Rice, et als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

Posted: November 25, 2010 | Author: Recreation Law | Filed under: Legal Case, Maine, Release (pre-injury contract not to sue), Ski Area | Tags: Inc., MAINE, Outdoors, Perfect Turn, Recreation, Resort, Ski, ski lesson, Sunday River, Sunday River Ski Co., Thomas Rice | Leave a comment

Thomas Rice, et als, Plaintiffs vs. American Skiing Company, Et Als, Defendants

Civil Action Docket No. CV-99-06

SUPERIOR COURT OF MAINE, OXFORD COUNTY

2000 Me. Super. LEXIS 90

May 8, 2000, Decided

May 9, 2000, Filed

DISPOSITION: [*1] Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim GRANTED; Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint DENIED; and Defendants’ Motion for Summary Judgment on Count II of Plaintiffs’ Complaint GRANTED.

OPINION

DECISION AND ORDER

This matter is before the court on the motion of the plaintiff Laurene Rice for summary judgment, dated December 6, 1999, directed to the defendants’ counterclaim and on the defendants’ motion for summary judgment, dated January 6, 2000, directed to the plaintiffs’ complaint.

FACTUAL BACKGROUND

The plaintiffs Thomas and Laurene Rice are the parents of the plaintiff Nicholas Rice. The defendants Sunday River Skiway Corporation (SRS) and Perfect Turn, Inc. (Perfect Turn), are affiliates of each other and subsidiaries of the defendant American Skiing Company (American Skiing). ¹ SRS owns and operates the Sunday River Ski Resort in Newry, Maine (Sunday River). SRS also operates a ski school there called “Perfect Kids Children’s Program” (ski school), but does not require individuals to enroll in the ski instruction program as a precondition to skiing at Sunday River. The defendant Timothy McGuire [*2] is employed by SRS as a ski instructor.

1 On April 26, 2000, the parties filed a stipulation of dismissal without prejudice as to American Skiing Company and Perfect Turn, Inc.

On December 13, 1997, the plaintiffs went to Sunday River to ski. Nicholas was almost nine years old at the time and Laurene enrolled him in the ski school. She selected the Level Three program for people who already had certain skiing skills. ²

2 In deposition testimony, Timothy McGuire described that skill level:

Q. Would you please tell us again what Level Three meant in terms of skill level?

A. That it meant that they were able to form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.

Defendants’ Statement of Material Facts, Ex. B at p. 22.

[*3] Prior to Nicholas’ enrollment in the class, Laurene signed a form entitled “Acknowledgement & Acceptance of Risks & Liability Release” (Ski Enrollment Form) on behalf of herself and her son. The document began with a “WARNING” about the hazards of “Alpine activities” ³ and the challenges of the ski school program, then included language purporting to be a release by Laurene and Nicholas ⁴ of SRS and

“its owners, affiliates, employees and agents from any and all liability for all personal injury [] arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”

See Affidavit of Joseph R. Saunders, Esq. The document concluded with Laurene’s agreement to indemnify the defendants “for all awards, legal expenses and settlements arising out of” her child’s participation in the ski school and his use of the Sunday River premises. Thomas did not sign the Ski Enrollment Form and there is no evidence that he was involved in the enrollment process. The parents went off to ski while Nicholas was in class.

3 The hazards included many of the dangers or conditions included in the definition of “inherent risks of skiing” in Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act. 32 M.R.S.A. § 15217(1)(A) (Supp. 1999). See Affidavit of Joseph R. Saunders, Esq.

[*4]

4 The document included the following language:

“As a parent/guardian with legal responsibility for a minor participant, I am authorized to sign this agreement for that child. I consent and agree for the minor child to be bound by this agreement ….”

See Affidavit of Joseph R. Saunders, Esq.

The ski class began around 9:30 a.m. McGuire first taught the class “rule number one” which was “you don’t pass the coach.” Nicholas fell at one point during a training run in the morning session. McGuire and the rest of the class went further ahead, then stopped and formed a group. When the boy caught up to them, McGuire was finishing an instruction about a skiing maneuver for stopping called a “hockey stop”.

The class broke for lunch at 11:15 a.m. and resumed shortly after the noon hour on a trail called Mixing Bowl. Ski conditions were good and the trail was in good shape. McGuire took his charges on a “fun run” down the slope again instructing the class not to ski past him. Nicholas fell and the group stopped further on to wait for him. He got up and began skiing toward them. He [*5] started going faster and panicked. As he approached the group, he could not slow down. He tried to do a “hockey stop”, skied off the side of the trail, hit a tree and was injured.

DECISION

A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Panasonic Communications & Sys. Co. v. State, 1997 ME 43, P10, 691 A.2d 190, 194 (citing Gonzales v. Comm’r, Dep’t of Pub. Safety, 665 A.2d 681, 682-83 (Me. 1995)). Even if the parties differ as to the legal conclusions to be drawn from the historical facts before the court, if there is no serious dispute as to what those facts are, consideration of a summary judgment is proper. North East Ins. Co. v. Soucy, 1997 ME 106, P8, 693 A.2d 1141.

At the heart of it, the plaintiffs allege that the defendants, acting through McGuire, were negligent in their supervision of Nicholas. Laurene’s separate claim for lost wages can only survive on the strength of this negligence claim. The defendants disclaim responsibility by virtue of the immunity provisions of Maine’s Skiers’ and Tramway Passengers’ Responsibilities [*6] Act, 32 M.R.S.A. § 15217 (Supp. 1999), and the provisions of the Ski Enrollment Form signed by Laurene.

Maine’s Skiers and Tramway Passengers’ Responsibilities Act

The threshold issue is whether the Act immunizes the defendants against liability for a claim of negligent supervision. The court concludes that it does not. The Act relieves ski area operator’s from responsibility for injuries that result from the “inherent risks of skiing–such as skiing into a tree. Id. However, the statute expressly provides that it “does not prevent the maintenance of an action against the ski area operator for [] the negligent operation [] of the ski area”. 32 M.R.S.A. § 15217(8)(A). ⁵ Nicholas’ claim of negligent supervision clearly falls within the Act’s “negligent operation” exclusion.

5 See McGuire v. Sunday River Skiway Corp., 1994 WL 505035, *5 (D. Me.), in which Judge Hornby wrote “McGuire’s argument for liability might have some appeal if her skiing instructor had encouraged her to do something inappropriate during her lesson. That might amount to negligent operation of the ski area.”

[*7] Nicholas’ Claim

The issue then becomes whether the boy’s claim against the defendants has been effectively released by his mother. This issue requires an examination of the meaning and validity of the release language in the Ski Enrollment Form.

Releases in general are not against public policy. See Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983). However, for its terms to be valid, a release absolving a defendant of liability for its own negligence “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” The courts have “traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language which allegedly exempts a party from liability for his own negligence.” See Hardy v. St. Clair, 1999 ME 142, P3, 739 A.2d 368, 369, citing Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). The release must be construed strictly. See Doyle, 403 A.2d at 1207-08 (citing Prosser, Torts, § 68 (4th ed. 1971)) (it must appear that [*8] the terms of the release were “brought home to the plaintiff”).

The release that Laurene signed on behalf of herself and Nicholas prevents claims

“against [SRS], its owners, affiliates, employees and agents from any and all liability for all personal injury, including death or property damage arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”

See Affidavit of Joseph R. Saunders, Esq. (emphasis added). This language is unambiguous and, if valid, clearly releases the defendants from liability for damages and losses sustained as a result of negligence in the operation of the ski area, which would include the claim of negligent supervision in this case. The interpretation of an unambiguous contract is a question of law, see Fleet Bank of Maine v. Harriman, 1998 ME 275, P4, 721 A.2d 658.

More to the point of this case, the issue is whether an unambiguous release of negligence claims given by a parent on behalf of her child is valid. The defendants cite Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), as [*9] support for their assertion that a parent can give a binding release of such claims on behalf of the child. However, Zivich stands for the more limited proposition “that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sports activities where the cause of action sounds in negligence.” 82 Ohio St. 3d at 374 (emphasis added). The decision was grounded on two public policy considerations: first, nonprofit sports organizations would be unable to get volunteers without such releases and would go out of existence; and, second, parental authority to make and give such releases is of constitutional importance. However, the first consideration is inapplicable to the facts of this case–none of the defendants is a nonprofit organization and McGuire was not a volunteer–and the court is not persuaded by the second.

The defendants’ do make a broader public policy argument addressed to the facts of this case. They assert that ski schools are offered by ski areas for the convenience and safety of their guests. If releases on behalf of minors are unenforceable, ski areas will be reluctant to offer [*10] training and instructions to children, whose safety will then be as risk. This is not an inconsequential point. However, it is a risk against which a for-profit business may insure itself. ⁶ This court cannot conclude that the public policy consideration espoused by the defendants is paramount to the right of the infant to his negligence claim.

6 The court is mindful that in Zivich the Ohio Supreme court determined that “insurance for the [nonprofit] organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs.” 82 Ohio St. 3d at 371-72. However, the point in Zivich, which involves a volunteer, is distinguishable from this case, which involves a paid employee. While a volunteer may reasonably expect that he should suffer no penalty for the consequences of his gratuitous acts, a paid employee–such as Defendant McGuire–may not.

There are numerous cases holding contrary to the defendants’ position. See, e.g., Scott v. Pacific West Mtn. Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992) [*11] (en banc); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458, 460 (Vt. 1982). Maine appears to side with these decisions. In the case of Doyle v. Bowdoin College, supra, the Law Court was unequivocal in its declaration, albeit dicta, ⁷ that “this Court has held that a parent, or guardian, cannot release the child’s or ward’s, cause of action.” Doyle v. Bowdoin College, 403 A.2d at 1208 n.3. This language is too unequivocal to ignore. In fact, other courts holding in line with Scott have cited Doyle as support for this proposition. See Scott, 834 P.2d at 12 n.19; see also International Union v. Johnson Controls, Inc., 499 U.S. 187, 214, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991)(White, J., concurring) (“the general rule is that parents cannot waive causes of action on behalf of their children”); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994).

7 Although it is dicta, courts have cited Doyle for the proposition that a parent cannot release a child’s causes of action.

[*12] The court concludes that the claim for negligent supervision brought on behalf of Nicholas is not barred by the release provisions of the Ski Enrollment Form signed by his mother.

