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.

Door swings both ways in the law. Ski areas used the Colorado Premises Liability Act to lower the standard of care and effectively eliminate claims for lift accidents in Colorado. Here the same act is used to rule a release is void for accidents occurring on premises. However, the release was badly written and should have been thrown out.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

State: Colorado, Colorado Court of Appeals

Plaintiff: Wendy Jane Stone

Defendant: Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc.

Plaintiff Claims: Negligence and violation of the Colorado Premises Liability Act

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2016

This case is going to change a lot of releases in Colorado, and possibly nationwide. Similar decisions concerning health club releases have occurred in other states for the same or similar reasons. Basically, your have to write a release correctly, or it is void.

Remember the articles about Vail using the Colorado Premises Liability Act to defeat claims for lift accidents? (See Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner and Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?) The same act has been used to void a release in a health club case.

The Colorado Premises Liability Act is a law that tells a landowner (which is broadly defined to include renters as well as landowners indoors and out) how they must treat three types of people on their land or as in this case, a person who is in a health club.

Here the plaintiff had washed her hands in the locker room, and as she was leaving she tripped over the blow dryer cord fracturing her right ankle.

Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

The plaintiff’s injuries arose from her being the land, not for using the benefits of the health club.

The plaintiff sued for negligence and for violation of the Colorado Premises Liability Act. The Colorado Premises Liability Act sets for the duties owed by a landowner to someone on their land based on the relationship between the landowner and the person on the land. Pursuant to an earlier Colorado Supreme Court decision, the Colorado Premises Liability Act provides the sole remedies available to persons injured on the property of another.

The trial court dismissed the plaintiff’s claims based upon the release used by the health club, and the plaintiff appealed.

This decision is new and there is a possibility that it could be appealed to the Colorado Supreme Court and reversed.

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

The plaintiff filed here a complaint with two claims, negligence and breach of the Colorado Premises Liability Act. The court first looked at the negligence claim. The court found that negligence claim was properly dismissed, but for a different reason that the release stopped the claim. Here, the Colorado Premises Liability Act provides the only legal recourse against a landowner, so the negligence claim has no validity.

The PLA thus provides the sole remedy against landowners for injuries on their property established that the PLA abrogates common law negligence claims against landowners.

Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court; therefore, correctly ruled against her on that claim.

When a statute as in this case the Colorado Premises Liability Act, states the only way to sue is under this act, the statute bars all other ways or theories to sue.

The plaintiff’s argument then was the release that was written and signed by the plaintiff only covered the activities in the health club and did not provide protection from a suit for simply being on the premises.

As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room.

The court then reviewed the general rules surrounding release in Colorado law.

Generally, exculpatory agreements have long been disfavored.” Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language.

Under Colorado law, clear and unambiguously language is reviewed based on the lengthy, the amount of legal jargon and the possibility of confusion.

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Colorado has a four-part test to determine the validity of a release.

Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (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 was expressed in clear and unambiguous language.

The court quickly ruled that the first three factors were not at issue in this case.

In Colorado, there is no public duty based on recreational services. Recreational services are neither essential nor a matter of practical necessity. The third factor was also met because the defendant did not have any advantage. The plaintiff was free to obtain the services of the defendant someplace else.

The fourth factor provided the issue the case would resolve around, “Whether the intention of the parties was clear and unambiguous.”

The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable.

The court found eight ways the release in this case failed.

First, the release was very small type, dense fine print.

First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

Second, the release was full of confusing legal jargon, including the following terms:

…affiliates, subsidiaries, successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.

This jargon was found to mitigate against the idea the release was clear and simple to understand.

Third, the release, referenced clauses, identified as chapters, which even the attorneys for the defendant found confusing. Nor could anyone explain what the references to chapters referred to.

Fourth the focus of the release was on the use of the exercise equipment. The court pointed out five instances in the release that related to the use of the equipment and none relating to occupation of the premises. Meaning the court found a release must release the claims the plaintiff is complaining of.

The fifth reason was the use of the term “inherent.” (As I’ve stated before and given presentations on, inherent is a limiting term you do not want to use in a release.) The court said the use of this term was only applied under Colorado law to apply to activities that are dangerous or potentially dangerous. A locker room is not inherently dangerous so the term is confusing in this case.

In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands.

The sixth issue the court had was the language between the different release terms was “squirrely.” (In 35 years of practicing law, I have used the term a lot, but never in a courtroom, and I’ve never seen it in a decision.) The way the language referred back to other clauses in the release and attempting to identify what injuries were actually covered created ambiguities and confusion. The defense counsel for the health club admitted the language was squirrely.

The seventh issue was the general language of the release used to broaden the release, (after using the narrowing term inherent). The release was full of “but for” or “but is not” type of phrases. It was an attempt to broaden the language in the release, which only made the release more confusing.

Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive.

The use of these terms created more ambiguity in the release. Specifically, the language created an expansive versus restrictive flow in the release, none of which referenced the locker room.

Based on the above language the court found the release was not clear, unambiguous and unequivocal.

Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

The negligence claim was dismissed, and the claim under the Colorado Premises Liability Act was allowed to proceed.

So Now What?

