Attractive Nuisance cases are rare, even rarer when it involves a ski area and ski lessons, let alone a collision casePosted: December 9, 2013
This is an early collision case and shows the development of alpine ski collision cases. This case also examines how courts review the Colorado Ski Safety Act and whether it conflicted with Colorado’s Premise Liability Statute.
Plaintiff: James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs
Defendant: Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants
Defendant Ski Area: negligent maintenance of the premises; C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers; and,
Under an attractive nuisance theory.
Defendant Ski School is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson; and,
For negligent supervision and instruction of Michael while enrolled in the ski school.
Defendant Defenses: Colorado Skier Safety Act
Holding: partially for the plaintiff and for the defendant
This case was filed in federal district court gave rise to this decision based on motions to dismiss filed by the defendants’ ski area and ski school. The motions were an attempt to dismiss the majority of the plaintiff’s claims, to weaken their position and their case.
The defendant was skiing at Snowmass Mountain Resort when the defendant allegedly collided with the plaintiff. At the time of the collision, the plaintiff was enrolled in a ski lesson with the defendant ski school. The defendant skier was “lured” to a roll or jump on the slope which he went over colliding with the plaintiff. It was this roll that was defined as the property creating the attractive nuisance.
This was a different approach to attractive nuisance. Attractive nuisance is normally used to recover from a landowner when something on the land attracted the minor on to the land resulting in the minor being injured. Here the minor who was attracted to land, was legally on the land and caused injury to another.
The court classified the plaintiff as an invited guest and customer of Snowmass. This definition took in both statutes the court was going to have to decide in this case, the Colorado Ski Safety Act and the Colorado’s Premises Liability Statute’
Summary of the case
The court first looked at the plaintiff’s allegations that the Colorado Ski Safety Act violated Colorado’s Premises Liability Statute and as such was unconstitutional. Under the Premises Liability Statute, the duty owed to the plaintiff would be as a business invitee which is the highest degree of care owed to someone on your land and a much higher degree of care than required under the ski safety act. The premise’s liability statute defines the liability of a business invitee as:
If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers, which are not ordinarily present on property of the type involved and of which he actually knew.
The court found the statutes did not conflict because statutes were directed at different types of “dangerous activities and conditions.”
The court then reviewed the plaintiff’s argument that the defendant ski area failed to protect the plaintiff from dangers it should have known. The claim was based on a statute that requires actual knowledge. In this case, it means the defendant would have to have known the defendant skier was going to collide with the plaintiff. The knowledge required was more than foreseeable; it had to be actual to create liability.
The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas.
In contrast, the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.”
Not to hold this way, the court stated, it would subject ski area operators to greater liability than other landowners. Because the plaintiff failed to make any claims under the Ski Safety Act, only claims under the Premises Liability Act the plaintiff was out on his negligence claims. Without the Premises Liability Act to support the claims, the claims failed when the Premises Liability Act was held not to supersede the Ski Area Safety Act.
However, the court reasoned the plaintiff’s claims of negligent supervision were not based on the premise’s liability statute those claims were allowed to continue. “Instructing people in the sport of skiing is not inherently related to the land.”
The attractive nuisance claims were also dismissed.
The purpose of the doctrine is to protect children from hazards, which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premise’s liability statute, the Legislature evidenced an intent to give children under the age of fourteen protections beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee.
The doctrine only applies to features on the land that are unnatural and unusual.
The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions, which are present on their property of which children should reasonably recognize the associated dangers.
Because the roll was natural and not unusual, the roll was not an attractive nuisance.
A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.
The court dismissed the claims based on conditions of the land, but not those based on general negligence that were not based on the land.
So Now What?
This case has little direction for ski areas. However, it is a fundamental building block in Colorado law for the ski industry. The case also shows how a court determines which of two statutes will be controlling and how that decision is made by the courts.
The legal doctrine of attractive nuisance is also fading and not used much anymore. However, this case is a good analysis of the attractive nuisance doctrine. Here you can see that unnatural things on your land, which attract minors, under the age of 14, that causes injury to the minor can hold the landowner liable. Normally, a landowner would not be liable in this situation to a trespasser.
What do you think? Leave a comment.
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Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791
James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs, v. Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants
Civil Action No. 88-A-766
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791
March 22, 1989, Decided
March 22, 1989, Filed
COUNSEL: [**1] Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, Colorado, Attorney for Plaintiffs.
Thomas E. Hames, Esq., Inman, Erickson & Flynn, P.C., Denver, Colorado, Attorney for Defendants Fischers.
Paul D. Nelson, Esq., Hancock, Rothert & Bunshoft, San Francisco, California, Scott S. Barker, Esq., Mary D. Metzger, Esq., Perry L. Glantz, Esq., Holland & Hart, Englewood, Colorado, Attorneys for Defendants Aspen Skiing Co. and Jennifer Catherine Lang.
JUDGES: Alfred A. Arraj, United States District Judge.
OPINION BY: ARRAJ
[*1013] MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS
ALFRED A. ARRAJ, UNITED STATES DISTRICT JUDGE.
This matter is before the court on defendants Aspen Skiing Company’s (“ASC”) and Jennifer Catherine Lang’s (“Lang”) Motion to dismiss the Third, Fifth, Sixth, Seventh and Portions of the Fourth Claim For Relief Contained in Plaintiffs’ Second Amended Complaint. This is the second motion to dismiss filed in this case.
In order to understand the procedural posture of this motion, it is helpful to first set out the factual events upon which plaintiffs’ claims arose. According to plaintiffs, defendant Kevin Fischer, minor son of defendant Robert Fischer, collided with plaintiff Michael Giebink (“Michael”) in a skiing accident at Snowmass Ski Area on or about March 29, 1988. As a result, Michael was seriously injured. At [**2] the time of the accident it is alleged that Michael was an invited guest and customer at Snowmass Mountain Resort which is owned by ASC.
Plaintiffs’ Third Claim in its Second Amended Complaint is based upon ASC’s alleged negligent maintenance of the premises. Plaintiffs’ Fourth Claim is apparently pled under C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.” Second Amended Complaint para. 3 at 4. Plaintiffs’ Seventh Claim is also based upon the condition [*1014] of ASC’s premises under an attractive nuisance theory.
Plaintiffs further claim that Michael was enrolled in the Snowmass Ski School at the time of his accident. Defendant Jennifer Lang, an employee of ASC, was the skiing instructor. Plaintiffs’ Fifth Claim asserts that ASC is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson. Plaintiffs’ Sixth Claim is against Lang, individually, for negligent supervision [**3] and instruction of Michael while enrolled in the ski school.
In its first motion to dismiss, defendant ASC moved to dismiss those of plaintiffs’ claims which were pled under theories of common law negligence. Defendant argued that C.R.S. § 13-21-115, the Colorado premises liability statute, abrogated common law claims and that the statute was plaintiffs’ exclusive means of remedy. Plaintiffs opposed dismissal on several grounds, including their contention that C.R.S. § 13-21-115 was unconstitutional. At a hearing held on July 15, 1988, this court denied ASC’s first motion without prejudice. Certification of the constitutional questions raised by plaintiffs was made to the Colorado Supreme Court on November 1, 1988. The Supreme Court declined to answer the certified questions on December 12, 1988.
