This decision is either normal, or ground breaking. The release info is nothing new. However, the court found the language on the back of the lift ticket created a release which barred the plaintiff’s claims.
Posted: January 15, 2018 Filed under: Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: bargaining, common law, discovery, Equine, essential service, exculpatory, harmless, holder, inherent dangers, Inherent Risks, lesson, lift, Lift Ticket, Negligence per se, practical necessity, practically, public policies, quotation marks omitted, recreational, recreational activities, Release, riding, service provided, signer, Ski, ski area, ski lifts, Skier, skiing, Statutory Language, Summary judgment, unenforceable 11 Comments11th Circuit Court of Appeals upholds lower decision dismissing claims of a plaintiff who broke her femur unloading a lift during a ski lesson.
Lower Court decision was based on Colorado Premises Liability Act. This decision was based on the release the plaintiff signed to take the ski lesson.
For an analysis of the lower court decision see: Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
State: Colorado: United States Court of Appeals for the Tenth Circuit
Plaintiff: Teresa Brigance
Defendant: Vail Summit Resorts, Inc. (Keystone Ski Area)
Plaintiff Claims: (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115
Defendant Defenses: Release and the lift ticket
Holding: For the Defendant Ski Area, Vail
Year: 2018
This case looks at the law concerning releases in Colorado. Writing a release requires three skills. The first is an understanding of the law that will be applied to the release in question. The second is an understanding of the activity, and the risks associated with the activity the release must cover. The third is what do judges want to see in the release and what they don’t want to see.
The first and third items are what I specialize in. The second item is what we have to specialize in. Writing a release is not handing a contract job to an attorney. It is understanding how you want to run your business, the guests you want to serve and the types of problems you want to prevent from turning into litigation.
If you need a release for your business, activity or program consider working with me to design one. You also have the option of purchasing a pre-written release based upon the needs of your business, type of activity and the state where you are located.
To help you understand release law, here is an article about how a release was written correctly and then used to stop a claim.
Summary
This decision does not stand out among decisions concerning release law in Colorado. However, it is an extreme change from Colorado law and the law of most other states when it states the backside of a lift ticket is a release. The lower court decision was analyzed 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 plaintiff was taking a ski lesson when she fell getting off the lift. She sued for the normal negligent issues. The court throughout her claims based upon the release she signed to take the ski lesson.
Facts
The plaintiff signed up to take a ski lesson with Keystone Resorts, a ski area owned by the defendant Vail Summit Resorts, Inc. and ultimately by Vail Resorts Management Company. (There may be some more corporations or LLC’s in the middle.) When she signed up for the lesson, she signed a release which is a common practice at ski areas.
When she was unloading a lift, the edge of the chair caught the top of her ski boot, and she fell eventually breaking her femur.
She sued. Her case was thrown out by the trial court. See Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662 analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
On a side note. One of her claims was the lift did not stop immediately. One defense I never see to this claim; lifts don’t stop immediately. If the lift stopped immediately, everyone riding the lift would be thrown off. Lift’s decelerate at a speed that allows the lift to stop as quickly as possible without ejecting everyone riding on the lift. If nothing else it is a save everyone else on the lift and sacrifice the person who can’t unload.
Analysis: making sense of the law based upon these facts.
The 10th Circuit Court of Appeals is a federal court. The plaintiff filed this case in federal court because she was from Florida. Vail and the locations of the accident are in Colorado. That allowed her to have federal jurisdiction in the case because the plaintiff and the defendant were from two different states.
When a federal court has a case like this, it applies the law of the state that has jurisdiction as if the case were not in federal court. In this case, the decision looks at Colorado law as it applies to ski areas and releases. There is no Federal law concerning ski areas, other than general laws on leasing Forest Service land for a ski area.
The court started its analysis by reviewing the release and Colorado law on releases.
Colorado has a tag it applies to releases; like a few other states, that releases are disfavored under Colorado law. However, disfavored a release may be; that statement seems to be something to provide the plaintiff with an idea of fairness rather than the reality that if you write your release correctly, it will be upheld in Colorado.
For a decision that was lost because the defendant did not write the release correctly see Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.
There are four tests a release must pass to be valid in Colorado.
(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.
The court found plenty of Colorado law stating that a recreation service or activity does not owe a duty to the public and is not a service that should be questioned, which covers the first two requirements. The release was well-written, and the plaintiff did not argue that the release was not entered into fairly. Consequently, the court was able to state the release was valid the plaintiff’s claims were barred by the release.
One argument of the plaintiff’s the court did spend some time on was the Ski Area Safety Statute and the Passenger Tramway Safety Act created a public duty. Thus, the nature of the relationship between the ski area and a guest was one not of recreation but of a public duty, therefore, the release was not valid. This argument was an attempt to void the release based on the first two requirements set out above.
However, the court found that the creation of both statutes was done so that releases were not voided for skiing in Colorado. Looking at Colorado law the court found:
Our conclusion that the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims.
The court found all four requirements for a release to be valid in Colorado were met.
What was exciting about this case wad the Court found the lift ticket was a release.
