{"id":27550,"date":"2024-05-21T14:37:08","date_gmt":"2024-05-21T20:37:08","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/ski-area-liability-waivers-arent-foolproof-colorado-supreme-court-rules\/"},"modified":"2024-05-21T20:37:08","modified_gmt":"2024-05-21T20:37:08","slug":"ski-area-liability-waivers-arent-foolproof-colorado-supreme-court-rules","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/ski-area-liability-waivers-arent-foolproof-colorado-supreme-court-rules\/","title":{"rendered":"Ski area liability waivers aren\u2019t foolproof, Colorado Supreme Court rules"},"content":{"rendered":"\n

\"The
The Paradise Express high-speed quad was built by Poma and installed at Crested Butte Mountain Resort in 1994. (Jason Blevins\/The Colorado Sun file)<\/span>cca<\/span><\/figcaption><\/figure>\n<\/p>

Liability waivers \u2013 standard click-through agreements that are a common part of buying a ski pass in Colorado \u2013 cannot be used to shield ski resorts from all negligence claims, a divided Colorado Supreme Court ruled in a landmark decision Monday.<\/p>\n

The court majority said waivers could protect ski areas from some types of liability claims. But it said negligence claims related to chairlift accidents and specific provisions of two Colorado laws \u2013 the Colorado Ski Safety Act and the Passenger Tramway Safety Act \u2013 cannot be waived away. It\u2019s the first time the state\u2019s highest court has ruled against liability waivers in a skiing case, and it marks a rare instance when a Colorado court has allowed a liability lawsuit against a ski area to go forward.<\/p>\n

\u201cWe have not previously addressed this question, and, in our view, it presents a matter of significant public importance, given the broad use of liability releases in the ski industry in Colorado,\u201d the court\u2019s opinion, written by Justice Richard Gabriel, says.<\/p>\n

Two justices on the seven-member court \u2013 Monica M\u00e1rquez and Melissa Hart \u2013 dissented and said they believe the liability waivers in the case block the negligence claims.<\/p>\n

The case had been closely watched and not just by the ski industry. Representatives from youth camps and rafting outfitters joined the ski industry in arguing that a Supreme Court ruling against the use of liability waivers could impact youth access to organized recreation.<\/p>\n

Though the case turns on a fine point of legal interpretation, it is rooted in tragedy. In 2022, a then-16-year-old girl named Annie Miller fell approximately 30 feet from a lift at Crested Butte while on a ski trip with her father, Mike. She landed on hard-packed snow and broke her back, leaving her quadriplegic.<\/p>\n

Mike Miller said he and others screamed for a lift attendant to stop the lift when Annie had difficulty getting seated but none did. He later filed a lawsuit alleging three different types of negligence on Crested Butte\u2019s part. The resort countered that Miller had waived such claims when he agreed to a liability waiver as part of buying his and Annie\u2019s ski passes.<\/p>\n

A lower court mostly agreed with Crested Butte, dismissing two of the three negligence claims. Miller appealed that order to the state Supreme Court.<\/p>\n

Different types of negligence<\/div>\n

In making its ruling, the Supreme Court majority drew a distinction between the two types of negligence claims the lower court dismissed: negligence per se and a form known as highest duty of care.<\/p>\n

In the latter type, the court majority concluded that the liability waivers validly protected Crested Butte. The majority said the waivers were clear about the risks of skiing, noting that they covered \u201cmisloading, entanglements, or falls from ski lifts.\u201d<\/p>\n

\"Flags
Flags outside the Colorado Supreme Court in Denver. (David Zalubowski\/Associated Press file)<\/span><\/figcaption><\/figure>\n<\/p>

Because the court majority decided that the waivers were enforceable, it upheld the lower court\u2019s decision to dismiss that negligence claim.<\/p>\n

But it reinstated the claim for negligence per se, which the majority opinion said occurs when \u201ca defendant violates a statute adopted for the public\u2019s safety.\u201d<\/p>\n

Protections for ski areas<\/div>\n

The statutes at issue are two heavyweights of Colorado\u2019s ski industry regulations: the Colorado Ski Safety Act and the Passenger Tramway Safety Act, which govern the operation of ski resorts and chairlifts. The Ski Safety Act, in particular, has a long history of protecting ski areas from liability claims.<\/p>\n

The ski industry says the law\u2019s protections are crucial for resorts to survive without being bankrupted by lawsuits over ski injuries. But the protections apply mostly to what the law calls \u201cthe inherent dangers and risks of skiing\u201d \u2013 i.e., sliding downhill at high speeds.<\/p>\n

In its ruling Monday, the Supreme Court noted one thing that is not included in the definition of the inherent risks: chairlift accidents.<\/p>\n

\u201cNothing 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,\u201d the law says.<\/p>\n

\"Ski
Ski racers ride the Excelerator chairlift toward the top of the training course at Copper Mountain on Nov. 15, 2023, near Frisco. (Hugh Carey\/The Colorado Sun)<\/span>cca<\/span><\/figcaption><\/figure>\n<\/p>

The court majority concluded the Ski Safety Act and the Passenger Tramway Safety Act create a legal framework intended \u201cto protect against the types of injuries, damages, and losses that Annie suffered.\u201d Because of that, the court majority found that Crested Butte was trying to waive away the kind of potential negligence that the Legislature wanted ski areas to be held accountable for.<\/p>\n

\u201cWe conclude that Crested Butte may not absolve itself, by way of private release agreements, of liability for violations of the statutory and regulatory duties,\u201d the majority wrote in its opinion.<\/p>\n

\u2018Nothing magical or unique\u2019<\/div>\n

The dissent, written by M\u00e1rquez and joined by Hart, argues that there\u2019s no meaningful distinction between the two kinds of negligence.<\/p>\n

\u201cThere is nothing \u2026 magical or unique about a claim premised on the theory of negligence per se,\u201d M\u00e1rquez wrote.<\/p>\n

In other words, if the waivers block one type of negligence claim, they should also block the other. Because M\u00e1rquez and Hart believe that the waivers are valid, they argued that both negligence claims should be dismissed.<\/p>\n

Case still undecided<\/div>\n

The Supreme Court\u2019s ruling Monday does not conclude the Millers\u2019 lawsuit or decide whether Crested Butte is to blame for Annie\u2019s injuries. It simply settles the legal questions around what parts of the lawsuit can move forward toward trial.<\/p>\n

\u201cWe express no view as to the ultimate merits of the claim,\u201d the court majority wrote.<\/p>\n

The case now goes back to the lower court \u2013 in Broomfield County, where Crested Butte\u2019s owner, Vail Resorts, is based. It could still be months or years before it is concluded.<\/p>\n

Citing the ongoing litigation, a spokeswoman for Vail Resorts declined to comment.<\/p>\n

The Colorado Sun\u2019s Jason Blevins contributed to this report<\/em>.<\/p>\n

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

involves a then-16-year-old girl who was paralyzed in 2022<\/p>\n","protected":false},"author":1,"featured_media":27551,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[378,233,133,28,1373],"naviga_topic":[],"class_list":["post-27550","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-alpine-skiing","tag-coloradosun-com","tag-courts","tag-headlines","tag-litigation"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/27550","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=27550"}],"version-history":[{"count":0,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/27550\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/27551"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=27550"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=27550"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=27550"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=27550"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}