You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.
Posted: May 13, 2019 Filed under: Case Analysis, Colorado, Contract, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, cases, collection, collector, credit card, debt collection, debt collector, demand letter, demand letters, discovery, disputed, documents, Email, engaging, entity, genuine, law firm, letters, machine, matters, missing, Mountain Law Group, nonmoving, nonmoving party, opposing, owed, parties, practice of law, preface, principal purpose, regularity, regularly, Rental, Rental Agreement, ride, signature, Snowmobile, Summary judgment, summary judgment motion 1 CommentIt helps to get that much money if the customer is a jerk and tries to get out of what they owe you. It makes the final judgment even better when one of the plaintiffs is an attorney.
Citation: Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514, 2012 WL 95208
State: Colorado; United States District Court for the District of Colorado
Plaintiff: Tracy L. Hightower-Henne, and Thomas Henne
Defendant: Leonard M. Gelman
Plaintiff Claims: Violation of the Fair Debt Collections Act
Defendant Defenses: They did not violate the act
Holding: For the Defendant
Year: 2012
Summary
The plaintiff’s in this case rented snowmobiles and brought one back damaged. The release they signed to rent the snowmobiles stated if they damaged the snowmobiles they would have to pay for the damage and any lost time the snowmobiles could not be rented (like a car rental agreement).
The plaintiffs damaged a snowmobile and agreed to pay for the damages. The Snowmobile outfitter agreed not to charge them for the lost rental income.
When the plaintiff’s got home, they denied the claim on their credit card bill. The Snowmobile outfitter sued them for the $220.11 in damages and received a judgment of $27,000.
The plaintiff then sued the attorney representing the snowmobile outfitter for violation of the federal fair debt collection’s act, which is the subject of this lawsuit. The plaintiff lost that lawsuit also.
This case shows how agreements in advance to pay for damages from rented equipment are viable and can be upheld if used.
Facts
Although this is described as a debt collection case, it is a case where an outfitter can recover for the damages done to his equipment that he rented to the plaintiffs. The facts are from this case, which took them from an underlying County Court decision in Summit County Colorado.
Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely visible to any driver. At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee and charged Mr. Henne a total of only $220.11.
…one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by CBR against Mr. and Mrs. Henne in Summit County Court. This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court does not believe that the fairing just fell off.”
Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.”
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s sig-nature on the damage estimate and the credit card slip were forgeries. The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.”
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees pro-vision, the court awarded CBR $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.”
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
Analysis: making sense of the law based on these facts.
The facts set forth in the underlying damage recover case, are the important part. In this case, the attorney for the snowmobile outfitter was found not to have violated the federal fair debt collections act.
In awarding judgment to the defendant in this case, the judge also awarded him costs.
Defendant Leonard M. Gelman’s Motion for Summary Judgment is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
Adding insult to injury. Sometimes it be better to quit while you are behind.
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Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514
Posted: May 1, 2019 Filed under: Colorado, Contract, Legal Case, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, collection, collector, credit card, demand letters, discovery, disputed, Email, engaging, entity, genuine, law firm, machine, missing, Mountain Law Group, nonmoving party, opposing, owed, practice of law, preface, principal purpose, regularity, regularly, Rental, rental agree-ment, ride, signature, Snowmobile, Summary judgment Leave a commentHightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514
Tracy L. Hightower-Henne, and Thomas Henne, Plaintiffs, v. Leonard M. Gelman, Defendant.
Civil Action No. 11-cv-01114-KMT-BNB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2012 U.S. Dist. LEXIS 4514
January 12, 2012, Decided
January 12, 2012, Filed
CORE TERMS: collection, collector, snowmobile, summary judgment, discovery, credit card, rental, Mountain Law Group, demand letters, email, entity, law firm, preface, missing, nonmoving party, principal purpose, regularity, regularly, disputed, opposing, genuine, rental agreement, signature, machine, ride, admissible, engaging, owed, practice of law, attorney’s fees
COUNSEL: [*1] For Tracy L. Hightower-Henne, Thomas J. Henne, Plaintiffs: Daniel Teodoru, Erin Colleen Hunter, West Brown Huntley & Hunter, P.C., Breckenridge, CO.
For Leonard M. Gelman, Defendant: Rusty David Miller, Thomas Neville Alfrey, Treece Alfrey Musat, P.C., Denver, CO.
JUDGES: Kathleen M. Tafoya, United States Magistrate Judge.
OPINION BY: Kathleen M. Tafoya
OPINION
ORDER
This matter is before the court on Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] (“Mot.”) filed August 12, 2011. Plaintiffs, Tracy Hightower-Henne and Thomas Henne (collectively “the Hennes”), responded on September 14, 2011 [Doc. No. 23] (“Resp.”) and the defendant filed a Reply on October 3, 2011 [Doc. No. 25]. Also considered is Plaintiffs’ “Motion to File Sur-Reply” [Doc. No. 26], which is denied.1
1 Neither the Federal Rules of Civil Procedure nor the Local Rules of Practice in the District of Colorado provide for the filing of a surreply. Additionally, the court’s review of the proposed surreply reveals it is nothing more than an attempted unauthorized additional bite at the proverbial apple and adds nothing of merit to the summary judgment analysis.
Background
On February 8, 2010, Nebraska residents Tracy L. Hightower-Henne [*2] and her husband Thomas Henne joined a small group of friends and family for a snowmobile ride in Vail, Colorado. Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. (Mot., Ex. H, Judgment Order of County Court Judge Wayne Patton, April 21, 2011, hereinafter “Judgment Order” at 1.)2 While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. (Id.) Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. (Id. at 2.) Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely [*3] visible to any driver. (Id. at 3.) At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 (Id. at 2.) Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 (Id.) Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee5 and charged Mr. Henne oa total of only $220.11. (Mot., Ex. B.)
2 As will be discussed in more detail herein, one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by [*4] CBR against Mr. and Mrs. Henne in Summit County Court, Case Number 10 C 255 ). (See Mot., Ex. G; hereinafter, the “Summit County case.”) This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
3 This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” (Judgment Order at 3.) The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court [*5] does not believe that the fairing just fell off.” (Id.)
4 Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
5 CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.” (Mot., Ex. B.)
Upon their return to Nebraska, however, Mr. and Mrs. Henne apparently decided they did not want to pay for the damage to the snowmobile, even with the waiver of the rental loss, and contested the charge to Mr. Henne’s credit card resulting in a reversal of the charge by the credit card issuer. Further, the Hennes leveled criminal forgery accusations against CBR’s employee with the Frisco, Colorado Police Department (id. at 4), alleging that the acknowledgment of damage form and the credit card slip were not signed by Mr. Henne. The police department investigated, but no charges were filed.
Mr. Henne’s ultimate cancellation of his former acquiescence to payment caused CBR to contact their corporate lawyer, Defendant Gelman, and ask that he attempt to obtain payment from the Hennes, authorizing a law suit if initial requests for payment failed. Obviously, CBR was no longer willing [*6] to waive the fee for loss of rental which was part of the contract Mrs. Hightower-Henne signed. (Id. at 2.)
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s signature on the damage estimate and the credit card slip were forgeries. (Id. at 4.) The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. (Id.) The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.” (Id.)
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees provision, the court awarded CBR [*7] $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.” (Mot., Ex. I, June 22, 2011 Order of Hon. Wayne Patton, hereinafter “Atty. Fee Order” at 3.) The court also found that “although this was a case akin to a small claims case, Mrs. Hightower-Henne defended the case as if it were complex litigation.”7 (Id. at 1.) Judge Patton stated, with respect to the counterclaim filed by the Hennes, that “[a]lthough Mrs. Hightower-Henne did not pursue that claim at trial it shows the lengths she was willing to go to avoid payment of what was a fairly small claim.” (Id. at 1.)
6 Costs were awarded against both Mr. and Mrs. Henne [*8] jointly and severally.
7 In December 2010, the Hennes hired outside counsel to defend them in the county court action. (Id. at 4.)
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
In a prodigiously perfect example of throwing good money after bad, the Hennes now continue to prosecute this federal action against the lawyer representing CBR in the Summit County case, alleging violations of the federal Fair Debt Collection Practices Act (“FDCPA”).8 Unfortunately, even though the issue was raised at some point in the county court case, (see id. at 3, “Mrs. Hightower-Henne also made allegations that Plaintiff was violating fair debt collection laws”), these particular allegations were not resolved by the county court. Therefore, this court is now compelled to reluctantly follow the Hennes down this white rabbit’s hole to resolve the federal case.
8 This case was originally filed against CBR’s lawyer by the Hennes in Summit County on March 31, 2011, suspiciously [*9] a mere one week before commencing trial on the underlying case before Judge Patton. Defendant Gelman removed the case to federal court post-trial on April 27, 2011, one week subsequent to Judge Patton’s ruling against the Hennes. Between April 27, 2011 and August 12, 2011, the Hennes could have revisited the wisdom of continuing with this case had they been so inclined. However, the Hennes have not sought to even amend their Complaint in this matter, even though the findings call into question many of the arguments embodied in the federal complaint. (See, e.g., Compl. ¶ 26.)
Analysis
A. Legal Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing [*10] Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). [*11] “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Thomson, 584 F.3d at 1312.
B. Request for Additional Discovery
As an initial matter, Plaintiffs request the court grant them further discovery in order to fully explore the matters raised by Defendant Gelman’s affidavit, attached to the Motion. [Doc. No. 17-1, hereinafter “Gelman Affidavit.”]
The party opposing summary judgment and who requests additional discovery must specify by affidavit the reasons why it cannot present facts essential to its opposition to a motion for summary judgment by demonstrating (1) the probable facts are not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable the party to obtain those facts and rebut the motion for summary judgment. Valley Forge Ins. Co. v. Healthcare Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010)(internal quotations omitted); Been v. O.K. Indust., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007)(The [*12] protection under Rule 56(d) “arises only if the nonmoving party files an affidavit explaining why he or she cannot present facts to oppose the motion.”)
As noted above, the instant motion and the Gelman Affidavit were filed on August 12, 2011. The discovery cut-off date in this case was not until October 3, 2011. (Scheduling Order, [Doc. No. 10] at 6.) Therefore, written discovery could have been timely served any time prior to August 31, 2011. When Defendant filed his motion and the affidavit, Plaintiffs still had nineteen days to compose and serve interrogatories and requests for production of documents in order to obtain substantiation – or lack thereof – of the matters contained in the Gelman Affidavit. Additionally, Plaintiffs had 49 days remaining within which to notice and schedule the deposition of Mr. Gelman, or any other person. Apparently, Plaintiffs did not avail themselves of these opportunities, or, for that matter, any other attempt to obtain discovery during the entirety of the discovery period. There is no reason for the court to now accredit Plaintiffs’ professed need for discovery at this late date when they did not undertake any discovery within the appropriate time [*13] frame even though the issues were then squarely before them. The request for further discovery is denied.
