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Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397

Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397

Teresa Brigance, Plaintiff – Appellant, v. Vail Summit Resorts, Inc., Defendant – Appellee.

No. 17-1035

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2018 U.S. App. LEXIS 397

January 8, 2018, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:15-CV-01394-WJM-NYW).

Brigance v. Vail Summit Resorts, Inc., 2017 U.S. Dist. LEXIS 5447 (D. Colo., Jan. 13, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-In an action brought by an injured skier, an examination of each of the Jones v. Dressel factors for determining the enforceability of an exculpatory agreement led to the conclusion that none of them precluded enforcement of a Ski School Waiver or Lift Ticket Waiver. The factors included the existence of a duty to the public, the nature of the service performed, whether the contract was fairly entered into, and whether the intention of the parties was expressed in clear and unambiguous language; [2]-The district court properly determined that the provisions of the Colorado Ski Safety Act of 1979 and the Passenger Tramway Safety Act had no effect on the enforceability of defendant ski resort’s waivers. Colorado law had long permitted parties to contract away negligence claims in the recreational context; [3]-The skier’s claims were barred by the waivers.

OUTCOME: The court affirmed the district court’s grant of summary judgment in favor of the ski resort and the partial grant of the resort’s motion to dismiss.

CORE TERMS: ski, exculpatory, skiing, lift ticket, recreational, lesson, lift, ski area, practical necessity, recreational activities, public policies, bargaining, skier, inherent dangers, unenforceable, service provided, essential service, inherent risks, discovery, holder, signer, summary judgment, riding, equine, common law, ski lifts, negligence per se, quotation marks omitted, practically, harmless

COUNSEL: Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff – Appellant.

Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant – Appellee.

JUDGES: Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.

OPINION BY: McHUGH

OPINION

McHUGH, Circuit Judge.

During a ski lesson at Keystone Mountain Resort (“Keystone”), Doctor Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance filed suit against Vail Summit Resorts, Inc. (“VSRI”), raising claims of (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted VSRI’s motion for summary judgment on the remaining claims, concluding the waiver Dr. Brigance signed before participating [*2] in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

Keystone is a ski resort located in Colorado that is operated by VSRI. In March 2015, Dr. Brigance visited Keystone with her family and participated in a ski lesson. At the time, ski lesson participants, including Dr. Brigance, were required to sign a liability waiver (the “Ski School Waiver”) before beginning their lessons. The Ski School Waiver signed1 by Dr. Brigance contained, among other things, the following provisions:

RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT

THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.

. . .

2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a “skier” (as may be defined by statute or other applicable law).

3. I expressly acknowledge and assume all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers [*3] and risks of the Activity, including but not limited to: Falling; free skiing; following the direction of an instructor or guide; . . . equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . the negligence of Participant, Ski Area employees, an instructor . . . or others; . . . lift loading, unloading, and riding; . . . . I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.

4. Participant assumes the responsibility . . . for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts. . . .

. . .

6. Additionally, in consideration for allowing the Participant to participate in the Activity, I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION [*4] IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL NEGLIGENCE . . . .

Aplt. App’x at 117 (emphasis in original).

1 Although VSRI did not produce an original or copy of the Ski School Waiver signed by Dr. Brigance, it provided evidence that all adults participating in ski lessons at Keystone are required to sign a waiver and that the Ski School Waiver was the only waiver form used by VSRI for adult ski lessons during the 2014-15 ski season. Before it was clear that VSRI could not locate its copy of the signed waiver, Dr. Brigance indicated in discovery responses and deposition testimony that she signed a waiver before beginning ski lessons. See Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4 (D. Colo. Jan. 13, 2017). Based on this evidence and Dr. Brigance’s failure to argue “that a genuine question remains for trial as to whether she did in fact sign the Ski School Waiver in the form produced or whether she agreed to its terms,” 2017 U.S. Dist. LEXIS 5447, [WL] at *4, the district court treated her assent to the Ski School Waiver as conceded and concluded that “there is no genuine dispute as to whether [Dr. Brigance] consented to the terms of the Ski School Waiver,” id.

On appeal, Dr. Brigance offers no argument and points to no evidence suggesting that the district court’s conclusion was erroneous in light of the evidence and arguments before it. Instead, she merely denies having signed the Ski School Waiver and reiterates that VSRI has yet to produce a signed copy of the waiver. But in response to questioning at oral argument, counsel for Dr. Brigance conceded that this court could proceed with the understanding that Dr. Brigance signed the Ski School Waiver. Oral Argument at 0:41-1:23, Brigance v. Vail Summit Resorts, Inc., No. 17-1035 (10th Cir. Nov. 13, 2017). Three days later, counsel for Dr. Brigance filed a notice with the court effectively revoking that concession.

Dr. Brigance’s assertion that she did not execute the Ski School Waiver is forfeited because she failed to adequately raise it as an issue below. Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016); see also Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4 (“[N]otwithstanding the absence of a signed copy of the [Ski School Waiver], [Dr. Brigance] does not argue that this issue presents a genuine dispute requiring trial.”). But even if we were to entertain the argument, it would fail to defeat summary judgment. Despite her obfuscation, VSRI’s inability to produce the signed Ski School Waiver and Dr. Brigance’s assertions that she did not sign the waiver–which contradict her discovery responses and deposition testimony–are insufficient to establish that the district court erred in concluding that no genuine dispute exists as to whether Dr. Brigance agreed to the terms of the waiver. [HN1] “Although the burden of showing the absence of a genuine issue of material fact” rests with the movant at summary judgment, “the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006) (internal quotation marks omitted). Indeed, the

party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A)–(B). Dr. Brigance made no such showing below, nor does she attempt to do so on appeal.

In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:

HOLDER AGREES AND UNDERSTANDS THAT SKIING . . . AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.

WARNING

Under state law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the [*5] ski area operator for any injury resulting from any of the inherent dangers and risks of skiing. Other risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder is responsible for having the physical dexterity to safely load, ride and unload the lifts and must control speed and course at all times. . . . Holder agrees to ASSUME ALL RISKS, inherent or otherwise. Holder agrees to hold the ski area harmless for claims to person or property. . . .

. . .

NO REFUNDS. NOT TRANSFERABLE. NO RESALE.

Id. at 121 (emphasis in original).

After receiving some instruction during her ski lesson on how to load and unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed Dr. Brigance forward, fracturing her femur.

B. Procedural Background

Dr. Brigance filed suit against VSRI in the United States District Court for the District of Colorado as a result of the injuries she sustained while attempting to unload [*6] from the Discovery Lift.2
In her amended complaint Dr. Brigance alleged that the short distance between the ground and the Discovery Lift at the unloading point–coupled with the inadequate instruction provided by her ski instructor, the chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and supervision of employees–caused her injuries. She consequently asserted the following six claims against VSRI: (1) negligence; (2) negligence per se; (3) negligent supervision and training; (4) negligence (respondeat superior); (5) negligent hiring; and (6) liability under the PLA.

2 The district court properly invoked diversity jurisdiction because Dr. Brigance is a citizen of Florida and VSRI is a Colorado corporation with its principal place of business in Colorado, and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1332(a), (c)(1)(B)–(C).

VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of her respondeat superior and PLA claims. The district court granted in part and denied in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance I“), No. 15-cv-1394-WJM-NYM, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *1-5 (D. Colo. Mar. 11, 2016). It dismissed Dr. Brigance’s negligence claim as preempted by the PLA. 2016 U.S. Dist. LEXIS 31662, [WL] at *3-4. It also dismissed her negligence per se claim, concluding that she “fail[ed] to identify any requirement” of the Colorado Ski Safety Act of 1979 (the “SSA”), Colo. Rev. Stat. §§ 33-44-101 to -114, that VSRI had allegedly violated. Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2. In dismissing this claim, the district court also held that the [*7] provisions of the Passenger Tramway Safety Act (the “PTSA”), Colo. Rev. Stat. §§ 25-5-701 to -721, relied upon by Dr. Brigance “do[ ] not provide a statutory standard of care which is adequate to support [a] claim for negligence per se.” Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr. Brigance’s claims regarding negligent supervision and training and negligent hiring. 2016 U.S. Dist. LEXIS 31662, [WL] at *4-5.

Upon completion of discovery, VSRI moved for summary judgment on the basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr. Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA claim and (2) her common-law negligence claims are preempted by the PLA and otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in part that the waivers are unenforceable under the SSA and the four-factor test established by the Colorado Supreme Court in Jones v. Dressel, 623 P.2d 370 (Colo. 1981). Dr. Brigance also asserted that her common-law negligence claims are not preempted by the PLA and that she presented sufficient evidence to allow her claims to be heard by a jury.

The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *10 (D. Colo. Jan. 13, 2017) [*8] . It determined that the Ski School Waiver and Lift Ticket Waiver are enforceable under the factors established by the Colorado Supreme Court in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *5-9. It then determined that all of Dr. Brigance’s remaining claims fall within the broad scope of the waivers and are therefore barred. 2017 U.S. Dist. LEXIS 5447, [WL] at *10. This appeal followed.

II. DISCUSSION

Dr. Brigance challenges the district court’s enforcement of both the Ski School Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and negligence per se claims. [HN2] “[B]ecause the district court’s jurisdiction was based on diversity of citizenship, [Colorado] substantive law governs” our analysis of the underlying claims and enforceability of the waivers. Sylvia v. Wisler, 875 F.3d 1307, 2017 WL 5622916, at *3 (10th Cir. 2017) (internal quotation marks omitted). We “must therefore ascertain and apply [Colorado] law with the objective that the result obtained in the federal court should be the result that would be reached in [a Colorado] court.” Id. (internal quotation marks omitted). In doing so, “we must defer to the most recent decisions of the state’s highest court,” although “stare [*9] decisis requires that we be bound by our own interpretations of state law unless an intervening decision of the state’s highest court has resolved the issue.” Id. (internal quotation marks omitted).

Although the substantive law of Colorado governs our analysis of the waivers and underlying claims, [HN3] federal law controls the appropriateness of a district court’s grant of summary judgment and dismissal of claims under Federal Rule of Civil Procedure 12(b)(6). See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). We therefore review the district court’s grant of summary judgment and dismissal of claims pursuant to Rule 12(b)(6) de novo, applying the same standards as the district court. Id.; see also Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *4, 16. “However, we may affirm [the] district court’s decision[s] on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Stickley, 505 F.3d at 1076 (internal quotation marks omitted).

“Summary judgment should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *16 (internal quotation marks omitted). Because it is undisputed that all of Dr. Brigance’s claims–including those dismissed pursuant [*10] to Rule 12(b)(6)–fall within the broad scope of either waiver if they are deemed enforceable under Colorado law, the first, and ultimately only, question we must address is whether the Ski School Waiver and Lift Ticket Waiver are enforceable.

[HN4] Under Colorado law, “exculpatory agreements have long been disfavored,” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). See also Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016) (“Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct.”). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza, 809 F.3d at 1152; accord Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Neither does it always preclude exculpatory agreements as to claims of negligence per se. Espinoza, 809 F.3d at 1154-55.

Accordingly, [HN5] the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the [*11] contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” J/ones, 623 P.2d at 376. It appears that if an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable. Although consideration of these factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that “other public policy considerations” not necessarily encompassed in the Jones factors may invalidate exculpatory agreements. See Boles, 223 P.3d at 726 (“[M]ore recently, we have identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.”); see, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-37 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107.

The district court examined each of the Jones factors and concluded that none of them preclude enforcement of the Ski School Waiver or Lift Ticket Waiver. Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *5-8. It also determined that the provisions of the SSA and PTSA “have no effect on the enforceability” of the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *9. We agree.

