” at a Life Time Fitness center. That is quite a separate matter, however, from suffering a physical injury in a locker room.
¶ 33 The exculpatory agreements here are readily distinguishable from the one in Stone. They are not inordinately long and do not contain “excessive” legal jargon. And, most importantly, they both explicitly encompass the waiver of injuries resulting from the use of ski lifts.
¶ 34 Consequently, we conclude that the signed waiver and the ticket waiver unambiguously evidence the parties’ intention to cover the activity in question — that is, riding on a ski lift. See Heil, 784 P.2d at 785; see also Stone, ¶ 21. Thus, they are enforceable under Jones.
III. The Agreements Do Not Undermine the Public Policies Underlying the PTSA and the SSA
¶ 35 Redden also contends that, even if the waivers are enforceable under Jones, they are still invalid because they are contrary to public policy expressed in the PTSA and SSA. We disagree.
¶ 36 “Statutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute.” Phillips v. Monarch Recreation Corp., 668 P.2d 982, 987 (Colo. App. 1983). Whether a private agreement violates public policy is a question of law that we review de novo. See Griffin v. State Farm Mut. Auto. Ins. Co., 2016 COA 127, ¶ 9 (“Whether an insurance policy provision violates public policy, and is therefore void and unenforceable, is . . . a question of law that we review de novo.“).
A. The PTSA and SSA: An Overview
¶ 37 The General Assembly enacted the PTSA in 1965 to assist “in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.”
to,” as pertinent here, “assure that . . . accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made that are deemed essential to the safe operation of, passenger tramways.” Id.
¶ 38 “The legislature has empowered the [Tramway] Board with rulemaking and enforcement authority to carry out its functions,” including the “authority to conduct investigations and inspections, to discipline ski area operators, to issue licenses, to order emergency shut downs, and to engage in other functions related to the purpose of the [PTSA].” Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 73 (Colo. 1998) (footnote omitted) (citing statutes now codified at
¶ 39 In 1979, the Colorado General Assembly enacted the SSA to (1) supplement the PTSA; (2) “further define the legal responsibilities of ski area operators and their agents and employees“; (3) “define the responsibilities of skiers using such ski areas“; and (4) “define the rights and liabilities existing between the skier and the ski area operator and between skiers.”
¶ 40 In 1990, the General Assembly amended the SSA
¶ 41
A violation by a ski area operator of any requirement of this article 44 or any rule promulgated by the passenger tramway safety board pursuant to
section 12-150-105(1)(a) shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.8
¶ 42 The overall effect of the PTSA and SSA is to “provide a
B. Analysis
¶ 43 In Brigance, the Tenth Circuit Court of Appeals considered — and rejected — the very argument that Redden makes here; that is, that enforcing exculpatory agreements in the skiing context violates the public policy underlying the PTSA and SSA:
It is true that the SSA and PTSA identify various duties and responsibilities that, if violated, may subject a ski area operator to liability. But the acts establish a framework preserving common law negligence actions in the ski and ski lift context, Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance does not identify a single provision in either the SSA or PTSA suggesting the enforcement of exculpatory agreements in the ski and ski lift context is impermissible or contrary to public policy. Moreover, “Colorado law has long permitted parties to contract away negligence claims in the recreational context” and we “generally will not assume that the General Assembly mean[t] to displace background common law principles absent some clear legislative expression of that intent.” Espinoza [v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1154, 1155 (10th Cir. 2016)]. This principle is particularly relevant in the context of exculpatory agreements because “[t]he General Assembly . . . has shown that — when it wishes — it well knows how to displace background common law norms and preclude the release of civil claims.” Espinoza, 809 F.3d at 1154–55.
Brigance, 883 F.3d at 1260-61.9
¶ 44 “[W]e are not bound by decisions of federal courts applying Colorado law.” Walker v. Ford Motor Co., 2015 COA 124, ¶ 25, aff‘d on other grounds, 2017 CO 102.