C. Defendant Gelman’s Status as Debt Collector
The court has been presented with the following: the testimony through affidavit of Leonard M. Gelman; the testimony through affidavit of Tracy Hightower (Resp., Ex. 3 [Doc. No. 23-3] “Hightower Affidavit”); the Judgment Order and the Atty. Fee Order of Judge Wayne Patton referenced infra; the Complaint filed in the Summit County case – case number 10 C 255 (Mot., Ex. G); a letter from Lee Gelman to Thomas Henne dated April 1, 2010 (Mot., Ex. D; Resp., Ex. 1, “Demand Letter”); a letter to Lee Gelman from Tracy L. Hightower-Henne dated April 5, 2010 (Mot., Ex. E); an email exchange between Lee Gelman and Tracy Hightower dated April 13, 2010 (Resp., Ex. 4); an undated internet home page of Mountain Law Group (Mot., Ex. F); a document purporting to be a “Colorado Court Database” listing seven cases involving as plaintiff either Summit Interests Inc., Back Country Rentals, or Colorado Backcountry Rentals for the time period March 25, 2009 through November 18, 2010 (Resp., Ex. 7); three letters signed by “Lee Gelman, Esq.” drafted on letterhead [*14] of a law firm named Dunn Keyes Gelman & Pummell with origination dates of March 10, 2008, March 19, 2009 and December 19, 2008 (Resp., Ex. 8); and, the snowmobile rental agreements and other documents relevant to the Summit County case (Mot., Exs. A – C).
The FDCPA regulates the practices of “debt collectors.” See 15 U.S.C. § 1692(e). If a person or entity is not a debt collector, the Act does not provide any cause of action against them. Plaintiffs’ Complaint alleges only violations of the FDCPA (See Compl. [Doc. No. 2]) by Defendant Gelman; therefore, if Defendant is not a debt collector, Plaintiffs’ action must fail.
The FDCPA contains both a definition of “debt collector” and language describing certain categories of persons and entities excluded from the definition.9 Thus, an alleged debt collector may escape liability either by failing to qualify as a “debt collector” under the initial definitional language, or by falling within one of the exclusions. The plaintiff in an FDCPA claim bears the burden of proving the defendant’s debt collector status. See Zimmerman v. The CIT Group, Inc., Case No. 08-cv-00246-ZLW-KMT, 2008 U.S. Dist. LEXIS 108473, 2008 WL 5786438, at *9 (D. Colo. October 6, 2008) (citing Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 60 (2d. Cir.2004).
9 None [*15] of these enumerated exceptions are alleged to be applicable in this case.
The Act defines “debt collector” as:
[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). See Allen v. Nelnet, Inc., Case No. 06-cv-00586-REB-PAC, 2007 WL 2786432, at *8-9 (D. Colo. Sept. 24, 2007). The Supreme Court has made it clear that the FDCPA applies to attorneys “regularly” engaging in debt collection activity, including such activity in the nature of litigation. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). The FDCPA establishes two alternative predicates for “debt collector” status – engaging in such activity as the “principal purpose” of an entity’s business and/or “regularly” engaging in such collection activity. 15 U.S.C. § 1692a(6). It is clear from the evidence that debt collection is not Defendant Gelman’s or his law firm’s principal purpose, nor is debt collection the principal purpose of non-defendant CBR. Goldstein, 374 F.3d at 60-61. Therefore [*16] the court must examine the issue from the regularity perspective. The Goldstein court directed
Most important in the analysis is the assessment of facts closely relating to ordinary concepts of regularity, including (1) the absolute number of debt collection communications issued, and/or collection-related litigation matters pursued, over the relevant period(s), (2) the frequency of such communications and/or litigation activity, including whether any patterns of such activity are discernable, (3) whether the entity has personnel specifically assigned to work on debt collection activity, (4) whether the entity has systems or contractors in place to facilitate such activity, and (5) whether the activity is undertaken in connection with ongoing client relationships with entities that have retained the lawyer or firm to assist in the collection of outstanding consumer debt obligations. Facts relating to the role debt collection work plays in the practice as a whole should also be considered to the extent they bear on the question of regularity of debt collection activity . . . . Whether the law practice seeks debt collection business by marketing itself as having debt collection expertise [*17] may also be an indicator of the regularity of collection as a part of the practice.
Id. at 62-63.
1. Defendant Gelman’s Practice of Law at Mountain Law Group
The testimony of Mr. Gelman provided through his affidavit is considered by the court to be unrefuted since Plaintiffs failed to avail themselves of any discovery which might have provided grounds for contest.
After recounting his background as an environmental lawyer for the Department of Justice, Mr. Gelman describes his practice of law with the Mountain Law Group as an attorney and through the Colorado Office of Dispute Resolution as a mediator. (Gelman Aff. ¶¶ 1, 3.) Mr. Gelman also acts as the manager of his wife’s medical practice. (Id. ¶ 5.) Because of his responsibilities as a mediator and an administrator, Mr. Gelman only spends approximately 25% of his working time engaged in the practice of law through Mountain Law Group. (Id. ¶ 8.) If one considers a normal business day to be nine hours, Mr. Gelman then spends approximately 2.25 hours a day practicing law at the Mountain Law Group. Of that time at the law firm, Mr. Gelman devotes approximately 30% to “Business/Contracts,” the only area of his practice which generates any [*18] debt collection activity. (Id. ¶¶ 8, 22.) Extrapolating, then, Mr. Gelman spends approximately .67 of an hour, or approximately 45 minutes, out of each day pursuing business matters of all kinds for his clients.
One of Mr. Gelman’s business clients is CBR to which he provides legal assistance “with all of CBR’s corporate needs . . . [including] a) contract drafting and consultation on rental agreements, waivers, and other forms; and b) representation concerning regulatory and enforcement matters between the U.S. Forest Service and CBR.” (Id. ¶ 19.) Of all the clients of the Mountain Law Group’s seven lawyers, CBR is the only one who generates any debt collection work at all. (Id. ¶¶ 7, 22, 23.) Additionally, of the seven lawyers, Mr. Gelman, through his client CBR, is the only lawyer to have ever worked on, in any capacity, any debt collection matter.10 (Id.)
10 As noted in the Hightower Affidavit, it is not disputed that, as part of CBR’s employment of Mr. Gelman as their corporate attorney, they requested that he attempt to collect the Henne’s debt.. (Id. ¶ 2.)
Over a forty (40) month period, Mr. Gelman states that he sent only 18 demand letters on behalf of CBR to renters of snowmobiles [*19] who did not pay for damages they caused to CBR’s equipment. (Id. ¶ 20.) This averages out to one demand letter every 2.5 months.11
11 Of course, this does not mean that the demand letters are actually sent on such a regular basis.
In connection with Mr. Gelman’s practice of law with the Mountain Law Group, the court reviewed what is purportedly the law firm’s internet home page. (Mot., Ex. F.) This submission contains no date or retrieval or publication. Therefore, the court can give it little weight. However, as part of the analysis, the court notes that at the time of the internet display – whenever that was – the Mountain Law Group’s home page did not include any advertisement suggesting they provided debt collection services or as had any expertise in the collection of debt.
Mr. Gelman otherwise states that the Mountain Law Group neither owns nor uses any specialized computer software designed to facilitate debt collection activity. (Gelman Aff. ¶ 12.) Further, his unrefuted testimony is that the firm employs no paralegal or other staff to assist in debt collection for the firm. (Id. ¶ 5.)
Plaintiffs, however, assert that Mr. Gelman regularly and frequently pursues debt collection matters [*20] on behalf of CBR, pointing the court’s attention to a document entitled “Colorado Court Database” (“CCD”). The CCD may indicate that CBR or Summit Interests, Inc.12 was involved in seven13 case filings in 2009 and 2010. (Resp., Ex. 7.) None of the cases contained on the CCD indicate whether or not Defendant Gelman represented the named entity, nor do any of the cases identify the other parties. The CCD is in the form of a table with columnar headings, “Name,” “Case,” “Filed,” “Status,” “Party” and “County.” Under the column “Party,” six of the cases indicate “Money” and one indicates “Breach of Contract”; both of these terms are undefined. The court does not begin to understand how “Breach of Contract” for instance, can be a “party ” to a lawsuit. The court is completely unable to ascertain the relevance of this document or what bearing it has on whether or not Mr. Gelman is a debt collector since it does not reference Mr. Gelman or debt collection. The CCD, unintelligible as it stands, is therefore inadmissible and will not be considered for any purpose in the summary judgment proceeding. See Johnson v. Weld County, Colo., 594 F.3d at 1209-10.
12 In the April 1, 2010 demand letter from [*21] Mr. Gelman to Mr. Henne, Mr. Gelman professes to represent “Summit Interests, Inc., d/b/a/ Colorado Backcountry Rentals.” (Resp, [Doc. No. 23-1].)
13 The documents references more than ten items, but several have the same case number.
2. Mr. Gelman’s Debt Collection Methodology
This case involves essentially two communications from Mr. Gelman: the April 1, 2010 letter to Mr. Henne and the April 13, 2010 email from Mr. Gelman to Mrs. Hightower-Henne following her letter professing to represent Mr. Henne. (Compl. ¶¶ 21-23, 25, re: Demand Letterl and id. ¶ 24, re: April 13, 2010 email.)
a. Debt Collector Preface
In the April 1, 2010 letter, Mr. Gelman represented that “[t]his firm14 is a debt collector” and in the April 13, 2010 email, under his signature block, was the notation, “This is from a debt collector . . .” The court notes that the warning on the bottom of the April 13, 2010 email does not appear to be part of the normal signature block of Mr. Gelman, because it does not appear on the short transmission at the beginning of the email string wherein Mr. Gelman advised “Tracy,” that he just left her a voice mail as well. (Resp. at Doc. No. 23-4.) This email warning, therefore, appears [*22] to have been specifically typed in for inclusion in the lengthy portion of the email.