First remember, this case could still be appealed and changed by the Colorado Supreme Court. However, the logic and reasoning behind the Colorado Appellate Court decision is well laid out and clear. I don’t think these are issues the Colorado Supreme Court is going to take on.

Colorado has jumped onto the release bandwagon I’ve been telling people about for 25 years.  Your release has to be written in English, it needs to be understandable, and it needs to cover everything. Most importantly, it needs to be a separate document with no fine print, no legal jargon and easily read. You can no longer hide your release on the back of an agreement using fine print and expect it to protect you from claims.

Colorado has been a state where releases are rarely over-turned. However, this was a crappy piece of paper that had release language on it. The print was too small; the language was so confusing the attorney for the health club did not understand it and the court pointed this fact out.

Your release needs to be well written, needs to be written by an attorney, needs to be written by an attorney who understands what you do and the risks you are presenting to your guests/customers/participants.

If you are interested in having me prepare a release for you, download the information form and agreement here: information-and-agreement-to-write-a-release-for-you-1-1-17

For more articles on this type of releases found in health clubs see:

Sign-in sheet language at Michigan’s health club was not sufficient to create a release.            http://rec-law.us/28J1Cs8

For articles explaining why using the term inherent in a release is bad see:

Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.   http://rec-law.us/1SqHWJW

 

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Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

* Formatting in this case maybe different when finalized by the Court.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Wendy Jane Stone, Plaintiff-Appellant, v. Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc., Defendants-Appellees.

Court of Appeals No. 15CA0598

COURT OF APPEALS OF COLORADO, DIVISION I

2016 Colo. App. LEXIS 1829

December 29, 2016, Decided

OPINION

[*1] City and County of Denver District Court No. 14CV33637 Honorable R. Michael Mullins, Judge

Opinion by JUDGE MILLER

Taubman and Fox, JJ., concur

Announced December 29, 2016

Charles Welton P.C., Charles Welton, Denver, Colorado, for Plaintiff-Appellant

Markusson Green & Jarvis, John T. Mauro, H. Keith Jarvis, Denver, Colorado, for Defendants-Appellees

¶ 1 In this action seeking recovery for personal injuries sustained at a fitness club, plaintiff, Wendy Jane Stone, appeals the summary judgment entered in favor of defendants, Life Time Fitness, Inc.; Life Time Fitness Foundation; and LTF Club Operations Company, Inc. (collectively, Life Time), on Stone’s negligence and Premises Liability Act (PLA) claims based on injuries sustained when she tripped on a hair dryer cord after washing her hands. The principal issue presented on appeal is whether the district court correctly ruled that Stone’s claims are contractually barred based on assumption of risk and liability release language contained in a member usage agreement (Agreement) she signed when she became a member of Life Time.

¶ 2 We disagree with the district court’s conclusion that the exculpatory provisions of the Agreement are valid as applied [*2] to Stone’s PLA claim. Consequently, we reverse the judgment as to that claim and remand the case for further proceedings. We affirm the district court’s judgment on the negligence claim.

I. Background

¶ 3 Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

¶ 4 Stone alleged that allowing the blow dryer cord to hang below the sink counter constituted a trip hazard and a dangerous condition and that, by allowing the condition to exist, Life Time failed to exercise reasonable care. She asserted a general negligence claim and also a claim under Colorado’s PLA, section 13-21-115, C.R.S. 2016.

¶ 5 Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the Agreement Stone signed when she joined Life Time. Life Time argued that the Agreement was [*3] valid and enforceable, that it expressly covered the type and circumstances of her injuries, and that it barred Stone’s claims as a matter of law. A copy of the Agreement appears in the Appendix to this opinion.

¶ 6 After full briefing, the district court granted Life Time’s motion, concluding that the Agreement was “valid and enforceable” and that Stone had released Life Time from all the claims asserted in the complaint.

II. Discussion

¶ 7 She contends that the district court, therefore, erred in entering summary judgment and dismissing her action.

A. Summary Judgment Standards

¶ 8 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gagne v. Gagne, 2014 COA 127, ¶ 24; see C.R.C.P. 56(c). We review de novo an order granting a motion for summary judgment. Gagne, ¶ 24; see Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶ 12.

B. Negligence Claim

¶ 9 In her complaint, Stone alleged common law negligence and PLA claims, and she pursues both claims on appeal. The trial court’s summary judgment ruled in favor of Life Time without distinguishing between Stone’s negligence and PLA claims. It simply concluded that the [*4] exculpatory clauses in the Agreement were “valid and enforceable” and released Life Time from all claims asserted against it.

¶ 10 We turn to the negligence claim first because we may affirm a correct judgment for reasons different from those relied on by the trial court. English v. Griffith, 99 P.3d 90, 92 (Colo. App. 2004).

¶ 11 The parties agree that the PLA applies to this case. In section

13-21-115(2), the statute provides:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

The PLA thus provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004); Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010). Similarly, it is well

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

Section 13-21-115(1), C.R.S. 2016, defines “landowner” as including “a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” In its answer, Life Time admitted that it owned and operated the club where Stone was injured and that the PLA governs her [*5] claims.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

established that the PLA abrogates common law negligence claims against landowners. Legro v. Robinson, 2012 COA 182, ¶ 20, aff’d, 2014 CO 40.