The present motion to dismiss was filed January 24, 1989. In it, defendants move for dismissal of the Third, Fifth, Sixth and Seventh Claims and portions of the Fourth claim as contained in plaintiffs’ Second Amended Complaint. Defendants renew their argument that C.R.S. § 13-21-115 is plaintiffs’ exclusive remedy. They conclude that because § 13-21-115 abrogates common law claims against [**4] landowners, that plaintiffs’ Third, Fifth, and Sixth Claims, founded on common law negligence theories, fail to state a claim upon which relief can be granted. Defendants also urge this court to dismiss the Seventh Claim because it is admitted that Michael was not a trespasser, and, according to defendants, the doctrine of attractive nuisance only applies to trespassers. Finally, defendants argue that the Fourth Claim should be dismissed to the extent that, contrary to § 13-21-115, the complaint implies that liability may be imposed against a landowner for failure to exercise reasonable care to protect an invited plaintiff against dangers of which it “should have known.”
I) “Conflict” between the Colorado Ski Safety Act and Premises Liability Statute.
It is plaintiffs’ position that the premises liability statute, C.R.S. § 13-21-115, does not apply to this case involving a skiing accident because the Colorado Ski Safety Act (“Ski Safety Act”), C.R.S. §§ 33-44-101 to -111, is a specific statute which applies to ski areas and prevails over the general premises liability statute which applies to “any civil action brought against a landowner.” § 13-21-115(2). Plaintiffs contend [**5] that the Ski Safety Act authorizes negligence actions, and to the extent that § 13-21-115 abrogates common law negligence claims there is a conflict. Consequently, plaintiffs conclude that the specific statute prevails and that their negligence claims are viable under the Ski Safety Act.
My analysis begins with [HN1] C.R.S. § 2-4-205, which provides in full:
“If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”
It is the court’s duty to construe statutes to avoid inconsistency if it is reasonably possible. Marshall v. City of Golden, 147 Colo. 521, 363 P.2d 650, 652 (1961). In the instant case the two statutes may reasonably be interpreted to avoid conflict. They apply to different activities and conditions.
The Ski Safety Act has an express purpose “to further define the legal responsibilities [*1015] of ski area operators 1 and their agents and employees; to define [**6] the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.” C.R.S. § 33-44-102. [HN2] The only responsibilities imposed upon operators by the Ski Safety Act relate to posting signs, §§ 33-44-106, 33-44-107, and providing lighting and other conspicuous markings for snow-grooming vehicles and snowmobiles. C.R.S. § 33-44-108. “A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-710(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” C.R.S. § 33-44-104(2). Thus, the duties imposed upon ski operators by the Ski Safety Act, a breach of which constitutes actionable negligence, concern a very limited number of specifically identified activities and conditions.
1 “‘Ski area operator’ means ‘operator’ as defined in section 25-5-702(3), C.R.S., and any person, partnership, corporation, or other commercial entity having operational responsibility for any ski areas, including an agency of this state or a political subdivision thereof.” C.R.S. § 33-44-103(7).
[**7] The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. See Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 678 (Colo. 1985) (“the legislature has attempted to identify those dangers which can reasonably be eliminated or controlled by the ski area operator.”). In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas. 2
2 Conceivably, a conflict could exist between the two statutes, as in a case where a ski operator fails to mark a man-made structure as required by § 33-44-107(7). If the structure was one not ordinarily present at a ski area, a conflict would exist. However, the instant case does not present the court with this situation.
In contrast, [HN3] the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. C.R.S. § 13-21-115(2). “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover [**8] for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.” C.R.S. § 13-21-115(3)(c) (emphasis added). 3 Thus, it is clear that the statutes are directed at two different types of dangerous activities and conditions, ordinary and out of the ordinary.
3 It is the judge’s duty to determine which subsection of § 13-21-115(3) is applicable in each action. § 13-21-115(4). The parties do not dispute that if the premises liability statute does indeed control, that § 13-21-115(3)(c) is the applicable subsection.
In Calvert v. Aspen Skiing Company, 700 F. Supp. 520 (D. Colo. 1988), the court held that the two statutes did conflict and that the specific Ski Safety Act prevailed. Accordingly, the court denied the defendant’s motion to dismiss plaintiff’s negligence claims. The conflict, according to the court, was that the premises liability statute abrogates all common law claims for negligence while the Ski Safety Act does not. Id. at 522. However, the two statutes may be interpreted consistently in light of the different scope [**9] of activities and conditions addressed by each.
It would be contrary to the Legislature’s intent to expose ski operators to greater liability than other landowners. To sustain plaintiffs’ claims founded on negligence would have exactly that effect. The Colorado Supreme Court has addressed at least one of the Legislature’s purposes in enacting the Ski Safety Act, stating:
Indisputably, the ski industry is an important part of the Colorado economy. . . . The legislative history indicates that one of the purposes underlying the [presumption provided in § 33-44-109(2) which imposes a presumption that the [*1016] responsibility for collisions by skiers with any person, natural object, or man-made structure marked in accordance with the Act is solely that of the skier and not the ski area operator] is to reduce the number of frivolous lawsuits and, accordingly, the rapidly rising cost of liability insurance accruing to ski area operators.
Pizza, 711 P.2d at 679 (citation omitted). The Legislature intended to protect ski operators from the increasing burden of litigation by passing the Ski Safety Act. There is no reason to believe that it intended to single out ski operators as a subgroup [**10] of landowners who would be held to a higher standard of care.
While the Ski Safety Act does not abrogate common law causes of action for negligence, neither does it expressly or implicitly create a general negligence action for all injuries sustained at ski areas. In the present case plaintiffs have not alleged any facts that would be actionable as a violation of the specific duties imposed upon ski operators by the Ski Safety Act. Their common law negligence claims, therefore, cannot be sustained under the umbrella of the Act. 4
4 Defendants pose a second argument which leads to the same conclusion. The premises liability statute was adopted subsequent to the Ski Safety Act and contains the “manifest intent” to apply to “any civil action.” C.R.S. § 13-21-115(2) (emphasis added). Accordingly, the premises liability statute, which expressly abrogates common law claims, would prevail even if the two statutes did conflict. C.R.S. § 2-4-205.
II) Premises Liability Statute
I must now consider to what extent the premises liability statute applies to plaintiffs’ claims. The language of the statute appears to embrace a broad range of conditions and activities that exist or are [**11] conducted on a landowner’s property. C.R.S. § 13-21-115(2). However, the court in Geringer v. Wildhorn Ranch, Inc., 706 F. Supp. 1442 (D. Colo. 1988), noted that [HN4] “the statutory classification ‘activities conducted or circumstances existing on such property’ must be read narrowly with careful regard for the intent of the legislature to re-establish common law distinctions in the law of premises liability.” Id. at 1446.
