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Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey

The lawsuit failed, this time. However, the failure was due to  Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Gyl Cole, Ronald Cole, her husband

Defendant: Camelback Mountain Ski Resort

Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act

Defendant Defenses: The statute did not apply

Holding: For the defendant 

Year: 2017 

Summary

In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act

However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area. 

Facts 

The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.

While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.

The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear. 

The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.

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

The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.

All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…

Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the  consumer put fraudulent practices or business on notice or out of business.

Under the act, an unlawful practice was defined as: 

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.” 

A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” 

The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act. 

The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act
. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act
.

The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.

Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.

Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)

Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”

There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here. 

Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”

The case was dismissed. 

So Now What?

I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.

 Remember, Marketing makes Promises Risk Management has to pay for©

What do you think? Leave a comment. 

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Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Gyl Cole, et al., Plaintiffs, v. Camelback Mountain Ski Resort, et al., Defendants.

3:16-CV-1959

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2017 U.S. Dist. LEXIS 100183

June 28, 2017, Decided

June 28, 2017, Filed

CORE TERMS: skiing, advertisement, omission, ski resort, consumer, immunity, consumer fraud, presumed to know, residents, quotation marks omitted, downhill, common law, cause of action, factual allegations, assumption of risk, unlawful practice, sport, business practice, ascertainable loss, material fact, merchandise, concealment, advertised, cognizable, actionable, misleading, snow, Skier’s Responsibility Act, tort liability, reasonable inference

COUNSEL: [*1] For GYL COLE, RONALD COLE, her husband, Plaintiffs: EDWARD F. BEZDECKI, LEAD ATTORNEY, TOMS RIVER, NJ.

For CAMELBACK MOUNTAIN SKI RESORT, Defendant: Samuel J. McNulty, LEAD ATTORNEY, Hueston, McNulty, PC, Florham Park, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

This matter presents the following question to the Court: Does a plaintiff state a cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges that a Pennsylvania ski resort advertised its business in New Jersey but failed to include any information in its advertisements regarding the protections from tort liability the business enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a claim is not cognizable under the New Jersey Consumer Fraud Act.

I. Introduction and Procedural History

The above captioned matter was first removed from the Superior Court of New Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two count Complaint against Camelback Mountain Ski Resort (“Camelback”), and two John [*2] Doe maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing at Defendant Camelback’s skiing facility. Plaintiffs, both residents of New Jersey, allege that Defendants are liable both for negligence (Count I), and for violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, (Count II). Defendant Camelback now moves to dismiss Count II of Plaintiffs’ Complaint. (Doc. 20).

II. Factual Allegations

Plaintiffs’ Complaint alleges the following facts:

Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id. at 14). According to Plaintiffs’ Complaint, Camelback advertises its business heavily in New Jersey through a variety of forms of media. (Id.). Camelback’s advertisements, however, contain no information that, under Pennsylvania law, skiing facilities enjoy “immunity” from liability for the injuries patrons sustain while skiing. (Id.). On March 15, 2014, presumably after viewing one of Camelback’s advertisements, Gyl and Ronald Cole went skiing at Camelback’s skiing facility. (Id. at ¶¶ 1 , 3-4). While skiing on one of the black diamond slopes, Gyl Cole [*3] slammed into a six inch metal pipe and sustained severe injuries. (Id. at ¶ 3).

III. Standard of Review

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal [*4] require [a court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

IV. Analysis

Count II of Plaintiffs’ Complaint alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”). (Doc. 1-1 at ¶¶ 13-22). The NJCFA was enacted to address “sharp practices and dealings in the marketing of merchandise1 and real estate whereby the consumer could be victimized by being lured [*5] into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices.” Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (N.J. 1978). “The Act creates a private cause of action, but only for victims of consumer fraud who have suffered an ascertainable loss.” Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281, 291 (N.J. 2002).

1 Under the NJCFA, the term “merchandise” is broadly defined to “include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J. Stat. Ann. § 56:8-1

“A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).

Unlawful practices include

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

N.J. Stat. Ann. § 56:8-2. The New Jersey Supreme Court has specified that “[u]nlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (N.J. 1994).