14 The letterhead on the communication is “Mountain Law Group.” Mountain Law Group is not a defendant in this action.
Mr. Gelman states he has mediated a large number of debt collection disputes and is therefore “relatively familiar with the collection industry.” (Gelman Aff. ¶ 11.) While the court considers the language used by Mr. Gelman – commonly referred to as a “mini-Miranda” or the “debt collector preface” – as “some” evidence to be considered in the debt collector determination, it is not particularly persuasive standing alone. First, setting forth such a debt collector preface does not create any kind of equitable estoppel. Equitable estoppel requires a showing of a misleading representation on which the opposing party justifiably relied which would result in material harm if the actor is later permitted to assert a claim inconsistent with the prior representation. Plaintiffs have offered no evidence to support a claim that they detrimentally relied upon the debt collector preface. See In re Pullen, 451 B.R. 206, 210 (Bkrtcy. N. D. Ga. 2011).
When attempting to collect a debt, the court applauds [*23] a practice whereby the sender recognizes itself as a debt collector in a mini-Miranda warning regardless of any legal requirement and considers such an advisement prudent and in the spirit of the FDCPA. This course of action would be expected of an attorney such as Mr. Gelman who frequently is in a position to mediate debt collection disputes. However, calling oneself a rose, does not necessarily arouse the same olfactory response as would a true rose.
b. Use of Form Letters
Plaintiffs argue that Mr. Gelman communicates as a debt collector through the use of form letters. For this proposition, they attach Exhibit 8, three letters apparently authored by Mr. Gelman when he was associated with the law firm of Dunn Keyes Gelman & Pummell, LLC. Each of the three letters appear to be what is commonly known as a demand letter – an attempt to collect money from persons who allegedly owed CBR as a result of damage done to a snowmobile. Each letter begins with a one line salutation introducing the lawyer as representing Colorado Backcountry Rentals, Inc. Thereafter, each letter proceeds for several paragraphs to outline specific and unique facts concerning the alleged debtor’s obligation for damages [*24] to CBR. (Id.) Each letter then contains a paragraph, in bold typeface, stating that the debtor can submit a sum certain in settlement of the matter in bold typeface. Each of the three letters contain a summary paragraph at the end which states the letter is a settlement offer and that court proceedings may be instituted if payment is not made. This general format is consistent with the April 1, 2010 demand letter sent to Mr. Henne. Two of the letters in Exhibit 8 contain the debt collector preface at both the beginning and end of the letter; one of the letters contains the legend only at the beginning, similar to the format of the April 1, 2010 demand letter sent to Mr. Henne by Mr. Gelman.
The court finds that these letters are not “form” collection letters such as those which would be utilized by a business engaged primarily in the business of debt collection. Although there is some boilerplate language common to all, each letter is personally authored and the main body of the text is a unique recitation of the facts and circumstances peculiar to that case. These three letters, viewed against the April 1, 2010 letter Mr. Gelman sent to Mr. Henne, are similar only in the boilerplate [*25] language at the beginning and end of the letter and do not persuade the court that they are form letters indicating that Mr. Gelman is in the regular business of collecting debts.
c. Pattern of Litigation Activity
Mrs. Hightower-Henne states, without any evidentiary foundation, that Defendant has filed “several suits for collections for CBR” which indicate “a pattern of escalating fees for nominal claims.” (Hightower Affidavit ¶ 4.) She does not further describe or attach any of the cases to which she refers, although one might assume they may be among those cases sketchily mentioned in rejected Exhibit 7 to the Plaintiffs’ Response. Mrs. Hightower-Henne blithely asserts that she has spoken to several persons who were “parties in these suits” but does not state what significance anything they may have told her was, or for that matter, what they even said. (Id.) Although the court will recognize this testimony as admissible, it is wholly unpersuasive as to the issue to which it is apparently directed.
d. Summary
Considering the undisputed testimony of Mr. Gelman and Mrs. Hightower-Henne together with the admissible documentary evidence submitted by the parties, this court finds that there [*26] are no material facts in dispute relevant to the determination of whether Mr. Gelman is a debt collector as defined in the FDCPA. For all the reasons set forth above, the court finds that Mr. Gelman is not a debt collector pursuant to the FDCPA and therefore, summary judgment in his favor is appropriate.
Given that the determination that Mr. Gelman is not a debt collector is dispositive of the case, the court declines to address further Mrs. Hightower-Henne’s standing to sue or whether any of the actions undertaken by Mr. Gelman would have violated the FDCPA had he been found to be a debt collector under the Act.
Wherefore, it is ORDERED
1. Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
2. Plaintiffs’ “Motion to File Sur-Reply,” [Doc. No. 26] is DENIED.
3. The Final Pretrial Conference set for January 19, 2012 at 10:45 a.m. is VACATED
Dated this 12th day of January, 2012.
BY THE COURT:
/s/ Kathleen M Tafoya
Kathleen M Tafoya
United [*27] States Magistrate Judge
New Regulations have been issued by the CO Department of Labor & Employment for Amusement Rides and Devices
Posted: March 7, 2019 Filed under: Colorado, Statutes | Tags: #ClimbingWalls, #ExerciseEquipment, #FitnessDevices, #PaddleBoats, #PlaygroundEquipment, #RopesCourses, #TrampolineParks, Climbers, Climbing Walls, Exercise Equipment, Fitness Devices, Paddle Boats, playground equipment, Ropes Courses, Trampoline Parks Leave a commentThat means Trampoline Parks, Ropes Courses, Climbing Walls, Playground Equipment, Climbers, Fitness Devices, Exercise Equipment, Paddle Boats, any amusement ride operated at a private event and the list goes on.
The Amended Regulations can be found here: https://content.govdelivery.com/attachments/CODOPS/2019/03/06/file_attachments/1168134/AmusementRegulationsRedline2019.pdf
DEPARTMENT OF LABOR AND EMPLOYMENT
Division of Oil and Public Safety
AMUSEMENT RIDES AND DEVICES REGULATIONS
7 CCR 1101-12
ARTICLE 1 GENERAL PROVISIONS
Section 1-1 Basis and Purpose
This regulation is promulgated to establish reasonable standards for the construction, inspection, operation, repair and maintenance of amusement rides and devices located in Colorado in the interest and safety of the general public, to establish financial standards for the operation of amusement rides and devices in a public setting and to provide for a registration process for amusement rides and devices.
Section 1-2 Statutory Authority
The amendments to these regulations are created pursuant to C.R.S. § 8-20-1001 through 8-20-1004 of the Colorado Revised Statutes (C.R.S.). All prior rules for amusement rides and devices are hereby repealed.
Section 1-3 Effective Date
This regulation shall be effective June 15, 2019 July 30, 2015. The operators of previously unregistered amusement rides and devices shall have up to three months from the effective date of these regulations to comply with Section 2-3-1 (A) (6).
Section 1-4 Scope
These rules and regulations shall apply to the construction, inspection, operation, repair and maintenance of amusement rides and devices located in Colorado by any individual, corporation, company, firm, partnership, association, or state or local government agency.
These rules and regulations shall not apply to:
(A) Coin operated model horse and model rocket rides, mechanical horse or bull rides, and other coin activated or self-operated devices.
(B) Non-mechanized playground equipment including but not limited to swings, seesaws, stationary spring mounted animal features, rider propelled merry-go-rounds, climbers, slides, swinging gates and physical fitness devices.
(C) Live animal rides or live animal shows.
(D) Climbing walls used for sport and fitness training, located in educational facilities, schools, gymnasiums, sport and public entity recreational facilities, or other facilities solely devoted to sport and recreational activities, training and instruction.
(E) Institutional trampolines used solely for sport and fitness training, located in educational facilities, schools, gymnasiums, sport and public entity recreational facilities or other facilities solely devoted to sport and recreational activities, training and instruction. All training must be conducted by a certified gymnastics or trampoline coach. The facility and coach must carry certifications from a nationally recognized gymnastics or trampoline governing association.
(F) Race-karts owned and operated by individuals who compete against each other, or rental race-karts available for rent at competitive sport race-kart tracks solely used for sanctioned racing where drivers have attended and passed a practical driver safety training test to establish their competency, or hold an applicable valid competition license certification from a recognized motor sport sanctioning body.
(G) Skating rides, arcades, laser paintball games, bowling alleys, miniature golf courses, inflatable devices, ball crawls, exercise equipment, jet skis, paddle boats, air boats, hot air balloons whether tethered or untethered, batting cages, games and side shows.
(H) Any amusement ride or device operated at a private event that is not open to the general public and not subject to a separate admission charge or any amusement ride or device owned and operated by a non-profit organization who meets all the requirements in Sections 2-1 and 2-2 of these regulations and operates their rides less than 8 days in any calendar year.
(I) Any amusement ride or device operator who notifies the Division in writing that his or her ride or device is inspected and licensed certified or issued a permit by one of the following agencies where said agency inspects and issues a license or permit for the ride or device shall be exempt from the requirements of this subsection these regulations, provided that the ride or device requirements of said agency meets or exceeds the requirements of standards adopted in this regulation.
(1) Any municipality or local government within the state of Colorado
(2) Another state agency within the state of Colorado
(3) Any federal government agency
(J) Any local government that has received a temporary or permanent waiver from the Division pursuant to Executive Order D 2011-005. To obtain a waiver the affected local government must demonstrate that the requirements in these regulations conflict with other statutes or regulations (including those of local governments) or are unduly burdensome. A cost benefit analysis or other supporting documentation should be included with the waiver request.
(K) Water slides less than 18 feet in elevation change from point of dispatch to the end of the slide.
Section 1-5 Codes and Standards
(A) The following codes of the American Society for Testing and Materials (ASTM) F24 Committee on Amusement Rides and Devices, National Fire Protection Association (NFPA) and the Association for Challenge Course Technology (ACCT) are incorporated by reference.
(BA) All amusement rides and devices shall comply with the following these standards, including, but not limited to the following unless specifically exempted in these regulations. If there is no applicable standard for an amusement ride or device, operators shall comply with the manufacturer’s recommendations. When adopted standards and manufacturer recommendations differ, the more stringent requirement shall apply. Devices must comply with adopted standards that were effective at the time of manufacture, as applicable.