Laurene’s Claim

Laurene’s claim for lost wages arises out of and is dependant upon her son’s claim for negligent supervision. As noted, the release language is unambiguous and clearly releases the defendants from liability for damages and losses “arising from any alleged negligence in the operation [] of the ski area”, which includes the claim of negligent supervision in this case. Although this court concludes that Nicholas’ cause of action survives the release provisions of the Ski Enrollment Form, his mother’s claim does not. See Scott v. Pacific West Mtn. Resort, 834 P.2d at 12 (holding that although child’s cause of action is not barred by parents’ signing of release, parents’ claims based on child’s injury are barred by unambiguous and conspicuous release); see also Childress v. Madison Cty., 777 S.W.2d 1, 7-8 (Tenn. Ct. App. 1989) (although child and child’s father are not bound by release signed by mother, she is barred from bringing claims based [*13] on child’s injuries).

Indemnification Clause

Finally, there remains the issue of whether Laurene is obligated to indemnify the defendants against Nicholas’ cause of action. In Maine, the Law Court views clauses “indemnifying a party against its own negligence with disfavor, and directs courts to construe them strictly against such a result.” See International Paper Co. v. A&A Brochu, 899 F. Supp. 715, 719 (D. Me. 1995), citing Emery Waterhouse, 467 A.2d at 993. However, the court may uphold an indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties. “[A] clear reflection of mutual intent requires language from the face of which the parties unambiguously agree to indemnification for indemnitee negligence.” See id. In International Paper, the court upheld the validity of such an indemnification clause that provided, as follows:

“SELLER does hereby agree to indemnify and hold harmless PURCHASER from and against any and all claims, damages, debts, demands, suits, actions, attorney fees, court costs and expenses arising [*14] out of, attributable to, or resulting from SELLER’S or any supplier’s said operations, whether the same are caused or alleged to have been caused in whole or in part by the negligence of PURCHASER, Its (sic) agents or employees.”

Id. (emphasis added). However, unlike International Paper, it is not clear that the indemnification provision in this case applies to the defendants’ own negligence. ⁸ The Ski Enrollment Form provides as follows:

“I hereby indemnify the ski areas named above, its owners, affiliates, employees and agents for all awards, legal expenses and settlements arising out of the child’s participation in this clinic and the use of the ski area premises.”

Employing a strict construction analysis, the court concludes that this language is ambiguous and does not reflect an express mutually intended agreement that Laurene will indemnify the defendants against their own negligence. In fact, it seems more suited to an interpretation that the indemnification is for losses or damages caused by Nicholas while participating in the ski school.

8 See McGraw v. S.D. Warren Co., 656 A.2d 1222, 1224 (Me. 1995), where the court held that Cianbro did not specifically agree to indemnify Warren for damages caused by Warren’s own negligence where the clause provided:

The contractor [Cianbro] is responsible for and shall continuously maintain protection of all the work and property in the vicinity of the work from damage or loss from any cause arising in connection with the contract and any work performed thereunder. [Cianbro] shall indemnify and hold owner [Warren] harmless for any claims, suits, losses or expenses including attorneys’ fees suffered by [Warren] arising out of injury to any person including [Warren’s] or [Cianbro’s] employees or damage to any property, including [Warren’s] property if the injury or damage is caused in whole or in part by [Cianbro] or any of [Cianbro’s] subcontractors, material men or anyone directly or indirectly employed or otherwise controlled by any of them while engaged in the performance of any work hereunder.

[*15] Based on the conclusion that the Ski Enrollment Form does not include an indemnification by Laurene against the defendants’ own negligence, the court does not need to reach the plaintiffs’ further claim that the indemnification clause is unconscionable as a contract of adhesion. See Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135, 1139-40 (Me. 1978) (“where a standard-form, printed contract is submitted to the other on a ‘take it or leave it’ basis, upon equitable principles the provisions of the contract are generally construed to meet the reasonable expectations of the party in the inferior bargaining position; when a contract of adhesion is exacted by the overreaching of a party, the defense of unconscionability may be asserted”).

Pursuant to Rule 79(a) M.R.Civ.P., the Clerk is directed to enter this Decision and Order on the Civil Docket by a notation incorporating it by reference, and the entry shall be:

Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim is GRANTED;

Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint is DENIED; and

Defendants’ Motion for Summary Judgment on Count II of [*16] Plaintiffs’ Complaint is GRANTED.

Dated: May 8, 2000

/s/ signed

Justice, Superior Court

Ski Patroller dies in Avalanche at Wolf Creek

Posted: November 23, 2010 | Author: Recreation Law | Filed under: Avalanche, Ski Area | Leave a comment

Wolf Creek Ski Area closed after ski patrol director killed in avalanche

Patroller killed in Wolf Creek slide

Wolf Creek Ski Area closed after death of employee

The patroller was the ski patrol director, 41 year old Scott Kay.

What do you think? Leave a comment.

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law

6 Apps for Skiing

Posted: November 18, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Just don’t lose your phone while riding the lift.

Mashable has a great article on six apps for skiing. The apps are:

1. REALSKI Augmented Reality

2. Vail’s EpicMix App

3. iTrailMap 3D

4. Snow and Ski Report by REI

5. Elevation Pro

6. snowEdge

RealSki allows you to hold up your phone and it will tell you what you are looking this. The app identifies runs as well as other things on the mountain. The RealSki video was filmed at Copper Mountain and Vail.

See Skiing and Snowboarding: 6 Apps For Conquering the Slopes.

What do you think? Leave a comment.

Technorati Tags: Apps,Just,Mashable,article,REALSKI,Vail,EpicMix,Report,Elevation,mountain,Copper,Slopes,Leave,Recreation,Edit,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

Windows Live Tags: Apps,Just,Mashable,article,REALSKI,Vail,EpicMix,Report,Elevation,mountain,Copper,Slopes,Leave,Recreation,Edit,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

WordPress Tags: Apps,Just,Mashable,article,REALSKI,Vail,EpicMix,Report,Elevation,mountain,Copper,Slopes,Leave,Recreation,Edit,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

Blogger Labels: Apps,Just,Mashable,article,REALSKI,Vail,EpicMix,Report,Elevation,mountain,Copper,Slopes,Leave,Recreation,Edit,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

SIA Snow Show Reaches Sold Out Status

Posted: November 12, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Snow Show will feature over 800 brands, 90+ new exhibitors at Colorado Convention Center

McLean, VA (Nov 11, 2010) – SnowSports Industries America (SIA) announced today it has sold out their exhibit booth space for the upcoming 2011 SIA Snow Show, which will run Jan. 27-30 at the Colorado Convention Center in Denver. The annual Snow Show is expected to draw over 18,000 attendees including suppliers, retailers, reps, athletes and professionals from the snow sports industry. The sold-out Snow Show will feature over 800 snow sports brands throughout 300,000+ square feet of exhibit space including 90+ new exhibitors.

With over 90 new companies exhibiting at the 2011 Snow Show – either making their first appearance or returning to SIA after taking a break from the Show — attendees will discover plenty of new faces, products and companies alongside their longtime favorites during the four-day event.

“I first came to the SIA through the Ski Channel in 2008 and it felt like the entire snow sports industry came together in one spot and that’s just the ideal situation for networking. That’s really why our new brand — Skihoe decided to invest in a booth at the SIA,” said first time exhibitor, Sinah Hoenig, CEO, Skihoe, Inc.
For other companies, the Snow Show’s Colorado location has been an incentive to exhibit.

“Having the Show in Denver is a huge benefit for us,” said Joel Grabenstein, marketing and promotions manager at Yakima. “Its proximity to some of the best skiing and riding in the world makes it a better venue, especially with the demo being at Winter Park. The Show seems re-energized with our key retailers walking the Show.”
“SIA is a natural step for us as we expand our presence in the ski and snowboard markets,” said Marc Barros, Contour’s co-founder and CEO “It’s the ideal place for us to have meaningful dialogue with both retailers and key members of the vertical and broad-based media.”

For a complete list of 2011 Snow Show exhibitors please click here.

From January 27-30, 2011, the snow sports industry will take over downtown Denver to celebrate their passion for all things snow. The 2011 SIA Snow Show will once again celebrate the industry and deliver the hottest snow sports trends, innovations, educational seminars, product presentations, personalities, events, concerts, meetings, and parties. Attendees conduct business that can only happen at the Show – viewing full color-lines and major trends for winter 2011.12, meeting with key principals, and networking with industry leaders face-to-face.

The 2011 SIA Snow Show will be followed by a two day On-Snow Demo and Ski-Ride Fest, January 31 & February 1 at Winter Park Resort and Devil’s Thumb Ranch. In partnership with CCSAA (Cross Country Ski Areas Association) and in conjunction with WWSRA’s (Western Winter Sports Reps Association) Rocky Mountain Demo, this is where for the first time-globally, the market can try out the equipment and experience the latest technologies for ski, snowboard, AT, backcountry, cross country and snowshoe while mixing with their peers on the hill.

Technorati Tags: Reaches,Sold,Status,From,January,industry,downtown,Denver,passion,trends,innovations,seminars,product,presentations,personalities,events,concerts,meetings,Attendees,winter,principals,leaders,Demo,Ride,Fest,February,Park,Resort,Devil,Thumb,Ranch,partnership,CCSAA,Cross,Country,Areas,Association,conjunction,WWSRA,Western,Sports,Reps,Rocky,Mountain,equipment,technologies,hill
Windows Live Tags: Reaches,Sold,Status,From,January,industry,downtown,Denver,passion,trends,innovations,seminars,product,presentations,personalities,events,concerts,meetings,Attendees,winter,principals,leaders,Demo,Ride,Fest,February,Park,Resort,Devil,Thumb,Ranch,partnership,CCSAA,Cross,Country,Areas,Association,conjunction,WWSRA,Western,Sports,Reps,Rocky,Mountain,equipment,technologies,hill
WordPress Tags: Reaches,Sold,Status,From,January,industry,downtown,Denver,passion,trends,innovations,seminars,product,presentations,personalities,events,concerts,meetings,Attendees,winter,principals,leaders,Demo,Ride,Fest,February,Park,Resort,Devil,Thumb,Ranch,partnership,CCSAA,Cross,Country,Areas,Association,conjunction,WWSRA,Western,Sports,Reps,Rocky,Mountain,equipment,technologies,hill
For updates and additional Snow Show information visit siasnowshow.com.

Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543

Posted: November 4, 2010 | Author: Recreation Law | Filed under: Colorado, Legal Case, Ski Area, Skiing / Snow Boarding | Leave a comment

To see an analysis of this case see: Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.

Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543

CHRIS ROBINETTE, Plaintiff – Appellant, v. ASPEN SKIING COMPANY, L.L.C., a Colorado limited liability company. Defendant – Appellee.

No. 09-1223

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543

January 25, 2010, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1]

(D. Ct. No. 1:08-CV-00052-MSK-MJW). (D. Colo).

Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873 (D. Colo., Apr. 23, 2009)

COUNSEL: For CHRIS ROBINETTE, Plaintiff – Appellant: Heather R. Hanneman, Esq., Recht & Kornfeld, P.C., Denver, CO; Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, CO.

For ASPEN SKIING COMPANY, L.L.C., a Colorado limited liability company, Defendant – Appellee: Michael S. Beaver, Rachel A. Yates, Holland & Hart LLP, Greenwood Village, CO.

JUDGES: Before TACHA, ALARCON, ^** and TYMKOVICH, Circuit Judges.

** The Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.

OPINION BY: Deanell Reece Tacha

OPINION

[*548] ORDER AND JUDGMENT ^*

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Plaintiff-appellant Chris Robinette brought this action against Aspen Skiing Company, L.L.C. (“Aspen“) seeking damages for injuries he sustained in a snowboarding accident involving a snowmobile that was operated by an Aspen employee. The district court granted Aspen’s motion for summary judgment because Mr. Robinette had entered into an exculpatory [**2] agreement with Aspen and had assumed “all risks of skiing/riding.” Mr. Robinette now appeals the district court’s grant of summary judgment, contending that the exculpatory agreement is unenforceable because: (1) it purports to cover reckless conduct; (2) it violates public policy; and (3) its terms are unclear and ambiguous.

Mr. Robinette did not raise a claim of recklessness in the district court; therefore, he cannot do so on appeal absent extraordinary circumstances not present here. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002). Furthermore, our review of the record, the parties’ appellate materials, and the relevant legal authority compels us to agree with the decision reached by the district court on Mr. Robinette’s remaining claims. Accordingly, for the reasons articulated by the district court in its order dated April 23, 2009, we AFFIRM.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge

Ciocian v. Vail Corporation, 2010 Colo. App. LEXIS 1353

Posted: November 1, 2010 | Author: Recreation Law | Filed under: Colorado, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: @VailMtn, Colorado Skier Safety Act, Negligence, Negligence per se, ski area, Ski Area Boundary, skiing, Vail | Leave a comment

To Read an Analysis of this decision see

Colorado Appellate Court finds Vail’s boundary marking not enough to prevent a lawsuit.

Melissa Ciocian and Chris Ciocian, Plaintiffs-Appellants, v. Vail Corporation, a Colorado corporation, d/b/a Vail Associates, Defendant-Appellee.

Court of Appeals No. 09CA1568
COURT OF APPEALS OF COLORADO, DIVISION THREE
2010 Colo. App. LEXIS 1353

September 16, 2010, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
SUBSEQUENT HISTORY: Related proceeding at Anderson v. Vail Corp., 2010 Colo. App. LEXIS 1350 (Colo. Ct. App., Sept. 16, 2010)
PRIOR HISTORY: [*1]
Eagle County District Court No. 08CV47. Honorable Frederick W. Gannett, Judge.
DISPOSITION: JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS.
OUTCOME: The trial court’s orders granting summary judgment were vacated, and the case was remanded to the trial court for further proceedings.
COUNSEL: Scott R. Larson, P.C., Scott R. Larson, Denver, Colorado, for Plaintiffs-Appellants.
The Rietz Law Firm, LLC, Peter W. Rietz, Maryjo C. Falcone, Dillon, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE ROY. Roman and Booras, JJ., concur.
OPINION BY: ROY

OPINION
Jesse Anderson (skier # 1) and Melissa Ciocian (skier # 2) ¹ and Chris Ciocian appeal the entries of summary judgment in favor of the Vail Corporation (ski resort) in their respective cases. These two appeals, though arising from different skiing accidents and different civil cases, are consolidated for the purpose of the opinion because they present virtually identical facts, the same legal issues, and the parties are represented by the same counsel. Slight factual differences between the two cases are noted.
1 Melissa Ciocian was snowboarding at the time of her accident, but under the Ski Safety Act the term “‘[s]kier’ means any person using a ski area for the purpose of skiing, which includes, without limitation, sliding downhill or jumping on snow or ice on . . . a snowboard . . . .” § 33-44-103(8), C.R.S. 2010. Therefore, [*2] we will refer to her as a skier.
The skiers argue that the trial court erred by: (1) concluding that there was no genuine issue of any material fact and that the ski resort was entitled to judgment as a matter of law as to the marking of the ski resort’s boundary; (2) relying on photographs, submitted without proper foundation, as attachments to the ski resort’s reply brief in support of summary judgment; (3) concluding that the ski resort’s exculpatory agreement did not violate public policy; and (4) concluding that the ski resort’s exculpatory agreement was clear and unambiguous.
We agree with skiers that there is a genuine issue of material fact, which precludes the entry of summary judgment on the issue of whether the ski resort boundary was adequately marked, and, therefore, we need not address whether the trial court could properly consider the disputed photographs. We also agree with the skiers, and the ski resort concedes, that if the ski resort failed to properly mark the ski area boundary as required by the statute, the exculpatory agreement does not release the ski resort from liability. Therefore, we need not consider whether the exculpatory agreement is clear and unambiguous. [*3] Thus, we vacate the trial court’s orders granting summary judgment, and remand for further proceedings.

I. Facts
Primrose, an intermediate (blue) trail, commences at the top of Larkspur Bowl. Primrose splits shortly thereafter, and the left fork remains Primrose but becomes a beginner’s (green) trail; the right fork becomes Bitterroot, an intermediate trail. Two ski lifts, Strawberry Park Express and Upper Beaver Creek Mountain Express, terminate just below the split, affording access to Primrose, Bitterroot, and a glade, which is a forested area with no separate difficulty rating, separating Primrose and Bitterroot. Some distance downhill from the split, Primrose and Bitterroot are connected by Overshot, a trail or catwalk, ² which cuts through and traverses the glade commencing at Primrose and terminating at Bitterroot. Because it terminates at an intermediate (blue) trail, Overshot itself is an intermediate (blue) trail.
2 A “catwalk” is “a gentle, narrow trail that joins one ski slope to another or that winds down the entire mountain.” http://www.rei.com/expertadvice/articles’skiing”+glossary.html (last visited 7/30/2010). Catwalks frequently look like roads and are used by maintenance vehicles [*4] and equipment to traverse the mountain.
The downhill edge of Overshot is a ski area boundary. Immediately below the boundary are three private ski in-ski out residences built on private property. Immediately below the residences is a paved access road.
Skier # 1’s accident occurred on February 25, 2007, and skier # 2’s accident occurred on March 3, 2007. Both skiers skied off of the Strawberry Park Express Lift. Skier 2 immediately entered the glade. It is not clear where Skier 1 entered the glade. The glade is not closed to skiers, is within the ski resort’s area boundaries, and extends below Overshot.
Skiers proceeded though the glade until they reached Overshot, crossed Overshot near its downhill terminus, and continued downhill through the glade. Skier # 2 noticed “the very different surroundings and the drastic change in terrain,” but she testified that the trees were “fairly spread out,” with “natural gaps” that “made it easy to turn.” Skier # 1 acknowledged he did not look up Overshot as a skier would normally do when crossing a trail, and estimated his speed at twenty miles an hour, or approximately thirty feet per second. ³ There is no evidence of the width of Overshot at the [*5] point of crossing but the ski resort’s counsel, in oral argument, estimated its width as approximately thirty feet. Shortly after crossing Overshot, the skiers skied off of a 19-foot retaining wall, dropped onto the paved access road, and sustained injuries.
3 Speed in feet/second can be estimated by multiplying the speed in miles per hour by 1.5. Thus 5,280 feet, the distance traveled in one minute by a vehicle driving sixty miles per hour, divided by sixty (the number of seconds in a minute) yields eighty-eight feet per second, an error of 2.22%.
Skiers do not dispute that there were nine ski area boundary signs facing uphill across Overshot, to their left, as they crossed Overshot. These signs are located at various points along the downhill side of Overshot, 24 to 51 yards apart, over a distance of 303 yards. A double strand rope closure terminates 44 yards uphill from the first sign, and another rope closure commences 72 yards downhill from the last sign. Skiers skied through this 72 yard gap approximately 56 yards downhill from the last sign and 16 yards uphill from the rope closure. Skiers testified in their depositions that they had no knowledge that the wooded area downhill from [*6] Overshot was closed to the skiing public and that they did not see any boundary signs or rope closures.
Skier’s safety expert (the expert), who visited the scene on April 3, 2007, stated in his report that (1) the forest area (glade) above Overshot “was an open and well skied forest . . . suitable for recreational resort skiing and snowboarding”; (2) the boundary signs to the skiers’ left were “virtually invisible . . . and unreadable in any case as [the nearest sign] would have been edge on to [the skiers’] line of sight as [they] crossed Overshot”; and (3) the rope closure to the skiers’ right and downhill was “hidden behind trees and not visible at all.” The expert also opined that the ski resort failed to post sufficient boundary signs and rope closures alerting skiers to the ski area boundary.
With respect to skier # 1, a responding member of the ski patrol testified in his deposition that he “could see how this happened” and responded affirmatively to the question, “you didn’t believe that it was sufficiently clear that that was the area boundary?” With respect to skier # 2, the ski patrol supervisor confirmed that he probably told her that there was “no way she could have known [*7] the trees were beyond the ski area boundary and, therefore, it was not her fault,” or words to that effect.
The trial court granted summary judgment in favor of the ski resort based on its finding that “after thoroughly reviewing the number, location and orientation of nine (9) boundary signs, the Court finds them to be ”in a fashion readily visible to skiers under conditions of ordinary visibility’ consistent with C.R.S. § 33-44-107(6) [the Ski Safety Act] and within the reasonable standards established in the legislative declaration of the Ski Safety Act.” Further, based on this finding, the trial court found that the exculpatory agreements did not supplant the ski resort’s statutory duties and did not offend public policy based on the Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) factors, and were clear and unambiguous.