A. The Jones Factors

1. Existence of a Duty to the Public

[HN6] The first Jones factor requires us to examine whether there is an “existence of a duty to the public,” Jones, 623 P.2d at 376, or, described another way, “whether [*12] the service provided involves a duty to the public,” Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002). The Colorado Supreme Court has not specified the precise circumstances under which an exculpatory agreement will be barred under this factor, but it has explained that unenforceable exculpatory agreements

generally involve businesses suitable for public regulation; that are engaged in performing a public service of great importance, or even of practical necessity; that offer a service that is generally available to any members of the public who seek it; and that possess a decisive advantage of bargaining strength, enabling them to confront the public with a standardized adhesion contract of exculpation.

Chadwick, 100 P.3d at 467. The Colorado Supreme Court has expressly “distinguished businesses engaged in recreational activities” from the foregoing class of businesses because recreational activities “are not practically necessary” and therefore “the provider[s of such activities] owe[ ] no special duty to the public.” Id.; see also Espinoza, 809 F.3d at 1153 (“Though some businesses perform essential public services and owe special duties to the public, the [Colorado Supreme] [C]ourt has held that ‘businesses engaged in recreational activities’ generally do not.” (quoting Chadwick, 100 P.3d at 467)).

And, indeed, [*13] Colorado courts examining exculpatory agreements involving recreational activities under Colorado law have almost uniformly concluded that the first Jones factor does not invalidate or render unenforceable the relevant agreement. See, e.g., Chadwick, 100 P.3d at 467-69; Jones, 623 P.2d at 376-78; Stone v. Life Time Fitness, Inc., No. 15CA0598, 2016 COA 189M, 2016 WL 7473806, at *3 (Colo. App. Dec. 29, 2016) (unpublished) (“The supreme court has specified that no public duty is implicated if a business provides recreational services.”), cert. denied, No. 17SC82, 2017 Colo. LEXIS 572, 2017 WL 2772252 (Colo. Jun. 26, 2017); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011) (“Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.”); see also Espinoza, 809 F.3d at 1153-56; Mincin, 308 F.3d at 1110-11; Patterson v. Powdermonarch, L.L.C., No. 16-cv-00411-WYD-NYW, 2017 U.S. Dist. LEXIS 151229, 2017 WL 4158487, at *5 (D. Colo. July 5, 2017) (“Businesses engaged in recreational activities like [defendant’s ski services] have been held not to owe special duties to the public or to perform essential public services.”); Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (“Providing snowmobile tours to the public does not fall within” the first Jones factor.); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (holding white-water rafting is recreational in nature and is therefore “neither a matter of great public importance nor a matter of practical necessity” (internal quotation marks omitted)), aff’d sub nom., Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997).

The relevant services provided by VSRI–skiing and ski lessons–are [*14] clearly recreational in nature. Like horseback riding and skydiving services, see Chadwick, 100 P.3d at 467; Jones, 623 P.2d at 377, skiing and ski lessons are not of great public importance or “matter[s] of practical necessity for even some members of the public,” Jones, 623 P.2d at 377. They therefore do not implicate the type of duty to the public contemplated in the first Jones factor. Although it appears the Colorado Supreme Court and Colorado Court of Appeals have yet to address the first Jones factor within the context of skiing or ski lesson services, the few courts that have considered similar issues have reached the unsurprising conclusion that ski-related services are recreational activities and do not involve a duty to the public. See, e.g., Rumpf v. Sunlight, Inc., No. 14-cv-03328-WYD-KLM, 2016 U.S. Dist. LEXIS 107946, 2016 WL 4275386, at *3 (D. Colo. Aug. 3, 2016); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992).

Dr. Brigance fails to address the principle “that businesses engaged in recreational activities that are not practically necessary . . . do not perform services implicating a public duty.” Hamill, 262 P.3d at 949. Instead, she contends VSRI owes a duty to the public because the ski and ski lesson services provided by VSRI implicate a number of additional factors the California Supreme Court relied upon in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963), to determine whether an exculpatory agreement should be deemed invalid as affecting [*15] public interest.3 Specifically, Dr. Brigance contends VSRI owes a duty to the public because the Colorado ski industry is subject to express regulation under the SSA and PTSA, VSRI is willing to perform its services for any member of the public who seeks them, VSRI maintains an advantage in bargaining strength, and skiers are placed under the complete control of VSRI when riding their lifts.

3 Dr. Brigance separately argues that the waivers are invalid under the provisions and public policies contained within the SSA, PTSA, and PLA. Although she incorporates these arguments in her analysis of the first Jones factor, we address them separately in Section II.B, infra.

The Colorado Supreme Court has cited Tunkl and noted its relevance in determining whether a business owes a duty to the public. Jones, 623 P.2d at 376-77. But when analyzing the first Jones factor, particularly within the context of recreational services, courts applying Colorado law focus on and give greatest weight to whether the party seeking to enforce an exculpatory agreement is engaged in providing services that are of great public importance or practical necessity for at least some members of the public. See, e.g., Espinoza, 809 F.3d at 1153-54; Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 896-97 (D. Colo. 1998); Potter, 849 F. Supp. at 1409; Jones, 623 P.2d at 376-77; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. And the additional factors listed by Dr. Brigance are insufficient to establish that the recreational services offered by VSRI are of great public importance or practically necessary. An activity does not satisfy the first Jones factor simply because it is subject to state regulation. [*16] As we have explained, the first Jones factor does not

ask whether the activity in question is the subject of some sort of state regulation. Instead, [it] ask[s] whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational one. [Jones,] 623 P.2d at 376-77. And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one. After all, state law imposes various rules and regulations on service providers in most every field these days–including on service providers who operate in a variety of clearly recreational fields.

Espinoza, 809 F.3d at 1154; see also Chadwick, 100 P.3d at 467-68. Furthermore, Dr. Brigance’s argument regarding VSRI’s bargaining strength is more properly addressed under the third Jones factor, and her remaining arguments concerning VSRI’s willingness to provide services to the public and its control over skiers are not sufficiently compelling to sway us from departing from the principle “that [HN7] no public duty is implicated if a business provides recreational services.” [*17] Stone, 2016 COA 189M, 2016 WL 7473806, at *3.

The district court therefore did not err in concluding that the first Jones factor does not render the Ski School Waiver and the Lift Ticket Waiver unenforceable.

2. Nature of the Service Performed

[HN8] Under the second Jones factor, we examine “the nature of the service performed.” Jones, 623 P.2d at 376. Analysis of this factor is linked to and in many respects overlaps the analysis conducted under the first Jones factor, as it calls for an examination of whether the service provided is an “essential service” or a “matter of practical necessity.” See Espinoza, 809 F.3d at 1153; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. As is evident from our discussion of the first Jones factor, Colorado “courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3; see also Chadwick, 100 P.3d at 467 (noting “recreational activities . . . are not practically necessary”); Jones, 623 P.2d at 377-78 (holding the skydiving service provided by defendants “was not an essential service”); Hamill, 262 P.3d at 949 (acknowledging recreational camping and horseback riding services are not essential or matters of practical necessity). And as previously established, the ski and ski lesson services offered by VSRI are recreational in nature and therefore, like other recreational activities examined by this and other [*18] courts, cannot be deemed essential or of practical necessity. See, e.g., Mincin, 308 F.3d at 1111 (“[M]ountain biking is not an essential activity.”); Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational service, not an essential service”); Rowan, 31 F. Supp. 2d at 897 (“[S]kiing is not an essential service.”); Potter, 849 F. Supp. at 1410 (disagreeing with plaintiff’s argument that “ski racing for handicapped skiers rises to the level of an essential service [as] contemplated by Colorado law”); Bauer, 788 F. Supp. at 474 (noting “free skiing[, equipment rentals, and ski lessons] for travel agents do[ ] not rise to the level of essential service[s] contemplated by Colorado law.”).

Dr. Brigance raises no argument specific to this factor other than asserting that “the ski industry is a significant revenue generator for the State of Colorado” and the services provided by VSRI are “public [in] nature.” Aplt. Br. 47. Dr. Brigance cites no authority suggesting that either factor would render the recreational services provided by VSRI essential in nature. And given Colorado courts’ assertion that “recreational services [are] neither essential nor . . . matter[s] of practical necessity,” Stone, 2016 COA 189M, 2016 WL 7473806, at *3, we conclude the district court did not err in determining that the second Jones factor also does not dictate that the waivers be [*19] deemed unenforceable.

3. Whether the Waivers Were Fairly Entered Into

[HN9] The third Jones factor requires us to examine “whether the contract was fairly entered into.” Jones, 623 P.2d at 376. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 262 P.3d at 949 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989)). When engaging in this analysis, we examine the nature of the service involved, Espinoza, 809 F.3d at 1156, the circumstances surrounding the formation of the contract, id., and whether the services provided are available from a source other than the party with which the plaintiff contracted,
see Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 950.

The Colorado Court of Appeals has identified “[p]ossible examples of unfair disparity in bargaining power [as] includ[ing] agreements between employers and employees and between common carriers or public utilities and members of the public.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. It has also expressly acknowledged an unfair disparity in bargaining power in residential landlord-tenant relationships, presumably based in part on its holding “that housing rental is a matter of practical necessity to the public.” Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996). But the Colorado Court of Appeals has also held that “this type of unfair disparity [*20] is generally not implicated when a person contracts with a business providing recreational services.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. This is because recreational activities are not essential services or practically necessary, and therefore a person is not “at the mercy” of a business’s negligence when entering an exculpatory agreement involving recreational activities. Hamill, 262 P.3d at 949-50. As we have previously explained, “Colorado courts have repeatedly emphasized that . . . because recreational businesses do not provide ‘essential’ services of ‘practical necessity[,]’ individuals are generally free to walk away if they do not wish to assume the risks described” in an exculpatory agreement. Espinoza, 809 F.3d at 1157; see also Mincin, 308 F.3d at 1111 (noting that a disparity of bargaining power may be created by the “practical necessity” of a service, but that no such necessity existed because “mountain biking is not an essential activity” and therefore the plaintiff “did not enter into the contract from an inferior bargaining position”).

We reiterate, at the risk of redundancy, that the ski and ski lesson services offered by VSRI are recreational in nature and do not constitute essential services or matters of practical necessity. As a result, Dr. Brigance did not enter the Ski [*21] School Waiver or Lift Ticket Waiver from an unfair bargaining position because she was free to walk away if she did not wish to assume the risks or waive the right to bring certain claims as described in the waivers. This conclusion is supported by a number of cases involving similar recreational activities, including those we have previously addressed under the first two Jones factors. See, Jones, 623 P.2d at 377-78 (holding an exculpatory release related to skydiving services was not an unenforceable adhesion contract “because the service provided . . . was not an essential service” and therefore the defendant “did not possess a decisive advantage of bargaining strength over” the plaintiff); see also Squires, 829 F. Supp. 2d at 1071 (“Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage.”); Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (“[T]he recreational services offered by [defendant] were not essential and, therefore, [it] did not enjoy an unfair bargaining advantage.”); Bauer, 788 F. Supp. at 475 (“Here, defendants’ recreational services were not essential and, therefore, they did not enjoy an unfair bargaining advantage.”).

Moreover, the circumstances surrounding Dr. Brigance’s entry into the exculpatory agreements indicate she [*22] did so fairly. Dr. Brigance does not identify any evidence in the record calling into question her competency, ability to comprehend the terms of the agreements, or actual understanding of the agreements. Nor does she point to anything in the record reflecting an intent or attempt by VSRI to fraudulently induce her to enter the agreements or to conceal or misconstrue their contents. In addition, there is nothing in the record to suggest Dr. Brigance’s agreement to the terms of the Ski School Waiver was not voluntary. See Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4.