¶ 45 Redden disputes this conclusion, based on
The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
¶ 46 In our view, this provision does not help Redden. By its terms, it says “[n]othing in this section shall be construed to limit” negligence claims against the operators of ski lifts; it says nothing, however, about whether, wholly apart from the statute, the parties could or could not privately agree to waive such claims.
¶ 47 The State of Alaska has a statutory provision similar to
¶ 48 In other contexts, our General Assembly has not been reluctant to invalidate exculpatory agreements. See, e.g.,
¶ 49 Consequently, we take into account that, had the General Assembly intended to outlaw exculpatory agreements in connection with the use of ski lifts, “it knew how to do so.” Students for Concealed Carry on Campus, LLC v. Regents of the Univ. of Colo., 280 P.3d 18, 23 (Colo. App. 2010), aff‘d, 2012 CO 17.
¶ 50 We, like the Tenth Circuit, view the General Assembly‘s failure to address the effect of the type of exculpatory agreement here as significant. Viewing the legislature‘s silence in light of Colorado‘s history of enforcing exculpatory agreements in connection with recreational activities, we discern no basis in the PTSA or SSA for voiding, on public policy grounds, the signed and ticket waivers in this case. See Chauvlier v. Booth Creek Ski Holdings, Inc., 35 P.3d 383, 387 (Wash. Ct. App. 2001) (enforcing exculpatory agreement, despite statutes “delineat[ing] [the] responsibilities of both skiers and ski resort operators,” and the ski area operator having “significant control over the safety of its customers while they are using the area‘s lifts and trails“); cf. Bayer, 960 P.2d at 76 (“The
¶ 51 In so concluding, we reject Redden‘s assertion that the use of exculpatory agreements like those in the present case (1) leaves skiers’ safety wholly at the mercy of ski industry employees and (2) removes any incentive for ski areas to effectively manage risks of skier safety. Under our law, exculpatory agreements cannot operate to release another person or entity from liability caused by grossly (i.e., willful and wanton) negligent or reckless conduct. See McShane v. Stirling Ranch Prop. Owners Ass‘n, 2017 CO 38, ¶ 20 (“Under no circumstances will an exculpatory agreement be permitted to shield against a claim of willful and wanton
- “receive complaints“;
- “investigate matters“;
- “cause the prosecution and enjoinder . . . of all persons violating the [Act‘s] provisions“;
- “conduct meetings, hold hearings, and take evidence“;
- “discipline area operators“; and
- “impose disciplinary action,” including sending letters of admonition, assessing fines (up to $50,000 if acts or
omissions are found to be willful), and “impos[ing] . . . reasonable conditions upon the continued licensing of a passenger tramway.”
¶ 52 Finally, we also reject Redden‘s reliance on the holding in Phillips, 668 P.2d 982. In Phillips, the division concluded that because the SSA “allocate[s] the parties’ respective duties with regard to the safety of those around them, . . . the trial court correctly excluded a purported [exculpatory] agreement intended to alter those duties.” Id. at 987. But as the court in Brigance noted, “apparently unlike the agreement at issue in Phillips, the [two agreements here] do not appear to alter the duties placed upon [the ski resort] under the SSA,” and the division‘s decision in Phillips “appears to be inconsistent with the more recent pronouncements by the Colorado Supreme Court and General Assembly regarding Colorado policies toward the enforceability of exculpatory agreements in the context of recreational activities. Moreover, as detailed above, the SSA and PTSA do not express a policy against exculpatory agreements.” Brigance, 883 F.3d at 1261-62.
IV. Disposition
¶ 53 The judgment is affirmed.
JUDGE HAWTHORNE concurs.
JUDGE DAVIDSON concurs in part and dissents in part.