(1) ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959
(ia) Standard Terminology Relating to Amusement Rides and Devices: F747-06-15
(iib) Standard Practice for Ownership and, Operation, Maintenance and Inspection of Amusement Rides and Devices Designation: F 770-1418
(iii) Standard Practice for Design and Manufacture of Patron Directed, Artificial Climbing Walls, Dry Slide, Coin Operated and Purposeful Water Immersion Amusement Rides and Devices and Air Supported Structures Designation: F 1159-11
(c) Standard Practice for Design and Manufacturing of Amusement Rides and Devices that are Outside the Purview of Other F24 Design Standards: F1159-16
(ivd) Standard Practice for Quality, Manufacture, and Construction of Amusement Rides and Devices Designation: F1193-1418
(e) Standard Test Method for Composite Foam Hardness-Durometer Hardness: F1957-17
(vf) Standard Practice for Design, Manufacture, and Operation of Concession Go-Karts and Facilities Designation: F2007-12
(vig) Standard Practice for Measuring the Dynamic Characteristics of Amusement Rides and Devices Designation: F 2137-1316
(viih) Standard Practice for Design of Amusement Rides and Devices Designation: F 2291-1418
(viii) Standard Practice for Design, Manufacture, Installation and Testing of Climbing Nets and Netting/Mesh used in Amusement Rides, Devices, Play Areas and Attractions: F2375-0917
(ixj) Standard Practice for Classification, Design, Manufacture, Construction, and Operation of Water Slide Systems Designation: F 2376-1317a
(xk) Standard Practice for Special Requirements for Bumper Boats Designation: F 2460-11
(xil) Standard Practice for Special Requirements for Aerial Adventure Courses Designation: F 2959-1418
(xiim) Standard Practice for Permanent Amusement Railway Ride Tracks and Related Devices: F2960-1416
(xiiin) Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts: F2970-1517
(xivo) Standard Practice Guide for Auditing Amusement Rides and Devices: F2974-1318
(p) Standard Practice for Operations of Amusement Railway Rides, Devices, and Facilities: F3054-18
(q) Standard Practice for Classification, Design, Manufacturing, Construction, Maintenance, and Operation of Stationary Wave Systems: F3133-16
(r) Standard Practice for Patron Transportation Conveyors Used with a Water-Related Amusement Ride or Device: F3158-16
(s) Standard Practice for Characterization of Fire Properties of Materials Specified for Vehicles Associated with Amusement Rides and Devices: F3214-18
(2) National Fire Protection Association (NFPA), One Battery march Park, Quincy, MA 02169-7471
(ia) National Electrical Code 2014 Designation: NFPA 70
(3) Association for Challenge Course Technology (ACCT), PO Box 4719797, Deerfield Boulder, IL CO 6001580308
(ia) Challenge Course and Canopy/Zip Line Tour Standards, ANSI/ACCT 03-2016Eighth Edition
(CB) Interested parties may inspect the referenced incorporated materials by contacting the Program Manager, Amusement Rides and Devices, 633 17th Street, Suite 500, Denver, CO 80202.
(DC) This rule does not include later amendments to or editions of the incorporated material.
(D) A device is not required to meet the current edition of the specific standard if it has a service proven design according to the ASTM F2291-18 and this design is approved by the Division.
(E) The Division may grant the use of alternate methods and procedures on a case-specific basis for requirements of the adopted codes or standards listed in this section.
(1) The Division shall require justification of the alternative method or procedure.
(2) The alternate methods and procedures request shall be submitted on a form provided by the Division.
(3) A submitted alternate methods and procedures request shall not relieve an operator from complying with the applicable standards adopted in these regulations unless the Division expressly approves the request.
(4) The Division may deny any request at its discretion.
(F) If the existing amusement ride or device has had a major modification since the last periodic or annual inspection, the post-modification inspection of that ride or device shall be conducted in compliance with ASTM F 2974-18 Section 9 or ANSI/ACCT 03-2016 Chapter 1 Section B for Challenge courses and canopy/zip line tours.
(G) All amusement rides and devices must conform to the current requirements of “Standard Practice for Ownership and Operation of Amusement Rides and Devices” Designation F770-18 or ANSI/ACCT 03-2016 Chapter 2 (as applicable by ride type), regardless of date of manufacture or installation.
(H) Amusement rides and devices of site-specific or prototype construction shall be constructed, maintained and repaired as certified by a Professional Engineer. These certifications must be available for review by the Division.
(I) Bungee Jumping
(1) A system review (structures, cords, harnesses, attachment components, etc.) that includes evaluation and inspection by a Colorado registered Professional Engineer, with his/her certification/stamp that the system design is adequate for the intended application, shall be provided to the Public Safety Section Division.
(2) Where the facility incorporates a crane structure for hoisting customers and/or staff members, the mechanism must conform to national standards. These standards include both the Occupational Safety and Health Administration Standards (OSHA) – 1926.1501 – July 1, 2011, excluding the subsequent addenda incorporated by the code forward, and the American Society of Mechanical Engineers (ASME) B30.5 – 2014. Documentation of this conformity shall be provided to the Division.
(3) Where the facility incorporates a hot air balloon for elevation purposes, copies of the current, valid Standard Airworthiness Certificate and Special Airworthiness Certificate issued by the Federal Aviation Administration (FAA), and records showing that all maintenance and alterations have been performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations excluding the subsequent addenda, shall be provided to the Division.
Section 1-6 Definitions
The following words when used in these rules and regulations shall mean:
AERIAL ADVENTURE COURSE: A patron participatory facility or facilities consisting of one or more elevated walkways, platforms, zip lines, nets, ropes, or other elements that require the use of fall hazard Personal Safety Equipment (PSE). Typically noted as ropes courses, free fall devices and zip lines in the regulation.
AIMS: Amusement Industry Manufacturers and Suppliers International
AMUSEMENT RIDE OR DEVICE: Any mechanized device or combination of devices which carry or convey persons along, around or over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, thrills, excitement or the opportunity to experience the natural environment.
Amusement rides and devices include but are not limited to, an aggregation of amusement rides and devices in an amusement setting such as amusement parks, carnivals, fairs and festivals. Amusement rides and devices also include but are not limited to, bungee jumping, bungee trampolines, trampolines, climbing walls in amusement settings, concession go-karts, bumper boats devices, gravity-propelled rides and devices, water slides, trackless trains, simulators, stationary wave systems, and traditional amusement rides.
AMUSEMENT RIDE, CLASS A: An amusement ride designed primarily for use by children 12 years of age or younger, typically referred to as a “kiddie ride.”
AMUSEMENT RIDE, CLASS B: Any amusement ride not defined as a Class A amusement ride.
BRAKE, EMERGENCY: A brake located on a zip line that is engaged upon failure of the primary brake, with no input from the zip line participant, in order to prevent serious injury or death resulting from primary brake failure.
BRAKE SYSTEM: An arrangement of primary and emergency brakes that are designed to function together.
BUMPER BOATSDEVICES: Boats Devices that are used to bump into each other intentionally as directed by drivers as a form of entertainment.
BUNGEE TRAMPOLINES: A type of trampoline where the patron is assisted by a harness attached to bungee cords.
CERTIFICATE OF INSPECTION: The documentation of the annual amusement ride inspection conducted by an qualified Third-Party inspector. Certificates of Inspection are valid for 12 months from the date of inspection.
CIRSA: Colorado Intergovernmental Risk Sharing Agency
CLIMBING WALL: An artificially constructed wall with holds for hands and feet used for climbing. Regulated climbing walls include climbing walls located in amusement settings and fixed or portable climbing walls for use by the general public as amusement devices and not for sport or fitness training.
CONCESSION GO-KARTS: A single vehicle which is powered without connection to a common energy source, which is driver– controlled with respect to acceleration, speed, braking and steering, which operates within the containment system of a defined track, which simulates competitive motor sports, and which is used by the general public. Concession go-karts typically operate at speeds of up to 25 miles per hour.
DIVISION: The Director of the Division of Oil and Public Safety of the Department of Labor and Employment, or any designees thereof which may include certain employees of the Division of Oil and Public Safety or other persons.
FREE FALL DEVICE: A component of an aerial adventure course used to control a patron’s intentional decent from an elevated structure and engineered to allow the patron to experience a rapid initial descent while ensuring a comfortable and controlled landing.
IATP: International Association of Trampoline Parks
INFORMATION PLATE: A manufacturer-issued information plate, printed in English, which is permanently affixed to a ride or device in a visible location, and is designed to remain legible for the expected life of a ride or device. The plate shall include, but not be restricted to, the following applicable items:
Ride Serial Number – A manufacturer-issued unique identifying number or code affixed to the ride in a permanent fashion.
Ride Name and Manufacturer – A manufacturer-issued unique identifying ride name, including the name of the manufacturer by city, state, and country.
Ride Model Number – A manufacturer-issued unique identifying number or code assigned to each manufactured type of ride having the same structural design or components.
Date of Manufacture – The date (month and year) determined by the manufacturer that the given ride or device met his required construction specifications.
Ride Speed – Maximum and minimum revolutions per minute, feet per second, or miles per hour, as applicable.
Direction of Travel – When the proper direction of travel is essential to the design operation of the ride, the manufacturer shall designate the direction of travel, including reference point for this designation.
Passenger Capacity by Weight – Maximum total passenger weight per passenger position.
Passenger Capacity by Number – Maximum total number of adult or child passengers per passenger position and per ride.
INJURY: Means an injury that results in death or requires immediate medical treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment or one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters, or other minor injuries that do not ordinarily require medical care even though treatment is provided by a physician or by registered professional personnel.
INJURY, REPORTABLE: Any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by a ride operator or patron error.
INSPECTION: A procedure to be conducted by an third-party inspector or Division employee to determine whether an amusement ride or device is being constructed, assembled, maintained, tested, operated, and inspected in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable, and that determines the current operational safety of the ride or device. All inspections shall be documented by a written inspection report to be filed with the operator.
INSPECTOR: A third party qualified by training, such as attainment of Level II certification from the National Association of Amusement Ride Safety Officials (NAARSO), attainment of Level II certification from the Amusement Industry Manufacturers and Suppliers International (AIMS), attainment of a Qualified Inspector certification from the Association for Challenge Course Technology (ACCT), Pennsylvania Department of Agriculture – General Qualified Inspector status or other similar qualification from another nationally recognized organization; or education, such as registration as a Professional Engineer; or experience evaluated and approved in advance, A third-party certified by the Division, to conduct inspections of amusement rides or devices in accordance with the standards adopted by these regulations and the manufacturer’s recommendations and criteria.
MAJOR MODIFICATION: Any change in either the structural or operational characteristics of the ride or device which will alter its performance from that specified in the manufacturer’s design criteria.
NAARSO: National Association of Amusement Ride Safety Officials.
OPERATOR: A person or the agent of a person, corporation or company. An individual, corporation, or company or agent thereof who owns, controls or has the duty to control the operation of an amusement ride or device.
PERMIT YEAR: The time during which an operator is registered that begins on the registration effective date and ends 12 months from the effective date. These dates appear on the signed permit that an operator receives once the registration application has been approved.