In the case at hand, Plaintiffs assert that the unlawful practice that Defendant Camelback allegedly engaged [*6] in was a failure to inform, i.e., an omission. (Doc. 1-1 at ¶ 14; Doc. 29 at 4). Under the NJCFA, an omission is actionable “where the defendant (1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Id.

Plaintiffs’ Complaint alleges that Defendant Camelback failed to include any information in its advertisements with respect to the protections from tort liability it enjoyed under Pennsylvania law. Specifically, Plaintiffs’ Complaint alleges the following:

Camelback knew that their [sic] advertising heavily in New Jersey induced New Jersey residents to attend Camelbacks [sic] site in Pennsylvania. Camelback knew that it had immunity granted to it through the legislation passed by the Pennsylvania Legislature but at no time did Camelback ever tell New Jersey residences [sic] that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback. Knowing full well that they [sic] had this immunity, Camelback elected not to notify any of [*7] the invitees to their [sic] site about the immunity.

(Doc. 1-1 at ¶ 14).2 Defendant Camelback argues that this is insufficient to state a claim under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that “Camelback knew and should have advised the skiing public [through its advertisements] . . . that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback by the Pennsylvania Legislature.” (Doc. 29 at 4).

2 Additionally, and somewhat confusingly, the Complaint also alleges that “Camelback misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences [sic] can use Camelback facilities for snow skiing.” (Doc. 1-1 at ¶ 17). This singular statement is in stark contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact engage in snow skiing at Camelback.

The inaptly described “immunity clause” Plaintiffs refer to is no doubt the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S. § 7102(c). The Act states:

(c) Downhill skiing.–

(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth, It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by [42 Pa. C.S. § 7102(a)-(a.1)]

42 Pa. C.S. § 7102, The Pennsylvania Supreme Court has made clear that “the Act did [*8] not create a new or special defense for the exclusive use of ski resorts, but instead kept in place longstanding principles of common law.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Id. In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Id.

Thus, the Court arrives at the question of whether Plaintiffs’ state a claim under the NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing facility to New Jersey residents but failed to include a disclaimer with respect to the Pennsylvania Skier’s Responsibility Act or the common law doctrine of voluntary assumption of risk. As this is a question of New Jersey state law, this Court must turn to the decisions of that state’s courts for an answer. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any [*9] New Jersey case–and the Court’s own research did not uncover any–that squarely addresses this issue. Nor have New Jersey courts apparently addressed the analogous issue of whether, under the NJCFA, advertisers are ever obliged to educate the public on the law applicable to their product absent other specific authority requiring such disclosures. Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule on the matter. Id. For the following reasons, this Court predicts that the New Jersey Supreme Court would find that such a claim is not cognizable under the NJCFA.

First, this is simply not the type of omission contemplated by the NJCFA. The Court is cognizant of the fact the NJCFA “is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez, 25 A.3d at 1115 (internal citations and quotation marks omitted). Additionally, the Court is aware that “[t]he statutory and regulatory scheme is . . . designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.” Div. of Consumer Affairs v. Gen. Elec. Co., 244 N.J. Super. 349, 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990). [*10] Nevertheless, the NJCFA has limits. To qualify as an unlawful practice under the NJCFA, “[t]he practice must be misleading and outside the norm of a reasonable business practice.” Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see also Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 110 A.3d 137, 144 (N.J. Super. Ct. App. Div. 2015). Indeed, the “advertisement must have ‘the capacity to mislead the average consumer in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 A.2d 361, 379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact. Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of fact, is not misleading, and does not fall outside the norm of reasonable business practices.

Plaintiffs’ allege that Defendant Camelback failed to provide information in its advertisements concerning the Pennsylvania Skier’s Responsibility Act and the common law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal defenses to liability which a business may assert in the event of a lawsuit is not information normally included in an advertisement, as both parties have equal access to that information. Consequently, Defendant Camelback’s alleged failure to include such information does not imply its nonexistence and is therefore not [*11] misleading nor outside of the norm of a reasonable business practice. As such, omissions of this type are not actionable under the NJCFA.