¶ 54 Plaintiff‘s amended complaint included two claims for relief — one for common law negligence; the other for negligence per se for violation of explicit duties set forth under
¶ 55 As to the trial court‘s dismissal of the common law negligence claim, I agree with plaintiff that approval of the use of exculpatory agreements to effectively immunize ski area operators from financial responsibility for their injury-causing negligence seems to undermine the very purpose of the defined rights and liabilities set forth in the SSA. Nevertheless, I can‘t ignore that Colorado state and federal decisions validating the use of such exculpatory agreements to bar common law negligence claims in recreational cases — now including ski lift injury actions — have been met with silence from the Colorado legislature.1
¶ 57 To protect passenger safety, the SSA mandates that ski lift operators follow the provisions of the SSA, the PTSA, and the specific regulations adopted by the passenger tramway safety board (PTSB)
¶ 58 Here, in addition to a common law negligence claim, plaintiff‘s amended complaint contained a detailed statutory claim, seeking damages for injuries caused by defendant‘s violations of explicit provisions of the PTSA and SSA. In my opinion, it should not have been dismissed as barred.
¶ 59 Relying on Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243 (10th Cir. 2018), defendant insists that the exculpatory
¶ 60 And, while it is generally true, as defendant asserts, that not every violation of a statutory duty supports a private civil remedy, the SSA explicitly provides for just that — a negligence per se claim for damages for victims of injury-causing violations of the PTSB regulations. Certainly, immunizing a ski lift operator by exculpatory agreement from the remedy explicitly provided for by the legislature, in the name of public safety, for injuries caused by a ski lift operator‘s violation of statutory duties, necessarily alters those duties; that is, the ski lift operator suffers no financial
¶ 61 Moreover, because, by its plain language, the legislature clearly intended to create a negligence per se claim for violation of the specific statutory duties in the SSA, I am unpersuaded by the majority‘s reliance on Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1154 (10th Cir. 2016), to suggest that plaintiff‘s statutory negligence per se claim was properly barred as nothing more than a common law negligence claim with a different label. The statutory interpretation at issue in Espinoza was whether the legislature intended to create a negligence per se claim in
¶ 62 Similarly, because the legislature explicitly created a statutory per se claim in the SSA, separate and apart from a common law claim, I see as merely distracting any suggestion that, as in the river outfitter statute, there is no real distinction between the standards of conduct for a common law claim and a statutory per se claim brought under the SSA. See Bayer, 960 P.2d at 78 (statutory negligence per se claims brought under SSA supplement but don‘t replace pre-existing common law negligence claims).
¶ 63 But, in any event, as I understand the supreme court‘s analysis in Bayer, the standards are not the same. See Bayer, 960 P.2d at 78-80 (explaining that, as defined by the legislature, the standard of conduct applicable to ski lift operators in a statutory claim of negligence per se is ordinary and reasonable care consistent with the rules and regulations of the SSA and PTSA and deciding that, regardless of the SSA and PTSA, for common law claims of negligence beyond the statutory duties with which a ski operator is required by law to comply, the standard remains as the highest standard of care). Indeed, according to Bayer, the standard of care for a statutory claim (viz., reasonable care) is intended as the minimum standard. Consequently, a statutory claim does not preempt a separate common law claim against a ski lift operator for failure to take additional safety precautions, to which, the supreme court held, the highest standard of care applies.6
¶ 65 Consistent with that, I add, potential sanction of ski lift operators by governmental authority per the PTSA is not enough to satisfy the public policy set forth in the SSA. Nor is it material that ski lift accident victims may, aside from the SSA, seek damages against a ski lift operator for willful and wanton conduct. To the point, as per the amicus brief, “the General Assembly enacted the
¶ 66 For these reasons, I would hold that the exculpatory agreements here did not bar plaintiff‘s negligence per se claim for violations of explicit duties laid out in the SSA, PTSA, and the regulations adopted by the PTSB. Accordingly, I would remand this case for further proceedings on that claim.