In Geringer, the plaintiff brought a wrongful death action for the death of her husband and son in a drowning accident which occurred at the defendant’s guest ranch. The two drowned during a boating accident involving a peddleboat supplied by the defendant corporation. The court struck plaintiff’s claims founded on the premises liability statute. Following a jury verdict in favor of the plaintiff, the defendants made motions for judgment notwithstanding the verdict, for new trial, and for amended judgment. Defendants contended that they were prejudiced by the trial court’s failure to instruct the jury in accordance with the premises liability statute which provides a more difficult standard for plaintiffs to overcome. Defendants argued that the [**12] premises liability statute was plaintiff’s exclusive remedy. The court disagreed:
Traditionally, the activities for which a defendant is liable as a landowner are inherently related to the land — construction, landscaping or other activities treating the land. . . .
The causation evidence in this case focused on defendants’ maintenance of the peddleboats and on defendants’ knowledge of their condition following purported repairs. The duty litigated in this case was that of a supplier of chattel to provide its user with chattel that was not defective. . . . The statute does not reflect an intention to extend the application of premises liability doctrine to the negligent supply of chattel by a landowner.
Id. at 1446. The distinction between activities “inherently related to the land” and other activities which do not fall within the scope of the premises liability statute logically follows from the court’s conclusion that “the statute does not establish a feudal realm of absolute protection from liability for simple negligence based only on a defendant’s status as a landowner.” [*1017] Id. at 1446. 5
5 To hold otherwise would shield all types of negligent activities from the negligence standard, such as in a case where a doctor negligently treats a patient at his privately owned clinic. This result could not have been intended by the Legislature.
[**13] In the present case plaintiff’s Fifth and Sixth Claims are based upon the alleged negligent supervision of Michael during the course of his skiing instruction. Instructing people in the sport of skiing is not inherently related to the land. Therefore, plaintiffs’ Fifth and Sixth Claims should not be dismissed.
On the other hand, plaintiffs’ Third Claim is founded on defendant’s negligent maintenance of conditions at the ski area. Conditions of property clearly fall within the scope of the premises liability statute. C.R.S. § 13-21-115(2). Therefore, the Third Claim must be dismissed for failure to state a claim upon which relief can be granted.
III) Constitutionality of the Premises Liability Statute
Plaintiffs contest the constitutionality of C.R.S. § 13-21-115 on several grounds. [HN5] Statutes are presumed constitutional and the plaintiff, as the party attacking the statute, must prove the statute unconstitutional beyond a reasonable doubt. Bedford Motors, Inc. v. Harris, 714 P.2d 489, 491 (Colo. 1986).
Plaintiffs argue that the phrase “deliberate failure to exercise reasonable care,” as provided in C.R.S. § 13-21-115(3)(c), is unconstitutionally vague. It is plaintiffs’ position [**14] that the terms “deliberate” and “reasonable care” are contradictory. I disagree.
The premises liability statute is basically an economic regulation, designed to limit the liability of landowners. Therefore, the vagueness standard which must be applied in this case is less exacting than in a case involving a penal statute or laws regulating first amendment rights. Pizza, 711 P.2d at 676.
“Deliberate” is a common word used frequently in every-day experience and readily understood. [HN6] “The probable legislative intent in using such a word may be determined by resorting to a standard dictionary.” Pizza, at 676. Webster’s New World Dictionary (2nd ed. 1972) defines “deliberate” as “carefully thought out and formed, or done on purpose; premeditated; careful in considering, judging, or deciding; not rash or hasty.” [HN7] “Reasonable care” is obviously a common tort standard associated with negligence which requires a degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. See Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337, 339 (1975). Thus, in order to incur liability under § 13-21-115(3)(c), a landowner must purposely fail to act [**15] as an ordinarily prudent person would in a like situation.
Plaintiffs also argue that the statute denies them a right to a remedy for injury as guaranteed by [HN8] Article II, Section 6 of the Colorado Constitution. Article II, Section 6 provides:
Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.
As noted in Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698, 702 (1967), this provision is a mandate to the judiciary, not the legislature. “The power of the legislature to abolish substantive common law rights including those vouch-safed by the common law of England, in order to attain a permissible legislative object, has already been decided by this court. . . .” Id. at 470. Thus, the Legislature’s enactment of § 13-21-115 does not violate the Colorado Constitution.
Next plaintiffs argue that the statute violates [HN9] Article V, Section 25 of the Colorado Constitution which prohibits the general assembly from passing special laws for the benefit of any corporation, association or individuals. The constitutional inhibition against class legislation [**16] arises “when the effect of the law is to prohibit a carrying on of a legitimate business [*1018] or occupation while allowing other businesses or occupations not reasonably to be distinguished from those prohibited to be carried on freely.” Dunbar v. Hoffman, 171 Colo. 481, 468 P.2d 742, 745 (1970). However, a statute is not special when “it is general and uniform in its operation upon all in like situation.” McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691, 693 (1962). The premises liability statute applies uniformly to all landowners to limit liability for injuries resulting from conditions and activities which are inherently related to ownership of property. It is, therefore, not a special law.
Plaintiffs’ equal protection challenge also fails. [HN10] The statutory classification need only be reasonably related to a legitimate state objective in order to pass constitutional muster because no fundamental right or suspect class is involved. Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827 (Colo. 1982). In this case the Legislature could have reasonably enacted the premises liability statute as a means of reducing liability of landowners for certain injuries occurring on their property. The Colorado [**17] Supreme Court has recognized that the Legislature has a legitimate interest in protecting the state economy. Pizza, 711 P.2d at 679. Providing limited protection to landowners is reasonably related to that end.
IV) Plaintiffs’ Fourth Claim
Defendants argue that plaintiffs’ Fourth Claim should be dismissed to the extent that it alleges that defendant ASC is liable for failure to exercise reasonable care to protect Michael against dangers of which it “should have known.” 6 Plaintiffs’ Fourth Claim is based on § 13-21-115(3)(c), which, by its express terms, requires actual knowledge. Plaintiffs’ Fourth Claim is dismissed to the extent that it seeks to impose liability for dangers of which ASC should have known.
6 Plaintiffs’ Fourth Claim alleges that ASC is liable because it “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.”
V) Attractive Nuisance
Finally, defendants move to dismiss plaintiffs’ Seventh Claim which is founded upon the doctrine of attractive [**18] nuisance, 7 arguing that it only applies to situations involving trespassers, and that according to plaintiffs’ allegations Michael was not a trespasser. 8 In an attempt to strike a reasonable compromise between the conflicting interests between the freedom of land use and the protection of children, courts have recognized the attractive nuisance doctrine. [HN11] The doctrine imposes a higher standard of care on landowners toward children than would otherwise be owed to a trespasser. 9
7 In their Seventh Claim, plaintiffs accuse defendant ASC of maintaining an unreasonably dangerous and hazardous condition in the form of a roll jump. The roll jump is made entirely of earth. Skiers use it to perform aerial maneuvers.