Second, a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (“[A] citizen . . . is presumed to know the law . . . .”); Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) (“Private citizens are presumed to know the law . . . .”); State v. Moran, 202 N.J. 311, 997 A.2d 210, 216 (N.J. 2010) (“Every person is presumed to know the law.”); Maeker v. Ross, 219 N.J. 565, 99 A.3d 795, 802 (N.J. 2014) (“[E]veryone is presumed to know the law . . . .”); Widmer v. Mahwah Twp., 151 N.J. Super. 79, 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977) (“[T]he principle is well established that every person is conclusively presumed to know the law, statutory and otherwise.”); cf. Commonwealth v. McBryde, 2006 PA Super 289, 909 A.2d 835, 838 (Pa. Super. Ct. 2006) (“[E]veryone is presumed to know the law; an out-of-state driver is not absolved from following the laws of this Commonwealth or any other state in which he or she chooses to drive.”). Thus, as a matter of law, Defendant Camelback’s advertisement did not have the capacity to mislead because the law presumes that Plaintiffs–and everyone else for that matter–already knew the information Defendant Camelback allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to inform its prospective customers of what they [*12] already know.3

3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that Defendant Camelback made an affirmative misrepresentation of the law in its advertisements. Nevertheless, such a situation is not presently before this Court.

Finally, if this Court were to come to the opposite conclusion, businesses would have almost unending liability. For example, a Pennsylvania retailor may be liable under the NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a disclaimer stating that a customer injured at the store by an employee’s negligence may have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. § 7102(a) (“[A]ny damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”). Or a marketer of a curling iron may be liable under the NJCFA for failing to disclose to consumers that, even if they are injured due to a design flaw in the product, the users may not be able to recover for their injuries if “there was no reasonable alternative design” for the curling iron at the time of manufacturing. See Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518, 520 (N.J. 2000) (quotation marks omitted); see also N.J. Stat. Ann. § 2A:58C-3(a)(1). Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.

V. Conclusion

For the reasons outlined above, this Court will grant Defendant Camelback Mountain [*13] Ski Resort’s Motion to Dismiss Plaintiffs’ claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW. THIS 29th DAY OF JUNE, 2017, upon consideration of Defendant Camelback Mountain Ski Resort’s partial Motion to Dismiss, (Doc.20), IT IS HEREBY ORDERED THAT the Motion is GRANTED. Count II of Plaintiffs’ Complaint, (Doc. 1-1), is DISMISSED WITH PREJUDICE.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Court Judge


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


Final: 2015-2016 In bound ski/board fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of April 21, 2016. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Red type is natural or medical conditions that occurred inbounds on the slopes

Green Type is Fatalities while sledding at the Resort

Blue Type is a Lift Accidents

Purple Tye is Employee or Ski Patroller

2015 – 2016 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

Ref # 2

1

11/29/15

CA

Bear Mountain

 

 

she collided with a metal stairway

 

Ski

21

F

Jackson Township CA

 

http://rec-law.us/1HAkwAp

http://rec-law.us/1LJ13sm

2

12/7/15

WY

Jackson Hole

Moran Run

Blue

Hit tree

 

Board

23

F

Boston, MA

Y

http://rec-law.us/1OO1M1P

http://rec-law.us/1NGuZLh

3

12/15/15

CO

Steamboat

 

 

fell, landing face down in the snow

 

Ski

70

M

Louisville CO

 

http://rec-law.us/1TPTaHk

http://rec-law.us/1YksmR0

4

12/19/15

WA

Snoqualmie Pass

Silver Fir

 

tree-well

 

Ski

50

M

North Bend, WA

 

http://rec-law.us/1ZDDJG7

http://rec-law.us/1ms5yCF

5

12/22/15

WY

Jackson Hole

Sundance run

 

found inverted in a tree well

 

Ski

25

F

Jackson Hole, WY

Y

http://rec-law.us/1kwuRlK

http://rec-law.us/1mlDKjR

6

12/23/15

NY

Whiteface Lake Placid

Summit Express

Blue

fell and struck his head

blunt impact to the head

Board

26

M

Litiz, PA

N

http://rec-law.us/1P2BrJ2

 

7

12/23/15

CA

Bear Valley

 

 

 

 

Ski

71

M

 