II. Summary Judgment
Skiers contend that the trial court improperly applied the summary judgment standard. More specifically, they argue the trial court improperly made findings of fact on disputed issues of material fact. We agree.
A. Standard of Review
[HN1] We review an order granting summary judgment de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). [*8] [HN2] Summary judgment should be granted only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992). A litigant is entitled to have disputed facts determined by the finder of fact following a trial, and it is only in the clearest of cases, where no doubt exists concerning the facts, that summary judgment is warranted. Moses v. Moses, 180 Colo. 397, 402, 505 P.2d 1302, 1304 (1973). Summary judgment is only appropriate in those circumstances where there is no role for the fact finder to play.
[HN3] In determining whether summary judgment is proper, the court must give the party opposing the motion the benefit of all favorable inferences that reasonably may be drawn from the facts presented. Peterson, 829 P.2d at 376. [HN4] “[T]he trial court may not assess the weight of the evidence or credibility of witnesses in determining a motion for summary judgment . . . .” Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714, 718 (Colo. 1987).
[HN5] Statutory interpretation is a question of law that we review de novo. Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009). [HN6] Our primary duty in [*9] construing legislation is to effectuate the intent of the General Assembly, looking first to the statute’s plain language. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). When legislative language is ambiguous, we construe the statute in light of the General Assembly’s objective, employing the presumption that the legislature intended a consistent, harmonious, and sensible effect. Matter of Title, Ballot Title & Submission Clause, & Summary for 1997-98 No. 62, 961 P.2d 1077, 1079 (Colo. 1998).

B. Analysis
Skiers alleged in the trial court, and now argue here, that the ski resort acted negligently and violated the Act by failing to properly mark the ski area boundaries. Skiers premise their allegations and arguments on section 33-44-107(6), which provides: [HN7] “The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility.” (Emphasis added.) Skiers argue that the ski area failed to comply with section 33-44-107(6) because there were no boundary signs or other markings alerting them that they were approaching a ski area boundary.
The trial court found that the ski resort marked its boundary in a fashion readily visible [*10] to skiers under conditions of ordinary visibility based solely on the placement of the nine boundary signs over the distance of 303 yards along the downhill side of Overshot.
The legislative declaration of the Act provides:
[HN8] The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is . . . to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.
§ 33-44-102, C.R.S. 2010. [HN9] The Act then provides the duties of both ski area operators and skiers. Further, the Act states, “A violation by a ski area operator 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 such operator.” [*11] § 33-44-104(2), C.R.S. 2010.
The trial court correctly noted that [HN10] section 33-44-107(6) “does not explicitly or implicitly require a certain number, specific placement or distance between ski area boundary signs.” However, the statute requires that the boundary must be marked in a fashion readily visible to skiers. § 33-44-107(6). [HN11] A “[s]kier” is defined as “any person using a ski area for the purpose of skiing . . . or for the purpose of using any of the facilities of the ski area, including but not limited to ski slopes and trails.” § 33-44-103(8). And, [HN12] “[s]ki slopes or trails” are defined as “all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for any of the purposes enumerated in subsection (8) of this section.” § 33-44-103(9), C.R.S. 2010 (emphasis added).
Under this language, [HN13] ski area operators do not simply have a duty to mark ski area boundaries in a fashion readily visible to skiers who are located in certain “designated” areas; but instead, they are required to mark boundaries in a fashion readily visible to any person skiing on a slope, trail, or adjoining skiable [*12] terrain. The ski resort protests that such a reading would create an “impossible burden” because it cannot anticipate how skiers on its ski slopes and trails will be approaching ski area boundaries. However, skiing past boundary lines presents serious consequences, and the General Assembly dictated this strict requirement. In addition, we note that the “reasonableness” standard in the legislative declaration will impact the factual determination of whether a ski resort met the requirements of the statute.
Skiers presented evidence that the boundary signs were not readily visible to skiers in their line of travel; the closest being more than fifty yards uphill from the crossing and none downhill, the direction toward which skiers tend to apply more focus. According to a site diagram, the distance between the end of the uphill and downhill rope line is 419 yards. There are nine ski area boundary signs (and therefore ten gaps) over that distance. Eight of the signs (eight gaps) are immediately above three residences. The longest of the gaps is 51 yards, the shortest is 24 yards, and the average gap is 39 yards. The ninth gap, through which the skiers skied, and below which is glade, is [*13] 72 yards. Further, the skiers’ expert testified in his deposition that the downhill rope closure was not visible to the skiers, a fact which the ski resort may dispute. A member of the ski resort’s ski patrol admitted that he could see how this happened, implying that the boundary was inadequately marked. The evidence presented, viewed in the light most favorable to skiers, presents a genuine issue of material fact as to whether the boundary signs were “readily visible” to skiers approaching Overshot near its downhill terminus.
The ski resort’s argument that [HN14] section 33-44-109(5), C.R.S. 2010, creates a presumption that the skiers “have seen and understood all information posted” is unpersuasive because the statute conditions this presumption on “all information posted in accordance with this article . . . .” Therefore, the presumption is only effective if the ski resort complied with section 33-44-107(6), which, ultimately, is a question that must be submitted to the trier of fact if, as here, there is conflicting evidence.
The ski resort’s argument that [HN15] under section 33-44-109(5), the skiers had a duty to “locate and ascertain” its boundary signs is also misplaced because this duty [*14] is only placed upon skiers in “decreased visibility” and only in the event the ski resort boundary lines are marked in accordance with section 33-44-107, C.R.S. 2010. “‘Conditions of normal visibility’ means daylight and, where applicable, nighttime in nonprecipitating weather.” § 33-44-103(3), C.R.S. 2010. There is evidence that both accidents occurred during daylight hours and that the weather was clear and visibility was good. The weather and general visibility, notwithstanding, it may well be that skiing through trees limits visibility and diverts attention. However, if the skiers’ statutory duty arises, the issue of whether the skiers breached that duty is also a question of fact addressed to the trier of fact in the event there is conflicting evidence.
Viewing the evidence in the light most favorable to skiers, we conclude that there are legitimate disputes of material fact as to whether the ski resort boundary was adequately marked. Therefore, summary judgment was inappropriate, the orders must be vacated, and the case must be remanded for further proceedings.

III. Photographs
Next, skiers argue that the trial court inappropriately relied upon unauthenticated photographs submitted [*15] by the ski resort with its reply brief. Because of our resolution of skiers’ first argument, we need not address this issue.

IV. Exculpatory Agreement
The ski resort also argued in the trial court that skiers’ claims were barred by the Season Pass Application, which included an exculpatory agreement ⁴ that both skiers signed. However, the ski resort conceded in its briefs on appeal, and in oral argument, that it “is not (and did not) attempt to contract away its statutory duties, rather, the exculpatory agreement precludes only those claims for negligence above and beyond the requirements with which [ski resort] was statutorily required to comply, and with which it did comply.” (Emphasis in original answer briefs.) The ski resort also admits that “[its] release does not supplant [its] statutory duties,” and that its “liability waiver does not dilute or limit the statutory duties with which it must comply. Rather, [its] waiver precludes any claim for negligence or liability beyond those statutory duties with which [it] is required by law to comply . . . .”
4 The exculpatory agreement stated, in pertinent part, as follows:
The Undersigned expressly ASSUMES ALL RISKS associated with holder’s [*16] participation in the Activity, known or unknown, inherent or otherwise. . . . The Undersigned understand and acknowledge: . . . 2) Holder is responsible for reading, understanding, and complying with all signage. . . . IN CONSIDERATION OF ALLOWING HOLDER TO USE THE SKI AREA FACILITIES, THE UNDERSIGNED AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY. . . [THE SKI RESORT] FROM ANY AND ALL LIABILITY. . . .
Therefore, the ski resort agrees with skiers on the scope of the exculpatory agreement and we need not address the issue further. It logically follows that we need not address skiers’ argument that the exculpatory agreement was ambiguous.
We reverse the summary judgments and remand for further proceedings consistent with the views expressed in this opinion.
JUDGE ROMAN and JUDGE BOORAS concur.

Colorado Appellate Court finds Vail’s boundary marking not enough to prevent a lawsuit.

Posted: November 1, 2010 | Author: Recreation Law | Filed under: Colorado, Ski Area | Tags: Appellate Court, Colorado, James H. Moss, JimMoss, Lawsuit, Recreational Equipment Incorporated, Ski Resort, Summary judgment, Vail, Vail & Associates | Leave a comment

Two nearly identical mishaps at the same location bring two suits where the skier was able to overturn a motion for summary judgment.

Ciocian v. Vail Corporation, 2010 Colo. App. LEXIS 1353

In Ciocian v. Vail Corporation and Anderson v. Vail Corporation the decisions from the court were identical. The two cases had almost identical accidents against the same defendant, at the same place, within six days of each other. The parties were all represented by the same attorneys so the court issued one opinion to apply to both cases.

The case involved skiers who skied through the ski area boundary, out of bounds, on to private land. The skiers were injured when they skied over a 19’ embankment onto a driveway. The issue was whether the skiers saw the ski area boundary markers and if they did not, whether the boundary was marked correctly under the Colorado Skier Safety Act.

The Colorado Skier Safety Act requires that all boundaries of ski areas be marked. Colorado Revised Statute (C.R.S.) §§ 33-44-107. Duties of ski area operators – signs and notices required for skiers’ information states:

(6) The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility. Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section. This requirement shall not apply in heavily wooded areas or other nonskiable terrain.

In the case in these two accidents, the downhill border of a catwalk was the boundary of the ski area. Soon thereafter there is a 19’ drop onto a driveway. The area on the uphill side of the catwalk and the two runs the catwalk connected were in bounds. The uphill side of the catwalk was open for tree skiing. In both cases, the plaintiff skied over the catwalk without seeing the boundary signs.

The skiers skied through the trees and across the catwalk passing the boundary.

The boundary was marked part of the way on the entrance and exit of the catwalk with ropes and signs. The center part of the catwalk, approximately 303 yards, was marked with nine signs.

The issue brought before the court was whether the signs were enough under the act to be seen by skiers warning them that they were about to go outside of the ski area boundary.

Any violation of the Colorado Skier Safety Act is negligence on the part of the ski area: 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.

The plaintiffs argued the ski area failed to mark the boundary in a fashion that was visible to the skiers as required by C.R.S. §§ 33-44-107(6) and therefore, the ski area was negligent under C.R.S. §§ 33-44-104(1). If the negligence of the defendant is based on a violation of a statute (negligence per se) then a release is not effective to stop a lawsuit. This also became an issue for the ski area.