¶ 12 Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court therefore correctly ruled against her on that claim. We now turn to the effect of the exculpatory clauses in the Agreement on Stone’s PLA claim.

C. Application of Exculpatory Clauses to PLA Claim

¶ 13 As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room. We agree.

1. Law

¶ 14 “Generally, exculpatory agreements have long been disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. Id.; Jones [*6] v. Dressel, 623 P.2d 370, 375 (Colo. 1981). This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Our supreme court has explained:

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Id.

¶ 15 Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (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 was expressed in clear and unambiguous language. 623 P.2d at 375.

2. Analysis

a. The First Three Jones Factors

¶ 16 The first three Jones factors provide little help for Stone’s position. The supreme court has specified that no public duty is implicated if a business provides recreational services. See Chadwick, 100 P.3d at 467 (addressing guided hunting services and noting that providers of recreational activities owe “no special duty [*7] to the public”); Jones, 623 P.2d at 376-78 (skydiving services); see also Hamill, 262 P.3d at 949 (addressing recreational camping services and noting supreme court authority).

¶ 17 With regard to the second factor, the nature of the services provided, courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity. See Chadwick, 100 P.3d at 467; Hamill, 262 P.3d at 949; see also Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (snowmobiling not a matter of practical necessity), aff’d, 127 F.3d 1273 (10th Cir. 1997); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (whitewater rafting not an essential service), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997). Stone attempts to distinguish those cases by asserting that people join fitness centers “to promote their health, not for the thrill of a dangerous recreational activity.” She cites no authority for such a distinction, and we are not persuaded that such activities as camping and horseback riding, at issue in the cases cited above, are engaged in for a dangerous thrill as opposed to the healthful benefits of outdoor exercise. Consequently, the recreational nature of the services Life Time provides does not weigh against upholding or enforcing the Agreement.

¶ 18 With respect to the third factor, a contract is fairly entered into if one party [*8] is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the other party’s negligence. See Hamill, 262 P.3d at 949; see also Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Possible examples of unfair disparity in bargaining power include agreements between employers and employees and between common carriers or public utilities and members of the public. See Heil Valley Ranch, Inc., 784 P.2d at 784. However, this type of unfair disparity is generally not implicated when a person contracts with a business providing recreational services. See id.; see also Hamill, 262 P.3d at 949-50.

¶ 19 In evaluating fairness, courts also examine whether the services provided could have been obtained elsewhere. Hamill, 262 P.3d at 950. Nothing in the record indicates that Stone could not have taken her business elsewhere and joined a different fitness club or recreation center. Nor is there any other evidence that the parties’ relative bargaining strengths were unfairly disparate so as to weigh against enforcing the Agreement.

¶ 20 We therefore turn to the fourth prong of the Jones test – whether the intention of the parties was expressed in clear and unambiguous language. [*9]

b. The Fourth Jones Factor

¶ 21 The validity of exculpatory clauses releasing or waiving future negligence claims usually turns on the fourth Jones factor – whether the intention of the parties is expressed in clear and unambiguous language. Wycoff, 251 P.3d at 1263 (applying the Jones factors to a PLA claim). This case also turns on that factor.

¶ 22 The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable. Chadwick, 100 P.3d at 467; see also Threadgill v. Peabody Coal Co., 34 Colo. App. 203, 209, 526 P.2d 676, 679 (1974), cited with approval in Jones, 623 P.2d at 378.

¶ 23 We conclude that the Agreement fails this test for numerous reasons.

¶ 24 First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979), cited with approval in Jones, 623 P.2d at 378. Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

¶ 25 Second, the two clauses are replete with legal jargon, using phrases and terms such as “affiliates, subsidiaries, [*10] successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.” The use of such technical legal language militates against the conclusion that the release of liability was clear and simple to a lay person.

¶ 26 Third, the first of the two clauses relied on by Life Time bears the following heading: “under Chapter 458, 459, 460, or Chapter 461 ASSUMPTION OF RISK.” At oral argument, counsel for Life Time conceded that the reference to multiple chapters was ambiguous and confusing, and he could not explain to what the chapters referred. Our research has not enlightened us on the subject. Conscientious lay persons could reasonably have skipped over the fine print appearing under that heading, believing it did not apply to them because they would have no reason to understand that chapters 458, 459, 460, or 461 had any relevance to their situation. Thus, the assumption of risk heading was not clear and unambiguous.

¶ 27 Fourth, the dominant focus of the Agreement is on the risks of strenuous exercise and use of exercise equipment at the fitness center:

  • The opening paragraph [*11] of the Agreement contains the following warning: “All members are strongly encouraged to have a complete physical examination by a medical doctor prior to beginning any work out program or strenuous new activity. If I have a history of heart disease, I agree to consult a physician before becoming a Life Time Fitness member.”
  • Under the confusing assumption of risk heading, the first sentence states, “I understand that there is an inherent risk of injury, whether caused by me or someone else, in the use of or presence at a Life Time Fitness Center, the use of equipment and services at a Life Time Fitness Center, and participation in Life Time Fitness’ programs.”
  • There then follows a listing of types of risks, including the use of “indoor and outdoor pool areas with waterslides, a climbing wall area, ball and racquet courts, cardiovascular and resistance training equipment,” and other specified programs, as well as
  • “[i]njuries arising from the use of Life Time Fitness’ centers or equipment” and from activities and programs sponsored by Life Time; “[i]njuries or medical disorders resulting from exercise at a
  • Life Time Fitness center, including, but not limited to heart attacks, strokes, [*12] heart stress, spr [sic] broken bones and torn muscles or ligaments”; and “[i]njuries resulting from the actions taken or decisions made regarding medical or survival procedures.”