 

http://rec-law.us/1JMVglS

http://rec-law.us/1OvzGUe

8

1/6/16

CO

Vail

 

 

 

tree well

Board

25

M

Avon, CO

 

http://rec-law.us/1ZqNv1y

http://rec-law.us/1ZYSDa6

9

1/12/16

UT

Park City

 

Intermediate

 

 

 

60

M

 

 

http://rec-law.us/1SNa4bx

 

10

1/20

CO

Keystone

Elk Run

 

Hit a tree

 

 

27

M

Boulder, CO

 

http://rec-law.us/1WtPfBv

http://rec-law.us/1or4JLh

11

1/24/16

VT

Mount Snow

Ripcord

Double Diamond

Hit Tree

Blunt Force Trauma

Board

57

M

Simsbury CT

Yes

http://rec-law.us/20r061U

http://rec-law.us/1KNgLDR

12

1/28/16

CO

Winter Park

 

 

 

 

Skier

24

M

Kalamazoo, MI

 

http://rec-law.us/1T5oZyT

 

13

1/30/16

ID

Solider Mountain

 

 

Hit building

 

Ski

14

F

Twin Falls, ID

Yes

http://rec-law.us/1NMwqDo

http://rec-law.us/1NMwqDo

14

2/3/16

PA

Blue Mountain Ski Area

 

 

 

blunt-force trauma

 

35

M

Tacoma, WA

 

http://rec-law.us/1VQlo5H

http://rec-law.us/1QL2hJ1

15

2/6

CA

Mt. Waterman

 

 

struck a tree

 

 

60

M

Winnetka, CA

 

http://rec-law.us/1RfvH4l

http://rec-law.us/1o6o30m

16

2/6

WI

Cascade Mountain Ski Hill

 

 

struck a tree

 

 

24

F

Oconto Falls, WI

No

http://rec-law.us/23RlSyy

http://rec-law.us/1LgT3js

17

2/6

UT

Park City Mtn Resort

Tombstone

 

collapsed

 

 

67

M

UT

 

http://rec-law.us/1K9Ehjw

 

18

2/15/16

VT

Burke Mountain Ski Area

Big Dipper Trail

 

collided with a tree

 

 

58

M

Watertown

No

http://rec-law.us/1mFfMPZ

http://rec-law.us/1POEu8S

19

2/16

NV

Heavenly Mountain Resort

Crossover and Comet ski runs

 

striking a tree

 

 

77

F

Madison, WI

 

http://rec-law.us/1oMH9sR

http://rec-law.us/1Oi11sG

20

2/22/16

UT

Snowbasin Ski

Janis’ trail

 

crashing into a tree,

 

 

56

M

NJ

N

http://rec-law.us/1Ukt7uB

 

21

2/22/16 (2/15)

CO

Aspen

 

Taking Lesson

Fell down

Head injury

 

68

M

CO,

 

http://rec-law.us/1SQuxxt

http://rec-law.us/1RYUVnJ

22

2/22/16

NY

Gore Mountain Ski Center

 

Double Black Diamond

struck several trees

 

 

65

M

Minerva, NY

Y

http://rec-law.us/1p1jSDG

http://rec-law.us/1VCcFnT

23

2/25

CO

Beaver Creek

 

Intermediate

Hit a sign attached to a wooden post between runs

blunt force trauma to the chest

 

39

M

Knoxville, TN

Y

http://rec-law.us/1QdvDQj

http://rec-law.us/1OFH6UP

24

2/26

MI

Crystal Mountain

Cheers Race Course

Intermediate

Lost control & slid backward

 

 

58

M

Traverse City, MI

Y

http://rec-law.us/1QdvDQj

http://rec-law.us/1n8gDJ7

25

2/27

PA

Seven Springs

Wagner Trail

 

Skier v. Skier Collision

 

 

51

M

Delmont

 

http://rec-law.us/1RA8V5e

http://rec-law.us/1LPZcnc

26

2/27

 

Squaw Valley resort

Headwall

 

fell and slid down the slope through a stand of trees, suffering multiple injuries

 

 