8 The Colorado Legislature clearly provided that attractive nuisance, as it applies to persons under fourteen years of age, is not abrogated by the premises liability statute. C.R.S. § 13-21-115(2).
9 Prior to the Colorado Supreme Court’s decision in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), landowners generally owed no duty to make or keep property safe for trespassers. See Staley v. Security Athletic Association, 152 Colo. 19, 380 P.2d 53, 54 (1963).
[**19] The purpose of the doctrine is to protect children from hazards which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premises liability statute, the Legislature evidenced an intent to give children under the age of fourteen protection beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee. See W. Prosser & W. Keeton, Prosser and Keeton on Torts, § 59 at 402 (5th ed. 1984) (“In any case where the child could recover if he were a trespasser, he can recover at least as well when he is a licensee or an invitee [*1019] on the premises.”); Restatement (Second) of Torts § 343B (1977) (“In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.”); State v. Juengel, 15 Ariz. App. 495, 489 P.2d 869, 873 (1971). See also CJI-Civ. 2d 12:6A (Supp. 1988).
However, plaintiffs’ Seventh Claim fails for several other reasons. Plaintiffs’ counsel made [**20] it clear at the March 17, 1989 hearing that it was not Michael that was lured to the accident scene by the roll jump; it was Kevin Fischer, the other youth allegedly involved in the collision, who was drawn to the location by the roll jump. The doctrine of attractive nuisance simply does not apply under these facts.
A second, related argument, also leads me to the conclusion that the doctrine should not be applied in this case. [HN12] The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions which are present on their property of which children should reasonably recognize the associated dangers. See Esquibel v. City and County of Denver, 112 Colo. 546, 151 P.2d 757, 759 (1944) (attractive nuisance doctrine did not apply where child was injured while climbing on automobile bodies piled in an unstable heap). The Esquibel court cited the Restatement of Torts § 339 Comment on Clause (c):
A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to [**21] them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.
Other conditions which have been held to be common and obvious include an artificial pond, Phipps v. Mitze, 116 Colo. 288, 180 P.2d 233 (1947), an icy slope used for sledding, Ostroski v. Mount Prospect Shop-Rite, Inc., 94 N.J. Super. 374, 228 A.2d 545 (1967), a sand pile, Knight v. Kaiser Co., 48 Cal. 2d 778, 312 P.2d 1089 (1957), and a steep bluff, Zagar v. Union Pacific R. Co., [**22] 113 Kan. 240, 214 P. 107 (1923).
Defendants in this case had a right to expect youngsters who were actively participating in the sport of skiing to understand the dangers of conditions such as the roll jump. The dangers associated with the roll jump are apparent, not latent. It is not an “unusual condition.” Therefore, the doctrine of attractive nuisance is not available to the plaintiffs.
IT IS ORDERED that plaintiffs’ Third and Seventh Claims be, and the same hereby are, DISMISSED with prejudice.
IT IS FURTHER ORDERED that plaintiffs’ Fourth Claim, to the extent that it seeks to impose liability for dangers of which ASC ‘should have known,’ be, and the same hereby is, DISMISSED with prejudice.
IT IS FURTHER ORDERED that defendants’ motion to dismiss to the extent that it requests dismissal of plaintiffs’ Fifth and Sixth Claims be, and the same hereby is, DENIED.
DATED at Denver, Colorado this 22nd day of March, 1989.
Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234
Kimberly N. Squires, by and through her Guardian and Natural Parent, LYLE K. Squires, Plaintiff, v. James Michael Goodwin, an individual, Breckenridge Outdoor Education Center, a Colorado corporation, and Mountain Man, Inc., a Montana corporation, Defendants.
Civil Action No. 10-cv-00309-CBS-BNB
United States District Court For The District Of Colorado
2011 U.S. Dist. LEXIS 129234
November 8, 2011, Decided
November 8, 2011, Filed
Prior History: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 128565 (D. Colo., Nov. 7, 2011)
CORE TERMS: ski, bi-ski, skiing, misrepresentation, willful, reckless, citations omitted, exculpatory, deposition, wanton, trip, instructor, adaptive, omission, outdoor, summary judgment, wilderness, public policy, bargaining, mountain, knot, recreational, disability, recklessly, daughter’s, sit-down, entity, lesson, negligence claim, precautions
COUNSEL: [*1] For Kimberly N. Squires, by and through her guardian and natural parent, Lyle K. Squires other, Lyle K. Squires, Plaintiff: Colleen M. Parsley, LEAD ATTORNEY, Gregory A. Gold, Gold Law Firm, L.L.C, Greenwood Village, CO; Richard Waldron Bryans, Jr., Bryans Law Office, Denver, CO.
For James Michael Goodwin, an individual, Defendant: Gary L. Palumbo, Bayer & Carey, P.C., Denver, CO.
For Breckenridge Outdoor Education Center, a Colorado corporation, Defendant: Deana R. Dagner, Joan S. Allgaier, John W. Grund, Grund Dagner, P.C., Denver, CO.
JUDGES: Craig B. Shaffer, United States Magistrate Judge.
OPINION BY: Craig B. Shaffer
MEMORANDUM OPINION AND ORDER
This civil action comes before the court on Defendant Breckenridge Outdoor Education Center’s (BOEC’s) Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52). On September 16, 2010, the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed. R. Civ. P. 73, and D.C. COLO. LCivR 72.2. (See Doc. # 42). The court has reviewed the Motion, Ms. Squires’ Response (filed January 6, 2011) (Doc. # 56), BOEC’s Reply (filed January [*2] 24, 2011) (Doc. # 61), BOEC’s Notice of Supplemental Authority (filed April 18, 2011) (Doc. # 76), Ms. Squires’ Response to BOEC’s Notice of Supplemental Authority (filed May 12, 2011) (Doc. # 81), Ms. Squires’ Reply Memorandum Brief Regarding Misrepresentation (filed May 30, 2011) (Doc. # 84), BOEC’s Surreply Brief regarding Misrepresentation (filed June 6, 20110) (Doc. # 89), the affidavit, the exhibits, the arguments presented at the hearing held on July 20, 2011, and the entire case file and is sufficiently advised in the premises.
I. Statement of the Case
Ms. Squires’ claim against BOEC arises out of a ski accident (“the Accident”) that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. BOEC is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. (See SAC (Doc. # 13) at 2-3, ¶ 6; Scheduling Order (“SO”) (Doc. # 40) at 7 of 15 (Undisputed Facts)). At all relevant times, Ms. Squires was 17 years old, legally blind, cognitively delayed, and physically limited by cerebral palsy. (See SAC at 1-2, ¶ 2).
