Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.Posted: August 7, 2017
The Federal District Court in this case used the language of the lift ticket to support the defendant ski area’s motion for summary judgment. The decision also says the release is valid for lift accidents in Colorado closing one of the last gaps in suits against ski areas in Colorado.
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Sally Rumpf & Louis Rumpf
Defendant: Sunlight, Inc.
Plaintiff Claims: negligence, negligence per se, and loss of consortium
Defendant Defenses: (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf
was negligent per se under the Ski Safety Act.
Holding: for the Defendant
The plaintiff traveled to Glenwood Springs, Colorado to visit family and ski. She rented equipment from the
defendant ski area, Ski Sunlight and purchased a lift ticket. As required to rent the ski equipment, the plaintiff signed a release.
While attempting to board a chair lift, the plaintiff injured her shoulder. The defendant filed a motion for summary judgment which the court granted with this decision.
Analysis: making sense of the law based on these facts.
In the statement of the facts, the court quoted from the language on the lift ticket.
Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW and EXCLUSIVE JURISDICTION shall be in the State or Federal Courts of the State of Colorado.
What is interesting is the Colorado Skier Safety Act, C.R.S. §§ 33-44-107(8)(b) requires specific language to be on the lift ticket.
Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.
It is unclear from the decision, and I do not have a copy of the Ski Sunlight lift ticket, to know if the required language is on the lift ticket. However, the language that was on the lift ticket was important and used by the court to make its decision.
The language required by the Colorado Skier Safety Act speaks to the risks assumed by a skier while skiing and does not speak to any risks of a chair lift. This creates an obvious conflict in the law for a ski area. Do you use the language required by the statute or use different language that a federal judge has said was instructive in stopping the claims of a plaintiff.
The court found the plaintiff had read and understood the release and knew she was bound by it. The plaintiff’s argument centered on the theory that the release did not cover lift accidents based on a prior case, Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998). That case held that a ski area owes the highest degree of care to skiers on the lift.
Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift.
The Bayer decision changed the liability issues for Colorado Ski Areas. It also created the only gap in protection for Colorado Ski Areas between the Colorado Skier Safety Act and release law. However, this was significantly modified by Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662, reviewed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
The court then reviewed the requirements under Colorado law for releases to be valid.
Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Additionally, the terms of exculpatory agreements must be strictly construed against the drafter.
The court reiterated several times that it was the intent of the parties within the language of the release that was the important aspect of the release, more than the specific language of the release. This intent was supported by the language on the lift ticket. Colorado has a 4 factor test to determine the validity of a release.
…in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.
Skiing in Colorado is recreational and not a service, so there is no public duty that would void a release. Because it is a service, and the plaintiff is free to go ski else where there is no adhesion so the agreement was entered into by the parties fairly.
Adhesion was defined by the court in Colorado as:
…Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.” However, printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract.
For the plaintiff to win her argument, the plaintiff must show “, “that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.”
The court then applied contract law to determine if the agreement was ambiguous.
“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.
The court in reviewing the release found the release to clearly and unambiguously set forth the party’s intent to release the ski area from liability.
The court again backed up its decision by referring to the language on the lift ticket.
Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.”
As such the release was valid and stopped the claims of the plaintiff and her spouse.
So Now What?
Although the basics of the decision are familiar under Colorado law, the court’s reference to the language on the lift ticket is a departure from Colorado law and the law of most other states. See Lift tickets are not contracts and rarely work as a release in most states.
Whether or not a lift ticket standing by itself is enough to stop a claim is still in the air and probably will be. The language on this lift ticket may have been different than the language required by law, which basically states the skier assumes the risk of skiing. The required statutory language does not cover any issues with loading, unloading or riding chair lifts.
This creates a major conflict for ski areas. What do you put on the lift ticket. The statute requires specific language; however, there are no penalties for failing to put the language on the lift ticket. However, it is negligence to violate any part of the statute, if that negligence caused an injury.
C.R.S. §§ 33-44-104. Negligence – civil actions.
(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.
(2) 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.
Failing to put the language on the lift ticket by itself could not cause an injury. The language required on the lift ticket is the same language required to be posted where ever lift tickets are sold and posted at the bottom of all base area lifts. Base area lifts are the lifts used to get up the mountain. Lifts that start further up the mountain, which require a lift right to reach don’t need the warning signs.
My advice is to include the statutory language and much of the language of this decision on lift tickets. You just don’t want to walk into a courtroom and be accused of failing to follow the law. You might be right, but you will look bad and looking bad is the first step in writing a check. The biggest limitation is going to be the size of the lift ticket and print size.
This case, although decided before Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard? and was quoted in this decision, it adds another block into what is now an almost impregnable wall against claims from skiers in Colorado.
What do you think? Leave a comment.
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