62

F

Olympic Valley

Y

http://rec-law.us/1Qh8MDD

http://rec-law.us/1Qh8MDD

27

3/1

CO

Breckenridge Ski Resort

Sundown

intermediate

he collided with another skier, lost control and ran into a tree

blunt force trauma injuries

 

26

M

Breckenridge, CO

N

http://rec-law.us/24BbQ4W

http://rec-law.us/1Slbxq4

28

 

 

Beaver Mountain Ski Resort

 

 

struck a tree

 

 

18

M

Camano Island, WA

 

http://rec-law.us/1TeeLg2

http://rec-law.us/1pqgmD5

 

3/6

WI

Cascade Mountain Ski Hill

 

 

running into a tree

 

 

 

F

Oconto Falls, WI

N

http://rec-law.us/21NEvov

 

30

3/6

NV

Mt. Rose Ski Tahoe

Galena run

 

reportedly fallen or collapsed

 

 

43

M

Reno, NV

 

http://rec-law.us/1SCRgwi

http://rec-law.us/1UYgTbw

31

3/9

CO

Telluride Ski Resort

Gold Hill

 

lost his skis and tumbled down a steep, wooded terrain

 

 

49

M

Colorado Springs, CO

 

http://rec-law.us/1SCRNOV

 

32

3/9

CO

Copper Mountain

American Flyer

Intermediate

hit a tree

blunt force trauma injuries

 

19

M

Arlington, VA

Y

http://rec-law.us/1UiqHfC

http://rec-law.us/1RDR0Z3

33

 

MT

 

 

 

in some trees near a ski lift

 

 

82

M

CA

 

 rec-law.us/1P223JC

 

34

3/19

CO

Telluride

Coonskin

Black Diamond

skis detached from his boots

crashed into trees

 

69

M

Greenwood, S.C.

 

http://rec-law.us/1PkTF86

http://rec-law.us/1Mxk4Qr

35

3/20

UT

Snowbird

Chip’s Run

 

 

hit a rock before losing control and colliding with the tree

 

57

M

 

 

http://rec-law.us/22s5Wog

http://rec-law.us/1o2dk6Q

36

3/24

CO

Steamboat Ski Area

Nastar Course

 

Fell

 

 

 

M

 

 

http://rec-law.us/1pBsUqX

http://rec-law.us/1UkfUTM

37

3/27

NH

Cannon Mtn

Upper Ravine Trail

 

sharp turn and struck a tree

Massive head trauma

 

29

M

Holden, MA

N

http://rec-law.us/1ZGeNNQ

http://rec-law.us/1ohdGXo

38

4/2

UT

Park City

 

Advanced

collided with a tree

 

 

48

M

Aspen, CO

 

http://rec-law.us/1UPNphr

http://rec-law.us/1V4mVbn

39

4/4

CO

Breckenridge

Tiger

Expert

Collided with another skier

 

 

43

M

Randolph, NJ

 

http://rec-law.us/23earj6

http://rec-law.us/1UTCSSn

40

4/6

CO

Breckenridge

Claimjumper

Intermediate

snowboarder collided with a tree

blunt force trauma

Board

32

M

 

Y

http://rec-law.us/1WlGz2t

http://rec-law.us/1SdftL9

41

4/9

ID

Bald Mountain Ski Area

Upper Greyhawk

 

speed flying

 

Ski

24

M

 

 

http://rec-law.us/1WBxSBf

http://rec-law.us/26cPR4Z

42

4/20

CO

Breckenridge Ski Area

Monte Cristo

 

hitting a tree

blunt force trauma injuries

Ski

20

F

Denver, CO

Y

http://rec-law.us/1YTB0qR

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 If you cannot read the entire chart you can download a PDF here: 2015 – 2016 Ski Season Deaths 6.15.16

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.

If you cannot read the entire chart you can download it here.

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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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Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

Two decisions, if allowed to stand, will change the ski industry immensely. The standard of care owed to a passenger on a chairlift will drop considerably and allow ski areas a defense for the first time. At the same time, it should eliminate lawsuits by people who haven’t or should not be on a chairlift to begin with.

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

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

Plaintiff: Teresa Brigance

Defendant: Vail Summit Resorts, Inc.