Notwithstanding the well-established law that exculpatory agreements involving businesses providing recreational services do not implicate the third Jones factor, Dr. Brigance argues her assent to the terms of the Lift Ticket Waiver was obtained unfairly and that VSRI had an advantage in bargaining strength. This is so, she contends, because she “did not have a chance to review the exculpatory language contained on the back of the non-refundable [lift] ticket before she purchased it” and that “[o]nce the ticket was purchased, she was forced to accept the exculpatory language or lose the money she invested.” Aplt. Br. 47. Dr. Brigance’s argument fails to account for her [*23] voluntary acceptance of the Ski School Waiver. And although Dr. Brigance asserts she “did not have a chance to review” the Lift Ticket Waiver before purchasing it, she does not identify any evidence that VSRI prevented her from reviewing the Lift Ticket Waiver before she used it to ride the Discovery Lift, and “Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these.” Espinoza, 809 F.3d at 1157. Most importantly, Dr. Brigance did not raise this argument below and does not provide a compelling reason for us to address it on appeal.4
See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”).

4 In fact, the district court noted that Dr. Brigance “neither disputes the relevant facts nor counters VSRI’s argument that she accepted the contractual terms of the Lift Ticket Waiver by skiing and riding the lifts.” Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4. As a result, the district court concluded Dr. Brigance had agreed to the terms of the Lift Ticket Waiver and would be bound to its terms to the extent it was otherwise enforceable. Id.

For these reasons, the district court did not err in concluding that the third Jones factor does not render the Ski School Waiver or the Lift Ticket Waiver unenforceable.

4. Whether the Parties’ Intent Was Expressed Clearly and Unambiguously

[HN10] The fourth and final Jones factor is “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. The inquiry conducted under this factor “should be whether the intent of the parties was to extinguish liability and [*24] whether this intent was clearly and unambiguously expressed.Heil Valley Ranch, 784 P.2d at 785. The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, we [may] examine[ ] 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.”
Chadwick, 100 P.3d at 467. We may also take into account a party’s subsequent acknowledgement that it understood the provisions of the agreement. Id.
In addition, it is well-established that the term “negligence” is not invariably required for an exculpatory agreement to be deemed an unambiguous waiver or release of claims arising from negligent conduct. Id.

The Ski School Waiver contains approximately a page and a half of terms and conditions in small, but not unreadable, font.5 It prominently identifies itself as, among other things, a “RELEASE OF LIABILITY . . . AGREEMENT”–a fact that is reiterated in the subtitle of the agreement by inclusion of the statement “THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.” Aplt. App’x 117. The provisions of the waiver include the signer’s express acknowledgment [*25] and assumption of “ALL INHERENT DANGERS AND RISKS of the Activity, including those of a ‘skier’ (as may be identified by statute or other applicable law),” as well as “all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a lengthy list of specific events and circumstances that includes “lift loading, unloading, and riding.” Id. In addition to this assumption-of-the-risk language, the Ski School Waiver provides that the signer

AGREE[S] TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY.

Id.

5 Although Dr. Brigance denies that she signed the Ski School Waiver, see supra note 1, she has not made any arguments regarding the readability or font size of the terms and conditions.

The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing [*26] some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.” Id. at 121.

Neither waiver is unduly long nor complicated, unreadable, or overburdened with legal jargon. Most importantly, the intent of the waivers is clear and unambiguous. In addition to the language indicating Dr. Brigance’s assumption of all risks of skiing, inherent or otherwise, both waivers contain clear language stating that Dr. Brigance agreed to hold VSRI harmless for injuries to her person as a result of skiing at Keystone. Moreover, the Ski School Waiver clearly and unambiguously provides that Dr. Brigance agreed to “RELEASE, INDEMNIFY, AND NOT TO SUE” VSRI for personal injuries arising in whole or in part from her participation in ski lessons, including claims based on VSRI’s “ALLEGED OR ACTUAL NEGLIGENCE.” Id. at 117. Dr. Brigance does not argue that any of the language regarding her agreement to hold harmless, indemnify, release, or not to sue VSRI is ambiguous or confusing. [*27] And like this and other courts’ examination of similarly worded provisions, we conclude the relevant release language of the Ski School Waiver and Lift Ticket Waiver cannot be reasonably understood as expressing anything other than an intent to release or bar suit against VSRI from claims arising, in whole or in part, as a result of Dr. Brigance’s decision to ski and participate in ski lessons at Keystone, including claims based on VSRI’s negligence. See Espinoza, 809 F.3d at 1157-58; Mincin, 308 F.3d at 1112-13; Chadwick, 100 P.3d at 468-69; B & B Livery, 960 P.2d at 137-38; Hamill, 262 P.3d at 950-51.

Dr. Brigance’s argument on appeal regarding the fourth Jones factor centers on the assumption-of-the-risk language contained in both waivers. Specifically, Dr. Brigance contends the intent of the waivers is ambiguous because the provisions providing that she assumes all risks of skiing, “inherent or otherwise,” conflict with the SSA because the statute’s provisions only bar a skier from recovering against a ski area operator “for injury resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112; see also id. at 33-44-103(3.5). Because of this alleged conflict, Dr. Brigance asserts that she could not know whether she was “releasing [VSRI] of all liability as indicated by the [waivers], or only for the inherent risks of skiing as [*28] mandated by the SSA.” Aplt. Br. 50-51.

Dr. Brigance’s argument is unavailing for a number of reasons. First, it only addresses the assumption-of-the-risk language contained in each waiver. But the more pertinent provisions of the waivers are those regarding Dr. Brigance’s agreement to hold harmless, release, indemnify, and not to sue VSRI. These provisions appear independent from the assumption-of-the-risk language and therefore their plain meaning is unaffected by any potential ambiguity in the “inherent or otherwise” clauses. Dr. Brigance does not contest the clarity of the release provisions and, as previously described, we believe those provisions unambiguously reflect the parties’ intent to release VSRI from claims arising from Dr. Brigance’s participation in ski lessons at Keystone.

Second, the Lift Ticket Waiver’s “assumes all risks, inherent or otherwise” phrase, as well as a similar phrase contained in the Ski School Waiver, are not ambiguous. Rather, their meanings are clear–the signer of the agreement or holder of the ticket is to assume all risks of skiing, whether inherent to skiing or not. The term “otherwise,” when “paired with an adjective or adverb to indicate its contrary”–as [*29] is done in both waivers–is best understood to mean “NOT.” Webster’s Third New Int’l Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. Dr. Brigance offers no alternative reading of the phrases and does not specify how “inherent or otherwise” could be understood as only referring to the inherent risks identified in the SSA. And while the Ski School Waiver contains a provision in which the signer agrees to assume all inherent dangers and risks of skiing as may be defined by statute or other applicable law, the next provision of the agreement clearly expands that assumption of risk, stating that the signer “expressly acknowledge[s] and assume[s] all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a rather extensive list of circumstances or events that may occur while skiing, including “lift loading, unloading, and riding.” Aplt. App’x at 117. That same provision continues, indicating that the signer understands the description of risks in the agreement is “NOT COMPLETE,” but that the signer nevertheless [*30] voluntarily chooses to “EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.” Id. Reading the “inherent or otherwise” phrase in context clearly indicates that, at a minimum, the Ski School Waiver includes an assumption of risk above and beyond the inherent risks and dangers of skiing as defined in the SSA. See Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (“In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.”); Moland v. Indus. Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004) (“The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.”).

Third, the Colorado Supreme Court rejected a similar argument in B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998). There, the Colorado Supreme Court examined an exculpatory agreement that included a statutorily mandated warning that equine professionals are not liable to others for the inherent risks associated with participating in equine activities, “as well as a broader clause limiting liability from non-inherent risks.” Id. at 137-38. It concluded that “the [*31] insertion of a broader clause further limiting liability does not make the agreement ambiguous per se” and instead “merely evinces an intent to extinguish liability above and beyond that provided” in the statute. Id. at 137; see also Hamill, 262 P.3d at 951 (upholding enforcement of an exculpatory agreement that purported to cover “inherent and other risks,” as well as claims against “any legal liability,” and noting that “[t]o hold . . . that the release did not provide greater protection than the release from liability of inherent risks provided by the equine act . . . would render large portions of the agreement meaningless”). Furthermore, the waivers do not conflict with the SSA merely because they purport to cover a broader range of risks than those identified by the statute as inherent to skiing. See Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (unpublished) (“If one could never release liability to a greater degree than a release provided in a statute, then one would never need to draft a release, in any context.”); Chadwick, 100 P.3d at 468 (“[T]his court has made clear that parties may, consistent with the [equine] statute, contract separately to release sponsors even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.”).

Finally, the single [*32] case relied upon by Dr. Brigance that applies Colorado law is distinguishable. In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), the district court determined an exculpatory agreement was ambiguous and therefore unenforceable in part because it first recited “the risks being assumed in the broadest possible language,” expressly including risks associated with the use of ski lifts, and then later addressed the assumption of risk in terms of the inherent risks and dangers of skiing as defined in the SSA, which indicates the use of ski lifts does not fall within its definition of inherent risks. The release therefore conflicted with itself and the relevant statutory language.
See Cunningham v. Jackson Hole Mountain Resort Corp., 673 F. App’x 841, 847 (10th Cir. Dec. 20, 2016) (unpublished). But unlike the waiver at issue in Rowan, the Ski School Waiver and Lift Ticket Waiver do not define the inherent risks of skiing in a manner contrary to the SSA. Nor do they contain conflicting provisions. The non-exhaustive list of inherent risks identified in the Lift Ticket Waiver appears to be drawn directly from the SSA, while the Ski School Waiver indicates inherent risks include those “as may be defined by statute or other applicable law.” Aplt. App’x at 117, 121. In addition, after referencing the inherent risks of skiing and providing that the signer [*33] of the agreement assumes those risks, the Ski School Waiver goes on to identify other, non-inherent risks associated with skiing and ski lessons and expressly provides that the signer assumes those risks. Specifically, the waiver makes clear that the risks assumed by Dr. Brigance include “all additional risks and dangers . . . above and beyond the inherent dangers and risks” of skiing and ski lessons, whether described in the waiver or not, known or unknown, or inherent or otherwise. Id. at 117. Unlike the provisions at issue in Rowan that provided conflicting statements regarding the risks assumed, the waivers here unambiguously provide that Dr. Brigance agreed to not only assume risks and dangers inherent to skiing, but also those risks and dangers not inherent to skiing.

Accordingly, the district court did not err in concluding that the fourth Jones factor does not invalidate the waivers.

***

Based on the foregoing analysis, we agree with the district court that application of the Jones factors to the Ski School Waiver and Lift Ticket Waiver do not render them unenforceable.

B. The SSA and PTSA

Although analysis of the Jones factors is often sufficient to determine the validity of an exculpatory [*34] agreement, the Colorado Supreme Court has “identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.” Boles, 223 P.3d at 726. At various points on appeal, either as standalone arguments or embedded within her analysis of the Jones factors, Dr. Brigance contends the Ski School Waiver and the Lift Ticket Waiver are unenforceable as contrary to Colorado public policy because they conflict with the SSA, PTSA, and the public policies announced therein.6 The district court considered these arguments and determined that the statutes do not affect the enforceability of either waiver as to Dr. Brigance’s claims. We find no reason to disagree.