¶ 28 Fifth, the term “inherent risk of injury” that appears in the assumption of risk clause has been applied in various Colorado statutes and case law to address waivers of liability only for activities that are dangerous or potentially dangerous. Thus, the General Assembly has provided for releases from liability in circumstances such as activities involving horses and llamas, section 13-21-119, C.R.S. 2016; being a spectator at baseball games, section 13-21-120, C.R.S. 2016; agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109, C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S. 2016. Significantly, not one of these statutory exemptions from liability extends to the use of locker rooms, rest rooms, or dressing rooms associated with these activities. Rather, the releases of liability extend only to the dangerous or potentially dangerous activities themselves.

¶ 29 Colorado’s published cases concerning the term “inherent risks” similarly concern dangerous or potentially [*13] dangerous activities. For example, the term “inherent risks” has been addressed in cases involving skiing, Graven v. Vail Assocs., Inc., 909 P.2d 514, 519 (Colo. 1995); horseback riding, Heil Valley Ranch, Inc., 784 P.2d at 782; medical procedures or surgical techniques, Mudd v. Dorr, 40 Colo. App. 74, 78-79, 574 P.2d 97, 101 (1977); and attendance at roller hockey games, Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707, 710 (Colo. App. 2000). Thus, in reported cases, the term “inherent risks” has been limited to dangerous or potentially dangerous activities, rather than accidents occurring in more common situations, such as using locker rooms.

¶ 30 In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands. Indeed, Stone so stated in her affidavit submitted in opposition to the motion for summary judgment.

¶ 31 Sixth, Life Time contends that the only relevant language we need consider is that set forth in the second exculpatory clause, labeled “RELEASE OF LIABILITY.” That provision begins [*14] by stating that “I waive any and all claims or actions that may arise against Life Time . . . as a result of any such injury.” (Emphasis added.) The quoted language, however, is the first use of the term “injury” in the release of liability clause. So the scope of the release can be determined only by referring back to the confusing assumption of risk clause. It is not surprising then that Life Time’s counsel characterized the release’s reference to “such injury” as “squirrely.” In any event, all of the ambiguities and confusion in the assumption of risk clause necessarily infect the release clause.

¶ 32 Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive. Compare Maehal Enters., Inc. v. Thunder Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011) (declining to treat the phrase as restrictive and citing Bryan A. Garner, A Dictionary of Modern [*15] Legal Usage 432 (2d ed. 1995)), with Ridgeview Classical Sch. v. Poudre Sch. Dist., 214 P.3d 476, 483 (Colo. App. 2008) (declining to conclude that the phrase took the statute out of the limiting rule of ejusdem generis). For purposes of deciding this case we need not resolve this conflict; the relevance of the conflict for present purposes is that it creates another ambiguity.

¶ 33 That ambiguity – expansive versus restrictive – is critical because nothing in the Agreement refers to risks of using sinks or locker rooms. The assumption of risk clause refers to the “risk of loss, theft or damage of personal property” for the member or her guests while “using any lockers” at a Life Time fitness center. That is quite a separate matter, however, from suffering a physical injury in a locker room.

¶ 34 Significantly, when Life Time intends to exclude accidental injuries occurring in locker rooms, it knows how to draft a clear waiver of liability doing so. In Geczi v. Lifetime Fitness, 973 N.E.2d 801, 803 (Ohio Ct. App. 2012), the plaintiff entered into a membership agreement with Life Time in 2000 (eleven years before Stone entered into the Agreement), which provided in relevant part:

[T]he undersigned agrees to specifically assume all risk of injury while using any of the [*16] Clubs[‘] facilities, equipment, services or programs and hereby waives any and all claims or actions which may arise against LIFE TIME FITNESS or its owners and employees as a result of such injury. The risks include, but are not limited to

. . . .

(4) Accidental injuries within the facilities, including, but not limited to the locker rooms, . . . showers and dressing rooms.

Id. at 806. Life Time chose not to include similar language in the Agreement signed by Stone.

c. The Agreement Is not Clear, Unambiguous, and Unequivocal

¶ 35 Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. See Chadwick, 100 P.3d at 467. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

III. Conclusion

¶ 36 The judgment on Stone’s negligence claim is affirmed, the judgment on her PLA claim is reversed, and the case is remanded for further proceedings on that claim.

JUDGE [*17] TAUBMAN and JUDGE FOX concur.


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

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

Linda Schlumbrecht-Muniz, M.D., Plaintiff, v. Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT, Defendant.