QUALIFIED PERSON: An individual who, by possession of a recognized degree, certificate, or professional standing; or who, by possession of extensive knowledge, training, and/or experience in the subject field; has successfully demonstrated ability in design, analysis, evaluation, installation, inspection, specification, testing, or training in the subject work, project, or product, in accordance with the standards adopted by these regulations.
RACE-KARTS: A go-kart designed for competitive sport racing use in either sanctioned racing on tracks or other areas of competition, or in a racing school facility, and not to be used by the general public in an amusement facility. Race-kart drivers must wear approved safety equipment, consisting of a minimum of a Snell or DOT approved helmet and closed-toed shoes. Race-karts regularly reach maximum speeds in excess of 25 miles per hour.
REGISTRATION: The filing of a properly completed application with the Division and approval of the application by the Division.
REPORTABLE INJURY: Any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by a ride operator or patron error which impairs the function of an amusement ride or device.
RIDE OPERATOR: The person that has control of the amusement ride or device at all times or is supervising a patron-directed device when it is being operated for the public’s use. This person must be trained in accordance with the standards adopted by these regulations and in accordance with an operator training program or specifications provided by the amusement ride or device designer, engineer or manufacturer.
SERVICE PROVEN: As defined in ASTM F2291-18, “an amusement ride, device, or major modification to an amusement ride or device of which units(s) have been in service to the public for a minimum of five years and unit(s) that have been in service have done so without any significant design related failures or significant design related safety issues that have not been mitigated.”
SIMULATOR: Any amusement ride that is a self-contained unit that uses a motion picture simulation, along with a mechanical movement which requires the use of manufacturer-provided restraints, to simulate activities that provide amusement or excitement for the patron.
SUBSIDIARY RELATIONSHIP: An independent company that is controlled by another company, usually referred to as the parent or holding company.
TRACKLESS TRAIN: An articulated vehicle used for the transport of passengers, comprising of a driving vehicle pulling one or more carriages connected by drawbar couplings. Also known as barrel trains.
TRAMPOLINE, INSTITUTIONAL: A trampoline intended for use in a commercial or institutional facility.
TRAMPOLINE COURT OR TC: A defined area comprising one or more institutional trampolines or a series of institutional trampolines.
TRAMPOLINE COURT FOAM PIT OR TC FOAM PIT: A combination style dismount pit designed with a rebound device, covered with loose impact absorbing blocks.
WATER SLIDES: Rides intended for use by riders in bathing attire where the action of the ride involves possible and purposeful immersion of the rider’s body either in whole or in part in water, and uses circulating water to mobilize or lubricate the rider’s transportation along a purpose built path.
ZIP LINE: A concession, commercial amusement device where participants attached to a pulley traverse by gravity from one point to another by use of a cable or rope line suspended between support structures.
ZIP LINE TOUR OR ZIP LINE COURSE: A guided aerial exploration or transit of a landscape by means of a series of zip lines and platforms generally supported by man-made structures.
ARTICLE 2 GENERAL REQUIREMENTS
Amusement rides and devices may not open to the public within the State of Colorado unless the operator has registered with the Division, received a permit from the Division and has satisfied and is continuing to satisfy the requirements as provided herein.
Section 2-1 Financial Standards
(A) Any person who operates an amusement ride must have currently in force an insurance policy written by an insurance company authorized to do business in this state or by a surplus lines insurer, in an amount of not less than $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides and devices and an amount of not less than $1 million per occurrence for Class B amusement rides and devices insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride.
(B) For governmental entities, insurance or self-insurance in accordance with § 24-10-115 C.R.S. of The Governmental Immunity Act, or participation in a public entity self-insurance pool pursuant to § 24-10-115.5 C.R.S. of The Governmental Immunity Act shall be deemed to meet the financial standards of this section.
Section 2-2 Technical Standards Access to Records and Devices
Amusement rides shall be constructed, maintained, operated and repaired subject to the following standards:
2-2-1 General
(A) Amusement rides or devices or any part thereof shall be constructed, maintained, operated and repaired in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable, in order to provide for an operation free from recognized safety hazards.
(B) Amusement rides and devices shall be constructed, maintained, operated and repaired in accordance with all otherwise applicable federal, state and local safety, fire, health or building codes or standards.
(C) Amusement rides and devices of site-specific or prototype construction shall be constructed, maintained and repaired as certified by a Professional Engineer. These certifications must be available for review by the Division.
2-2-2 Bungee Jumping
(A) A system review (structures, cords, harnesses, attachment components, etc.) that includes evaluation and inspection by a Colorado registered Professional Engineer, with his/her certification/stamp that the system design is adequate for the intended application, shall be provided to the Public Safety Section.
(B) All elements of the ASTM – Standards on Amusement Rides and Devices (2014 Edition), excluding the subsequent addenda incorporated by the code forward, are to be conformed to as a minimum standard. Documentation of this conformity shall be provided to the Division.
(C) Where the facility incorporates a crane structure for hoisting customers and/or staff members, the mechanism must conform to national standards. These standards include both the Occupational Safety and Health Administration Standards (OSHA) – 1926.1501 – July 1, 2011, excluding the subsequent addenda incorporated by the code forward, and the American Society of Mechanical Engineers (ASME) B30.5 – 2011. Documentation of this conformity shall be provided to the Division.
(D) Where the facility incorporates a hot air balloon for elevation purposes, copies of the current, valid Standard Airworthiness Certificate and Special Airworthiness Certificate issued by the Federal Aviation Administration (FAA), and records showing that all maintenance and alterations have been performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations excluding the subsequent addenda, shall be provided to the Division.
2-2-1 Access
(A) Division representative may enter during normal business hours, without advance notice, the premises where amusement rides and devices are located, including places of storage or use, for the purpose of device inspections and/or examining any records or documents required under these regulations.
2-2-2 Records Requirements
(A) Every amusement ride or device operator shall maintain detailed records relating to the construction, repair and maintenance of its operation, including safety, inspection, maintenance records and ride operator training activities.
(B) Records shall be made available to the Division at reasonable times, including during an inspection upon the Division’s request.
(C) Records of daily inspections must be available for inspection at the location where the ride or device is operated.
(D) All records must be maintained for a period of three years, unless otherwise specified in this regulation.
Section 2-3 Registration
No person shall open to the public and operate any amusement ride or device on property owned or leased by such person until the operator of the amusement ride or device has first registered and obtained a permit for operation from the Division.
2-3-1 Application Submission and Processing
(A) The Amusement Rides and Devices application shall be submitted annually on the form prescribed by the Division and shall include the following registration requirements.
(1) The name and address of the operator.
(2) The trade name of the manufacturer, and the serial number of all rides and devices.
(3) A report of any injury occurring in any state that meets the definition of a reportable injury as defined in this regulation.
(4) A list of the dates and locations of operation of the amusement rides or devices within the state for the upcoming permit year, including the dates at each location. This list may be
updated throughout the permit year, provided that notification is received by the Division prior to operation.
(5) The name of all liability insurance carriers and the insurance policy numbers.
(6) An original amusement ride Certificate of Inspection for each amusement ride or device showing the name, serial number, manufacturer of the ride, the inspector’s name, the owner/operator name and other information as required by 2-4 of these rules.
(7) Any other information reasonably related to the standards set forth in Article 2.
(8) A certificate of liability insurance for the registration period in an amount of not less than $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides and devices and an amount of not less than $1 million per occurrence for Class B amusement rides and devices insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride or device. For governmental entities, insurance or self-insurance in accordance with § 24-10-115 C.R.S. of The Governmental Immunity Act, or participation in a public entity self-insurance pool pursuant to § 24-10-115.5 C.R.S. of The Governmental Immunity Act shall be deemed to meet the financial standards of this section.
(B) Upon receipt of an application, the Division shall review the application, and upon determining that the provisions of these rules have been met, shall approve the application, register the amusement rides or devices and issue a permit to operate.
(C) The submittal of a registration application does not guarantee the registration of any amusement ride or device. The owner/operator must obtain a permit from the Division prior to opening any ride or device to the public.
| 2-3-2 Application Fees Table 2-3-2 | Annual Registration Fees | ||
| Fee Category | Registration Fee Per Amusement Ride or Device Operator | + (and) |
Registration Fee Per Amusement Ride or Device |
| Fee Amount | $500 | + (and) |
$130 |
2-3-3 Incomplete Applications
(A) Upon receipt of an incomplete application or an application requiring additional information, the applicant will be notified of the deficiency or additional requirements.
(B) If the deficiency is not corrected or if the Division does not receive the additional information within 180 days following the date of notification, the application shall be considered abandoned and the Division shall not retain the application.
2-3-4 Aerial Adventure Courses
(A) Each aerial adventure course is generally considered to be one ride or device based on the information plate.
(B) If an information plate is not provided, and the owner/operator registers multiple aerial adventure courses as one device, the following will apply:
(1) All aerial adventure courses registered as one device shall be inspected and listed on the Certificate of Inspection as one device by the Third-Party inspector.
(2) When any one aerial adventure course registered in the device is shut down or inoperative, all other aerial adventure courses included in the device must also be shut down.
(C) It is the responsibility of the aerial adventure course owner/operator to correctly register each device being operated.
2-3-5 Trampoline Courts
(A) Each trampoline court is generally considered to be one ride or device based on the information plate.
2-3-6 Zip Lines
(A) Each zip line is generally considered to be one ride or device based on the information plate.
(B) If an information plate is not provided and the owner/operator registers multiple zip lines as one device, the following will apply:
(1) All zip lines registered as one device shall be inspected and listed on the Certificate of Inspection as one device by the Third-Party inspector.
(2) When any one zip line registered in the device is shut down or inoperative, all other zip lines included in the device must also be shut down.
(C) It is the responsibility of the zip line owner/operator to correctly register each device being operated.
Section 2-4 Inspections
2-4-1 Annual Inspections
(A) An annual inspection by an Third-Party inspector must be conducted on each amusement ride or device.
(1) Each amusement ride or device must have a current Certificate of Inspection prior to opening to the public.
(12) The inspection shall be conducted with the amusement ride or device in an operable state prior to opening to the public and include an evaluation of the ride or device for a minimum of one complete operating cycle, where applicable.
(23) The inspection shall also include a review of the operator’s daily inspection records, inspection and maintenance program records and training records in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable.
(B) Any amusement ride or device open to the public in the state of Colorado must have a valid Certificate of Inspection on file with the Division.
(1) Each item number on the Certificate of Inspection is considered to represent one ride or device.