Plaintiff Claims: for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115

Defendant Defenses: Colorado Premises Liability Act

Holding: for Defendant in dismissing some of the plaintiff’s claims

Year: 2016

This is another decision in a case that is probably still on going. The decision is a response to motions, there could still be a trial and appeal of all of the issues examined here.

Vail, owner of Keystone Ski Area where this accident occurred was sued for an injury a skier received getting off the lift. The plaintiff was taking a lesson from an instructor, an employee of the ski area. She was instructed on how to load and unload the lift. (I’m guessing she was a beginner based on this statement.) While unloading from the lift the back of her ski boots became wedged under the lip of the chair resulting in an injury to the plaintiff.

(That happens all the time loading a chair lift to me. My boots are high in the back, and a lot of chairs catch them. I can get money for that? I should ski every day and quit this job. Wait, this job doesn’t pay at all!)

The plaintiff sued. Vail filed a motion to dismiss the parts of the complaint and amended complaint of the plaintiff.

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

The court first looked at Vail’s argument the negligence and negligence per se claims should be dismissed. The court defined a negligence per se claim differentiating it from a negligence claim.

In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.”

Negligence per se occurs when the defendant violates a statute that the defendant was required to follow and the statute was intended to protect the person or the public from injury.

Vail’s argument was the complaint did not identify a specific statute that was violated. The complaint referred to the Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act, but not a particular part of either act that was violated.

The Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act both allow for negligence per se claims.

Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

However, the plaintiff failed to identify the specific part of the statute that was violated by the defendant. Even if an act was identified, the violation of the act must be clearly established by the plaintiff.

Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a statute, “the violation of which can be clearly established. In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.

The negligence per se claims were dismissed because the plaintiff failed to identify the specific act and the specific injury the act was created to prevent.

The next issue was the application of the Colorado Premises Liability Act to the facts. The defendant Vail had argued in an earlier decision (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) that the Premises Liability Act preempted the Colorado Skier Safety Act. The same argument was being made here.

The Colorado Premises Liability Act contains the following provision.

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.

This provision was further supported in an earlier Colorado Supreme Court decision, Vigil v. Franklin, which held the Premises Liability Act preempted all other types and forms of liability of a landowner. “Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.

The common law negligence claim no longer exists against a landowner, is it now a Premises Liability Act claim. This was supported earlier in the Raup decision, (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) “…holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act and must be dismissed.”

In this case, the incident occurred on land of the defendant.

Claim One is a common law negligence claim. Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.”

The plaintiff argued that a negligence claim survives because of the Defendant’s failure to “maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.”

However, the court found the plaintiff’s argument actually proved the issue. The incident occurred on the ground.

The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act.

The court went further to state the operation of the chair lift occurs on the land, is conducted on the ground that is the Defendants thus it is controlled by the Premises Liability Act.

Consequently, the plaintiff’s negligence claims were against a landowner and were preempted by the Colorado Premises Liability Act.

The final issue before the court was the defendant’s arguments that the claims against the individuals, the liftie and the ski instructor were duplicative in that as employees of the defendant, if proven the defendant was liable anyway. So those claims were the same as the other claims against the defendant Vail and should be dismissed. The court agreed.

So Now What?

The result is that instead of owing a skier on a chair lift the highest degree of care, that of a common carrier, the ski area owes a degree of care set forth to an invitee of a landowner.

13-21-115. Actions against landowners

(3)(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.

That degree of care is the unreasonable failure to exercise reasonable care to protect against dangers which the landowner knew about or should have known about. This standard of care is significantly lower than that of a common carrier.

Again, this case is not over so the results could change!

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Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.

Case is a major change in the liability of a ski area to the skiers and boarders who ride any lift in Colorado.

Raup, v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 11499

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

Plaintiff: Carolyn S. Raup

Defendant: Vail Summit Resorts, Inc.

Plaintiff Claims: Premises Liability Act, and for negligence, including negligence per se

Defendant Defenses: The negligence claims are Colorado Premises Liability Act

Holding: for the Defendant

Year: 2016

This case may be ongoing the decision may not be final. However, the ruling is game changing and changes a large section of the law in Colorado.

