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A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Linda Schlumbrecht-Muniz, M.D.

Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT

Plaintiff Claims: negligence, negligence per se, and respondeat superior

Defendant Defenses: Colorado Skier Safety Act

Holding: for the Defendant

Year: 2015

The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.

The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.

The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.

Analysis: making sense of the law based on these facts.

The court first looked at the requirements necessary to properly plead a claim.

“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.

The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…

Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.

Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:

Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.

The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.

Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.

The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:

…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.

In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.

I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.

The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”

The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.

Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”

Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”

The final claim was based on respondeat superior.

Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)

Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.

So Now What?

This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.

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