What is of note about this case is the Appellate Court like the lower court, looked at the language on the back side of the lift ticket as a release. The court starts by calling the language a “Lift Ticket Waiver.”
The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.”
Emphasize added
No other court in Colorado has ever looked at the language on the back of the lift ticket as being a release. That language is there because it is required by statute. Colorado Ski Safety Act C.R.S. §§ 33-44-107. Duties of ski area operators – signs and notices required for skiers’ information. (8) states:
(8) (a) Each ski area operator shall post and maintain signs which contain the warning notice specified in paragraph (c) of this subsection (8). Such signs shall be placed in a clearly visible location at the ski area where the lift tickets and ski school lessons are sold and in such a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift. Each sign shall be no smaller than three feet by three feet. Each sign shall be white with black and red letters as specified in this paragraph (a). The words “WARNING” shall appear on the sign in red letters. The warning notice specified in paragraph (c) of this subsection (8) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.
(b) Every ski lift ticket sold or made available for sale to skiers by any ski area operator shall contain in clearly readable print the warning notice specified in paragraph (c) of this subsection (8).
(c) The signs described in paragraph (a) of this subsection (8) and the lift tickets described in paragraph (b) of this subsection (8) shall contain the following warning notice:
WARNING
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.
Emphasize added
The court specifically stated the language highlighted above in yellow contains “waiver of claims.” Based on the statute and the language, this is solely a list of the risks a skier assumes by statute when skiing inbounds in Colorado. However, now this court has found more in the text.
For more on lift tickets baring claims see Lift tickets are not contracts and rarely work as a release in most states. The reason most courts find that the language on the back of a lift ticket is not a release is there is no meeting of the minds, no one points out to the purchaser of a lift ticket there is a contract they are agreeing to.
In this case that would be impossible because the case states the husband purchased the lift ticket so the plaintiff could not have agreed to the contract.
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Key-stone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
Emphasize added
As stated above, the court notes that the husband and not the plaintiff purchased the lift tickets. No contract could be created in this case, yet somehow; the court found the lift ticket was a contract and as such was a release of liability. There was no meeting of the minds and there was no consideration passing between the plaintiff and the ski area.
However, this has monstrous meaning to all other ski areas in Colorado. If the language required by statute to be placed on the back of lift tickets is also a release of liability, then a new defense is available to all injuries of any skier, boarder, tuber or other person on the ski area who purchases a lift ticket.
More importantly you could require everyone coming on to the ski area to purchase a lift ticket no matter the reason. The cost could only be one dollar, but the savings to the ski area would be immense. If you are skiing you lift ticket is $200. If you are just going to dinner or watching your kids ski the lift ticket is $1.00 and gives you a $1.00 discount on your first drink.
Everyone who has a lift ticket at a ski area has effectively signed a release now.
However, remember, this is a federal court interpreting state law, the law of Colorado. Until the Colorado Courts weight in on the subject and the Colorado Supreme Court decides the issue, its value may be suspect. It is reliable in Federal Court as this condition is precedent setting, however, I would lean hard on the decision, not stand on it.
The court concluded, and in doing so provided a better idea about how Colorado looks are releases, that:
In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.
So Now What?
Overall, the case has nothing new on release law and is another affirmation that releases in Colorado, if written correctly, will stop claims for negligence.
However, if the Colorado courts follow the reasoning contained in this decision about the validity of the language on the back of a lift ticket as a bar to claims, then this is the first step in making almost impossible to sue a ski area in Colorado for any reason.
What do you think? Leave a comment.
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Recreation Law 
My wife was CLEANED out.. by a snowboarder today who had NO business being on the hill. I’m a snowboarder so it’s not one of those I hate tray rider things… After the incident the lift attendants made note that they had seen this guy and knew he had no idea what he was doing… WHY / HOW are people like this allowed up the slope? WHY does the lift crew do more than just check tickets to make sure you got your stupid sum of money for the day instead of trying to provide some level of safety for these people and the other people they hurt?
Bartenders, by law, need to shut people off for getting drunk.. why do you not have the same safety measures in place?
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Ski areas do not test because it does not work. It is similar to receiving a driver’s license. Once you get the license you can drive anyway you want. Most seem to drive badly. How long would your lift line be if the lifties, the starting job at most ski areas, had to check everyone who wanted to board the lift. The same goes with children.
After a child is hurt parents always want to know why the child was allowed to ride a certain lift. The issue is, if you bought the child a lift ticket for the entire mountain, how is a liftie supposed to know he is not supposed to ride that lift. It is the parent’s job to control the child.
However if the snowboarder, once he/she purchases a lift ticket there is no way the resort can control the person. They can ride to pass the test, that does not mean they won’t ski or ride badly later.
So there is really no way an employee of a ski area can pre-determine who should ride or not ride.
Once an employee sees someone skiing or riding out of control they can yank that lift ticket.
The other issue is the number or people on the slopes employed by the ski area to chase down bad skiers would have to triple and half of them would have be cops. The cost of a lift ticket would double at least. No employee of a ski area in any state has the legal authority to stop someone. They can ask and if the person stops, they can yank their lift. But if they don’t stop there is nothing they can do.
It is a major problem and the resorts are working on it all the time.