(2) The ride owner/operator shall be responsible for submitting a completed and signed Certificate of Inspection to the Division for all rides or devices being opened to the public.
(3) A grace period of 30 days immediately following the expiration date of a Certificate of Inspection shall exist and that Certificate of Inspection shall continue to be valid during that time period.
(4) An inspection report for each amusement ride or device shall be made available to the Division at reasonable times, including during an inspection, upon the Division’s request.
(C) The inspection certificate shall not be submitted to the Division until all discrepancies have been resolved and all necessary repair(s) or replacement(s) required in accordance with the standards of Section 2-2 have been made.
(1) Resolution of discrepancies, repairs and replacements may be documented in writing by the owner/operator and delivered to the inspector.
(2) The inspector may corroborate such letter by review thereof, subsequent re-inspection, receipt of additional documentation or by other means which the inspector deems appropriate.
(3) Corroborated discrepancies, repairs and replacements shall not require further inspection and such resolution shall be deemed to be in accordance with the standards of Section 2-2.
(D) No person shall open to the public an amusement ride or device that has been inspected by an qualified inspector or by the Division according to Section 2-2 of these regulations and found to be unsafe unless:
(1) All necessary repairs and modifications to the ride have been completed and certified as completed by an qualified inspector and
(2) A valid Certificate of Inspection is on file with the Division.
2-4-2 Daily Inspections
(A) In addition to the annual inspection required under this section, the owner/operator who operates an amusement ride or device must perform and record daily inspections of each amusement ride or device.
(B) Records of the daily inspections must be available for inspection at the location where the amusement ride or device is operated, and the records must be maintained with the amusement ride or device for a period of three years.
(C) The daily inspection records must include an inspection of equipment identified for daily inspection in accordance with the applicable codes and the manufacturer’s recommendations.
2-4-3 New Installation and Major Modification Inspections
(A) New ride installations and following major modifications of existing rides, a signed certificate of inspection shall be submitted to the Division before the ride is opened to the public.
(B) The operator shall make available to the Division a written statement, completed by a qualified person or agent thereof, stating that the ride meets the applicable design requirements set forth in Section 1-5 of these regulations. The qualified person or agent thereof shall identify under which standards the ride was evaluated.
(C) Additionally, the operator shall make available to the Division for any new installation or structural change, the following:
(1) An as built document.
(2) A copy of the certificate of occupancy issued by the local building authority, if the local building authority has such a requirement. This requirement may be fulfilled within 90 days following the issuance of the Registration Permit from the Division.
(D) For sub-sections (B) and (C) these documents shall be maintained for the life of the ride or device.
Section 2-5 Ride Operations
2-5-1 General
(A) All operator personnel shall be trained in accordance with these regulations, adopted codes and standards, and any applicable recommendations provided by the amusement ride or device manufacturer.
(AB) Amusement ride and device owners/operators are required to operate each ride or device in accordance with these regulations, adopted codes and any applicable all manufacturers’ recommendations as applicable.
(BC) Consideration shall be given to environmental factors, including humidity, precipitation, temperature and wind effects on patron safety, where applicable.
(CD) Operators shall have a reasonable written plan in place for the management of emergencies, including, but not limited to the following, where applicable:
(1) Prevention strategies;
(2) Emergency preparedness;
(3) Administrative response to emergencies;
(4) Field response to medical emergencies;
(5) Field response to incidents/accidents and fatalities;
(6) Technical rescues;
(7) Activating the emergency medical system;
(8) Evacuations; and
(9) Addressing severe weather.
2-5-2 Zip Lines Aerial Adventure Courses
(A) Operators of aerial adventure courses shall follow the general requirements listed below:
(1) Verify any connection between the patron and the device are properly made.
(2) Document these requirements in the operator’s manual.
(AB) Additionally, For zip line operations, the operator shall:
(1) Have a full understanding of and proficiency in the setup, operation and ongoing monitoring requirements of the braking system in effect when operating zip lines.
(2) Ensure that the departure of patrons from dispatch zones is performed in a controlled manner and only when the zip line is clear of other persons.
(3) Ensure that the deceleration and arrest of patrons arriving at landing zones is performed in a controlled manner.
(4) Ensure that padding used as a protective element in the landing area is not used as a brake component.
(C) Additionally, for free fall device operations, the operator shall:
(1) Utilize a secondary attachment approved by the manufacturer.
ARTICLE 3 RECORDS
Section 3-1 Records Requirements
(A) Every amusement ride or device operator shall maintain detailed records relating to the construction, repair and maintenance of its operation, including safety, inspection, maintenance records and ride operator training activities.
(B) Records shall be made available to the Division at reasonable times, including during an inspection upon the Division’s request.
(C) Records of daily inspections must be available for inspection at the location where the ride or device is operated.
(D) All records must be maintained for a period of three years.
ARTICLE 3 INSPECTOR CERTIFICATION
Section 3-1 General Requirements
(A) This section describes the requirements for the annual Inspector Certification.
(B) The Division may request documentation in addition to that described in the following sections to verify the accuracy of information provided with a Certification application.
(C) The inspector shall not be affiliated by employment or by a subsidiary relationship to the owner/operator or the manufacturer of the amusement ride or device.
(D) To qualify as a professional engineer, applicants must provide a professional engineering license and proof of at least 12 months of experience working in the amusement industry.
Section 3–2 Certification Types
(A) The Division may certify an applicant if the applicant has satisfied Certification requirements listed in Sections 3-1 through 3-3. The Inspector Certification will indicate the type of rides and devices for which the Certification is allowed to inspect per these regulations. The types of rides and devices inspection endorsements are as follows.
(1) Type 1: Traditional Amusement Rides and Devices, that are typically found at carnivals and amusement parks which would include but not be limited to roller coasters, Ferris wheels and bumper cars, and that are not of the types listed in (A)(2) through (3) of this section.
(2) Type 2: Aerial Adventure Courses (Free Fall Devices, Ropes Courses and Zip Lines).
(3) Type 3: Indoor Trampoline Parks.
(4) Type 4: Water Slides.
(5) Type 5: Special devices. Any specialty devices not listed above (i.e., trackless trains).
(B) A person applying for an Inspector Certification shall submit to the Division a completed Inspector Certification application using the form that is provided on the Division’s website.
Section 3-3 Certification Qualifications
(A) Qualifications for licensing are as follows:
(1) Type 1 Inspector Certification qualification shall consist of certification through one of the following:
(a) NAARSO Level 2; or
(b) AIMS Maintenance or Inspector Level 2; or
(c) The Pennsylvania Department of Agriculture – General Qualified Inspector; or
(d) Qualify as a professional engineer per Section 3-1 (D); or
(e) Another nationally recognized organization approved by the Division; or
(f) Experience evaluated and approved by the Division
(2) Type 2 Inspector Certification qualification shall consist of certification through one of the following:
(a) NAARSO Level 2; or
(b) AIMS Maintenance or Inspector Level 2; or
(c) ACCT Level 2 Professional Inspector; or
(d) Qualify as a professional engineer per Section 3-1 (D); or
(e) Another nationally recognized organization approved by the Division; or
(f) Experience evaluated and approved by the Division
(3) Type 3 Inspector Certification qualification shall consist of certification through one of the following:
(a) NAARSO Level 2; or
(b) AIMS Maintenance or Inspector Level 2; or
(c) IATP Service Technician Level 2; or
(d) Qualify as a professional engineer per Section 3-1 (D); or
(e) Another nationally recognized organization approved by the Division; or
(f) Experience evaluated and approved by the Division
(4) Type 4 Inspector Certification qualification shall consist of certification through one of the following:
(a) Those listed in Section 4-2 (A)(1) (Type 1); or
(b) CIRSA certification
(c) AIMS Aquatics Operations Level I
(5) Type 5 Inspector Certification qualification shall consist of certification that complies with (A)(1) of this section.
(B) The Division reserves the right to review an applicant or inspector’s experience and certification status at any time to ensure that the applicant or inspector:
(1) Demonstrates sufficient general knowledge of amusement rides to effectively inspect, evaluate, and identify issues with rides that could or will have an impact on public safety;
(2) Is fully versed in and able to apply Colorado-specific rules and regulations, and
(3) Is able to communicate that information to the amusement ride owners/operators for whom the inspection is being carried out.
Section 3-4 Inspector Certification and Renewal
(A) Inspector Certifications will expire annually on April 15.
(B) The Inspector Certification issued by the Division shall be valid for up to one year. The Division may issue or renew an Inspector Certification, provided the applicant submits the following:
(1) A completed inspector certification application form.
(2) Documentation that the applicant is currently certified as listed in Section 3-2 (A) of this section.
Section 3-5 Revocation, Suspension, or Denial of Inspector Certification
(A) A certification may be denied, suspended, or revoked by the Division because of, but not limited to the following:
(1) Failure to show sufficient proof of required credentials or experience with amusement ride or device inspections;
(2) Non-compliance with an order issued by the Division within the time specified in such order;
(3) Failure to comply with these regulations;
(4) Giving false information or a misrepresentation to the Division in order to obtain or maintain a certification;
(5) Making a false affidavit or statement under oath to the Division in an application or report; or
(6) Other factors which, at the discretion of the Division, indicate an unfitness to hold an inspector certification in compliance with these regulations.
(B) The Division shall deny, suspend, or revoke an inspector certification according to the process described in Article 6 of these regulations.
(C) Upon notice of the revocation or suspension of any permit, the former inspector shall immediately surrender to the Division the certification and all copies thereof.
(D) Any person whose certification has been denied or suspended under Section 3-5 may apply to the Division for a hearing in order to seek relief.
(1) The hearing shall be conducted by the Division or an Administrative Law Judge with the Division of Administrative Hearings on behalf of the Division in accordance with the procedures of 24-4-105 C.R.S.
(2) The Division may grant the relief requested in the hearing if the Division determines that the circumstances regarding the denial, suspension, or revocation, and the applicant’s record and reputation are such that the granting of such relief is not contrary to public safety.
(E) Any person aggrieved by a decision or order of the Division may seek judicial review pursuant to the provisions of 24-4-106 C.R.S.
(F) The period of denial, suspension, or revocation shall be within the sound discretion of the Division.
(G) Any person who has been denied a certification may not reapply to the Division for a certification within one year of the decision, unless exception is made by the Division and the applicant establishes a substantial change in circumstances to indicate fitness to hold an inspector certification in accordance with the requirements of these regulations.
(H) In case of revocation or suspension of an inspector certification, the Division shall notify all certifying associations that have issued said inspector any certifications used for the approval by the Division of such revocation or suspension.