The court first looked at the statute to determine if the statute was clear or if the statute needed interpretation by the courts to be effective. In making that determination the court’s duty is to “to effectuate the intent of the General Assembly, looking first to the statute’s plain language.” If the language of the statute was not plan, or if it is ambiguous the duty is to “construe the statute in light of the General Assembly’s objective, employing the presumption that the legislature intended a consistent, harmonious, and sensible effect.”

The court found the language of the statute was plain and upheld the interpretation of the statute put forth above.

The court also pointed out statements made by the ski patrol about the incident.

With respect to skier # 1, a responding member of the ski patrol testified in his deposition that he “could see how this happened” and responded affirmatively to the question, “you didn’t believe that it was sufficiently clear that that was the area boundary?” With respect to skier # 2, the ski patrol supervisor confirmed that he probably told her that there was “no way she could have known the trees were beyond the ski area boundary and, therefore, it was not her fault,” or words to that effect.

The Appellate Court over turned the trial court’s grant of the defendant’s motion for summary judgment and sent the case back to the trial court for trial. However, this case was decided on September 16, 2010 and there is still time for the Defendant Vail Corporation to appeal the decision so this decision may not be final. If not appealed and taken to trial, there is still a long way to go before a decision is handed down by the court.

So?

There are still several things to learn from this decision.

If you are subject to a statute, you must make sure you meet all the requirements of the statute. Failure to do so will not only find you are negligent it will also stop most if not all of your defenses.

You also have to be aware that employees are going to answer questions honestly. The ski patrollers that answered the questions that assisted the plaintiff’s cases were doing so because they must tell the truth first and help their employer second. If your case is such that your employees may believe the plaintiff’s claim, you need to evaluate your case.

At the same time, no matter how much an employee may agree that the company did something wrong, that does not mean that they agree with the amount of money the plaintiff is asking for.

One interesting note, the court in a footnote referenced REI’s www.rei.com glossary in its expert advice section to define a catwalk. It’s not every day that a retailer’s website is referenced in a lawsuit as being a definitive way to define something.

For Other Colorado Decisions see:

Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,

Outdoor Recreation Insurance, Risk Management and Law

and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

If you are interested in having me write your release, download the form and return it to me.

Connect

If you like this let your friends know or post it on FB, Twitter, or LinkedIn

Facebook Page: Outdoor Recreation & Adventure Travel Law

LinkedIn https://www.linkedin.com/in/recreationlaw/

Threads https://www.threads.net/@recreation_law

X https://twitter.com/RecreationLaw

Email: Jim@Rec-Law.US

By Recreation Law Rec-law@recreation-law.com James H. Moss

@2010-2023 Summit Magic Publishing, LLC

G-YQ06K3L262

Maine decision on minor injured in ski school conforms how most states will interpret the facts.

Posted: October 25, 2010 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Maine, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Uncategorized | Tags: American Skiing Company, ski area, Ski Lessons, Sunday River | Leave a comment

Negligent supervision is not covered under most state skier safety acts.

Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

When reading a case, there are usually some tell-tale signs on how a decision will head. One indication is a misunderstanding of how the sport works by the court. In this decision, it is clear the court probably has never skied or been to a ski area.

The court commented on the fact that the ski area did not require skiers to take a class. The court used the term “hockey stop” to describe a way that a skier stopped. Finally, the court identified each time the plaintiff fell skiing, like it was something new or different.

Facts of this case are the mother of the injured skier signed her son up for skiing lessons. In the process of signing up for the lessons, the mother signed a release.

During the lesson, the son lost control of his skis and skied into a tree suffering injury.

The plaintiffs, mother and son, sued on a claim of negligent supervision of the injured son and for lost wages of the mother. The defendant ski area argued the Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act (Skier Act), 32 M.R.S.A. § 15217 and the release signed by the mother prevented their claims.

The court found the Skier Act protected the ski area from the inherent risks of skiing. The Skier Act also prevents suits for negligent operation of the ski area. The court found that negligent supervision was not an inherent risk found in the Skier Act nor was it part of the operation of the ski area.

The court then looked at the release and the two claims the defendant argued were prevented by the release. The first was the minor’s claim for his injuries.

The court found under Maine law that a release must “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” A release in Maine, as in most states, is strictly construed. This means the language of the release must be close to perfect to be upheld. The court found the release was not ambiguous (another possible defense) and the terms were clear in its intent.

The court then looked at whether Maine allowed a release to stop claims by minors and found it did not. A release under Maine law does not stop claims by a minor. This is in line with the law in more than 40 states.

The mother’s claims were based on the minor’s claims. This means for the mother to recover the minor’s claims had to be legally valid and not subject to a defense. Since the minor’s claims were valid, then the mother’s claims could proceed.

The mother’s claims are derivative claims. They derive from the main claim and are subject to all of the defenses of the main claim and any defenses of the derivative claim itself. If the main claim fails then the derivative claim also fails. Derivative claims are any claims that are created because of the main claim. Claims of spouses when another spouse is injured are derivative as is the claim of a parent when a child is injured.

The next issue was whether the ski area had a separate defense to the mother’s claims which it did. The claims of the mother were stopped under Maine law because the mother signed the release.

The final defense brought by the ski area was the indemnification language in the release. Indemnification language faces three battles in the courts.

1. Courts hate indemnification language in these situations.

2. Courts hate indemnification where the person who is injured is indemnifying against his own injuries.

3. Courts require indemnification language to be exact and the language is always strictly construed.

Here the court found that Maine law allows indemnification if the “indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties.” Here the court found the indemnification language in the release was ambiguous and was not conforming to the language required under Maine law. Therefor the court did not require indemnification by the parents for the son’s injuries.

So?

This decision with a similar set of facts is probably close to how the majority of state courts will rule.

The skier safety act does not cover negligent supervision.

A release does not stop a claim by a minor.

A release will probably stop a claim by an adult.

The indemnification language in a release will probably not support a counterclaim for indemnification by the defendant against the person who signed it.

Of course there are exceptions to the above statements. Some state skier safety acts would include operations of the ski school within the risks of skiing. Three or four states allow a parent to sign away a minor’s right to sue.

Very few if any courts will uphold indemnification language in a release. If you want to have an enforceable indemnification clause you probably will have to have a separate agreement with specific and exact indemnification language in the agreement.

What do you think? Leave a comment.

Colorado Ski Country releases opening dates for resorts

Posted: October 22, 2010 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Leave a comment

Snowmaking is going full steam in the Rocky Mountains.

“Heated” competition is going on at the Colorado resorts to see which ski area is going to open first for the 2010-11 ski season. This contest has historically been between Loveland Ski Area and Arapahoe Basin, both high up in the Rockies.

Below is a list of each member resort’s planned opening day from Colorado Ski Country USA. Dates are subject to change.

Arapahoe Basin – October (day TBD)
Loveland – October (day TBD)
Copper Mountain – November 5
Wolf Creek – November 5
Winter Park – November 17
Crested Butte – November 24
Monarch – November 24
Steamboat – November 24
Telluride – November 25
Aspen Mountain – November 25
Snowmass – November 25
Eldora – November (day TBD)
Silverton – Unguided Season November; Guided Season January
Ski Cooper – November 25-28, December 3-5, December 10-12, open daily after 12/17
Purgatory at Durango Mountain Resort – November 25
Echo Mountain – December 1
Sunlight – December 3
Aspen Highlands – December 11
Buttermilk – December 11
Howelsen – December (day TBD)
SolVista – December 15
Powderhorn – December 16

Arapahoe Basin Ski Area

Loveland Ski Area

For more information see Cooling Temperatures Add To Growing Opening Day Anticipation At Resorts.

What do you think? Leave a comment.

Technorati Tags: Colorado,Country,resorts,Rocky,Mountains,competition,area,Loveland,Arapahoe,Basin,Rockies,resort,Dates,October,Copper,Mountain,November,Wolf,Creek,Winter,Park,Butte,Monarch,Steamboat,Telluride,Aspen,Snowmass,Eldora,Silverton,Season,January,Cooper,December,Purgatory,Durango,Echo,Highlands,Buttermilk,Howelsen,SolVista,Powderhorn,information,Temperatures,Anticipation,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

Windows Live Tags: Colorado,Country,resorts,Rocky,Mountains,competition,area,Loveland,Arapahoe,Basin,Rockies,resort,Dates,October,Copper,Mountain,November,Wolf,Creek,Winter,Park,Butte,Monarch,Steamboat,Telluride,Aspen,Snowmass,Eldora,Silverton,Season,January,Cooper,December,Purgatory,Durango,Echo,Highlands,Buttermilk,Howelsen,SolVista,Powderhorn,information,Temperatures,Anticipation,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

WordPress Tags: Colorado,Country,resorts,Rocky,Mountains,competition,area,Loveland,Arapahoe,Basin,Rockies,resort,Dates,October,Copper,Mountain,November,Wolf,Creek,Winter,Park,Butte,Monarch,Steamboat,Telluride,Aspen,Snowmass,Eldora,Silverton,Season,January,Cooper,December,Purgatory,Durango,Echo,Highlands,Buttermilk,Howelsen,SolVista,Powderhorn,information,Temperatures,Anticipation,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

Blogger Labels: Colorado,Country,resorts,Rocky,Mountains,competition,area,Loveland,Arapahoe,Basin,Rockies,resort,Dates,October,Copper,Mountain,November,Wolf,Creek,Winter,Park,Butte,Monarch,Steamboat,Telluride,Aspen,Snowmass,Eldora,Silverton,Season,January,Cooper,December,Purgatory,Durango,Echo,Highlands,Buttermilk,Howelsen,SolVista,Powderhorn,information,Temperatures,Anticipation,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,blog

Canadian government suing Blackcomb Mountain for the health care costs of an injured snowboarder

Posted: October 21, 2010 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Tags: Blackcomb, Canada, skiing, Whistler | Leave a comment

Never forget the subrogation clause in any insurance policy. It will allow the insurance company to sue whoever caused your injury to recoup their payouts.

The injured snowboarder caught an edge and fell over Crystal Road run, down a steep embankment and over a climb. She suffered a:

….dislocation of the vertebrae with associated spinal-cord injury and several fractures of the vertebrae. She also suffered a mild traumatic brain injury, dislocated her ribs and had a left femur and femoral fracture.

The lawsuit claims the accident was caused by the “negligence and breach of duty of the defendant,” The complaint further sates the defendant created a “hazardous condition and failed to erect adequate warning signs. The suit also alleges the company failed to erect a barrier.”

The defendant is Blackcomb Skiing Enterprises Limited Partnership, which is the owners and operators of Blackcomb Mountain and Whistler Mountain. The defendants have not filed an answer at the time of the article.

