Colorado District court judge rules a ski area release does not cover the back entrance to a restaurant

Season pass holder went in the back door of restaurant to warm up. Slipped and fell in kitchen on way back out. Ski area sued for broken elbow.

This case has a long way to go as the trial has not even occurred. However it is sort of interesting based on the limited information available. Basically the language of the release was not enough to stop a lawsuit over a slip and fall in a building on the mountain.

The basis for the judge’s ruling, based on the article, is the term “facility” is not defined in the release to include restaurants. More importantly no release probably covers the back door entrance.

Bigger will be the response by the ski area.

·         Will they put “employee only signs” on the back doors of all their buildings?

·         Will they modify their release to provide better coverage for their buildings

·         Will they put signs and mats down as the court seems to want?

Let me know your picks!

See Judge rules against SkiCo’s waiver in lawsuit

What do you think? Leave a comment.

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

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

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

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

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

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

33-14-116. Other operating restrictions

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

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

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

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

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

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

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

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

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

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

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

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

(iv) The agreement may not violate public policy.

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

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

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

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

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

So?

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

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

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

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

What do you think? Leave a comment.

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

© 2010 James H. Moss

 

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