ARTICLE 4 INJURY REPORTING
Section 4-1 Reportable Injury
(A) State of Colorado regulations require that amusement ride and device operators notify the Division of any reportable injury.
(B) A reportable injury is any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by an operator or patron error which impairs the function of an amusement ride or device.
(C) A reportable injury as defined must be reported to the Division by:
(1) Calling calling 303-514-3281 or 303-809-9354 within 24 hours of the time that the ride operator or operator becomes aware of the injury; and
(2) Submitting an injury report to the Division within 72 hours of the time that the ride operator or operator becomes aware of the injury
(D) Complete injury reports should be emailed to cdle_amusements@state.co.us or faxed to 303-318-8488.Injury reports shall be maintained and made available to the Division for investigation. Copies must be submitted upon request from the Division.
Section 4-2 Reportable Injury Scene Preservation
If a reportable injury occurs, the equipment or conditions that caused the accident shall be preserved for the purpose of an investigation by the Division unless an investigation is deemed unnecessary by the Division.
ARTICLE 5 PATRON RESPONSIBILITY
Patrons are required to follow any written or verbal instructions that are given to them regarding the use of amusement rides and devices.
ARTICLE 6 ENFORCEMENT
Section 6-1 Enforcement Program
The Division provides these regulations to assist operators and inspectors with safe and proper operation of amusement rides and devices. The Division may inspect the premises and operation of the amusement ride or device to insure that the financial and safety standards in this regulation have been met. When an amusement ride or device is found to be out of compliance with these regulations, the Division will pursue enforcement actions against the operator or inspector who is in violation of these regulations and/or statutes (8-20 C.R.S.).
The enforcement process will include requiring the operator or inspector to make repairs and/or upgrades, perform system tests, provide records and complete other actions to bring the amusement ride or device back into compliance. During and following the enforcement process, the Division will continue to assist the operator or inspector to remain in compliance. The enforcement process may include monetary penalties of up to one thousand dollars ($1,000) per violation per day according to statute (CRS §8-20-104 C.R.S.) if the enforcement obligations are not implemented according to the required schedule.
6-1-1 Notice of Violation
(A) A notice of violation (NOV) may be issued to an operator or inspector when an amusement ride or device is found to be out of compliance with these regulations and/or statutes (C.R.S. §8-20) or the inspector has failed to comply with these regulations and/or statutes. The notice of violation may include fines and/or an order to cease and desist operation of the specific amusement ride or device until all violations are satisfactorily corrected.
A notice of violation (NOV) may be issued to an inspector when the inspector has failed to comply with these regulations and/or statutes. The notice of violation may include fines and/or a suspension of the inspector’s certification.
(B) Within ten working days after an NOV has been issued, the person issued the NOV may file a written request with the Division for an informal conference regarding the NOV. Upon receipt of the request, the Division shall provide the alleged violator with notice of the date, time and place of the informal conference. During the conference, the alleged violator and Division personnel may present information and arguments regarding the allegations and requirements of the NOV. If the person issued the NOV does not request an informal conference within this time frame, all provisions of the NOV shall become final and not subject to further discussion. If the NOV is not resolved within the prescribed time frame, the Division may then seek judicial enforcement of the NOV, or an enforcement order may be issued.
(C) Within 20 days after the informal conference, the Division shall uphold, modify, or strike the allegations within the NOV in the form of a settlement agreement or an enforcement order.
(D) If the alleged violator fails to timely request an informal conference, the terms of the NOV become a binding enforcement order not subject to further review.
6-1-2 Enforcement Order
(A) An enforcement order may be issued when the violations included within an NOV are not resolved within the prescribed time frame or when the schedule set forth in a settlement agreement is not met. The enforcement order may include increased fines of up to one thousand dollars ($1,000) per violation for each day of violation. In addition, the enforcement order may include shut-down of the amusement ride or device.
(B) Within ten working days after an enforcement order has been issued, the operator may file a written request with the Executive Director for an informal conference regarding the enforcement order. If the operator does not request an informal conference within this time frame, all provisions of the enforcement order shall become final and not subject to further discussion. If the enforcement order is not resolved within the prescribed time frame, the Division may then seek judicial enforcement of the enforcement order. An enforcement order may include increased fines of up to one thousand dollars ($1,000) per violation for each day of violation. In addition, the enforcement order may include shut-down of the amusement ride or device and/or suspension or revocation of the permit or inspector certification.
(C) An alleged violator may appeal the enforcement order to the Division for a hearing under 24-4-105 C.R.S. The Division shall then issue a final decision which is subject to judicial review under 24-4-106 C.R.S.
6-1-3 Informal Conference
(A) Upon receipt of the request, the Division shall provide the operator with notice of the date, time and place of the informal conference. The Division shall preside at the informal conference, during which the operator and Division personnel may present information and arguments regarding the allegations and requirements of the NOV or the enforcement order.
(B) Within twenty days after the informal conference, the Division shall issue a settlement agreement in which the violations from the NOV and/or enforcement order will be upheld, modified or stricken. The settlement agreement will include a schedule of required activity for resolution of the violations. If the terms and/or schedule in the settlement agreement are not satisfied, an enforcement order will be issued, re-issued or the Division may seek judicial enforcement.
6-1-3 Procedure on Revocation, Suspension, or Denial of Inspector Certification
(A) In any case where the Division denies a permit or the permittee is subject to suspension or revocation for a violation of Section 3-3 of these regulations, the Division shall notify the applicant or permittee in writing by first-class mail of the grounds for denial for the violation. The notice shall state that the applicant or permittee may request a hearing in accordance with 24-4-104 and 24-4-105 C.R.S.
(B) Upon notice of the revocation or suspension of any permit, the former permittee shall immediately surrender to the Division the permit and all copies thereof. In addition, the former permittee must surrender control of all explosive material in his/her possession to the Division or the law enforcement agency designated by the Division, or in the presence of the Division or the law enforcement agency designated by the Division surrender control of all explosive material in his/her possession to a valid Type II permittee until a final determination on the charges is made.
(C) The period of denial, suspension, or revocation shall be within the sound discretion of the Division.
(D) The Division may summarily suspend a permit if the Division has objective and reasonable grounds to believe that the public health, safety, or welfare requires emergency action. In such case, the Division shall notify the permittee in writing by first-class mail of the grounds for summary suspension and shall state that the permittee may request a hearing in accordance with 24-4-105 C.R.S.
Do Something
You have two options:
- Roll over and take it.
- Get Involved. If you don’t speak up the regulatory bodies will win and that means you are out of business.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Ever Wonder what an EMT is Legally allowed to do versus a EMT-IV or Paramedic?
Posted: April 25, 2018 Filed under: Colorado, First Aid, Medical | Tags: AEMT, Emergency medical technician, EMT, EMT-IV, first aid, Intermediate, Paramedic Leave a commentWell Colorado created a great chart so you can understand it.
You can download your own copy of this chart here!
There may be a new dawn in river and stream access in Colorado or access may forever disappear.
Posted: March 14, 2018 Filed under: Colorado, Editorial, Environment, Rivers and Waterways | Tags: bottom, Colorado Water Law, Fishing, Float, Fly Fishing, Recreation, River Bed, Stream Bed, Water Law Leave a commentIn the west, Whiskey is for drinking and water is for fighting.
When I moved to Colorado several decades ago, the biggest shock, I received was learning or attempting to understand Colorado’s water laws. In the Midwest, where I’m from, water was a problem: we worked to get rid of. My property law professor was an expert in field pipes. Water Pipes were pipes put into the ground by the federal government to help drain water from the fields. Any issues were over ownership, control and maintenance of the pipes, not the water that came out of them.
Colorado Water Laws were developed when the only use of water was for drinking, (when no whiskey was around), irrigating crops and mining. Until the last decade, use of water for any other purpose was not only a civil issue subjecting you to a suit for the loss of the water, but possible criminal action for theft.
In 1979 the Colorado Supreme Court Decision People v. Emmert, 198 Colo. 137; 597 P.2d 1025; 1979 Colo. LEXIS 814; 6 A.L.R.4th 1016 was decided, which allowed people to float on the surface, but not touch the sides or the banks of a river. That decision created an uneasiness that has survived, mostly allowing whitewater rafting, kayaking and canoeing in many areas.
Even so, many landowners disagreed with the decision. That disagreement was based on owning both sides of the land or “touching” the bottom of the river. Landowners would build dams so that a kayaker had no choice but to “touch” the bottom to get around the dam. When you saw a dam, you usually saw a sheriff’s deputy at the takeout ready to issue you a ticket.
If a landowner owned both sides of the river another trick, you would see is fencing strung across the river, sometimes with railroad ties attached to prevent boaters from paddling down the river. Most boaters called them death traps because getting caught in one could kill a kayaker.
However, the worst was paddling down the river and hearing shots or looking to the bank and see someone pointing a gun at you. At least once a year I would receive a call from a kayaker who had been threatened at the end of a gun for floating on a river or creek. Generally, there was nothing you could do. The district attorneys did not like prosecuting paddlers for trespass, (after a lot of phone calls form a lot of CO attorneys). At the same time, it was more difficult for them to prosecute a voter for “defending” their property.
The city of Golden took a bold step and was able to convince the Colorado Supreme Court that water had a recreation purpose. That allowed Golden and a dozen other cities to put in kayak parks. Until that decision, the park could be built, but there might not be any water in the park to float a boat.
However, in the rule areas, fencing and guns still ruled. However, this may be coming to a head. In an article published February 3, Who owns the bottom of the river? Lawsuit pitting fisherman against landowner on the Arkansas River could answer the question
a fisherman has taken the issue to court. The article exams a lawsuit filed by a fisherman against a landowner. Read the article to get the facts straight, but generally the fisherman was tired of having rocks thrown at him and threatened by a gun when he enters the river at a public location, a river put in and walks downstream fishing.
The landowner may not own the water, but he owns the bottom of the river, or so he claims. (The landowner was prosecuted for shooting at the fisherman!)
The Utah Supreme Court looked at this same issue several years ago and concluded the state owned the bottom of the river. Utah Stream Access Coalition, v. Orange Street Development, 2017 UT 82; 852 Utah Adv. Rep. 69; 2017 Utah LEXIS 200. However, the legislature then passed a law overturning the decision. See Recreational Use of Public Water on Private Property. You can’t fish on a stream in Utah, but Utah believes you should be able to mine our National Parks and Monuments.