BOEC employed Jennifer Phillips as a para-ski instructor at the time of the Accident. (See SO at 7 of 15). On the morning of [*3] the Accident, Ms. Squires was paired with Ms. Phillips and placed in a bi-ski. (See id.). The bi-ski was manufactured by Defendant Mountain Man. (See id.). Ms. Phillips and Ms. Squires went to Peak 9 at Breckenridge Ski Resort. (See id.). Ms. Phillips utilized tethers as a means to control the bi-ski. (See SAC at 5 of 13, ¶ 16). On their second run, Ms. Squires and Ms. Phillips skied down Cashier trail. (See SO at 7 of 15). Defendant Goodwin was also skiing down Cashier trail. (See id.). Defendant Goodwin lost control and skied into the tethers between Ms. Squires and Ms. Phillips. (See Goodwin Deposition, Exhibit B to Motion (Doc. # 52-2), at 2, 3 of 3). Due to the force of the collision with Defendant Goodwin, Ms. Phillips lost control of the tethers and the bi-ski containing Ms. Squires continued down Cashier trail unrestrained until it collided with a tree. (See SAC at 5 of 13, ¶ 19; BOEC’s Answer to SAC (Doc. # 27) at 2-3 of 8, ¶ 12). Ms. Squires was injured when the bi-ski collided with a tree. (See SO at 7 of 15).
Ms. Squires filed her initial Complaint on February 12, 2010, alleging five claims for relief against Defendants Goodwin and BOEC based on diversity of citizenship [*4] jurisdiction. (See Doc. # 1). She filed her First Amended Complaint (“FAC”) on April 15, 2010, alleging nine claims for relief against Defendants Goodwin, BOEC, and Mountain Man, Inc. (“Mountain Man”). (See Doc. # 5). Ms. Squires refiled her First Amended Complaint on April 19, 2010 pursuant to a request from the Clerk of the Court. (See Doc. # 11). Ms. Squires filed her Second Amended Complaint (“SAC”), the current operative pleading, on June 2, 2011, alleging nine claims against Defendants Goodwin, BOEC, and Mountain Man. (See Doc. # 13). Ms. Squires’ First, Second, Third, and Fourth Claims for Relief allege negligence per se under the Ski Safety Act, Colo. Rev. Stat. § 33-44-109(2) and common law negligence against Defendant Goodwin. (See Doc. # 13 at 6-7 of 13). Ms. Squires’ Fifth Claim for Relief alleges negligence, willful and wanton, reckless, and/or gross negligence against Defendant BOEC. (See id. at 8-9 of 13). The court granted summary judgment in favor of Defendant Mountain Man on Ms. Squires’ Sixth, Seventh, Eighth, and Ninth Claims for Relief for strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach [*5] of express warranty. (See id. at 9-12 of 13; “Order on Pending Motions” (Doc. # 119)).
Defendant BOEC moves for summary judgment on the Fifth Claim for Relief in the SAC on the grounds that Ms. Squires is prevented from bringing the claim by a valid release of liability.
II. Standard of Review
“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law.” Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted). “When applying this standard, the court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Id. “All doubts must be resolved in favor of the existence of triable issues of fact.” Id. However, if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion [*6] of fact, “the court may . . . grant summary judgment if the motions and supporting materials — including the facts considered undisputed — show that the moving party is entitled to it.” Fed. R. Civ. P. 56(e).
A. Release of Negligence Claim under Colo. Rev. Stat. § 13-22-107
Prior to the Accident, on January 13, 2008, Ms. Squires and her mother, Mrs. Squires, signed an “Acknowledgement [sic] of Risk and Release of Liability” (“Release”). In Colorado, the parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence. Colo. Rev. Stat. § 13-22-107. The statute requires that such a decision be “voluntary and informed.” Colo. Rev. Stat. § 13-22-107(1)(a)(V).
(1)(a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities [*7] may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
. . .
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit [*8] a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Colo. Rev. Stat. § 13-22-107.
“Because waiver is an affirmative defense, the Defendant has the burden to prove waiver.” Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) (Furman, J, dissenting) (citing C.R.C.P. 8(c)). Ms. Squires argues that BOEC is not entitled to summary judgment on the Fifth Claim for Relief based on the Release because her mother’s decision to sign the Release was not informed.1 Relying on Wycoff, 251 P.3d at 1260, Ms. Squires argues that the decision was not informed because the Release did not inform Mrs. Squires of the risks associated with BOEC’s winter program, failing to “mention skiing, skis, ski slopes, ski lifts, or anything at all specific to skiing.” (See Response (Doc. # 56) at 9 of 19).
1 Ms. Squires concedes that Mrs. Squires signed the Release voluntarily. (See, e.g., Doc. # 84-4 at 6 of 7).
In Wycoff, a 17-year old minor attending a church-sponsored event was injured when she was riding [*9] on an inner-tube towed by an ATV on a frozen lake. Wycoff, 251 P.3d at 1263. The minor and her mother had signed the registration and information form that contained a release. Id. While the minor was aware that riding on an inner-tube towed by an ATV on a frozen lake would be an activity at the event, her mother was not. Wycoff, 251 P.3d at 1263. The court in Wycoff interpreted § 13-22-107(3) to require that a parent’s decision to release a child’s prospective claims be “voluntary and informed.” Id. Although the court noted the standard for informed consent to a medical procedure, it did not adopt that standard for a parental release of claim. Wycoff, 251 P.3d at 1264. Without setting forth precisely how much information is required for a parental release to be “voluntary and informed,” the court held that a one-page “registration and information” form, which happened to contain one sentence in the last paragraph stating, “I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation,” was legally insufficient to release a child’s negligence claim. Id. at 1265. The court agreed that “[a] release need not contain [*10] any magic words to be valid,” but recognized that “in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in.” Wycoff, 251 P.3d at 1265. The “registration and information” form held inadequate in Wycoff made no reference to the subject activity or to waiving personal injury claims, nor did it provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. Id.
The Release here provides in pertinent part:
In consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities. . . I, and/or the minor student, and/or the person for which I am legal guardian, the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that
2. Understand that risks during outdoor programs [*11] include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical facilities or while traveling to and form the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.
I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes [*12] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.
(See Exhibit A to Motion (Doc. # 52-1)). On the other side of the Release was a letter of explanation (“Greetings Letter”) that the court may consider as evidence of whether the decision to sign the Release was informed. (See id. at 4 of 5; Deposition of Sara Squires, Appendix 4 to Ms. Squires’ Reply (Doc. # 84-4) at 3 of 7). See Wycoff, 251 P.3d at 1264 (“We will assume for purposes of this case that a facially deficient exculpatory contract could be cured by extrinsic evidence.”); Glover v. Innis, 252 P.3d 1204, 1209 (Colo. App. 2011) (extrinsic evidence permitted not to contradict or vary terms of an agreement, but to show waiver of a provision of the agreement). The Greetings Letter stated in pertinent part:
Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure [*13] or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledgement of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places[.]
(See Doc. # 61-1 at 4 of 5).
A finding that Mrs. Squires’ decision to sign the Release was informed is not inconsistent with the analysis in Wycoff, 251 P.3d at 1260. First, the release in Wycoff was one sentence that “state[d] only that plaintiff will not hold Grace ‘responsible for any liability which may result from participation,'” surrounded by sentences addressing different topics. Here, the Release was clearly entitled at the top “Acknowledgement [sic] of Risk and Release of Liability,” in large, italicized letters. (See Doc. # 52-1). The first sentence again states, “ACKNOWLEDGMENT OF [*14] RISK AND RELEASE OF LIABILITY (REQUIRED)” in capital letters and underlined. Id. The Release signed by Ms. Squires was clearly identified as a waiver and release of liability.