Civil Action No. 14-cv-00191-MSK-NYW

United States District Court for the District of Colorado

2015 U.S. Dist. LEXIS 30484

February 23, 2015, Decided

February 23, 2015, Filed

SUBSEQUENT HISTORY: Rejected by, Motion denied by Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 2015 U.S. Dist. LEXIS 30447 (D. Colo., Mar. 11, 2015)

Summary judgment granted, in part, summary judgment denied, in part by Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 2015 U.S. Dist. LEXIS 125899 (D. Colo., Sept. 21, 2015)

CORE TERMS: snowmobile, skiing, inherent dangers, ski, skier, parked, collision, recommendation, slope, trail, snow, ski areas, respondeat superior, terrain, Ski Safety Act, ski resort, sport, lamp, avalanche, man-made, feet, ski run, negligence per se, inherent risks, right to appeal, statutory definition, de novo review, deceleration, enlargement, exhaustive

COUNSEL: [*1] For Linda Schlumbrecht-Muniz, M.D., Plaintiff: Mark P. Martens, Martens & Associates, P.C., Denver, CO.

For Steamboat Ski and Resort Corporation, a Delaware Corporation doing business as Steamboat, Defendant: Kimberly A. Viergever, Peter W. Rietz, LEAD ATTORNEYS, Brian Alan Birenbach, Rietz Law Firm, LLC, Dillon, CO.

JUDGES: Nina Y. Wang, United States Magistrate Judge.

OPINION BY: Nina Y. Wang

OPINION

RECOMMENDATION REGARDING DEFENDANT’S MOTION TO DISMISS

Magistrate Judge Wang

This matter comes before the court on Defendant Steamboat Ski & Resort Corporation’s (“Steamboat”) Motion to Dismiss [#14], filed on April 7, 2014. Steamboat seeks to dismiss the lawsuit filed by Plaintiff Dr. Linda Schlumbrecht-Muniz (“Plaintiff” or “Dr. Muniz”) on January 23, 2014. The Motion was referred to this Magistrate Judge pursuant to the Order of Reference dated February 6, 2014 [#9] and memorandum dated May 6, 2014 [#24]. After carefully considering the Motion and related briefing, the entire case file, and the applicable case law, I respectfully RECOMMEND that Defendant’s Motion to Dismiss be GRANTED.

BACKGROUND AND PROCEDURAL HISTORY

Dr. Muniz filed this lawsuit asserting claims of negligence, negligence per se, and respondeat superior [*2] against Steamboat and seeking damages for injuries incurred while skiing at Steamboat Ski Resort. The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.

The following is a statement of Dr. Muniz’ allegations as pled. On January 24, 2012, Dr. Muniz was skiing on a marked and open ski run known as “Bashor Bowl.” [#7 at ¶ 7]. Earlier in the day, a Steamboat employee had parked a snowmobile at the bottom of Bashor Bowl. The vehicle was not visible for 100 feet. [Id. at ¶ 9]. Dr. Muniz collided with the snowmobile and sustained personal injuries for which she now seeks compensatory damages.

Dr. Muniz filed her original Complaint on January 23, 2014, naming Steamboat and IRCE, Inc. a/k/a Intrawest Resorts, Inc (“IRCE). [#1]. She amended her Complaint on February 3, 2014 to dismiss IRCE as a defendant. [#7]. Steamboat waived service on February 5, 2014 [#10], filed the pending Motion to Dismiss on April 7, 2014 [#14], and filed a Motion to Stay Discovery on April 25, 2014. [#16]. Plaintiff filed a Response to the Motion to Dismiss on April 28, 2014 [#17], and filed a Response to the Motion to Stay on May 5, 2014 [#19], stating she did not object to the request. Steamboat filed a Reply in support [*3] of its Motion to Dismiss on May 12, 2014. [#26]. On October 28, 2014, the court denied Steamboat’s Motion to Stay. [#36].

Steamboat filed a Motion for Summary Judgment on January 5, 2015. [#41]. Dr. Muniz filed her Response on January 26, 2015 [#45], and Steamboat filed its Reply on February 9, 2015. [#47]. This action was reassigned to this Magistrate Judge the same day. [#46].

STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive such a motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). In deciding a motion under Rule 12(b)(6), the court views factual allegations in the light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).

However, a plaintiff may not rely on mere labels or conclusions to carry its burden, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), “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 [*4] 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.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

ANALYSIS

Steamboat argues that Dr. Muniz fails to state a claim upon which relief could be granted because, pursuant to the Colorado Ski Safety Act (“Ski Safety Act” or “Act”), C.R.S. § 33-44-101 to 114, it is immune from any claim for damages resulting from “the inherent dangers and risks of skiing,” and Plaintiff’s collision with a parked snowmobile qualifies as such. Steamboat further argues that Dr. Muniz failed to plead a violation of any section of the Act, and that her respondeat superior claim must fail as derivative of the other two Claims.

The Ski Safety Act sets forth safety standards for the operation of ski areas and for the skiers using them, and defines the rights and liabilities existing between the skier and the ski area operator. See Colo. Rev. Stat. § 33-44-102. See also Doering ex el Barrett v. Copper Mountain, 259 F.3d 1202, 1212 (10th Cir. 2001).1 “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 [*5] resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112. The definition of “inherent dangers and risks of skiing” specifically excludes “the negligence of a ski operator as set forth in section 33-44-104(2),” which provides that “a ski operator’s violation of any requirement under the Ski Safety Act that results in injury to any person constitutes negligence.” Colo. Rev. Stat. §§ 33-44-104(2), -112. 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. See Kumar v. Copper Mountain, Inc., 431 Fed. Appx. 736, 737, 738 (10th Cir. 2011). A claim arising under the first instance would fall outside of the Act and be governed by common-law negligence principles. Id. (citing Graven v. Vail Assocs., 909 P.2d 514, 520 (1995), partially abrogated on other grounds by Colo. Rev. Stat. § 33-44-112). Dr. Muniz asserts claims under both theories of liability.