How will the Federal District Court, where this case has been filed, rule? I have no idea; I’m not a court watcher. I want them to rule that standing on a river bottom is not a reason to get shot. I want them to rule that putting your hands down to get over a manmade dam is not a reason to be arrested for trespass. I want them to rule that it is 2018 and tourism is the larger employer, largest generator of jobs and the basis for Colorado’s economy and shooting tourists and locals should not be allowed because they can’t walk on the water.
Go here to read the complaint filed in this case: Complaint
Do Something
Keep your finger’s crossed, not much else we can do except watch and wait for the decision.
What do you think? Leave a comment.
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A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.
Posted: March 5, 2018 Filed under: Case Analysis, Colorado, Ski Area, Ski Area Statutes, Skiing / Snow Boarding | Tags: avalanche, Collision, Colorado Skier Safety Act, de novo review, deceleration, enlargement, exhaustive, feet, inherent dangers, Inherent Risks, lamp, man-made, Negligence per se, parked, recommendation, Respondeat Superior, right to appeal, Ski, Ski Areas, Ski Resort, ski run, Ski Safety Act, Skier, skiing, Slope, Snow, Snowmobile, Sport, statutory definition, Steamboat, Steamboat Ski Area, Terrain, Trail Leave a commentA Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.
Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Linda Schlumbrecht-Muniz, M.D.
Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT
Plaintiff Claims: negligence, negligence per se, and respondeat superior
Defendant Defenses: Colorado Skier Safety Act
Holding: for the Defendant
Year: 2015
The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.
The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.
The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements necessary to properly plead a claim.
“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”
This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.
The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…”
Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:
Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.
The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.
Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.
The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:
…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.
In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.
I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.
The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”
The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.
Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”
Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.
Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”
The final claim was based on respondeat superior.
Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)
Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.
So Now What?
This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.
What do you think? Leave a comment.
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This decision is either normal, or ground breaking. The release info is nothing new. However, the court found the language on the back of the lift ticket created a release which barred the plaintiff’s claims.
Posted: January 15, 2018 Filed under: Case Analysis, Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: bargaining, common law, discovery, Equine, essential service, exculpatory, harmless, holder, inherent dangers, Inherent Risks, lesson, lift, Lift Ticket, Negligence per se, practical necessity, practically, public policies, quotation marks omitted, recreational, recreational activities, Release, riding, service provided, signer, Ski, ski area, ski lifts, Skier, skiing, Statutory Language, Summary judgment, unenforceable 11 Comments11th Circuit Court of Appeals upholds lower decision dismissing claims of a plaintiff who broke her femur unloading a lift during a ski lesson.
Lower Court decision was based on Colorado Premises Liability Act. This decision was based on the release the plaintiff signed to take the ski lesson.
For an analysis of the lower court decision see: Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
State: Colorado: United States Court of Appeals for the Tenth Circuit
Plaintiff: Teresa Brigance
Defendant: Vail Summit Resorts, Inc. (Keystone Ski Area)
Plaintiff Claims: (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115
Defendant Defenses: Release and the lift ticket
Holding: For the Defendant Ski Area, Vail
Year: 2018
This case looks at the law concerning releases in Colorado. Writing a release requires three skills. The first is an understanding of the law that will be applied to the release in question. The second is an understanding of the activity, and the risks associated with the activity the release must cover. The third is what do judges want to see in the release and what they don’t want to see.
The first and third items are what I specialize in. The second item is what we have to specialize in. Writing a release is not handing a contract job to an attorney. It is understanding how you want to run your business, the guests you want to serve and the types of problems you want to prevent from turning into litigation.
If you need a release for your business, activity or program consider working with me to design one. You also have the option of purchasing a pre-written release based upon the needs of your business, type of activity and the state where you are located.
To help you understand release law, here is an article about how a release was written correctly and then used to stop a claim.
Summary
This decision does not stand out among decisions concerning release law in Colorado. However, it is an extreme change from Colorado law and the law of most other states when it states the backside of a lift ticket is a release. The lower court decision was analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
The plaintiff was taking a ski lesson when she fell getting off the lift. She sued for the normal negligent issues. The court throughout her claims based upon the release she signed to take the ski lesson.
Facts
The plaintiff signed up to take a ski lesson with Keystone Resorts, a ski area owned by the defendant Vail Summit Resorts, Inc. and ultimately by Vail Resorts Management Company. (There may be some more corporations or LLC’s in the middle.) When she signed up for the lesson, she signed a release which is a common practice at ski areas.
When she was unloading a lift, the edge of the chair caught the top of her ski boot, and she fell eventually breaking her femur.
She sued. Her case was thrown out by the trial court. See Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662 analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
On a side note. One of her claims was the lift did not stop immediately. One defense I never see to this claim; lifts don’t stop immediately. If the lift stopped immediately, everyone riding the lift would be thrown off. Lift’s decelerate at a speed that allows the lift to stop as quickly as possible without ejecting everyone riding on the lift. If nothing else it is a save everyone else on the lift and sacrifice the person who can’t unload.
Analysis: making sense of the law based upon these facts.
The 10th Circuit Court of Appeals is a federal court. The plaintiff filed this case in federal court because she was from Florida. Vail and the locations of the accident are in Colorado. That allowed her to have federal jurisdiction in the case because the plaintiff and the defendant were from two different states.
When a federal court has a case like this, it applies the law of the state that has jurisdiction as if the case were not in federal court. In this case, the decision looks at Colorado law as it applies to ski areas and releases. There is no Federal law concerning ski areas, other than general laws on leasing Forest Service land for a ski area.
The court started its analysis by reviewing the release and Colorado law on releases.
Colorado has a tag it applies to releases; like a few other states, that releases are disfavored under Colorado law. However, disfavored a release may be; that statement seems to be something to provide the plaintiff with an idea of fairness rather than the reality that if you write your release correctly, it will be upheld in Colorado.
For a decision that was lost because the defendant did not write the release correctly see Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.
There are four tests a release must pass to be valid in Colorado.
(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.
The court found plenty of Colorado law stating that a recreation service or activity does not owe a duty to the public and is not a service that should be questioned, which covers the first two requirements. The release was well-written, and the plaintiff did not argue that the release was not entered into fairly. Consequently, the court was able to state the release was valid the plaintiff’s claims were barred by the release.
One argument of the plaintiff’s the court did spend some time on was the Ski Area Safety Statute and the Passenger Tramway Safety Act created a public duty. Thus, the nature of the relationship between the ski area and a guest was one not of recreation but of a public duty, therefore, the release was not valid. This argument was an attempt to void the release based on the first two requirements set out above.
However, the court found that the creation of both statutes was done so that releases were not voided for skiing in Colorado. Looking at Colorado law the court found:
Our conclusion that the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims.
The court found all four requirements for a release to be valid in Colorado were met.
What was exciting about this case wad the Court found the lift ticket was a release.
What is of note about this case is the Appellate Court like the lower court, looked at the language on the back side of the lift ticket as a release. The court starts by calling the language a “Lift Ticket Waiver.”
The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.”
Emphasize added
No other court in Colorado has ever looked at the language on the back of the lift ticket as being a release. That language is there because it is required by statute. Colorado Ski Safety Act C.R.S. §§ 33-44-107. Duties of ski area operators – signs and notices required for skiers’ information. (8) states:
(8) (a) Each ski area operator shall post and maintain signs which contain the warning notice specified in paragraph (c) of this subsection (8). Such signs shall be placed in a clearly visible location at the ski area where the lift tickets and ski school lessons are sold and in such a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift. Each sign shall be no smaller than three feet by three feet. Each sign shall be white with black and red letters as specified in this paragraph (a). The words “WARNING” shall appear on the sign in red letters. The warning notice specified in paragraph (c) of this subsection (8) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.
(b) Every ski lift ticket sold or made available for sale to skiers by any ski area operator shall contain in clearly readable print the warning notice specified in paragraph (c) of this subsection (8).
(c) The signs described in paragraph (a) of this subsection (8) and the lift tickets described in paragraph (b) of this subsection (8) shall contain the following warning notice:
WARNING
Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.
Emphasize added
The court specifically stated the language highlighted above in yellow contains “waiver of claims.” Based on the statute and the language, this is solely a list of the risks a skier assumes by statute when skiing inbounds in Colorado. However, now this court has found more in the text.
For more on lift tickets baring claims see Lift tickets are not contracts and rarely work as a release in most states. The reason most courts find that the language on the back of a lift ticket is not a release is there is no meeting of the minds, no one points out to the purchaser of a lift ticket there is a contract they are agreeing to.
In this case that would be impossible because the case states the husband purchased the lift ticket so the plaintiff could not have agreed to the contract.
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Key-stone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
Emphasize added
As stated above, the court notes that the husband and not the plaintiff purchased the lift tickets. No contract could be created in this case, yet somehow; the court found the lift ticket was a contract and as such was a release of liability. There was no meeting of the minds and there was no consideration passing between the plaintiff and the ski area.
However, this has monstrous meaning to all other ski areas in Colorado. If the language required by statute to be placed on the back of lift tickets is also a release of liability, then a new defense is available to all injuries of any skier, boarder, tuber or other person on the ski area who purchases a lift ticket.
More importantly you could require everyone coming on to the ski area to purchase a lift ticket no matter the reason. The cost could only be one dollar, but the savings to the ski area would be immense. If you are skiing you lift ticket is $200. If you are just going to dinner or watching your kids ski the lift ticket is $1.00 and gives you a $1.00 discount on your first drink.
Everyone who has a lift ticket at a ski area has effectively signed a release now.
However, remember, this is a federal court interpreting state law, the law of Colorado. Until the Colorado Courts weight in on the subject and the Colorado Supreme Court decides the issue, its value may be suspect. It is reliable in Federal Court as this condition is precedent setting, however, I would lean hard on the decision, not stand on it.
The court concluded, and in doing so provided a better idea about how Colorado looks are releases, that:
In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.
So Now What?
Overall, the case has nothing new on release law and is another affirmation that releases in Colorado, if written correctly, will stop claims for negligence.
However, if the Colorado courts follow the reasoning contained in this decision about the validity of the language on the back of a lift ticket as a bar to claims, then this is the first step in making almost impossible to sue a ski area in Colorado for any reason.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, ski, exculpatory, skiing, lift ticket, recreational, lesson, lift, ski area, practical necessity, recreational activities, public policies, bargaining, skier, inherent dangers, unenforceable, service provided, essential service, inherent risks, discovery, holder, signer, summary judgment, riding, equine, common law, ski lifts, negligence per se, quotation marks omitted, practically, harmless, Release, Lift Ticket, Statutory Language,