6 Dr. Brigance also argues that the PLA prohibits use of exculpatory agreements as a defense to claims raised under its provisions and that the Ski School Waiver and Lift Ticket Waiver conflict with the public policies set forth in its provisions. But Dr. Brigance forfeited these arguments by failing to raise them in the district court. Avenue Capital Mgmt. II, 843 F.3d at 884. Although we may consider forfeited arguments under a plain-error standard, we decline to do so when, as here, the appellant fails to argue plain error on appeal. Id. at 885; see also Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). We decline to address Dr. Brigance’s argument that the waivers are unenforceable because their language is broad enough to encompass willful and wanton behavior for the same reason.

In 1965, the Colorado General Assembly enacted the PTSA with the purpose of assisting “in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.” Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 73 (Colo. 1998). [HN11] The PTSA provides that “it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways” and to assure that reasonable design and construction, periodic inspections, and adequate devices and personnel are provided with respect to passenger [*35] tramways. Colo. Rev. Stat. § 25-5-701. The General Assembly empowered the board “with rulemaking and enforcement authority to carry out its functions,” including the authority to “conduct investigations and inspections” and “discipline ski area operators.” Bayer, 960 P.2d at 73-74; see also Colo. Rev. Stat. §§ 25-5-703 to -704, -706 to -707. With its authority, the board adopted the standards, with some alterations, utilized by the American National Standards Institute for passenger tramways. Bayer, 960 P.2d at 73-74.

The General Assembly enacted the SSA fourteen years later. The SSA “supplements the [PTSA]’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes.” Id. at 74. [HN12] The provisions of the SSA indicate that “it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them” and that the SSA’s purpose is to supplement a portion of the PTSA by “further defin[ing] the legal responsibilities of ski area operators . . . and . . . the rights and liabilities existing between the skier and the ski area operator.” Colo. Rev. Stat. § 33-44-102. [HN13] In addition to the SSA’s provisions defining various responsibilities and duties of skiers and ski area operators, [*36] the 1990 amendments to the SSA limited the liability of ski area operators by providing that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” Id. at 33-44-112. The SSA also provides that any violation of its provisions applicable to skiers constitutes negligence on the part of the skier, while “[a] violation by a ski area operator of any requirement of [the SSA] or any rule or regulation promulgated by the passenger tramway safety board . . . shall . . . constitute negligence on the part of such operator.” Id. at 33-44-104. “The effect of these statutory provisions is to make violations of the [SSA] and [the rules and regulations promulgated by passenger tramway safety board] negligence per se.Bayer, 960 P.2d at 74. [HN14] Ultimately, the SSA and PTSA together “provide a comprehensive . . . framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.” Id. at 75.

Dr. Brigance contends the waivers conflict with the public policy objectives of the SSA and PTSA because enforcing [*37] either waiver would allow VSRI to disregard its statutorily defined responsibilities and duties. We find Dr. Brigance’s argument unpersuasive.

At the outset, it is worth reiterating that [HN15] under Colorado law exculpatory agreements are not invalid as contrary to public policy simply because they involve an activity subject to state regulation. Espinoza, 308 F.3d at 1154; see also id. at 1155 (acknowledging the Colorado Supreme Court has allowed enforcement of exculpatory agreements with respect to equine activities despite the existence of a statute limiting liability for equine professionals in certain circumstances, while still allowing for liability in other circumstances); Mincin, 308 F.3d at 1111 (“The fact that the Colorado legislature has limited landowner liability in the contexts of horseback riding and skiing is relevant to the question of whether landowner liability might be limited in other circumstances absent a contract.”). Similarly, exculpatory agreements do not conflict with Colorado public policy merely because they release liability to a greater extent than a release provided in a statute.
See Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3; Chadwick, 100 P.3d at 468; B & B Livery, 960 P.2d at 137-38.

[HN16] It is true that the SSA and PTSA identify various duties and responsibilities that, if violated, may subject a ski area operator to [*38] liability. But the acts establish a framework preserving common law negligence actions in the ski and ski lift context, Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance does not identify a single provision in either the SSA or PTSA suggesting the enforcement of exculpatory agreements in the ski and ski lift context is impermissible or contrary to public policy. Moreover, “Colorado law has long permitted parties to contract away negligence claims in the recreational context” and we “generally will not assume that the General Assembly mean[t] to displace background common law principles absent some clear legislative expression of that intent.” Espinoza, 809 F.3d at 1154, 1155. This principle is particularly relevant in the context of exculpatory agreements because “[t]he General Assembly . . . has shown that–when it wishes–it well knows how to displace background common law norms and preclude the release of civil claims.” Espinoza, 809 F.3d at 1154-55.

Our conclusion that [*39] the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims. In 2002, the Colorado Supreme Court concluded that Colorado public policy prohibits a parent or guardian from releasing a minor’s prospective claims for negligence. See Cooper, 48 P.3d at 1237. The Colorado Supreme Court’s broad holding appeared to apply even within the context of recreational activities, as the relevant minor had injured himself while skiing. Id. at 1231-35. The following year, the General Assembly enacted Colo. Rev. Stat. § 13-22-107, which expressly declared that the General Assembly would not adopt the Colorado Supreme Court’s holding in Cooper. Colo. Rev. Stat. § 13-22-107(1)(b). Instead, the General Assembly explained that, among other things, it is the public policy of Colorado that “[c]hildren . . . should have the maximum opportunity to participate in sporting, recreational, educational, and other activities [*40] where certain risks may exist” and that “[p]ublic, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits.” Id. at 13-22-107(1)(a)(I)-(II). Accordingly, the General Assembly established that “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Id. at 13-22-107(3). The General Assembly’s enactment of § 33-22-107 reaffirms Colorado’s permissive position on the use of exculpatory agreements in the recreational context, and its authorization of parental releases and waivers suggests it did not intend and would not interpret the SSA as barring such agreements for adults.

Notwithstanding the lack of any statutory suggestion that the SSA and PTSA prohibit the enforcement of exculpatory agreements as a matter of public policy, Dr. Brigance contends two Colorado Court of Appeals decisions support her assertion to the contrary. In Stanley v. Creighton, the Colorado Court of Appeals analyzed an exculpatory clause in a residential rental agreement under the Jones factors and concluded that the agreement involved a public interest sufficient to invalidate the exculpatory [*41] clause. 911 P.2d at 707-08. The Stanley court reached this conclusion because, among other things, Colorado has long regulated the relationship between landlords and tenants, the PLA “confirms that landowner negligence is an issue of public concern,” and “a landlord’s services are generally held out to the public and . . . housing rental is a matter of practical necessity to the public.” Id. Although the Stanley court’s partial reliance on the existence of state regulations tends to support Dr. Brigance’s assertion that the existence of the SSA and PTSA render the Ski School Wavier and Lift Ticket Waiver either contrary to public policy or sufficient to satisfy the first Jones factor, the circumstances here are readily distinguishable. Unlike residential housing, skiing is not essential nor a matter of practical necessity. Among other considerations not present here, the Stanley court “placed greater emphasis on the essential nature of residential housing” and “alluded to a distinction between residential and commercial leases, implying that an exculpatory clause might well be valid in the context of a commercial lease.” Mincin, 308 F.3d at 1110.

Similarly, Dr. Brigance’s reliance on Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983), does not alter our conclusion. In Phillips [*42]
, the Colorado Court of Appeals stated that “[s]tatutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute.” Id. at 987. Applying this principle, the Phillips court concluded that because the SSA “allocate[s] the parties’ respective duties with regard to the safety of those around them, . . . the trial court correctly excluded a purported [exculpatory] agreement intended to alter those duties.” Id. But apparently unlike the agreement at issue in Phillips, the Ski School Waiver and Lift Ticket Waiver do not appear to alter the duties placed upon VSRI under the SSA. See, Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3. And the court’s application of this principle to the SSA appears to be inconsistent with the more recent pronouncements by the Colorado Supreme Court and General Assembly regarding Colorado policies toward the enforceability of exculpatory agreements in the context of recreational activities. Moreover, as detailed above, the SSA and PTSA do not express a policy against exculpatory agreements.

“Given all this,” particularly the SSA’s and PTSA’s silence with respect to exculpatory agreements, “we do not think it our place to adorn the General Assembly’s handiwork with revisions to [*43] the [SSA, PTSA, and] common law that it easily could have but declined to undertake for itself.” Espinoza, 809 F.3d at 1155.

In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” Espinoza, 809 F.3d at 1153. And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.

III. CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of VSRI and, on this alternative basis, its partial grant of VSRI’s motion to dismiss.

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You cannot assume the risk of a recreational activity if the defendant alters the activity and adds risk that he does not inform the guest about.

If you run PVC pipe across the slope that blends in with the slope, a skier coming down the hill does not assume the risk of hitting PVC pipe. PVC does not fall from the sky, is not  natural, and in 50 years of skiing it not something I’ve ever seen on a slope.

Zhou, et al., v. Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

State: New York

Plaintiff: Judy Zhou, et al

Defendant: Tuxedo Ridge, LLC, et al.

Plaintiff Claims: negligence

Defendant Defenses: assumption of the risk and the mother should have watched her daughter more closely

Holding: for the defendant

Year: 2017

Summary

There are two defenses in this case. The first is assumption of the risk. The standard defense used for injuries arising from activities in outdoor recreational activities. The second is not discussed by the court but one we have all wanted to argue at least once. 

The defendant makes several arguments in support of summary judgment, including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk.

The defendant is not at risk because the mother let the child do what the child wanted and did not supervise the child. Ski areas are not baby sitters. If you buy a minor a lift ticket, the ski area knows the lift ticket allows access by the minor to whatever lift the minor wanted to ride and to come down any hill the minor wants to ride.

However, if that child is injured, the ski area should not have allowed that child on the lift because it was too dangerous.

That argument is a landmine to make in court. Mothers of injured children are liked by juries because they feel for the pain the mother is suffering. And who in their right mind would say that a mother is doing a bad job of raising their kids.

The other defense assumption of the risk would have won the case if the defendant had not laid down PVC pipe on the slope in a way that no one could see the pipe. The pipe was there to create a coral to lead skiers back to the lift. However, when you can’t see it, don’t know it’s there, and hit it, it is hard to argue that PVC is a natural risk of skiing.

Facts 

The facts are quite simple. 

…the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the  chairlift. The PVC pipes were as hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts. 

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

The court started its analysis of the case with the famous Cardozo quote that created the defense of assumption of the risk.

The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929)

However, the court quickly shifted its analysis to whether the injured minor plaintiff could have assumed the risk.

A seven-year-old skier could not assume the risk of a risk she was not properly educated about. Unless the risk is inherent, part of skiing, or known, understood and accepted by the plaintiff, or part of the risk of the sport, the plaintiff cannot assume the risk. 

So Now What? 

If the PVC pipe were visible; fenced, painted red, behind warning signs, this case would have gone the other direction. However, when you hide a risk not only do you lose the assumption of risk defense, but you might also set yourself up for a reckless or willful charge that could lead to greater damages. 

Seriously, don’t be stupid is the bigger thing to learn from this case. 

What do you think? Leave a comment.

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Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

[**1] Judy Zhou, et al., Plaintiff, against Tuxedo Ridge, LLC, et al., Defendants.

1229/2014

SUPREME COURT OF NEW YORK, QUEENS COUNTY

54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

February 3, 2017, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: summary judgment, skier’s, chairlift, slope, daughter, novice, pipes, assumption of risk, belt, ski, plumbing, netting, corral

HEADNOTES

Negligence–Assumption of Risk.