Subrogation is the name of a clause in an insurance policy that allows the insurance company to collect any money that may be owed you for your injuries. If you injured due to the negligence of someone else, your health insurance company can sue that third party to recover the money they paid out on your behalf for your medical bills.

This must be the first time it has occurred in Canada. When I worked as a risk manager at a ski resort I received a subrogation claim letter every week. I received one every time a member or the military or a federal employee was injured.

The ski area does not have to pay out if they ski area was not negligent or if the ski area as a defense to the claim. So any defense the ski area may have against a suit by the injured skier or boarder is effective against the subrogation claims. In my case, the Colorado Ski Safety Act, Assumption of the Risk and in many cases a release stopped the subrogation claim.

See B.C. sues ski resort for care costs of injured boarder

What do you think? Leave a comment.

Ski Sundown wins lawsuit

Posted: October 20, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Jury deliberates for 90 minutes before returning verdict for the defendant.

Story is being reported by SAM as SKI SUNDOWN FOUND NOT AT FAULT

What do you think? Leave a comment.

Technorati Tags: Sundown,lawsuit,Jury,verdict,defendant,Story,FOUND,FAULT,Leave,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,terrain,park,injury,blog

Windows Live Tags: Sundown,lawsuit,Jury,verdict,defendant,Story,FOUND,FAULT,Leave,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,terrain,park,injury,blog

WordPress Tags: Sundown,lawsuit,Jury,verdict,defendant,Story,FOUND,FAULT,Leave,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,terrain,park,injury,blog

Blogger Labels: Sundown,lawsuit,Jury,verdict,defendant,Story,FOUND,FAULT,Leave,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,terrain,park,injury,blog

Aspen Skiing Co is being studied by the Harvard University Business School because of its corporate activism on behalf of the environment.

Posted: October 19, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Aspen Skiing Co., is an active corporate environmental group and its actions are being studied as a model for other corporations.

Aspen Skiing Co., had joined Greenpeace and the Natural Resources Defense Council (NRDC) in a lawsuit to force Kimberly Clark to change the way Kleenex are made. The lawsuit alleged the way Kimberly Clark made Kleenex was destructive to the environment and contributed to climate change.

The study is looking at the decisions made by Aspen Skiing Co., as it balanced the value of joining the lawsuit versus angering guests.

Changes made by Kimberly Clark allowed Aspen Skiing Co to drop out of the lawsuit, feeling the changes were significant. The NRDC kept suing and eventually won the suit which allowed the EPA to regulate to regulate greenhouse gas emissions.

This took a lot of guts on the part of Aspen Skiing Co, thanks and good job!

See Aspen Skiing Co. Kleenex boycott intrigues Harvard Business school studying Skico environmental actions.

What do you think? Leave a comment.

Keywords:
#recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Aspen, #Aspen Skiing Company, #Skicorp, #National Resource Defense Council, #Greenpeace, #NRDC, #Kleenex, #Kimberly Clark, #boycott, #greenhouse gasses, #climate change, #corporate activism, #Harvard, #Harvard Business School,
Technorati Tags: Aspen,Harvard,School,environment,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,negligence,Company,Skicorp,National,Resource,Defense,Council,Greenpeace,NRDC,Kleenex,Clark,greenhouse,climate,activism
Windows Live Tags: Aspen,Harvard,School,environment,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,negligence,Company,Skicorp,National,Resource,Defense,Council,Greenpeace,NRDC,Kleenex,Clark,greenhouse,climate,activism
WordPress Tags: Aspen,Harvard,School,environment,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,negligence,Company,Skicorp,National,Resource,Defense,Council,Greenpeace,NRDC,Kleenex,Clark,greenhouse,climate,activism

Lawsuit filed for skiing into snow………

Posted: October 5, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Isn’t’ that what skiing is all about?

A family has sued The Canyons ski resort for injuries sustained by their son when he skied into a wall of manmade snow. The boy sustained a traumatic brain injury. (Helmet?)

The young man was part of the Summit Ski team and was training at the time of the accident. The wall of snow was downhill from where the training was taking place.

See Canyons returns fire in court

What do you think? Leave a comment.

Keywords: #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation, #the Canyons, #ski area, #summit ski team, #ski racing, #ski training, # Talisker Canyons Finance Company
Technorati Tags: Lawsuit,resort,brain,injury,Helmet,Summit,team,accident,Leave,Recreation,Edit,Recreaton,Moss,adventure,attorney,tourism,management,Human,area,Talisker,Finance,Company,Canyons,injuries
Windows Live Tags: Lawsuit,resort,brain,injury,Helmet,Summit,team,accident,Leave,Recreation,Edit,Recreaton,Moss,adventure,attorney,tourism,management,Human,area,Talisker,Finance,Company,Canyons,injuries
WordPress Tags: Lawsuit,resort,brain,injury,Helmet,Summit,team,accident,Leave,Recreation,Edit,Recreaton,Moss,adventure,attorney,tourism,management,Human,area,Talisker,Finance,Company,Canyons,injuries

Woman who went around barricades to sit and read a book awarded $300,000.

Posted: September 30, 2010 | Author: Recreation Law | Filed under: Ski Area | 2 Comments

Substantially, less than the $7.6 million she had requested for being partially paralyzed.

Mt. Baker ski area was sued for $7.6 million dollars by a 66 year old woman who was paralyzed when snow falling off a roof fell on her. She was sitting on a deck reading a book. To get to the spot where she was injured, she had gone around barricades set up because of the risk of the falling snow.

She sued for her injuries, and the jury returned a verdict finding that she was 85% to blame for her injuries. Consequently, the award was reduced by 85%.

It is very sad that the woman is a paraplegic. Her medical costs for the rest of her life will be horrific. However, she can read. She was reading a book and ignoring a sign to read a book is stupid.

See Negligence lawsuit against Mt. Baker ski Area goes to jury and Jury renders verdict in Mt. Baker lawsuit.

What do you think? Leave a comment.

If you leave the ski area, with or without boundary markers you are on your own.

Posted: September 16, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR), Ski Area | 4 Comments

If your parents sue because you died outside of the ski area, they are just publicizing your bad decisions.

A family from New York is suing Idaho and Wyoming sheriff’s departments and search and rescue units for failing to rescue their son. It appears that the ski area may be facing suit also. The son skied outside of the boundaries of a ski area and got lost. He notified a sheriff’s dispatcher using his cell phone but died before he could be found.

Now his family is suing for “botched the rescue attempt in January and failed to communicate with Wyoming rescuers trying to locate Fitzgerald after he went outside Grand Targhee Resort boundaries, which the claim says were not adequately marked.”

It is sad when someone is injured or dies. However, leaving a ski resort without adequate knowledge, skill, gear and equipment is just stupid. Doing so when you do not know where you are going is also dumb.

Maybe New Yorker’s just don’t understand the west. While working at a resort in Summit County years ago I was summoned to the clinic. As I walked in I heard yelling from one of the examination rooms. As I walked in the eyes, and arms indicated that the yelling was coming from the room where I was needed.

As I walked through the curtain the person was upset because no one would help her get to her hotel room. She was threatening to call a cab. That alone made me grin, at the time there were no cabs in Summit County. She would have waited several hours for a cab to arrive from Denver. I inquired where she was from, (NY) and told her I was there to help. After about 5 minutes of additional yelling, she explained her predicament; swollen ankle, no shoes and ski boots. We got a pick up and took her the 80 yards to her hotel.

She was applying New York knowledge and logic to her predicament. She did not know where she was and had no idea how to deal with the situation except to insist that someone else solve her problems. You have to be a little more self reliant in the West.

Yelling does not work in the mountains, even if you are lost.
Calling a cab in the mountains does not work.
Colorado, Idaho, Montana and Wyoming are not New York.
Lost is not a TV show in the west, it is a good way to die.
Suing does not bring your dead daughter back.

The only thing a lawsuit might do is make the next lost person die because volunteers did not want to put their lifestyle on the line to save your butt.

See Family of dead skier files lawsuit against Idaho rescue teams

What do you think? Leave a comment.

Keywords:
#outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #outdoor Recreation, #Idaho, #SAR, #search and rescue, #New York, #Teton County Sheriff, # Teton County, #Idaho Search and Rescue, #Grand Targhee Resort, #ski area, #ski area boundary, #lost, #cell phone, #rescue,
Technorati Tags: skiing,SAR,Search and rescue,Grand Targhee Resort,boundary,recreation,adventure,Idaho,York,Teton,Sheriff,Search,Rescue
Windows Live Tags: skiing,SAR,Search and rescue,Grand Targhee Resort,boundary,recreation,adventure,Idaho,York,Teton,Sheriff,Search,Rescue
WordPress Tags: skiing,SAR,Search and rescue,Grand Targhee Resort,boundary,recreation,adventure,Idaho,York,Teton,Sheriff,Search,Rescue
Blogger Labels: skiing,SAR,Search and rescue,Grand Targhee Resort,boundary,recreation,adventure,Idaho,York,Teton,Sheriff,Search,Rescue

Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.

Posted: September 6, 2010 | Author: Recreation Law | Filed under: Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Aspen, Aspen Skiing Company, Lawsuit, Litigation, Snowmobile | Leave a comment

Robinette v. Aspen Skiing Company, L.L.C., 2009 U.S. Dist. Lexis 34873 (Colo)

Colorado Release law dismisses claim for what could have been a nasty outcome.

The Plaintiff in this case Robinette was snowboarding and approaching an incline attempting to perform a jump. An Aspen Skiing Company employee was driving a snowmobile uphill on the other side of the incline. The guest and the snowmobile collided causing serious injuries to the guest.

The guest was skiing on a season pass purchased from Aspen Skiing Company. As with most ski resorts, the guest was required to sign a release as part of the season pass purchase.

The Plaintiff argued the defendant Aspen Skiing Company was negligent. The negligence was based on a violation of the Colorado Snowmobile Act, C.R.S. § 33-14-116. The specific statute states:

33-14-116. Other operating restrictions

(1) No person shall operate a snowmobile in a careless or imprudent manner without due regard for width, grade, corners, curves, or traffic of trails, the requirements of section 33-14-110 (3), nd all other attendant circumstances.

(2) No person shall operate a snowmobile in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property.

(3) No person shall operate a snowmobile while under the influence of alcohol, a controlled substance, as defined in section 12-22-303 (7), C.R.S., r any other drug, or any combination thereof, which renders him incapable of the safe operation of a snowmobile.