The plaintiff was riding a chairlift at one of the defendants Vail resorts during the summer. The Colorado Tramway Act requires lifts operated during the summer to have a comfort bar available to riders. As the plaintiff and two other riders were approaching the top terminal, they had intended to ride the lift back down.

The liftie (top terminal lift employee), ran out and started yelling at the rides to raise the safety bar and exit the lift.

The plaintiff and friends did not understand or know that riding around the terminal would trigger the emergency stop. The riders also did not know that the download capacity of a lift is very different from the upload capacity of the lift. Many times that download capacity is 25 to 33% of the upload capacity. That means instead of loading every chair downhill you may only be allowed to load every third or fourth chair.

The other two riders were able to exit the lift running down the exit ramp. The plaintiff fell suffering severe injuries. The plaintiff brought this suit in the Federal District Court of Colorado. Vail moved to dismiss the claims of negligence and negligence per se brought by the plaintiff.

The court granted Vail’s motion with the following analysis.

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

The court first looked at the requirements for the plaintiff to survive a motion to dismiss under Colorado law.

To survive a motion to dismiss under Rule 12(b)(6), the party asserting the claim “must allege that ‘enough factual matter, taken as true, [makes] his claim for relief … plausible on its face.'” (quotation and internal quotation marks omitted). “A claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’

Thus, a party asserting a claim “must include enough facts to ‘nudge[] h[er] claims across the line from conceivable to plausible.

A motion to dismiss is filed normally before the defendant has filed an answer to the complaint. The motion is filed when their allegations in the complaint are not supported by the law or misstate the law. The court rarely grants these motions because as started above, there must be just a plausible claim to survive.

In this case, the issue was the claims of the plaintiff were not available under the law. Meaning the law did not allow the plaintiff to make those types of claims against a defendant.

In this case, the Colorado Premises Liability Act, the act which controls the liability of a landowner to people on his land, was the only way the plaintiff could sue. More importantly, did the Colorado Premises Liability Act preclude not only common law claims (negligence) against a landowner but also claims brought under the Colorado Skier Safety Act based on a ski area being the landowner.

An earlier interpretation by the Colorado Supreme Court in two different cases preempted the common law claims. “

I agree with Vail that the Vigil and Lombard cases make clear that all common law claims involving landowner duties, including negligence and negligence per se claims, are abrogated by the Premises Liability Act which provides the exclusive remedy.

The plaintiff argued the Colorado Tramway Act still allowed negligence claims. The act was  interpreted by a Supreme Court Decision in Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 80 (Colo. 1998), which held the ski area owed the highest degree of care to a rider on a chair lift, that of a common carrier.

However, the court found that Bayer had preempted by the Vigil act quoted above.

Six years after Bayer, the Colorado Supreme Court in Vigil made clear that the Premises Liability Act preempted all common law claims and provided the sole method of recovering against a landowner. Vigil, 103 P.3d at 328. The fact that Vigil did not reference Bayer does not change this result.

The plaintiff then argued the acts of the leftie were negligent and created a separate claim for negligence. However, again, the court found the actions were covered by the Premises Liability Act.

Vail’s duty of care to invitees such as Plaintiff is defined under the Premises Liability Act, which makes clear that it applies in actions by a person who alleges injury while on the property of another and by reasons of either the condition of the property or activities conducted on the property. This encompasses the allegations at issue in this case, including the injuries allegedly sustained by Plaintiff by activities of Vail’s employee in ordering Plaintiff and her fellow passengers to disembark from the chairlift. As such, the Premises Liability Act provides the only standard for recovery.

The court granted Vail’s motion to dismiss and dismissed the plaintiff’s negligence claims leaving only the premises liability claims.

So Now What?

Does this mean there is now a lower duty owed to riders of chairlifts in Colorado because they are classified as invitees under the Colorado Premises Liability Act? I don’t know.

However, it is clear; the Colorado Premises Liability Act supersedes all other recreational specific statutes that then limits the recovery against most recreation providers due to injuries on the land (or waters?).

REMEMBER, THIS CASE IS NOT OVER AND HAS NOT BEEN APPEALED. THE DECISION REVIEWED HERE COULD CHANGE.

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