At the same time, a large percentage of the accidents are caused by the person who got hit, not skiing properly either. Stopping in the wrong place, not looking uphill before starting, beginner on expert run, etc.
It is a problem but there is no real solution. I’m curious what you think the lifties should do? What could they do?
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Simple Radio to the top / ski patrol and ask them to watch chair # XX get off and to assess their safety / ability to get down without killing themselves or someone else. I know there is no one size fits all answer to this but I am talking about SMALL New England ski areas where there is not a lot of terrain and the trails are narrow. I’m not sure your blaming the victim thing really sits well with me. I understand what your saying that they do create a hazard when in the wrong place however it is up to the more experienced skier / rider to know the code and anticipate these newbs being in places they shouldn’t. When I see these people congregating in the wrong place I say something.. “shouldn’t stop there, people can’t see you from above” etc etc.
The industry is already pricing themselves out of business with 100+ dollar a day lift tickets… Is it cheaper for them to pay the insurance premiums that cover the settlements or to ask their staff to do more than just shovel snow and grab chairs ? (serious question)
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So everytime the top gets a radio they lift has to stop. All state laws require a liftie to be in attendance at the top of the lift. So the lift stops while the person is identified and tested with the entire lift waiting to get off, or waiting until another liftie can be found, transported to the top to run the lift.
If you wife was injured would you want her waiting for the ski patrol to finish a ski/rider test before coming to get her. Meaning do you want her to wait an additional 15 minutes for the patroller todo the test record his findings and then come get the injured person.
I’m not blaming the victim, I’m saying there are two sides and usually 16 sides to every story.
I love know the code. Every ski area has their own. There is no one universal code…. But yes, people should know it. And you are right in pointing out to people who do stop in the wrong place or create their own nightmares, the issues.
I”m in Colorado. We have $200 lift tickets!
If two people run into each other on the hill, the resorts in all states are not liable. the liability is solely between the two people who collided. Which is actually the bigger issue that I have been writing about.
My main point, that I did not clarify is what test would you give. What is the actual test you think would stop people from skiing or riding badly?
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You obviously didn’t read my VERY FIRST sentence:
Simple Radio to the top / ski patrol and ask them to watch chair # XX get off and to assess their safety / ability to get down without killing themselves or someone else.
Where does that say stop the lift ?
Ski patrol walks out of their heated shack if they even need too, and sees if the guy getting off the lift is a danger to himself or others. Wouldn’t take much to see the guy / girl in the unloading area getting ready to go down, while the lift continues to unload, to see if the person is merely a beginner VS a danger.
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You are right if that is it. But once the beginner is at the top of the hill they have to do someplace.
So I’m misunderstanding a lot. Your wife was hit by a beginner?
So the beginner is at the top of the lift and can’t exit the chair, if the lift is rated for downloading (and most are not) the rider can get back on the lift, which still means slowing it down. If not, then ski patrol has to come and download them.
I’ve been skiing for 40+ years and 2 years ago I fell getting off a lift.
So at the resorts here, there are no ski patrol shacks close to any lifts. Ski patrol would have to walk a long way in some cases to check at Copper, all but one lift at keystone, and in one case ride a quarter mile to the top of a lift, Vail, only one shack near the unloading point, etc.
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BTW.. First two rules of the code:
1) Always stay in control, and be able to stop or avoid other people or objects.
2) People ahead of you have the right of way. It is your responsibility to avoid them.
The third is to not stop in bad places.. I’m assuming there is a reason it’s the 3rd and not one of the first two.
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I understand the code. At the same time, you have never caught an outside edge and for 2 seconds been out of control. Skied from snow to ice and lost an inside edge and be out of control.
Yes, people should know and follow the code. So how do we enforce it, prior to an event/disaster? How do we pre-test, at no additional cost to the ski area, that someone will drive a car or ski or ride in control 100% of the time.
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No one is asking for 100%… your being absolute which is ridiculous…
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I can see that this is just a way for you to get some traffic on your site to hopefully improve your search rankings. Your not really providing anything useful in regards to solutions your only stating the status quo and defending a system that is widely known to be lacking in efficacy. I had hoped by having semblance of a legal tone to your web presence you would have a more professional, helpful bit of information for me but I was obviously incorrect.
Please un-subscribe me from whatever lists you have put me on by redirecting me / requiring me to have this discourse in this forum.
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Or, I’m not answering legal questions for free to someone I don’t know. By using an open forum I’m not putting myself at issue.
I never put you on any list. I don’t have any information from you to take you off any list. that is solely up to your if you put yourself on a list.
You contacted me last night. I stated if you wanted a response to post your question here. I’m sorry if I upset you, I do not understand how your ideas work into real solutions. I’m sorry your wife got hurt. In California you assume the risk of a collision when skiing. Unless the skier was reckless or intentional there is nothing you can do. The resorts don’t even have to pull lift tickets in CA.
So your questions in CO, UT, CA are difficult to translate into a solution. I’m not even sure what resort you are talking about and do not know if I have skied it to ascertain if what you are saying makes sense. Sorry, that is a real perception issue.
Good luck in the future.
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