JUDGES: [*1] Honorable Salvatore J. Modica, J.S.C.

OPINION BY: Salvatore J. Modica

OPINION

SALVATORE J. MODICA, J.:

The defendant moves for summary judgment in this case where the plaintiff, a nine-year-old child, making her maiden ski trip was injured.

The defendant makes several arguments in support of summary judgment including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk. Almost ninety years ago, Chief Judge Cardozo stated: “The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929) (one stepping on moving belt of amusement device accepts obvious and necessary dangers).

The law has moved from assumption of risk to comparative negligence. As plaintiff’s counsel, Souren A. Israelyan, Esq., cogently and aptly states in his affirmation in opposition to the defense motion, the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as [*2] hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.

Under the foregoing facts, the provident course is to deny the defendants’ motion for summary judgment. See, De Lacy v. Catamount Dev. Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003) (genuine issue of material facts existed as to whether seven-year-old novice skier with limited skiing ability was properly instructed regarding use of chairlift, whether owner/operator of ski facility violated its own policies, and whether chairlift’s design was faulty, precluding summary judgment for owner/operator in negligence action brought by mother and her daughter, seeking to recover damages for injury daughter sustained when she fell from chairlift); accord, Finn v. Barbone, 83 AD3d 1365, 921 N.Y.S.2d 704 (3rd Dept. 2011) (fact issues precluded summary judgment on issue of skier’s assumption of the risk).

This Court, [*3] therefore, denies the motion for summary judgment in its entirety.

The parties are required to appear in the Trial Scheduling Part on February 15, 2017, for trial.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: Jamaica, New York

February 3, 2017

Honorable Salvatore J. Modica

J.S.C.


Ohio Skier Safety Act

Ohio Skier Safety Act

Page’s Ohio Revised Code Annotated:

TITLE 41.  LABOR AND INDUSTRY 

CHAPTER 4169.  SKI TRAMWAY BOARD

Go to the Ohio Code Archive Directory

ORC Ann. 4169.01  (2013)

§ 4169.01. Definitions

   As used in this chapter:

   (A) “Skier” means any person who is using the facilities of a ski area, including, but not limited to, the ski slopes and ski trails, for the purpose of skiing, which includes, without limitation, sliding or jumping on snow or ice on skis, a snowboard, sled, tube, snowbike, toboggan, or any other device.

   (B) “Passenger” means any person who is being transported or conveyed by a passenger tramway.

   (C) “Ski slopes” or “ski trails” means those sites that are reserved or maintained and are open for use, as designated by a ski area operator.

   (D) “Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state.

   (E) “Ski area operator” means a person or organization that is responsible for the operation of a ski area, including an agency of this state or of a political subdivision thereof.

   (F) “Passenger tramway” means a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers with one or more spans. “Passenger tramway” includes all of the following:

      (1) Aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to and suspended from a moving wire rope or attached to a moving wire rope and supported on a standing wire rope, or similar devices;

      (2) Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices;

      (3) Chair lift, a device on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain, or link belt supported by trestles or towers with one or more spans, or similar devices. Chair lifts need not include foot-rests or passenger restraint devices.

      (4) J bar, T bar, or platter pull, devices that pull skiers riding on skis or other devices by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans, or similar devices;

      (5) Rope tow, a device with one span and no intermediate towers that pulls skiers riding on skis or other devices as they grasp a rope manually, or similar devices;

      (6) Wire rope tow, a device with one span and no intermediate towers by which skiers are pulled on skis or other devices while manually grasping a bar attached to a wire hauling cable.

      (7) Conveyor, a flexible moving element, including a belt, that transports passengers on one path and returns underneath the uphill portion.

      The operation of a passenger tramway shall not constitute the operation of a common carrier.

   (G) “Competitor” means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event in any portion of the area made available by the ski area operator.

   (H) “Freestyler” means a skier utilizing freestyle terrain marked with signage approved by the national ski areas association.

   (I) “Freestyle terrain” means, but is not limited to, terrain parks and terrain park features, such as jumps, rails, fun boxes, other constructed or natural features, half-pipes, quarter-pipes, and freestyle-bump terrain.

   (J) “Tubing park” means a ski slope designated and maintained for the exclusive use of skiers utilizing tubes to slide to the bottom of the course and serviced by a dedicated passenger tramway.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05.

NOTES:

Section Notes

EFFECT OF AMENDMENTS

151 v S 61, effective September 26, 2005, rewrote (A); in the introductory language of (F), inserted “or without skis or other devices” and made related changes, and added “all of the following” to the end; and added the first paragraph of (F)(7) and (G) through (J).

Related Statutes & Rules

Cross-References to Related Statutes

Standard renewal procedure defined, RC § 4745.01.

Tramway excepted from definition of amusement rides, RC § 1711.50.

OH Administrative Code

Department of commerce, ski tramway board —

Definitions in re new installations and modifications of existing passenger tramways. OAC 4101:14-1-03.

Case Notes

ANALYSIS Go to ReleaseRelease Go to SnowboarderSnowboarder

Return to Topic ListRELEASE.

The rental agreement and release of liability barred recovery for the ski lift injuries: Broome v. Ohio Ski Slopes, 108 Ohio App. 3d 86, 670 N.E.2d 262, 1995 Ohio App. LEXIS 5971 (1995).

Return to Topic ListSNOWBOARDER.

Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).

§ 4169.02. Ski tramway board established

   (A) For the purposes of regulating the construction, maintenance, mechanical operation, and inspection of passenger tramways that are associated with ski areas and of registering operators of passenger tramways in this state, there is hereby established in the division of industrial compliance in the department of commerce a ski tramway board to be appointed by the governor, with the advice and consent of the senate. The board shall consist of three members, one of whom shall be a public member who is an experienced skier and familiar with ski areas in this state, one of whom shall be a ski area operator actively engaged in the business of recreational skiing in this state, and one of whom shall be a professional engineer who is knowledgeable in the design or operation of passenger tramways.

Of the initial appointments, one member shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. The member appointed to the term beginning on July 1, 1996, shall be appointed to a term ending on June 30, 1997; the member appointed to a term beginning on July 1, 1997, shall be appointed to a term ending on June 30, 1999; and the member appointed to a term beginning on July 1, 1998, shall be appointed to a term ending on June 30, 2001. Thereafter, each of the members shall be appointed for a term of six years. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. In the event of a vacancy, the governor, with the advice and consent of the senate, shall appoint a successor who shall hold office for the remainder of the term for which the successor’s predecessor was appointed. A member shall continue in office subsequent to the expiration date of the member’s term until the member’s successor takes office or until a period of sixty days has elapsed, whichever occurs first. The board shall elect a chairperson from its members.

The governor may remove any member of the board at any time for misfeasance, nonfeasance, or malfeasance in office after giving the member a copy of the charges against the member and an opportunity to be heard publicly in person or by counsel in the member’s defense. Any such act of removal by the governor is final. A statement of the findings of the governor, the reason for the governor’s action, and the answer, if any, of the member shall be filed by the governor with the secretary of state and shall be open to public inspection.

Members of the board shall be paid two hundred fifty dollars for each meeting that the member attends, except that no member shall be paid or receive more than seven hundred fifty dollars for attending meetings during any calendar year. Each member shall be reimbursed for the member’s actual and necessary expenses incurred in the performance of official board duties. The chairperson shall be paid two hundred fifty dollars annually in addition to any compensation the chairperson receives under this division for attending meetings and any other compensation the chairperson receives for serving on the board.

The division shall provide the board with such offices and such clerical, professional, and other assistance as may be reasonably necessary for the board to carry on its work. The division shall maintain accurate copies of the board’s rules as promulgated in accordance with division (B) of this section and shall keep all of the board’s records, including business records, and inspection reports as well as its own records and reports. The cost of administering the board and conducting inspections shall be included in the budget of the division based on revenues generated by the registration fees established under section 4169.03 of the Revised Code.

(B) In accordance with Chapter 119. of the Revised Code, the board shall adopt and may amend or rescind rules relating to public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways. The rules shall be in accordance with established standards in the business of ski area operation, if any, and shall not discriminate in their application to ski area operators.

No person shall violate the rules of the board.

(C) The authority of the board shall not extend to any matter relative to the operation of a ski area other than the construction, maintenance, mechanical operation, and inspection of passenger tramways.

(D) A majority of the board constitutes a quorum and may perform and exercise all the duties and powers devolving upon the board.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v S 162 (Eff 10-29-95); 146 v S 293 (Eff 9-26-96); 146 v H 535. Eff 11-20-96; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by § 812.10 of 153 v H 1.

The provisions of 815.10 of 153 v H 1 read as follows:

SECTION 815.10. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:

* * *

Section 4169.02 of the Revised Code as amended by both Am. Sub. S.B. 293 and Sub. H.B. 535 of the 121st General Assembly.

* * *

The provisions of § 3 of HB 535 (146 v –) read as follows:

SECTION 3. The Ski Tramway Board is the successor to and a continuation of the Safety in Skiing Board.

EFFECT OF AMENDMENTS

The 2012 amendment substituted “division of industrial compliance” for “division of labor” in the first sentence of the first paragraph of (A).

153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in the first sentence of the first paragraph of (A).

Related Statutes & Rules

Cross-References to Related Statutes

Penalty, RC § 4169.99.

Ohio Constitution

Appointments subject to advice and consent of Senate, Ohio Const. art III, § 21.

OH Administrative Code

Department of commerce, ski tramway board —

General provisions. OAC ch. 4101:14-1.

Introduction and scope of rules. OAC 4101:14-1-01 et seq.

Notice in the event of a serious accident. OAC 4101:14-1-09.

Notice of public hearings and public meetings. OAC 4101:14-1-08.

Comparative Legislation

SAFETY IN SKIING:

NY–NY CLS Labor § 865 et seq

§ 4169.03. Registration of passenger tramway operators

   (A) Before a passenger tramway operator may operate any passenger tramway in the state, the operator shall apply to the ski tramway board, on forms prepared by it, for registration by the board. The application shall contain an inventory of the passenger tramways that the applicant intends to operate and other information as the board may reasonably require and shall be accompanied by the following annual fees:

   (1) Each aerial passenger tramway, five hundred dollars;

   (2) Each skimobile, two hundred dollars;

   (3) Each chair lift, two hundred dollars;

   (4) Each J bar, T bar, or platter pull, one hundred dollars;

   (5) Each rope tow, fifty dollars;

   (6) Each wire rope tow, seventy-five dollars;

   (7) Each conveyor, one hundred dollars.

   When an operator operates an aerial passenger tramway, a skimobile, or a chair lift during both a winter and summer season, the annual fee shall be one and one-half the above amount for the respective passenger tramway.

(B) Upon payment of the appropriate annual fees in accordance with division (A) of this section, the board shall issue a registration certificate to the operator. Each certificate shall remain in force until the thirtieth day of September next ensuing. The board shall renew an operator’s certificate in accordance with the standard renewal procedure in Chapter 4745. of the Revised Code upon payment of the appropriate annual fees.

(C) Money received from the registration fees and from the fines collected pursuant to section 4169.99 of the Revised Code shall be paid into the state treasury to the credit of the industrial compliance operating fund created in section 121.084 of the Revised Code.

(D) No person shall operate a passenger tramway in this state unless the person has been registered by the board.

HISTORY:

138 v H 775 (Eff 7-1-81); 139 v S 550 (Eff 11-26-82); 141 v H 201 (Eff 7-1-85); 146 v S 162 (Eff 10-29-95); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by § 812.10 of 153 v H 1.