1 No one contests that Steamboat is a “ski area operator” and Plaintiff is a “skier” as defined in the Act.

A. Negligence

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 [*6] 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.

Colo. Rev. Stat. § 33-44-103(3.5). Steamboat argues that the list presented in this section is not exhaustive, and should be read to include collisions with snowmobiles.

In Graven v. Vail Associates, Inc., the Colorado Supreme Court reserved the issue of whether the list in section 33-44-103(3.5) is exclusive, though indicated that “[t]he word ‘include’ [ ] ordinarily signifies extension or enlargement and is not definitionally equivalent to the word ‘mean.'” [*7] Graven, 909 P.2d at 519 n. 4. See also Colo. Common Cause v. Meyer, 758 P.2d 153, 163-64 (Colo. 1988) (en banc) (“The word ‘includes’ has been found by the overwhelming majority of jurisdictions to be a term of extension or enlargement when used in a statutory definition. The use of ‘includes’ in the statutory definition of ‘political committee,’ therefore, connotes that something else is encompassed by the definition beyond what was previously covered by the immediately preceding language.”) (citations omitted).

More recently, the Colorado Court of Appeals held in Fleury v. Intrawest Winter Park Operations Corp., that the list of inherent dangers contained in section 33-44-103(3.5) is not exhaustive. 2014 COA 13, — P.3d –, 2014 WL 554237 (Colo. App. 2014). In Fleury, the court considered whether an avalanche that had caused the death of appellant’s husband qualified as an “inherent danger or risk of skiing” even though that specific hazard is not listed in section 33-44-103(3.5). By giving effect to the plain meaning of the words and reviewing the legislative intent surrounding the Act, the court concluded that an avalanche fits into the definition of inherent danger or risk. 2014 COA 13, [WL] at *2-3. First, the court reasoned that section 33-44-103(3.5) uses the word “including,” which indicates the list “is illustrative and not, as [appellant] argues, confined to the identified dangers.” 2014 COA 13, [WL] at *2 (“Because the General [*8] Assembly typically uses “include” as a word of extension or enlargement, listing examples in a statutory definition does not restrict the term’s meaning.”). (citations omitted). Next, the court considered the Colorado General Assembly’s decision in 2004 to alter the definition of inherent dangers and risks of skiing. The revision changed “dangers or conditions which are an integral part of the sport of skiing” to “dangers or conditions that are part of the sport of skiing,” thereby broadening the types of inherent risks covered by the Act and decreasing the liability of ski area operators. 2014 COA 13, [WL] at *4 (citing Ch. 341, sec. 1, § 33-44-103(3.5), 2004 Colo. Sess. Laws. 1393). Finally, the court determined that an avalanche, “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice” fits one or more of the statutory examples of inherent dangers or risks of skiing. 2014 COA 13, [WL] at 3 (citing Kumar, 431 Fed. Appx. at 738) (resolving that cornice falls “within the section relating to snow conditions as they exist or change, or the provision covering variations in steepness or terrain.”). In concluding, the Fleury court stated, “the inclusion of an avalanche as an inherent danger or risk of skiing is consistent with [*9] the General Assembly’s intent, as evidenced by the evolution of the Act.” Id. Justice Navarro concurred in the ruling and Justice J. Jones filed a dissent.2 One month following that decision, a court in this District noted in passing that “the Act’s list of ‘inherent dangers,’ [ ] is nonexclusive.” Bazarewski v. Vail Corp., 23 F. Supp. 3d 1327, 1331 (D. Colo. 2014) (determining that resort was immune under the Act for damages resulting from injuries caused by impact of rubber tube against rubber deceleration mats because deceleration mats are an inherent part of the snow tubing activity) (emphasis in original).

2 On December 8, 2014, the Supreme Court of Colorado granted a Petition for Writ of Certiorari as to whether, for the purposes of the Ski Safety Act, “the term inherent dangers and risk of skiing, as defined in section 33-44-103(3.5), C.R.S. (2014) encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.” Fleury v. IntraWest Winter Park Operations Corp., No. 14SC224, 2014 Colo. LEXIS 1074, 2014 WL 6883934 (Colo. December 8, 2014).

This court finds the reasoning of Fleury persuasive and that the list in section 33-44-103(3.5) is not exhaustive. 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 [*10] a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing [#14 at 5], 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. However, the other provisions of the Act are more instructive. For instance, as Steamboat notes, section 33-44-109(4) of the Ski Safety Act provides, in pertinent part: “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.” Colo. Rev. Stat. § 33-44-109(4). This section demonstrates the General Assembly’s intent to hold the skier, rather than the ski operator, responsible for avoiding vehicles on the ski slopes and trails. And section 33-44-108(3) mandates that snowmobiles operating on ski slopes and trails be equipped with certain visibility-related accessories. These provisions indicate that the General Assembly expects that snowmobiles are present in ski areas — both on the slopes and trails — and pose a risk to skiers.