Notes
Patterson v. PowderMonarch, LLC, 926 F.3d 633, 638 n.3 (10th Cir. 2019). In fact, the Brigance plaintiff‘s per se claim was not barred by exculpatory agreement, but dismissed for failure to state a claim because the complaint was facially insufficient to allege a statutory violation. Brigance v. Vail Summit Resorts, Inc., No. 15-CV-1394-WJM-NYW, 2017 WL 131797, at *9 (D. Colo. Jan. 13, 2017) (dismissing as insufficient the plaintiff‘s negligence per se claim based on violation of subsections ofColorado law permits contracts to be formed without the signatures of the parties bound by them. See Yaekle v. Andrews, 195 P.3d 1101, 1107 (Colo. 2008) (noting that “common law contract principles . . . allow for the formation of contracts without the signatures of the parties bound by them“); see also Feeney v. Am. W. Airlines, 948 P.2d 110, 113 (Colo. App. 1997) (“[N]o such signature or other method of acknowledgment was required to accept the . . . terms. Plaintiffs accepted the terms of the travel contract by accepting and using the passenger tickets.“).
- 1. be knowledgeable of operational and emergency procedures;
- 2. monitor passengers’ use of the aerial lifts by observing, advising, and assisting passengers as they disembark from the lift; and
- 3. respond to unusual occurrences or conditions by choosing an appropriate action, which may include, without limitation,
- 4. slowing and/or stopping the aerial lift.
Based on our review of the copies of the agreements in the record, we perceive no basis upon which to disturb the court‘s ruling. See Raup v. Vail Summit Resorts, Inc., 734 F. App‘x 543, 548 (10th Cir. 2018) (“In other words, a waiver provision must be accessible to a customer who wishes to read it. It should be legible without resort to a special device (that is, a device unlikely to be readily available), and it should be readily comprehensible by a layperson.“); see also Patterson, 926 F.3d at 642 (“While the font size is small, it is certainly readable, and key phrases are . . . capitalized . . . to attract the reader‘s attention to the release of liability and other critical information.“). In any event, as will be shown later, Redden was familiar with the agreement language. It may be that the explicit provision in the SSA of a separate remedy of negligence per se for violations of statutory duties, to date, is unique among Colorado recreational statutes. E.g.,[t]he language as printed on the back of the paper ticket is quite small, however, it may be read without resorting to a magnifying glass. Stone v. Life Time Fitness, Inc., 411 P.3d 225 (Colo. App. 2016) (finding that a “provision that would exempt its drafter from liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.“).
- a) to be knowledgeable of operational and emergency procedures and the related equipment needed to perform the assigned duties;
- b) to monitor the passengers’ use of the aerial lift; including observing, advising and assisting them while they are in the attendant‘s work area as they embark on or disembark from the aerial lift; and to respond to unusual occurrences or conditions, as noted. The attendant should respond by choosing an appropriate action, which may include any of the following.
- 1) assisting the passenger;
- 2) slowing the aerial lift (if applicable);
- 3) stopping the aerial lift;
- 4) continuing operation and observation.
Brigance, 883 F.3d at 1261 (quotingthe General Assembly explained [in section 13-22-107] that . . . it is the public policy of Colorado that “[c]hildren . . . should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist” and that “[p]ublic, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits.”
Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1153-55 (10th Cir. 2016) (finding that, under Colorado‘s “relatively permissive public policy toward recreational releases,” release was enforceable against negligence claim based on violation of statutedoes not suggest how these provisions create any distinctly new duty of care. Indeed, they appear to be more or less coextensive with the preexisting common law standard of care, which requires parties to act with “reasonable care . . . i.e., that which a person of common prudence would use under the circumstances.” Christensen v. Hoover, 643 P.2d 525, 529 (Colo. 1982). And given this it seems hard to see a rational basis on which the law might treat such similar (identical?) claims so differently based merely on how they are pleaded, rewarding the crafty but penalizing the pedestrian pleader.