(4) No owner shall permit such snowmobile, while under his control, to be operated in violation of the provisions of this article.

(5) Any person who violates subsection (1) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine of one hundred dollars.

(6) Any person who violates subsection (2) or (3) of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.

(7) Any person who violates subsection (4) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine of fifty dollars.

The plaintiff argued that the statute creates a duty for snowmobile operators to operate in a safe manner. The plaintiff argued duty cannot be waived by a release by cause the duty is imposed by statute. The plaintiff also argued the release was ambiguous as to this type of accident.

The court outlined the four requirements for a release to be valid in the State of Colorado.

(i) There must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) The agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) The circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) The agreement may not violate public policy.

The burden of proving all of these elements is met is upon the party trying to enforce the release. In this case, it was the defendant Aspen Skiing Company. The court accepted Aspen’s arguments on the first and third steps and analyzed the second and fourth elements in its decision.

The first argument and analysis centered on whether the language in the release covered being hit by a snowmobile. This is an important analysis for everyone in the recreation industry. To name all the possible ways you can be injured would require a multi volume encyclopedia with a signature at the end. The court found the risk did not have to be identified in the release because it was identified in the Colorado Skier Safety Act C.R.S. § 33-44-108(3), which requires snowmobiles to have specific equipment on it to be operated at a resort. Because the statute looked at the risks of a skier being hit by a snowmobile, it was within the scope of the activity and the release.

The main argument that the defendant’s employee violated the Colorado Snowmobile statute creates an interesting argument. A release cannot void the obligations created by a state law, which is true. You cannot contract for something, which is illegal, and you cannot contract to do a crime, and you cannot contract away a statutory duty. The snowmobile licensing statute imposes a criminal penalty for anyone who violates it. However, the court found that the two could exist without a problem. The release attempts to prevent liability for a tort, and the statute imposes criminal liability for criminal acts. The release does not prohibit the state from imposing criminal liability on the driver of the snowmobile.

Aspen moved for Summary Judgment based on the release, and the court upheld the motion dismissing the plaintiff’s claims.

However, this decision might not have had the same outcome in many other states. Most states look at a statute that imposes criminal liability for an act or failure to act as something a release cannot protect. If the act was negligence per se, a violation of a statute, then most states do not allow a release to be used as a defense.

So?

The decision provides a good framework for understanding the steps necessary for a defendant to rely on one as a defense. Specifically, the analysis of who has the burden of proving the release is valid and whether or not the language of a release is clear. This also shows how other statutes can be used to assist in the defense of a lawsuit.

However, the public policy answer, step IV of the four parts necessary for a release to be valid in Colorado is contrary to the law in most other states.

This case can still be appealed; the District Court is just the first step, the trial court in the Federal court system. If this case is appealed and upheld at the appellate level, it will be a significant strengthening of the law of releases in Colorado.

This is also significant because guest collisions with snowmobiles have been costly to the ski industry.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

G-YQ06K3L262

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law Rec-law@recreation-law.com James H. Moss

@2023 Summit Magic Publishing, LLC

#recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Aspen, #Aspen Skiing Co., #snowmobile, #collision, #release, #negligence, #negligence per se, #public policy, # statute, #Colorado Skier Safety Act, #Colorado, #Colorado Snowmobile Act, Technorati Tags: Aspen,Company,Release,guest,employee,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,negligence,collision,policy,statute,Colorado,Skier,Snowmobile,areas,blog
Windows Live Tags: Aspen,Company,Release,guest,employee,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,negligence,collision,policy,statute,Colorado,Skier,Snowmobile,areas,blog
WordPress Tags: Aspen,Company,Release,guest,employee,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,negligence,collision,policy,statute,Colorado,Skier,Snowmobile,areas,blog

Sugarbush Ski Area sued Mother Nature for her failure to provide needed snow.

Posted: August 26, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Yes it is a marketing pitch, but sometimes don’t you wish…..

Sugarbush Ski Area settled a lawsuit with Mother Nature after she promised to provide 25 feet of snow this coming winter.

Look out Vermont, that is a lot of snow.

See Ski area “settles” lawsuit against Mother Nature.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

Keywords: #outdoor law, recreation law, #outdoor #recreation law, #adventure #travel law, #Sugarbush #Ski #Area,

Technorati Tags: Sugarbush Ski Area,Mother Nature,lawsuit,Vermont,Recreation,adventure
Windows Live Tags: Sugarbush Ski Area,Mother Nature,lawsuit,Vermont,Recreation,adventure
WordPress Tags: Sugarbush Ski Area,Mother Nature,lawsuit,Vermont,Recreation,adventure
Blogger Labels: Sugarbush Ski Area,Mother Nature,lawsuit,Vermont,Recreation,adventure

They are not just a cable strung between two trees

Posted: August 3, 2010 | Author: Recreation Law | Filed under: Ski Area, Zip Line | 1 Comment

Zip lines are gaining in popularity. Make sure you have yours built and inspected by a professional.

A new zip line in at Whitefish Mountain resort sent a man to the hospital with a broken tailbone. The man, in order to get a better ride jumped on the line to get a better ride. That jump caused the line to oscilate so that when he approached the platform the line was below the platform breaking his tailbone.

See Man injured on Whitefish resort’s new “zip line”

What do you think? Leave a comment.

Keywords:
#outdoor law, #recreation law,# outdoor recreation law, #adventure travel law, #zip line, #whitefish mountain resort,
Technorati Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, whitefish mountain resort,,recreation,adventure
Windows Live Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, whitefish mountain resort,,recreation,adventure
WordPress Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, whitefish mountain resort,,recreation,adventure
Blogger Labels: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, whitefish mountain resort,,recreation,adventure

A father of a deceased skier pushing for a helmet law in New Jersey.

Posted: June 29, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Australian study shows requiring helmets reduces participants in the activity.

Death of 12 year old daughter in 1988 fuels pushed by father for your kids to wear helmets. The young girl died after being hit by another skier.

The law does make parents liable, rather than the ski areas, if a child does not wear a helmet while at the resort. Fine of $25 to $100 are proposed.

So with all of the push to get kids’ outdoors, this law will push back and keep kids inside during the winter.
Why not put that energy and money into doing something good. Buying helmets for under privileged youth so they can go skiing and boarding rather than writing a law that will prevent them from going skiing and boarding.

Would you send your kid to go skiing, even if it’s free, if you face a fine of $100?

Why not provide an educational program for all skiers on what helmets can do and why? Why not take the money and time and provide discounts on helmets so anyone can buy or rent a helmet? Why not incentivize rental programs to provide free helmets?

What do you think? Please leave a comment.

Technorati Tags: ski area, legislation,,New Jersey,Death,helmets
Windows Live Tags: ski area, legislation,,New Jersey,Death,helmets
WordPress Tags: ski area, legislation,,New Jersey,Death,helmets
Blogger Labels: ski area, legislation,,New Jersey,Death,helmets
See Morris County doctor pushes for N.J. law requiring helmets for young skiers.

Lawsuit filed over death caused by zip line to man riding chair lift.

Posted: June 24, 2010 | Author: Recreation Law | Filed under: Ski Area, Zip Line | 1 Comment

This is complicated and confusing, but from what I can tell a zip line malfunctioned and it caused a man to fall to his death who was riding a chair lift over the zip line.

The facts just start bad. The deceased was on his honeymoon. He and his new wife had ridden one chair lift up to ride the zip line at Heavenly Mountain Resort. Once they got to the top of the lift they were told the deceased was too tall to ride the zip line. He and his wife wanted to walk down the mountain but they were told they had to ride the chair lift back down.

While riding down, a retrieval rope for the zip line became entangled in with the chair’s comfort bar. (Safety bar as described in the article.) The retrieval rope flipped the comfort bar up and rocked the deceased out of the chair. He fell 50’ to his death.

See Family of man killed at Heavenly to file suit

What do you think? Leave a comment.

Keywords:
outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, Heavenly Mountain Resort, chair lift, ski area, wrongful death,
Technorati Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, Heavenly Mountain Resort, chair lift, ski area, wrongful death,,Lawsuit,death
Windows Live Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, Heavenly Mountain Resort, chair lift, ski area, wrongful death,,Lawsuit,death
WordPress Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, Heavenly Mountain Resort, chair lift, ski area, wrongful death,,Lawsuit,death
Blogger Labels: outdoor law, recreation law, outdoor recreation law, adventure travel law, zip line, Heavenly Mountain Resort, chair lift, ski area, wrongful death,,Lawsuit,death,recreation,adventure

Aspen Skiing Co. requires helmets for Salaried employees on the mountain

Posted: June 17, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Because we don’t care about hourly employees?

I know this is an attempt to deal with the real, government, political and other issues of skiing and helmets. However, the announcement just seems wrong to me.

500 salaried Aspen Skiing Company employees will be required to wear a helmet while on the mountain. (How many of those administrative assistants, cooks, janitors, etc. are ever on the helmet is another question.)
Look at it this way. An hourly employee has a severe head injury on the mountain. The parents go to Aspen and say, why was my son not wearing a helmet? The answer, no matter what Aspen Skiing Company says, is going to be, because we did not want to spend the money on hourly employees.

Yes Aspen is doing a good thing and trying to appear responsible with this announcement. However, there is no way to win this one. Either you protect all employees equally or none.

See Aspen To Require Helmets For Salaried On-Mountain Employees

What do you think? Leave a comment.

Keywords:
outdoor law, recreation law, outdoor recreation law, adventure travel law, ski area, Aspen Skiing Company, helmets, salaried employees
Technorati Tags: Aspen,outdoor law, recreation law, outdoor recreation law, adventure travel law, ski area, Aspen Skiing Company, helmets, salaried employees

Windows Live Tags: Aspen,outdoor law, recreation law, outdoor recreation law, adventure travel law, ski area, Aspen Skiing Company, helmets, salaried employees

WordPress Tags: Aspen,outdoor law, recreation law, outdoor recreation law, adventure travel law, ski area, Aspen Skiing Company, helmets, salaried employees

Blogger Labels: Aspen,outdoor law, recreation law, outdoor recreation law, adventure travel law, ski area, Aspen Skiing Company, helmets, salaried employees

Seriously resorts need to figure things out or they are always going to be sued!