Similarly, this court has previously held that plaintiff’s collision with a snowmobile while skiing was included as a “risk of skiing/riding.” Robinette v. Aspen Skiing Co., LLC, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093, *2 (D. Colo. 2009), aff’d 363 Fed. Appx. 547 (10th Cir. 2010). In Robinette, Chief Judge [*11] Krieger held that “the specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the ‘risks of skiing/riding,'” and cited section 33-44-108(3) for support that skier-snowmobile collisions are a known potential risk. 2009 U.S. Dist. LEXIS 34873, [WL] at *3. While the court was interpreting a particular ski resort release rather than the statute, the analysis remains the same. The fact that the snowmobile was parked near the end of the ski run, rather than moving, also does not alter conclusion.

Accordingly, I find that Plaintiff has failed to state a claim for negligence that is plausible on its face, and I recommend granting Steamboat’s Motion to Dismiss as to this claim.

B. Negligence Per Se

Steamboat argues that Plaintiff’s Second Claim should be dismissed pursuant to Fed. R. Civ. P. 8(a)(2) for failure to specify the provision of the Act that Steamboat allegedly violated. Steamboat further argues that if Plaintiff intended to claim a violation of section 33-44-107(7), that general provision is inapplicable because section 33-44-108(3) of the Act pertains specifically to snowmobiles.

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 [*12] 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.” Colo. Rev. Stat. § 33-44-108(3). Plaintiff also posits that because the snowmobile was parked, Steamboat is in violation of section 33-44-107(7), which requires that man-made structures be visible from at least 100 feet away. See Colo. Rev. Stat. § 33-44-107(7)). Plaintiff offers that a question exists as to whether a parked snowmobile is governed under section 33-44-108(3), requiring it to have an illuminated head lamp or trail lamp, or under section 33-44-107(7), requiring that it be visible from 100 feet.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snowmobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section 33-44-103(3.5), and Steamboat is immune to liability for the resulting injuries. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 74 (Colo. 1998) (holding that inherent risks of skiing include “collisions with natural and man-made objects.”). 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 [*13] 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.” [#17 at 10]. Indeed, there is no section of the Act that requires any marking of the stationary snowmobile.

C. Respondeat Superior

Steamboat argues that Dr. Muniz’s Third Claim should be dismissed as derivative of her other Claims. An employer may be held liable under the doctrine of respondeat superior if damage results from the employee’s actions that were taken on behalf of the employer. Raleigh v. Performance Plumbing and Heating, 130 P.3d 1011, 1019 (Colo. 2006) (citing Grease Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 473 (Colo. 1995)). 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”) (citation omitted). Because I have found that a collision with a snowmobile located on a ski slope is an inherent danger or risk of skiing, Dr. Muniz’s claim for respondeat superior must also fail.

CONCLUSION

For the foregoing reasons, I respectfully RECOMMEND that Defendant Steamboat’s Motion to Dismiss (Doc. #14) be GRANTED. [*14] 3

3 Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge’s proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge’s proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of [*15] the Magistrate Judge’s order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

DATED: February 23, 2015

BY THE COURT:

/s/ Nina Y. Wang

United States Magistrate Judge


Colorado Parks and Wildlife is Hiring Interns

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River Watch & Water Quality Internship Opportunity

Are you interested in a career with natural resources, including water, water quality, wildlife, working with volunteers, and working with data and information production?

This position’s primary responsibilities will be focused on a combination of River Watch Program needs, skill set and interest of intern, and producing some tangible deliverables (while gaining experience).

Apply Today!
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Providing First Aid in Colorado just got screwy. New law allows voluntary registration, but also places requirements on EMT’S & First Responders.

I’m not sure of the reasoning behind this law, it really does not do anything other than track EMT’s and “First Responders.”

House Bill 16-1034 was signed into law by the governor. I’ve attached a copy of the bill if you want to read it.

I’m not sure why the bill was needed.  Until things shake out, I would advise my clients not to register.  The only benefit to registering is you can say you are a registered EMT or registered first responder rather than saying you are an EMT or first responder?

Download a copy of the bill here: 1034_enr

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

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#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, Colorado, EMT, First Responder, Voluntary, Registration,

 

 


Colorado Environmental Film Festival is seeking Films from and by Youth for our 2017 Environmental Film

The Colorado Environmental Film Festival is seeking films from and by youth for our 2017 Environmental Film Festival. We are hoping to attract more youth entries and attendance next year. Early bird submission deadline is Aug 15; youth fee is only $20.

Please see submission information at ceffchair or me for more information!

CEFF seeks unique and meaningful films that aim to inspire, educate, and call to action. The largest environmental film festival between the coasts, celebrates their tenth annual festival taking place February 18-20, 2016 in downtown Golden, Colorado. Filmmakers of all abilities and backgrounds are invited to submit their films in the categories of Short Films, Feature Length Films and Youth Submission for filmmakers under 19 years of age.

