Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?Posted: April 11, 2016
Two decisions, if allowed to stand, will change the ski industry immensely. The standard of care owed to a passenger on a chairlift will drop considerably and allow ski areas a defense for the first time. At the same time, it should eliminate lawsuits by people who haven’t or should not be on a chairlift to begin with.
State: Colorado; United States District Court for the District of Colorado
Plaintiff: Teresa Brigance
Defendant: Vail Summit Resorts, Inc.
Plaintiff Claims: for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115
Defendant Defenses: Colorado Premises Liability Act
Holding: for Defendant in dismissing some of the plaintiff’s claims
This is another decision in a case that is probably still on going. The decision is a response to motions, there could still be a trial and appeal of all of the issues examined here.
Vail, owner of Keystone Ski Area where this accident occurred was sued for an injury a skier received getting off the lift. The plaintiff was taking a lesson from an instructor, an employee of the ski area. She was instructed on how to load and unload the lift. (I’m guessing she was a beginner based on this statement.) While unloading from the lift the back of her ski boots became wedged under the lip of the chair resulting in an injury to the plaintiff.
(That happens all the time loading a chair lift to me. My boots are high in the back, and a lot of chairs catch them. I can get money for that? I should ski every day and quit this job. Wait, this job doesn’t pay at all!)
The plaintiff sued. Vail filed a motion to dismiss the parts of the complaint and amended complaint of the plaintiff.
Analysis: making sense of the law based on these facts.
The court first looked at Vail’s argument the negligence and negligence per se claims should be dismissed. The court defined a negligence per se claim differentiating it from a negligence claim.
In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.”
Negligence per se occurs when the defendant violates a statute that the defendant was required to follow and the statute was intended to protect the person or the public from injury.
Vail’s argument was the complaint did not identify a specific statute that was violated. The complaint referred to the Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act, but not a particular part of either act that was violated.
Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.
However, the plaintiff failed to identify the specific part of the statute that was violated by the defendant. Even if an act was identified, the violation of the act must be clearly established by the plaintiff.
Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a statute, “the violation of which can be clearly established. In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.
The negligence per se claims were dismissed because the plaintiff failed to identify the specific act and the specific injury the act was created to prevent.
The next issue was the application of the Colorado Premises Liability Act to the facts. The defendant Vail had argued in an earlier decision (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) that the Premises Liability Act preempted the Colorado Skier Safety Act. The same argument was being made here.
The Colorado Premises Liability Act contains the following provision.
In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.
This provision was further supported in an earlier Colorado Supreme Court decision, Vigil v. Franklin, which held the Premises Liability Act preempted all other types and forms of liability of a landowner. “Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.“
The common law negligence claim no longer exists against a landowner, is it now a Premises Liability Act claim. This was supported earlier in the Raup decision, (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) “…holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act and must be dismissed.”
In this case, the incident occurred on land of the defendant.
Claim One is a common law negligence claim. Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.”
The plaintiff argued that a negligence claim survives because of the Defendant’s failure to “maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.”
However, the court found the plaintiff’s argument actually proved the issue. The incident occurred on the ground.
The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act.
The court went further to state the operation of the chair lift occurs on the land, is conducted on the ground that is the Defendants thus it is controlled by the Premises Liability Act.
Consequently, the plaintiff’s negligence claims were against a landowner and were preempted by the Colorado Premises Liability Act.
The final issue before the court was the defendant’s arguments that the claims against the individuals, the liftie and the ski instructor were duplicative in that as employees of the defendant, if proven the defendant was liable anyway. So those claims were the same as the other claims against the defendant Vail and should be dismissed. The court agreed.
So Now What?
The result is that instead of owing a skier on a chair lift the highest degree of care, that of a common carrier, the ski area owes a degree of care set forth to an invitee of a landowner.
13-21-115. Actions against landowners
(3)(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.
That degree of care is the unreasonable failure to exercise reasonable care to protect against dangers which the landowner knew about or should have known about. This standard of care is significantly lower than that of a common carrier.
Again, this case is not over so the results could change!
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