Second, the Release includes one full page that explains in detail the degree of risk involved with BOEC outdoor programs, events, activities, and/or courses; the extent of possible injuries from any activity, including injury, permanent disability, fatality, and other risks not known or not reasonably foreseeable; participation in activities and the use of equipment; and the release of BOEC from any all and claims, whether resulting from negligence or otherwise. (See Doc. # 52-1). Ms. Squires was a participant in a BOEC winter outdoor program that included skiing. The Release refers to outdoor programs and sets forth a detailed explanation of the possible risks of injury to property and person. (See id.).
It is conceded that when she signed the Release, Mrs. Squires knew that her daughter would be skiing during her trip to Colorado. (See Doc. # 56 at 10 of 19). Nevertheless, Ms. Squires argues that the Release did not provide any, much less adequate, information regarding the inherent risks of skiing or describe [*15] the particular risks of the sit-down ski that she used and that it would be controlled by her instructor with tethers. Ms. Squires provides an affidavit from Mrs. Squires stating that, in response to her telephone inquiry, a BOEC employee instructed her to mark “Sit-Down” and “Bi-Ski” on the “Wilderness/Ski Group Information” Form, and that no one from BOEC explained to her what a “Sit-Down” or “Bi-Ski” was. (See Affidavit of Sara A. Squires, Exhibit 1 to Response (Doc. # 56-1); Doc. # 84-4 at 5 of 7).
Mr. and Mrs. Squires were provided the BOEC forms and applications to be completed in advance of the trip, including the Release, by Andrea Breier, Director of the Adventure Fitness Program at Camp Fire USA at the time, the group that organized the ski trip that Ms. Squires attended. (See Affidavit of Andrea Breier, Exhibit D to Reply (Doc. # 61-1) at 1-2 of 5). Mrs. Squires had opportunities to ask questions about the ski trip and the forms before her daughter’s trip to Colorado. (See id. at 2 of 5). Ms. Breier specifically recalls explaining to Mrs. Squires that Ms. Squires would be seated when skiing, that BOEC uses sleeping bags to pad the bucket seat, that students in wheelchairs [*16] have two assistants helping them, and that the instructor uses guide ropes to steer the ski down the mountain. (See id.). Mrs. Squires knew that her daughter would be using some form of sit-down ski on this trip because her primary means of mobility was by wheelchair and she would not have been able to ski down the mountain standing up. (See id.). Mrs. Squires completed the BOEC application and Release and provided Ms. Breier a typewritten summary that explained Ms. Squires’ conditions, limitations, and medical needs. (See Doc. # 61-1 at 2 of 5, ¶ 11). Mrs. Squires also wrote a detailed letter to BOEC, stating in pertinent part:
Sometimes during activities such as skiing, kids who have an implanted baclofen pump can experience withdrawal.2 If she is in a “bucket”/”basket” type ski, where she might be more scrunched up, or her body is more compressed down, then the catheter line can become pinched or kinked up. If they use the bucket type, then her rehab doctor recommends that she ski for about 2 hrs and then be allowed to stand up to help “straighten” out the line. Then, go back to skiing again. If they use a “sit down ski” where she is more upright (like sitting in a wheelchair), then [*17] she shouldn’t have any problems. I am not familiar with the types of equipment they have, but am only saying what other families whose children also have pumps have told me about the equipment.
(Letter from Sara Squires dated February 12, 2008, Exhibit E to Reply (Doc. # 61-2)).
2 Ms. Squires had a surgically inserted baclofen pump, which dispenses medication for muscle spasms.
Despite that the Release does not specifically include the words, “skiing,” “sit-down,” or “bi-ski,” Mrs. Squires understood that her daughter would be seated in some type of sit-ski on the trip. While Mrs. Squires claims to have had no knowledge of what a sit-down bi-ski was at the time she signed the Release, the evidence demonstrates that she had sufficient notice and knowledge of the activities that her daughter would be participating in and the associated risks. Mrs. Squires conscientiously made inquiries to BOEC about the forms and the trip. (See Doc. # 84-4 at 5 of 7). Mrs. Squires was familiar with releases generally. (See Doc. # 84-4 at 4 of 7 (“Because . . . every single program on the face of the earth has a risk and release of liability and some verbiage to that effect.”); see also 6 of 7 (“It’s the [*18] same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberley’s behalf for everything that she has ever participated in.”). Ms. Squires’ parents were informed that she would be skiing in Breckenridge, Colorado, in a type of sit-down ski, controlled by an instructor with tethers. The Release specifically refers to outdoor activities and associated risks and was accompanied by a cover letter that explained the risks involved with ski lessons, including the possibility of serious injury and even death. The Release provides that risks during outdoor programs include injury, permanent disability, fatality, severe social or economic losses, and other risks not known or reasonably foreseeable. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 8 (that “mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact”). When she signed the Release, Mrs. Squires had sufficient information “to assess the degree of risk and the extent of possible injuries from any activity,” Wycoff, 251 P.3d at 1265, and to make an informed decision to release any claims that [*19] Ms. Squires may have had against BOEC.
B. Validity of Release
The court having determined that the decision to release Ms. Squires’ prospective claims was informed pursuant to Colo. Rev. Stat. § 13-22-107(1)(a)(V), the court must next determine whether the Release was legally valid. “Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, * 1 (Colo. App. March 31, 2011) (citation omitted). “The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998); see also Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. Apr. 23, 2009), aff’d, 363 Fed. Appx. 547 (10th Cir. 2010) (citing B & B Livery, 960 P.2d at 136). “Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the [*20] other’s negligence.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citation omitted). “To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy.” Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (citations omitted). BOEC bears the burden of proving each of these elements. See id.
Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1112 (10th Cir. 2002) (public need and disparity of bargaining power absent in context of mountain biking and bicycle rental); Jones v. Dressel, 623 P.2d 370, 377-78 (Colo. 1981) (because recreational skydiving service “was not a matter of practical necessity for even some members of the public” and thus “not an essential service,” Defendant did not possess a decisive [*21] advantage of bargaining strength over plaintiff); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409-10 (D. Colo. 1994) (handicapped downhill ski racing was “a recreational activity, . . . neither a matter of great public importance nor a matter of practical necessity”) (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 475 (D. Colo. 1992) (upholding an exculpatory clause in the context of ski equipment rental)). Ms. Squires does not challenge BOEC’s ability to prove this first element.
Second, the court evaluates whether the Release expresses the parties’ intent in clear and unambiguous language. “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996) (citation omitted). Ms. Squires argues that the Release is ambiguous and, therefore, invalid, because the language, “[a]lso I understand that I share the responsibility for safety during all activities” expresses a “shared regime of risk,” contradicts the language “I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, [*22] and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity,” and makes the participant/signer solely responsible for any injuries or bad outcomes. (See Doc. # 52-1; Doc. # 56 at 15-17 of 19).
“Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation.” Ad Two, Inc. v. City and County of Denver, 9 P.3d 373, 376 (Colo. 2000). “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.” Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (citations omitted). “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.” Moland v. Industrial Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004). Specific terms, such as “negligence,” are not required for an exculpatory agreement to shield a party from negligence claims. Potter, 849 F. Supp. at 1410 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) [*23] (noting that the release was written in simple and clear terms that were free from legal jargon, the release was not inordinately long and complicated, the plaintiff indicated in her deposition that she understood the release, and the first sentence of the release specifically addressed a risk that described the circumstances of the plaintiff’s injury)). The inquiry is not whether specific terms are used, but “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. See also Chadwick, 100 P.3d at 467 (Colorado Supreme Court has “previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions”). “If there is no ambiguity, a contract will be enforced according to the express provision of the agreement.” B & B Livery, 960 P.2d at 136.
Here, the Release is written in clear and simple terms, is free from legal jargon, is neither long nor complicated, and encompasses the risks encompassed by Ms. Squires’ Fifth Claim for Relief. The Release specifically includes claims for [*24] negligence. The specific risk of what occurred in the Accident is encompassed within the risks of BOEC’s outdoor winter program. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at * 3 (“specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the risks of skiing/riding”) (internal quotation marks omitted). The court does not find the Release ambiguous.
Nor does the court find the Release is reasonably susceptible to Ms. Squires’ interpretation. Ms. Squires interprets two provisions in the Release in a way that strains logic to conclude that the Release as a whole is ambiguous. That Ms. Squires agrees to share the responsibility of safety during BOEC activities is not mutually exclusive from Ms. Squires agreeing to release claims arising out of BOEC activities.
Ms. Squires also notes the Release language that “BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course,” claiming that BOEC failed to do this, and querying how BOEC could shift this responsibility to its participants. Ms. Squires claims that BOEC’s failures related to the equipment used, terrain selected, use of volunteers, control of [*25] the bi-ski, training and selection of instructors, assessment of plaintiff’s disabilities, provision of instructions and safety precautions, and prevention of accidents with other skiers. The Release specifically addresses that “although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety.” (See Doc. # 52-1).
When the Release is read as a whole and the words are given their generally accepted meaning, it is susceptible to one reasonable interpretation: that although BOEC has taken precautions, it cannot guarantee absolute safety; that there are serious risks involved in BOEC activities; and that, to participate in BOEC activities, the releaser agrees to release BOEC from any and all claims related to a BOEC activity. The Release by its plain language expresses the parties’ intent to release BOEC from liability for all personal injuries resulting from negligence in conjunction with a BOEC activity.
Third, the court examines whether the Release was fairly entered into. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect [*26] to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *3 (citations omitted). Ms. Squires does not challenge BOEC’s ability to prove that the service provided here is a recreational service, not an essential service, and thus there is no unfair bargaining advantage. Where the releasor fails to point to any other unfair circumstances surrounding the exculpatory agreement, the third factor is satisfied. See Mincin, 308 F.3d at 1111. As in Chadwick, Mrs. Squires signed the Release at home in Kansas, in advance of the ski trip. 100 P.3d at 469. Mrs. Squires signed the Release voluntarily. There is no suggestion that Mrs. Squires is not competent. It is clear that Mrs. Squires is a devoted parent who has zealously tried to enhance her daughter’s quality of life. There is no evidence that the services provided by BOEC could not have been obtained elsewhere. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 3 (“in assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere”) (citing Jones, 623 P.2d at 375). Mrs. Squires is experienced and familiar with liability releases [*27] in general. Ms. Squires has not demonstrated any other unfair circumstances surrounding the execution of the Release.
Finally, the court finds that the Release does not violate public policy. The adaptive recreational ski services provided by BOEC are recreational and not a matter of great public importance or practical necessity. The evidence does not indicate that the Release was entered into in any unfair manner. The Release does not exculpate BOEC from any duty in violation of public policy. The Release does not undermine any competing public policy. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *4. The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.” Colo. Rev. Stat. § 13-22-107(1)(a)(VI).
In sum, as the court finds no obvious disparity in bargaining power between the parties to the Release, that the parties’ intentions are clear and unambiguous, that the agreement was fairly entered into, and that the Release does not violate [*28] public policy, the court concludes that the Release is valid. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *6 (Colo. App. Mar. 31, 2011) (determining exculpatory agreement was valid because it “did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims”); Chadwick, 100 P.3d at 469-70 (enforcing exculpatory agreement releasing organizer of hunting trip from injuries sustained when he was thrown off mule, where exculpatory agreement unambiguously expressed the intent of the parties, was not unfairly entered into, injured party read agreement and understood he was executing a release of liability when he signed it, and agreement violated no duty to the public). Ms. Squires has released “BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action” from any claims resulting from negligence in conjunction with a BOEC activity.
C. Material Misrepresentation and Fraud in the Inducement
Ms. Squires argues that BOEC’s Motion for Summary Judgment must be denied because the Release is voidable based on material misrepresentation and fraud in [*29] the inducement. “A release is an agreement to which the general contract rules of interpretation and construction apply.” Chase v. Dow Chemical Company, 875 F.2d 278 (10th Cir. 1989) (citations omitted). “Like any contract, a release procured through fraud can be set aside.” Id.
Ms. Squires argues that BOEC fraudulently misrepresented in the Greetings Letter, on the reverse side of the Release, that all of its “activities are conducted in a manner consistent with the highest standards, as defined by the Association of Experiential Education (“AEE”),” when in fact there were no written standards for the adaptive ski program, and that the program was accredited by AEE when in fact the program was not so accredited. (See Doc. # 61-1 at 4 of 5). There is no statement regarding AEE standards or accreditation in the Release itself. (See Doc. # 52-1). BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. (See Doc. # 84-6 at 2 of 2). BOEC’s Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended. (See Deposition of Jeffrey Inouye (Doc. # 84-2) at 2 of 2). Ms. Squires argues that based on the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.” (Reply Memorandum Brief Regarding Misrepresentation (Doc. # 84) at 4 of 11). Ms. Squires argues that Mrs. Squires relied on these claimed misrepresentation when she signed the Release on January 13, 2008.
In addition to its adaptive ski program, BOEC has a department that operates its wilderness program, which facilitates year-around programming for people with disabilities and special needs. (See Doc. # 89-3 at 3 of 3). The Greetings Letter is sent to participants involved in a wilderness course, who may or may not participate in the ski program. (See Doc. # 89-1 at 2-5 of 5). Groups interested in a wilderness course, which includes lodging and activities other than skiing, such as a ropes course, and climbing wall, will complete paperwork through the wilderness program. Id. Each program has its own separate [*31] set of forms to be completed by participants. Id. Groups who are interested only in skiing at BOEC will complete paperwork for the ski program. (See Doc. # 89-1 at 2-5 of 5). Ms. Squires was a student of BOEC as a participant of the Camp Fire USA group (“Camp Fire”). (See Doc. # 61-1 at 1-2 of 5). For its trip to Colorado, Camp Fire contracted with the wilderness program for a five-day wilderness course that included transportation and lodging in addition to skiing. (See Wilderness Course Contract (Doc. # 89-2) at 1-2 of 2). The Release and Greetings Letter were from the wilderness program. (See Doc. # 89-1 at 3 of 5).