EFFECT OF AMENDMENTS

The 2012 amendment substituted “industrial compliance” for “labor” in (C).

153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in (C).

151 v S 61, effective September 26, 2005, in the introductory language of (A), deleted “such” preceding “other information”; and added (A)(7).

Related Statutes & Rules

Cross-References to Related Statutes

Industrial compliance operating fund, RC § 121.084.

Penalty, RC § 4169.99.

Ski tramway board established, RC § 4169.02.

Standard renewal procedure defined, RC § 4745.01.

OH Administrative Code

Fees; renewals. OAC 4101:14-1-06.

Registration and inspections. OAC 4101:14-1-05.

§ 4169.04. Inspections; report of violation

   (A) The division of industrial compliance in the department of commerce shall make such inspection of the construction, maintenance, and mechanical operation of passenger tramways as the ski tramway board may reasonably require. The division may contract with other qualified engineers to make such inspection or may accept the inspection report by any qualified inspector of an insurance company authorized to insure passenger tramways in this state.

(B) If, as the result of an inspection, an employee of the division or other agent with whom the division has contracted finds that a violation of the board’s rules exists or a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, the employee or agent shall make an immediate report to the board for appropriate investigation and order.

HISTORY:

138 v H 775 (Eff 7-1-81); 145 v H 152 (Eff 7-1-93); 146 v S 162 (Eff 10-29-95); 146 v S 293 (Eff 9-26-96); 146 v H 535. Eff 11-20-96; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by § 812.10 of 153 v H 1.

The provisions of 815.10 of 153 v H 1 read as follows:

SECTION 815.10. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:

* * *

Section 4169.04 of the Revised Code as amended by both Am. Sub. S.B. 293 and Sub. H.B. 535 of the 121st General Assembly.

* * *

EFFECT OF AMENDMENTS

The 2012 amendment substituted “The division of industrial compliance” for “The division of labor” in the first sentence of (A).

153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in the first sentence of (A).

OH Administrative Code

Acceptance tests. OAC 4101:14-1-04.

Registration and inspections. OAC 4101:14-1-05.

§ 4169.05. Written complaint alleging violation

   Any person may make a written complaint to the ski tramway board setting forth an alleged violation of the board’s rules by a registered passenger tramway operator or a condition in passenger tramway construction, maintenance, or mechanical operation that allegedly endangers public safety. The board shall forward a copy of the complaint to the operator named in it and may accompany it with an order that requires the operator to answer the complaint in writing within a specified period of time. The board may investigate the complaint if it determines that there are reasonable grounds for such an investigation.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.

§ 4169.06. Emergency order; investigation and order; suspension of certificate

   (A) When facts are presented to any member of the ski tramway board that indicate that immediate danger exists in the continued operation of a passenger tramway, any member of the board, after such verification of the facts as is practical under the circumstances and consistent with immediate public safety, may by an emergency written order require the operator of the tramway to cease using the tramway immediately for the transportation of passengers. Any person may serve notice on the operator or the operator’s agent who is in immediate control of the tramway by delivering a true and attested copy of the order, and the operator or the operator’s agent shall furnish proof of receipt of such notice by signing an affidavit on the back of the copy of the order. The emergency order shall be effective for a period not to exceed forty-eight hours from the time of notification.

(B) Immediately after the issuance of an emergency order pursuant to this section, the board shall investigate the facts of the case. If the board finds that a violation of any of its rules exists or that a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, it shall issue a written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance.

(C) After an investigation pursuant to division (B) of this section, if the board determines that danger to public safety exists in the continued operation of a passenger tramway, it shall so state in the order, describe in detail the basis for its findings, and in the order may require the operator not to operate the tramway until the operator has taken the corrective action ordered pursuant to this section. If the operator continues to use the tramway following receipt of such order, the board may request the court of common pleas having jurisdiction in the county where the tramway is located to issue an injunction forbidding operation of the tramway.

(D) An operator of a passenger tramway may request a hearing by the board on any order issued pursuant to this chapter and may appeal the results of such a hearing in accordance with Chapter 119. of the Revised Code. An operator may appeal an order suspending the operation of the operator’s tramway without first requesting a hearing.

(E) If an operator fails to comply with an order of the board issued pursuant to this chapter within the specified time, the board may suspend the registration certificate of the operator for such time as it considers necessary to gain compliance with its order.

No operator shall operate a passenger tramway while the operator’s registration certificate is under suspension by the board.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.

NOTES:

Related Statutes & Rules

Cross-References to Related Statutes

Penalty, RC § 4169.99.

Ohio Rules

Injunctions, CivR 65.

OH Administrative Code

Registration and inspections; fine for violation. OAC 4101:14-1-05.

§ 4169.07. Responsibilities of ski area operator and tramway passengers

   (A) A ski area operator shall be responsible for any construction that the operator actually performs or has actually performed and for the maintenance and operation of any passenger tramway in the operator’s ski area.

(B) A passenger shall be responsible for: not embarking upon or disembarking from a passenger tramway except at an area that is designated for such purpose; not throwing or expelling any object from a passenger tramway; not performing any action that interferes with the running or operation of a passenger tramway; learning how to use a passenger tramway safely before the time that the passenger desires to embark upon it; not using such a tramway unless the passenger has the ability to use it safely without any on-the-spot instruction from the ski area operator; not engaging willfully or negligently in any type of conduct that contributes to or causes injury to another person; and not embarking upon a passenger tramway without the authority of the ski area operator.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by section 4 of HB 775.

OH Administrative Code

Mechanical operation and maintenance. OAC 4101:14-1-05.

Case Notes

LIABILITY.

Where there was no evidence to establish whether a ramp was man-made or a natural incline, there were disputed facts from which reasonable minds could conclude that an injury occurred on a ramp which was a part of the passenger tramway constructed for the transport of passengers, and thus, that the owner had violated its responsibility pursuant to R.C. 4169.07(A) to maintain the passenger tramway in its ski area: Graham v. Ohio Ski Slopes, 1998 Ohio App. LEXIS 1283 (1998).

§ 4169.08. Risks assumed by skier; responsibilities of operator and skier

   (A) (1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifications; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles.

   (2) Provided that the ski area operator complies with division (B)(4) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any competitor or freestyler using a freestyle terrain, which injury, death, or loss to person or property is caused by course, venue, or area conditions that visual inspection should have revealed or by collision with a spectator, competition official, ski area personnel, or another competitor or freestyler.

   (3) Provided the ski area operator complies with division (B)(5) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any skier using a tubing park, which injury, death, or loss to person or property is caused by course design or maintenance or conditions that visual inspection should have revealed or by collision with another skier.

(B) The legal responsibilities of a ski area operator to a skier with respect to any injury, death, or loss to person or property resulting in any way from an inherent risk of the sport shall not be those of the common law duty of premises owners to business invitees. A ski area operator shall have, however, the following responsibilities:

   (1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are moving in the ski area;

   (2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;

   (3) To mark, at the base of a slope or hill where skiers embark on a passenger tramway serving the slope or hill or at the top of a trail or slope, such slopes, trails, and hills with signs indicating their relative degree of difficulty. The signs must be the type that have been approved by the national ski areas association and are in current use by the industry;

   (4) Prior to the use of any portion of a freestyle terrain area made available by the ski area operator, to allow each freestyler or competitor a reasonable opportunity to visually inspect the course, venue, or area of the freestyle terrain;

   (5) To allow skiers using a tubing park visible access to the course.

(C) A skier shall have the following responsibilities:

   (1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;

   (2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall;

   (3) When involved in a skiing accident in which another person is involved who needs medical or other assistance, to obtain assistance for the person, to notify the proper authorities, and to not depart from the scene of the accident without leaving personal identification;

   (4) If the skier is a competitor, freestyler, or user of freestyle terrain, to assume the risk of all course, venue, or area conditions, including, but not limited to, weather and snow conditions; obstacles; course or feature location, construction, or layout; freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used;

   (5) If the skier is utilizing a tubing park, to assume the risk of collision with others on the course.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05.

NOTES:

Section Notes

EFFECT OF AMENDMENTS

151 v S 61, effective September 26, 2005, rewrote (A); in the introductory language of (B), deleted “Therefore” from the beginning, and inserted “or loss to person or property” and made related changes; and added (B)(4) and (5) and (C)(4) and (5).

OH Administrative Code

Notice in the event of serious accident. OAC 4101:14-1-09.

Case Notes

ANALYSIS Go to Collisions between skiersCollisions between skiers Go to Common law dutiesCommon law duties Go to Maintenance of rampMaintenance of ramp Go to Renting defective equipmentRenting defective equipment

Return to Topic ListCOLLISIONS BETWEEN SKIERS.

Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).

Return to Topic ListCOMMON LAW DUTIES.

Former R.C. 4169.08 included fences and precluded claims based on common law principles of premises liability: Stone v. Alpine Valley Ski Area, 135 Ohio App. 3d 540, 734 N.E.2d 888, 1999 Ohio App. LEXIS 5926 (1999).

R.C. 4169.08 does not abrogate the common law duty of ski resort owners to their business invitees, skiers: Shaheen v. Boston Mills Ski Resort, 85 Ohio App. 3d 285, 619 N.E.2d 1037, 1992 Ohio App. LEXIS 6080 (1992).

Return to Topic ListMAINTENANCE OF RAMP.

Where a variation in terrain occurs on a ski ramp approximately two feet from the disembarkation point and the skier must encounter the trouble spot in order to successfully disembark, the maintenance of such ramp is part of the ski operator’s responsibility for the maintenance of his passenger tramway: Graham v. Ohio Ski Slopes, 1998 Ohio App. LEXIS 1283 (1998).

Return to Topic ListRENTING DEFECTIVE EQUIPMENT.

Renting defective equipment is not an inherent risk of skiing. Anticipatory release was valid to absolve defendant for negligence in renting ski equipment, but evidence was sufficient to support finding of willful and wanton misconduct: Otterbacher v. Brandywine Ski Center, Inc., 1990 Ohio App. LEXIS 4582 (9th Dist. 1990).

§ 4169.09. Liability of operator, tramway passenger, freestyler, competitor, or skier

   A ski area operator, a tramway passenger, freestyler, competitor, or skier is liable for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not liable for injury, death, or loss to person or property caused by another’s failure to fulfill any of the responsibilities required of another by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not entitled to recover for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter.

HISTORY:

138 v H 775. Eff 7-1-81; 151 v S 61, § 1, eff. 9-26-05.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by section 4 of HB 775.

EFFECT OF AMENDMENTS

151 v S 61, effective September 26, 2005, rewrote the section.

Case Notes

ANALYSIS Go to Liability of skiersLiability of skiers Go to Release of liabilityRelease of liability

Return to Topic ListLIABILITY OF SKIERS.

Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).

Return to Topic ListRELEASE OF LIABILITY.

The rental agreement and release of liability barred recovery for the ski lift injuries: Broome v. Ohio Ski Slopes, 108 Ohio App. 3d 86, 670 N.E.2d 262, 1995 Ohio App. LEXIS 5971 (1995).

§ 4169.10. Operator’s liability to violators of theft statute

   A ski area operator is not liable for any losses or damages suffered by a person who was in violation of section 2913.02 of the Revised Code at the time that the losses or damages occurred.

HISTORY:

138 v H 775. Eff 7-1-81.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by section 4 of HB 775.

 


Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Christina J. Tone and Steven Tone, Plaintiffs, against Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, shareholder and director of South Slope Development Corp. and Song Mountain Ski Center, Defendants.