Posted: May 20, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Chair Lifts’ Stop on a Dime according to ski area guests!
This story is about a five year old boy who was injured when he fell out of a chair lift and was dragged by the chair injuring him.
The article quotes the family saying the chair lift operator did nothing resulting in the child’s injuries. The resort says the operator acted properly. Both statements conflict and make the resort out to be the liar.
Both are right probably. Resorts never explain how chair lift’s work. Ski areas never explain that chair lifts take 20 feet or more to stop. They never explain that if you were to stop the lift immediately you would catapult riders out of the lift.
The injured boy’s father is quoted saying “Parker’s father said when he looked over at the chair lift operator, she was looking down and didn’t notice the accident until the chair had dragged him 10 to 15 feet.” Ten to fifteen feet is well within the normal stopping distance of a lift.
Why doesn’t the resort say that? Why doesn’t the resort tell everyone riding a lift that lifts don’t stop immediately for three reasons?
· It would catapult everyone off the lift.
· If it is difficult to do.
· It would damage the lift.
However, no, the resort responds the same way each time making them look dumb and get a new name. DEFENDANT!
See Ten Reasons Why People Sue and see the article 5-Year-Old Boy Dragged By Sierra Ski Lift.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Keywords: outdoor law, recreation law, outdoor recreation law, adventure travel law, chair lift, Sierra-at-Tahoe Resort,
http://www.thebostonchannel.com/irresistible/22808308/detail.html
Technorati Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, chair lift, Sierra-at-Tahoe Resort,,Chair Lift,
Windows Live Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, chair lift, Sierra-at-Tahoe Resort,,Chair Lift,
WordPress Tags: outdoor law, recreation law, outdoor recreation law, adventure travel law, chair lift, Sierra-at-Tahoe Resort,,Chair Lift,
Blogger Labels: outdoor law, recreation law, outdoor recreation law, adventure travel law, chair lift, Sierra-at-Tahoe Resort,,Chair Lift,

People including children fall off chair lifts.

Posted: April 29, 2010 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Leave a comment

When you have a slow news day what occurs regularly now becomes front page news.

In late fall and early January during the 2009-2010 ski season, many media sources reported on children who have been falling out of chair lifts. They received the requisite assurances from the industry that this rarely happened. The media then proceeded to put ghastly ideas of what could happen if you fell off chair lifts in the minds of the readers.

In reality, people fall out of chair lifts all the time. Very few of them suffer any injuries whatsoever, other than mild embarrassment. Young children do it most of the time when they are scooting up to get their skis level with the ground, so they unload the lift.

My concern with the articles is not that kids fall out of lifts. My concern is the articles want to place the responsibility for children riding chairlifts on the people running the chair lifts, the ski areas. Whether or not a child is allowed on the lift is the responsibility of the adult that purchased the lift ticket. If you are concerned about your child riding a chair lift do not buy your child a lift ticket. If you don’t want your child riding certain lifts, do not allow them to ride those lists.

A ski area is not in a position with dozens of people waiting to load a left to question everyone fewer than 5 feet tall as to their ability to load, ride, and unload a lift. In most states ski areas have been given specific instructions not to worry about that, because it is the responsibility of the person who buys the lift ticket to learn how to ride the lift.

No one wants children to fall out of lifts. However, if your child is a good skier he or she will eventually have a chance to the larger faster chair lifts. Those ski lifts are designed for everyone children and adults. It is not the ski areas’ responsibility to make the determination, whether or not your child has the ability to ride the lift safely. That is solely and will always be your responsibility.

See Ski Lift Safety Can Be Overlooked

What do you think? Leave a Comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

Technorati Tags: People,children,news,January,industry,ideas,Very,embarrassment,Young,kids,Whether,ticket,area,person,determination,Lift,Leave,Comment,Recreation,Edit,Recreaton,Gmail,assurances,readers,injuries,articles,areas,feet

Windows Live Tags: People,children,news,January,industry,ideas,Very,embarrassment,Young,kids,Whether,ticket,area,person,determination,Lift,Leave,Comment,Recreation,Edit,Recreaton,Gmail,assurances,readers,injuries,articles,areas,feet

WordPress Tags: People,children,news,January,industry,ideas,Very,embarrassment,Young,kids,Whether,ticket,area,person,determination,Lift,Leave,Comment,Recreation,Edit,Recreaton,Gmail,assurances,readers,injuries,articles,areas,feet

Dartmouth settles ski lawsuit for unknown amount

Posted: April 22, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

College had tried several times to win suit based on motions and failed.

As we’ve reported several times before Dartmouth University was being sued by the parents of a student who died in a class skiing. The class is being held at the Dartmouth ski Way, a ski area owned and operated by Dartmouth University. The details of the settlement are subject to a confidential agreement as we do not know how much was paid by Dartmouth settles suit.

This is sad all the way around. It is sad that a young student died. It is sad the parents felt wronged or so emotional they thought they had to sue. It is sad that the college had to pay money to settle the suit. It is sad that the college did not have a close enough relationship with the parents that the suit did not have to happen.
See College resolves Porter lawsuit.

For earlier blogs about this lawsuit see Judge refuses to dismiss lawsuit against Dartmouth College over a fatality of a student at the college’s ski hill and Judge Denies Dartmouth Request In Ski Death Case

What do you think? Leave a Comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

Keywords: outdoor law, recreation law, outdoor recreation law, adventure travel law, Dartmouth, Dartmouth ski Way, ski area, totality,
Technorati Tags: Dartmouth,lawsuit,College,times,student,area,settlement,subject,agreement,money,relationship,Porter,Judge,hill,Request,Death,Case,Leave,Comment,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Technorati,parents
Windows Live Tags: Dartmouth,lawsuit,College,times,student,area,settlement,subject,agreement,money,relationship,Porter,Judge,hill,Request,Death,Case,Leave,Comment,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Technorati,parents
WordPress Tags: Dartmouth,lawsuit,College,times,student,area,settlement,subject,agreement,money,relationship,Porter,Judge,hill,Request,Death,Case,Leave,Comment,Recreation,Edit,Recreaton,Gmail,Keywords,adventure,Technorati,parents

I could not make my son wear a helmet so I’m going to make you wear one

Posted: March 19, 2010 | Author: Recreation Law | Filed under: Ski Area | 1 Comment

Parents react to son’s death by pushing for helmet law.

It is always very sad when a young snowboarder dies. Kyle Cryblskey was 23 when he landed wrong on a jump at Mount Hood in February 2010. It is not known whether or not a helmet would have saved his life.
So Kyle’s parents are pushing for helmets on everyone. I don’t make the connection either but confused seems to be common with this issue.

“Our son died; therefore, you should do what I want you to do.” Or maybe a better statement is “we could not make our son wear a helmet, so we are going to make you wear one.”

They failed in making their son wear a helmet so now they want the ski resort to be responsible for making people wear a helmet. It the parents could not make their child wear a helmet, why should the resorts be responsible for doing it? Come on folks, as parents it is your job, not the resorts, to take care of your kid.

When I was working at a ski area after a child had fallen off the lift, every parent wanted to know why we allowed the child on the lift. I wanted to scream YOU BOUGHT HIM THE LIFT TICKET, WHAT DID YOU THINK HE WAS GOING TO DO WALK UP THE HILL?

Deborah and Joe Cryblskey are pleading for stricter snowboarding and skiing laws. Their son Kyle Cryblskey, 23, was snowboarding last Saturday on Mount Hood Meadows when he took a jump, crashed and died. Kyle was not wearing a helmet.

The Cryblskey’s are quoted saying:

“He had a helmet. Every other year we would buy him a helmet and he would take them up there but the fashionable hat was better to wear,” said Deborah Cryblskey.

The Cryblskey’s said they don’t know if a helmet would have saved their sons life but they want them to be required for all skiers and snowboarders.

“I think that the resorts should have a more responsible role. Especially if they are on these jumping park things where they are going too fast and jumping so high. If they don’t have a helmet they are off the mountain,” said Deborah Cryblskey.

“The helmets I think they should be mandatory and they should bring the rental prices way down on them,” said Joe Cryblskey.

So now the resorts are going to be responsible for policing the kids of parents who can’t or won’t take care of their children.

The Cryblskey’s said they will continue to raise awareness about the importance of wearing helmets until a law is passed to require them on the slopes.

Grief is a natural process. Grief does not mean you make someone else miserable. Your grief should not be transferred to third parties making them miserable. If you want your children to wear a helmet, don’t allow them to ski without a helmet. If you want your children to wear, a helmet, and they don’t, don’t buy them a lift ticket or season pass, don’t drive them to the resort, and don’t give them the opportunity to ski or board. Be responsible for your own child and teach your child to be responsible for themselves.

Do not expect me or any other third party to be responsible for your child. If you or your children are not acting the way you want, it is Your problem.

Laws will not change things anyway.

So read the entire article see ‘Kyle loved snowboarding … This was his passion’. For more information about the accident see Snowboarder, 23, dies after crash at Meadows.

What do you think? Leave a Comment.

Keywords: ski area, ski area fatality, helmets, ski helmets, snowboarding,

Technorati Tags: ski area,ski area fatality,helmets,ski helmets,snowboarding

It's not what I write, It's what you Learn

Rate this:

Share this:

Rate this:

Share this:

1. REALSKI Augmented Reality

2. Vail’s EpicMix App

3. iTrailMap 3D

4. Snow and Ski Report by REI

5. Elevation Pro

6. snowEdge

RealSki allows you to hold up your phone and it will tell you what you are looking this. The app identifies runs as well as other things on the mountain. The RealSki video was filmed at Copper Mountain and Vail.

See Skiing and Snowboarding: 6 Apps For Conquering the Slopes.

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

To Read an Analysis of this decision see

Rate this:

Share this:

Two nearly identical mishaps at the same location bring two suits where the skier was able to overturn a motion for summary judgment.

So?

What do you think? Leave a comment.

Connect

Rate this:

Share this:

Negligent supervision is not covered under most state skier safety acts.

So?

What do you think? Leave a comment.

Rate this:

Share this:

Rate this:

Share this:

Never forget the subrogation clause in any insurance policy. It will allow the insurance company to sue whoever caused your injury to recoup their payouts.

What do you think? Leave a comment.

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Colorado Release law dismisses claim for what could have been a nasty outcome.

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

35 Years of Outdoor Retailer

The book for the Outdoor Recreation Industry Professional.

Enter your email address to follow this blog and receive notifications of new posts by email.

Contact Information

Pages

Follow Blog via Email

Follow on Twitter

Categories: by Activity, State & Legal Issue

Blog Stats

StatCounter