Colorado Environmental Film Festival prefers online entries submitted via Withoutabox.com, which provides cost-saving, paperless submission to film festivals around the world. Withoutabox’s internet-only submission platform features online applications via one master entry form, online fee payments, press kits, and the option to use Secure Online Screeners, an economical, eco-friendly, and secure alternative to traditional hard-copy DVD submissions.

Fill out one master entry form and take advantage of quick entry, extended deadlines, and powerful submission management tools. There’s no extra cost to you, and by submitting, you’ll join Withoutabox’s global filmmaker community and stay in the loop about international exhibition opportunities.

Deadlines and entry fees:
Early bird – August 15th, 2016 – Price: Regular $30.00 – Student/Youth/Colorado Filmmaker – $20.00
Regular – September 15th, 2016 – Price: Regular $40.00 – Student/Youth/Colorado Filmmaker – $25.00
Late – October 30th, 2016 – Price: Regular $50.00 – Student/Youth/Colorado Filmmaker – $30.00
Extended – November 15th, 2016 – Price: Regular $60.00 – Student/Youth/Colorado Filmmaker – $45.00


Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.

The decision came down as generally expected, an avalanche is snow and any type of snow is an inherent risk assumed by skiers and boarders as defined by the Colorado Skier Safety Act.

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

State: Colorado, Supreme Court of Colorado

Plaintiff: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris

Defendant: IntraWest Winter Park Operations Corporation

Plaintiff Claims: negligence and wrongful death

Defendant Defenses: Colorado Skier Safety Act

Holding: for the defendant

Year: 2016

The deceased went  skiing at Winter Park. While skiing he rode a lift to Trestle Trees run, an inbounds run at Winter Park. An avalanche occurred, and the skier was killed.

The Colorado Avalanche Information Center, (CAIC) had been issuing warnings about avalanches based on new heavy snows. Winter Park admitted knowing about the warnings and knowing that there was the possibility of unstable snow on Trestle Trees run. Winter Park also never posted warning signs about the avalanche risk or closed runs.

Side comment: What would you do if you saw a sign that said warning, increased likelihood of avalanches today?

The plaintiff sued, and the trial court dismissed the case based on the Colorado Skier Safety Act (CSSA). The appellate court in a split decision upheld the trial court ruling. The Colorado Supreme Court granted certiorari and heard the case.

Certiorari is granted when an appeal to an appellate court to hear a case is approved. There is no automatic right of appeal to the Colorado Supreme Court for civil cases (most of the time) so the party that wants to appeal has to file an argument why the Supreme Court should hear their appeal. If the appeal is granted, then a Writ of Certiorari is issued telling the parties to bring their case to the court. Certiorari is Latin for “to be informed of, or to be made certain in regard to.”

When a Writ of Certiorari is granted, most times the arguments to be presented to the court are defined by the court.  Here the writ was issued to:

Whether, for the purposes of the Ski Safety Act (“SSA”) of 1979, codified at sections C.R.S. 33-44-101 to -114 (2014), the term “inherent dangers and risks of skiing,” as defined in C.R.S. 33-44-103(3.5) (2014), encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.

Probably, because of the value of the decision to the state, skiing is a big economic driver and because of the split decision at the Colorado Court of Appeals, the Supreme Court heard the case and issued this decision.

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

The entire issue revolves around interpreting once section of the CSSA. The words or phrases the Court liked at are highlighted.

C.R.S. §§ 33-44-103. Definitions.

(3.5) “Inherent dangers and risks of skiing” means 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 term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

If an avalanche is an inherent risk as defined by the CSSA, then a skier/boarder/tele skier, etc., assumes the risk and cannot sue the ski area for any injury or claim.

Does the phrases weather conditions and snow conditions as they exist or may change encompass or the term Avalanche or can an Avalanche be defined by such phrases.

One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of “avalanche” is “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.”

The court found that the phrases in the CSSA defined an avalanche.

At bottom, then, an avalanche is one way in which snow conditions may change. As alleged here, snow conditions started with fresh snow on unstable snowpack, and, within moments, changed to a mound of snow at the bottom of the incline. We therefore, conclude that Norris’s death is alleged to have been caused by changing snow conditions.

The decision was fairly simple for the court to reach.

Because an avalanche is, at its essence, the movement of snow, and is therefore, a way in which snow conditions may change, we hold that section 33-44-103(3.5) covers in-bounds avalanches. It follows that section 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.

There was a dissent to this opinion joined by one other judge who interpreted the issues along the arguments made by the plaintiff. An avalanche was not a snow condition but was an event. As such, it does not fall within the inherent risks of the CSSA.

The dissent was further supported by the idea that the statute was broad but the inherent risks were narrow in scope. If the legislature wanted avalanches to be included as an inherent risk, the legislature would have placed it in the statute when enacted, or anytime it has been modified since enactment.

So Now What?

Under the CSSA, an inbound movement of snow, an avalanche is an inherent risk of skiing and as such, a skier injured or killed by such snow assumes the risk of the injury.

The decision also provides some insight into how the court may interpret the risks of skiing in the future. In general, the CSSA is to be interpreted broadly. Skiing is a risky sport, and the CSSA was enacted to promote skiing and to identify, in advance the risk a skier must assume in Colorado.

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