2009-7913

SUPREME COURT OF NEW YORK, ONONDAGA COUNTY

37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

November 2, 2012, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: lift, chair lift, attendant, skis, skier, mountain, chairlift, skiing, triple, gate, inspection, ski lift, ski area, training, riding, slowed, feet, ramp, snow, speed, deposition testimony, issue of fact, deposition, ex-husband, passenger, downhill, tramway, sport, safe, top

HEADNOTES

[*1217A] Negligence–Assumption of Risk–Skier Injured on Chair Lift.

COUNSEL: [**1] For Plaintiffs: MICHELLE RUDDEROW, ESQ., OF WILLIAMS & RUDDEROW, PLLC.

For Defendants: MATTHEW J. KELLY, ESQ., OF ROEMER, WALLENS, GOLD & MINEAUX, LLP.

JUDGES: Donald A. Greenwood, Supreme Court Justice.

OPINION BY: Donald A. Greenwood

OPINION

The defendants have moved for summary judgment dismissal of the complaint against them, which alleges that the plaintiff suffered a fractured hip at Song Mountain on February 25, 2007 while attempting to exit a chair lift. The defendants move for dismissal on the grounds that all of the evidence shows that the ski lift was properly designed and operated and that the plaintiff assumed the risk of her injury.

As the proponent of the motion, the defendants are required to establish their entitlement to dismissal as a matter of law through the tender of admissible evidence. See, Hunt v. Kostarellis, 27 AD3d 1178, 810 N.Y.S.2d 765 (4th Dept. 2006). The defendants have done so here through their [***2] reliance, inter alia, on the plaintiff’s deposition testimony. The plaintiff testified that she was skiing with her nine year old son at the time and that she was an intermediate level skier with approximately fifteen years of experience. She owned her own skis and boots and had skied more than fifty times. [**2] On the date of the accident, she took two runs down the mountain and on both occasions rode the triple chair lift without incident. On her third occasion up the mountain she again rode the triple chair lift. Her son was with her, as was her ex-husband. Plaintiff testified that she sat on the right side of the chair, her son sat in the middle and the ex-husband sat on the left side. According to plaintiff, while riding up the chair lift she noticed that her skis were crossed with her son’s skis, so she let her son get off the chair lift first. Her ex-husband also got off the chair lift, but plaintiff waited. During her deposition, the plaintiff was shown the “Incident Report Form” completed at the time, which she signed. The form indicates that plaintiff said that she let her son get off first because their skis were crossed and that “I waited too late, and when I jumped approximately 6 feet, landed on my left hip.” When asked at her deposition what she did after her son got off, she responded that she did not remember, that she did not recall trying to get off, but that it happened so quickly that when the chairlift made its turn she “just flew off.”

The defendants also rely upon an [**3] inspection report completed by the Department of Labor on December 12, 2006, two months before the accident. An inspection of the chairlift was conducted by the Industry Inspection Bureau. Two violations unrelated to the design of the lift or exit ramp were found at that time and two unrelated violations were subsequently determined. Defendants note, however, that no deficiencies were found with respect to the design of the lift or exit ramp, the speed of the lift, or the location of the safety gate on the lift.

In addition, the defendants rely upon New York State regulations referenced in the Department of Labor inspections and standards promulgated by the American National Standards Institute which address industry wide safety standards for a variety of products and industries. Those regulations provide that the maximum relative carrier speed in feet per minute for chair lifts states that a triple chairlift carrying skiers may travel at a maximum speed of five hundred feet per minute. Defendants also provide an affidavit of Peter Harris, the President of South Slope Development Corporation, the operator of Song Mountain. Harris indicates that the chairlift traveled at a maximum speed [**4] of four hundred to five hundred feet per minute, which is equal to less than five miles per hour. He also claims that plaintiff failed to depart from the chairlift at the appropriate time, despite being warned by the unload signs. In addition, he indicates that the lift has certain safety mechanisms and if the plaintiff was to stay on the lift as it turned around the bull wheel heading downhill, her skis would hit the safety gate, which would stop the lift and allow for a safe evacuation of the lift. Plaintiff instead jumped from the lift before the safety gate, resulting in her being injured. He notes that the design of the lift specifically would have prevented the injury if she had remained on it, and the fact that the lift operated property is demonstrated by the fact that of the three people on the lift, two of them exited the lift in accordance with proper procedure and were not injured.

Defendants have also established in the first instance that any argument that the lift attendants were not properly trained is without merit, since Harris testified at his deposition that Song Mountain uses an industry standard lift operating training program designed by the National Ski Areas [**5] Association and that the program includes an in depth training DVD, training [***3] manuals and tests. The defendants also rely upon the deposition testimony of Carl Blaney, a long time attendant, who testified that the lift attendants took annual quizzes prior to the start of the season in order to demonstrate that they understood their duties in operating the lifts. It is also argued that plaintiff’s contention that the lift should have been slowed because plaintiff’s nine year old son was riding is incorrect. Blaney testified that the lift would not have been slowed for that reason, nor is there any evidence that simply because a child is riding the lift that it should be slowed. Defendants also point to the lift attendant’s daily log for the date of the accident, which demonstrates that the triple chair lift was fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits. It is argued that since all of the evidence demonstrates that the lift was operating properly, the [**6] cause of the accident was solely plaintiff’s failure to disembark at the appropriate location, followed by her failure to remain seated once she missed the off load ramp. The defendants have met their burden in establishing that since there is no evidence that they improperly maintained the ski lift or that it was negligently designed, plaintiff cannot make a showing that the risks to her were increased or hidden. See, Sontag v. Holiday Valley, Inc., 38 AD3d 1350, 832 N.Y.S.2d 705 (4th Dept. 2007); see also, Painter v. Peek’n Peak Recreation, Inc., 2 AD3d 1289, 769 N.Y.S.2d 678 (4th Dept. 2003).

The defendants have also met their burden in the first instance of establishing that the plaintiff assumed the risk of her injury. Defendants point to the General Obligations Law, which addresses safety in skiing. The triple chair lift is identified as a “passenger tramway”, a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor… See, GOL §18-102. Under “duties of passengers” the following are listed: to familiarize themselves with the safe use of any tramway prior to its use and…to board or disembark from passenger tramways only at [**7] points or areas designated by the ski area operator. See, GOL §18-104; see also, 12 NYCRR 54.4(a). A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk. See, DeLacy v. Catamount Development Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003). In assessing whether one injured in the course of participating in a sporting or recreational event has assumed the risk posed by an assuredly dangerous condition, the critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport. See, Simoneau v. State of New York, 248 AD2d 865, 669 N.Y.S.2d 972 (3rd Dept. 1998), citing, Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). Defendants have established that plaintiff was an experienced skier and had skied extensively at Song Mountain. It is further argued that the plaintiff assumed the risk of her injury by failing to comply with the requirements of the safety and skiing code by disembarking at the appropriate location. Plaintiff testified that she failed to get off the lift [**8] at the dismount area and had she stayed on she would have tripped the safety gate, which would have stopped the lift automatically. Inasmuch as the defendants have met their burden in the first instance, the burden shifts to the plaintiff to raise an [***4] issue of fact. See, Hunt, supra.

The plaintiff points to a recent Fourth Department case where the plaintiff skier was riding a chair lift with her son, a snow boarder. Plaintiff’s skis became entangled with the snow board and her son panicked and began yelling that he could not untangle the skis, despite frantic attempts. See, Miller v. Holiday Valley, Inc., 85 AD3d 1706, 925 N.Y.S.2d 785 (4th Dept. 2011). Plaintiff’s son exited the lift, but he pulled the plaintiff out of the lift chair in the process and she was injured. See, id. Plaintiff alleged that the top lift attendant should have slowed or stopped the lift because she and her son reached the unloading area. See, id. The court found that a question of fact existed as to whether the alleged failure to operate the ski lift in a safe manner was a proximate cause of the accident. See, id. In so finding, the court noted plaintiff’s deposition testimony that her son was yelling and making frantic attempts [**9] to untangle the skis and snow board and that plaintiff’s expert relied on that testimony in concluding that “the top lift attendant had sufficient time to observe plaintiff’s distress and to engage in what defendant’s night lift operation supervisor characterized as the exercise of judgment to slow or stop the lift.” Id. Defendants correctly argue that there is no evidence in the present case that plaintiff and her son caused any type of commotion prior to reaching the unloading area or tried to alert the attendant in any way for the top lift attendant to have noticed they were having any difficulty. The plaintiff has failed to come forward with proof in admissible form as in Miller, supra. that either the ski lift operator saw or should have seen that the plaintiff was in distress. Nor does plaintiff provide an expert opinion that based upon the facts here, the operator had time to take an action that would have prevented plaintiff’s fall. Plaintiff has likewise failed to raise an issue of fact as to whether she assumed the risk of her injury. Plaintiff does not dispute her experience as a skier or that she was familiar with the subject lift, as required by law. See, GOL §18-104; see [**10] also, 12 NYCRR §54.4. Nor has she submitted evidence to raise an issue of fact as to whether the defendants “created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]” Bennett v. Kissing Bridge Corporation, 17 AD3d 990, 794 N.Y.S.2d 538 (4th Dept. 2005), quoting, Owen v. RJS Safety Equip., 79 NY2d 967, 591 N.E.2d 1184, 582 N.Y.S.2d 998 (1992); see also, Miller, supra, quoting, Sontag, supra.

The plaintiff has also failed in her burden with respect to whether the lift attendants were properly trained, and in fact points to the National Ski Area’s Association Training completed by defendant’s employees. Nor has the plaintiff raised an issue as to whether the lift was properly operating on the day of the accident. Plaintiff has not disputed the inspection reports or the defendants’ compliance with the requisite regulations.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendant’s motion for summary judgment dismissal is granted.

ENTER

Dated: November 2, 2012

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice [***5]

WordPress Tags: Song,Mountain,Center,Misc,LEXIS,Slip,Christina,Steven,Plaintiffs,South,Slope,Development,Corp,Agents,Servants,Employees,Peter,Harris,member,officer,shareholder,director,Defendants,SUPREME,COURT,YORK,ONONDAGA,November,NOTICE,OPINION,OFFICIAL,REPORTS,TERMS,gate,inspection,area,feet,ramp,testimony,fact,husband,HEADNOTES,Negligence,Assumption,Risk,Skier,Chair,Lift,COUNSEL,MICHELLE,WILLIAMS,PLLC,MATTHEW,ROEMER,WALLENS,GOLD,MINEAUX,JUDGES,Donald,Greenwood,Justice,judgment,dismissal,complaint,plaintiff,February,injury,proponent,entitlement,Hunt,Kostarellis,Dept,reliance,accident,incident,Report,Form,Department,Labor,December,Industry,Bureau,violations,deficiencies,location,addition,State,inspections,American,National,Standards,Institute,products,industries,carrier,affidavit,President,Corporation,operator,hour,mechanisms,bull,evacuation,accordance,procedure,instance,argument,attendants,Areas,Association,depth,manuals,Carl,Blaney,duties,contention,systems,ramps,failure,Sontag,Valley,Painter,Peek,Peak,Recreation,General,Obligations,device,purpose,Commissioner,Under,passengers,NYCRR,participant,DeLacy,Catamount,event,dangers,Simoneau,Morgan,requirements,Fourth,boarder,Miller,manner,defendant,supervisor,commotion,action,Bennett,Bridge,Owen,Equip,compliance,ENTER,Syracuse,skis,chairlift,tramway,nine,upon,skiers,five,whether,supra


New Mexico Skier Safety Act

New Mexico Skier Safety Act

Chapter 24.  Health and Safety

Article 15.  Ski Safety

Go to the New Mexico Code Archive Directory

Contents

§ 24-15-1.  Short title. 1

§ 24-15-2.  Purpose of act1

§ 24-15-3.  Definitions. 2

§ 24-15-4.  Insurance. 2

§ 24-15-5.  Penalty. 3

§ 24-15-6.  Provisions in lieu of others. 4

§ 24-15-7.  Duties of ski area operators with respect to skiing areas. 4

§ 24-15-8.  Duties of ski area operators with respect to ski lifts. 5

§ 24-15-9.  Duties of passengers. 5

§ 24-15-10.  Duties of the skiers. 5

§ 24-15-11.  Liability of ski area operators. 7

§ 24-15-12.  Liability of passengers. 7

§ 24-15-13.  Liability of skiers. 7

§ 24-15-14.  Limitation of actions; notice of claim.. 7

§ 24-15-1.  Short title

Chapter 24, Article 15 NMSA 1978 may be cited as the “Ski Safety Act”.

§ 24-15-2.  Purpose of act

A. In order to safeguard life, health, property and the welfare of this state, it is the policy of New Mexico to protect its citizens and visitors from unnecessary hazards in the operation of ski lifts and passenger aerial tramways and to require liability insurance to be carried by operators of ski lifts and tramways. The primary responsibility for the safety of operation, maintenance, repair and inspection of ski lifts and tramways rests with the operators of such devices. The primary responsibility for the safety of the individual skier while engaging in the sport of skiing rests with the skier himself. The state, through the Ski Safety Act [24-15-1 NMSA 1978], recognizes these responsibilities and duties on the part of the ski area operator and the skier.

B. It is recognized that there are inherent risks in the sport of skiing, which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator. It is the purpose of the Ski Safety Act [24-15-1 NMSA 1978] to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier or passenger expressly assumes and for which there can be no recovery.

§ 24-15-3.  Definitions

As used in the Ski Safety Act [24-15-1 NMSA 1978]:

A.  “ski lift” means any device operated by a ski area operator used to transport passengers by single or double reversible tramway, chair lift or gondola lift, T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow;

B.  “passenger” means any person, at any time in the year, who is lawfully using a ski lift or is waiting to embark or has recently disembarked from a ski lift and is in its immediate vicinity;

C.  “ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state;

D.  “ski area operator” means any person, partnership, corporation or other commercial entity and its agents, officers, employees or representatives who has operational responsibility for any ski area or ski lift;

E.  “skiing” means participating in the sport in which a person slides on snow, ice or a combination of snow and ice while using skis;

F.   “skiing area” means all slopes, trails, terrain parks and competition areas, not including any ski lift;

G.  “skier” means any person, including a person enrolled in ski school or other class for instruction, who is on skis and present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include a passenger;

H.  “ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing;

I.    “ski retention device” means a device designed to help prevent runaway skis; and

J.   “skis” means any device used for skiing, including alpine skis, telemark skis, cross-country skis, mono-skis, snowboards, bladerunners, adaptive devices used by disabled skiers, or tubes, sleds or any other device used to accomplish the same or a similar purpose to participate in the sport of skiing.

§ 24-15-4.  Insurance

A. Every operator shall file with the state corporation commission [public regulation commission] and keep on file therewith proof of financial responsibility in the form of a current insurance policy in a form approved by the commission, issued by an insurance company authorized to do business in the state, conditioned to pay, within the limits of liability herein prescribed, all final judgments for personal injury or property damage proximately caused or resulting from negligence of the operator covered thereby, as such negligence is defined and limited by the Ski Safety Act [24-15-1 NMSA 1978]. The minimum limits of liability insurance to be provided by operators shall be as follows:

SKI SAFETY ACT

Liability insurance

Limits of Liability

Required Minimum Coverage’s

For Injuries, Death or Damages

Kind and Number of Lifts Operated

Limits for Bodily Injury to or Death of Property One Person Damage

Limits for Bodily Injury to or Death of All Persons Injured or Killed in Any One Accident

Property Damage

Not more than three surface lifts

$ 100,000

$ 300,000

$ 5,000

Not more than three ski lifts, including one or more chair lifts

250,000

500,000

25,000

More than three ski lifts or one or more tramways

500,000

1,000,000

50,000.

B. No ski lift or tramway shall be operated in this state after the effective date of the Ski Safety Act [24-15-1 NMSA 1978] unless a current insurance policy as required herein is in effect and properly filed with the state corporation commission [public regulation commission]. Each policy shall contain a provision that it cannot be canceled prior to its expiration date without thirty days’ written notice of intent to cancel served by registered mail on the insured and on the commission.

§ 24-15-5.  Penalty

Any operator convicted of operating a ski lift or aerial passenger tramway without having obtained and kept in force an insurance policy as required by the Ski Safety Act [24-15-1 NMSA 1978] is guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($ 500) for each day of illegal operation. The attorney general or the district attorney of the county where the ski area is located has the power to bring proceedings in the district court of the county in which the ski area is located to enjoin the operation of any ski lift or tramway being operated without a current insurance policy, in the amounts prescribed herein, being obtained and kept in force and covering the operator concerned.

§ 24-15-6.  Provisions in lieu of others

Provisions of the Ski Safety Act [24-15-1 NMSA 1978] are in lieu of all other regulations, registration or licensing requirements for ski areas, ski lifts and tramways. Ski lifts and tramways shall not be construed to be common carriers within the meaning of the laws of New Mexico.

§ 24-15-7.  Duties of ski area operators with respect to skiing areas

Every ski area operator shall have the following duties with respect to the operation of a skiing area:

A.  to mark all snow-maintenance vehicles and to furnish such vehicles with flashing or rotating lights, which shall be in operation whenever the vehicles are working or are in movement in the skiing area;

B.  to mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snow-making operations and located on ski slopes and trails;

C.  to mark in a plainly visible manner the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty, using the symbols established or approved by the national ski areas association; and those slopes, trails or areas which are closed, or portions of which present an unusual obstacle or hazard, shall be marked at the top or entrance or at the point of the obstacle or hazard with the appropriate symbols as are established or approved by the national ski areas association or by the New Mexico ski area operators association;

D.  to maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated in accordance with the symbols and containing a key to the symbols;

E.  to designate by trail board or otherwise at the top of or entrance to the subject trail or slope which trails or slopes are open or closed;

F.   to place or cause to be placed, whenever snow-maintenance vehicles or snow-making operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top or entrance of such trail or slope;

G.  to provide ski patrol personnel trained in first aid, which training meets at least the requirements of the national ski patrol outdoor emergency care course, and also trained in winter rescue and toboggan handling to serve the anticipated number of injured skiers and to provide personnel trained for the evacuation of passengers from stalled aerial ski lifts. A first aid room or building shall be provided with adequate first aid supplies, and properly equipped rescue toboggans shall be made available at all reasonable times at the top of ski slopes and trails to transport injured skiers from the ski slopes and trails to the first aid room;

H.  to post notice of the requirements of the Ski Safety Act [24-15-1 NMSA 1978] concerning the use of ski retention devices;

I.    to warn of or correct particular hazards or dangers known to the operator where feasible to do so; and

J.   to warn of snowmobiles or all-terrain vehicles (ATV’s) operated on the ski slopes or trails with at least one lighted headlamp, one lighted red tail lamp, a brake system and a fluorescent flag that is at least forty square inches and is mounted at least six feet above the bottom of the tracks or tires.

§ 24-15-8.  Duties of ski area operators with respect to ski lifts

Every ski area operator shall have the duty to operate, repair and maintain all ski lifts in safe condition. The ski area operator, prior to December 1 of each year, shall certify to the state corporation commission [public regulation commission] the policy number and name of the company providing liability insurance for the ski area and the date of the ski lift inspections and the name of the person making such inspections.

§ 24-15-9.  Duties of passengers

Every passenger shall have the duty to conduct himself carefully and not to:

A.  board or embark upon or disembark from a ski lift except at an area designated for such purpose;

B.  drop, throw or expel any object from a ski lift;

C.  do any act which shall interfere with the running or operation of a ski lift;

D.  use any ski lift unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instruction before boarding the ski lift;

E.  willfully or negligently engage in any type of conduct which contributes to or causes injury to any person;

F.   embark on a ski lift without the authority of the ski area operator;

G.  use any ski lift without engaging such safety or restraining devices as may be provided; or

H.  wear skis without properly securing ski retention devices; or

I.    use a ski lift while intoxicated or under the influence of any controlled substance.

§ 24-15-10.  Duties of the skiers

A. It is recognized that skiing as a recreational sport is inherently hazardous to skiers, and it is the duty of each skier to conduct himself carefully.

B.  A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

C.  Responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of each individual involved in the collision, except where an employee, agent or officer of the ski area operator is personally involved in a collision while in the course and scope of his employment or where a collision resulted from any breach of duty imposed upon a ski area operator under the provisions of Sections 24-15-7 or 24-15-8 NMSA 1978. Each skier has the duty to stay clear of and avoid collisions with snow-maintenance equipment, all-terrain vehicles and snowmobiles marked in compliance with the provisions of Subsections A and J of Section 24-15-7 NMSA 1978, all other vehicles, lift towers, signs and any other structures, amenities or equipment on the ski slopes and trails or in the skiing area.

D.  No person shall:

(1)place any object in the skiing area or on the uphill track of any ski lift which may cause a passenger or skier to fall;

(2)cross the track of any T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow, except at a designated location;

(3)when injured while skiing or using a ski lift or, while skiing, when involved in a collision with any skier or object in which an injury results, leave the ski area before giving his name and current address to the ski area operator, or representative or employee of the ski area operator, and the location where the injury or collision occurred and the circumstances thereof; provided, however, in the event a skier fails to give the notice required by this paragraph, a court, in determining whether or not such failure constitutes a violation of the Ski Safety Act [24-15-1 NMSA 1978], may consider the reasonableness or feasibility of giving such notice; or

(4)use a ski lift, skiing area, slopes or trails while intoxicated or under the influence of any controlled substance.

E.  No skier shall fail to wear retention straps or other ski retention devices to help prevent runaway skis.

F.   Any skier upon being injured shall indicate, to the ski patrol personnel offering first aid treatment or emergency removal to a first aid room, his acceptance or rejection of such services as provided by the ski area operator. If such service is not refused or if the skier is unable to indicate his acceptance or rejection of such service, the acceptance of the service is presumed to have been accepted by the skier. Such acceptance shall not constitute a waiver of any action for negligent provision of the service by the ski patrol personnel.

§ 24-15-11.  Liability of ski area operators

Any ski area operator shall be liable for loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered, and shall continue to be subject to liability in accordance with common-law principles of vicarious liability for the willful or negligent actions of its principals, agents or employees which cause injury to a passenger, skier or other person. The ski area operator shall not be liable to any passenger or skier acting in violation of his duties as set forth in Sections 24-15-9 and 24-15-10 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-12.  Liability of passengers

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-9 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-13.  Liability of skiers

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-10 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-14.  Limitation of actions; notice of claim

A. Unless a ski area operator is in violation of the Ski Safety Act [24-15-1 NMSA 1978], with respect to the skiing area and ski lifts, and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area operator by any skier or passenger or any representative of a skier or passenger. This prohibition shall not prevent the bringing of an action against a ski area operator for damages arising from injuries caused by negligent operation, maintenance or repair of the ski lift.

B. No suit or action shall be maintained against any ski area operator for injuries incurred as a result of the use of a ski lift or ski area unless the same is commenced within three years of the time of the occurrence of the injuries complained of.

Created January 9, 2012

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