While BOEC’s adaptive ski program did not have its own written ski lesson policies and procedures at the time of the Accident, it has at all times trained its instructors and followed the standards for adaptive skiing set forth by the PSIA, the governing body that establishes national standards for skiing. (See Doc. # 89-3 at 2 of 3). BOEC’s adaptive ski program used the PSIA Core Concepts book, the Adaptive Ski Program Manual, and the Alpine Technical Manual. (See id.; see also Doc. # 84-5).
“To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation [*32] of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.” Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010) (citing CJI-Civ. 4th 19:1 (1998)). See also J.A. Walker Co., Inc. v. Cambria Corp., 159 P.3d 126, 132 (Colo. 2007) (applying same elements to a fraudulent inducement claim). “Implicit within these elements are the requirements that the claimant demonstrate that it relied on the misrepresentation and that its reliance was justified under the circumstances.” Loveland Essential Group, LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1116 (Colo. App. 2010) (citation omitted).
“The misrepresentation must be made with the intent to deceive and for the purpose of inducing the other party to act on it, and there must be evidence that the other party did in fact rely on it and was induced thereby to act to his injury or damage.” Club Valencia Homeowners Ass’n v. Valencia Assocs., 712 P.2d 1024, 1026-27 (Colo. App. 1985) [*33] (citation omitted). Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
Reasonable and justifiable reliance is also required for a claim of fraudulent misrepresentation. Ivar v. Elk River Partners, LLC, 705 F. Supp. 2d 1220, 1238 (D. Colo. 2010). See also Sheffield Services Co. v. Trowbridge, 211 P.3d 714, 725 (Colo. App. 2009) (“a necessary element to all fraud actions is that the plaintiff justifiably relied on the misrepresentation or the nondisclosure”); Williams v. Boyle, 72 P.3d 392, 399 (Colo. App. 2003) (element of fraudulent misrepresentation is “the right or justification in relying on the misrepresentation”).
The evidence fails to demonstrate justifiable reliance by Mrs. Squires on the statements regarding AEE standards and accreditation in the Greetings Letter. The Greetings Letter emphasized the importance of reading and signing the Release on the reverse side. (See Doc. # 84-1 at 1 of 1). The Release explains that skiing involves a risk of serious [*34] bodily injury and that it is impossible to eliminate all risk. (See Doc. # 52-1). Despite the emphasis on the importance of reading and signing the Release, Mrs. Squires did not take particular note of the language in the Release. “I can only say I assume I read it. I have no recollection of reading it before I signed it.” (See Doc. # 84-4 at 6 of 7). Ms. Squires propounds that Mrs. Squires paid close attention to the Greetings Letter but did not place any importance on the Release itself, which contained the exculpatory provisions. (See id. (the Release contained “the same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberly’s behalf for everything that she has ever participated in. So I did not put any more credence towards this particular document than I did anything else.”)). Mrs. Squires had substantial knowledge about the ski trip, learned from Camp Fire’s past experiences, communications with Ms. Breier, and BOEC’s written materials. (See Doc. # 84-4 at 2-7 of 7). The evidence does not support a finding that Mrs. Squires justifiably relied on the information in the Greetings Letter regarding the AEE while taking no [*35] notice of the exculpatory language in the Release she signed. The evidence shows that Mrs. Squires did not make the decision for Ms. Squires to participate in the ski trip in reliance on the alleged misrepresentations. The court concludes that Ms. Squires has not created a genuine issue of fact for trial on the element of justifiable reliance on the Greetings Letter. For this reason also, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
D. Willful and Wanton Conduct
The parties acknowledge that the Release cannot bar civil liability for gross negligence. See Colo. Rev. Stat. § 13-22-107(4) (“Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.”); Chadwick, 100 P.3d at 467 (“In no event will an exculpatory agreement be permitted to shield against a claim of willful and wanton negligence.”).
“Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question [*36] of fact, if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). See also Terror Mining Co. v. Roter, 866 P.2d 929, 935 (Colo. 1994) (summary judgment proper even when willful and wanton conduct alleged, where facts are undisputed and do not establish or imply willful conduct); United States Fire Insurance Co. v. Sonitrol Management Corp., 192 P.3d 543 (Colo. App. 2008) (“Ordinarily, determining whether a defendant’s conduct is willful and wanton is a question of fact.”) (citation omitted).
“Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *9 (citing Forman, 944 P.2d at 564. “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” Forman, 944 P.2d at 564. See also Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (“Conduct is willful and wanton if it is a dangerous course of action that is consciously [*37] chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”) (internal quotation marks and citation omitted); United Blood Servs. v. Quintana, 827 P.2d 509, 523 n. 10 (Colo. 1992) (“Willful misconduct consists of conduct purposely committed under circumstances where the actor realizes that the conduct is dangerous but nonetheless engages in the conduct without regard to the safety of others.”) (citation omitted); Safehouse Progressive Alliance for Nonviolence, Inc. v. Qwest Corporation, 174 P.3d 821, 830 (Colo. App. 2007) (“Willful and wanton behavior is defined as a mental state of the actor consonant with purpose, intent, and voluntary choice.”) (internal quotation marks and citation omitted).
Based on her expert witness, Mr. Gale’s, opinion, Ms. Squires argues that BOEC acted recklessly, precluding application of the Release. Mr. Gale, a snow sports safety consultant with 43 years of ski safety training and experience, concludes that BOEC acted recklessly based on: (1) “an inherently unsafe bi-ski program administered and conducted by BOEC,” (2) BOEC instructor Jennifer Phillips’ selection of inappropriately difficult [*38] terrain and failure to follow proper lesson plan procedures, and (3) BOEC volunteer Jim Trisler’s failure to “do his job as a blocker, look-out . . . .” (See Doc. # 56-4 at 9-11 of 11; Doc. # 56-5 at 1-2 of 8; Doc. # 88-8 (Curriculum Vitae)).
In his Expert Report, Mr. Gale concludes:
The incident was the cumulative result of an inherently unsafe bi-ski program administered and conducted by BOEC. It knew or should have known that its “word of mouth” rather than written safety protocols and procedures were ineffective and substantially enhanced the risk over and above the inherent risks of skiing to Miss Squires. It purposely chose a dangerous course of training, supervision, and bi-ski program implementation. In doing do it created a strong probability that this circumstance was [a] predictable incident that was bound to happen sooner or later. It failed to address fundamental safety procedures even though it appears to do so in its other adaptive program offerings. . . This further demonstrates BOEC’s willful, reckless, and comprehensive disregard for Miss Squire’s safety.
(Doc. # 56-5 at 1 of 8, ¶ 5.2). Mr. Gale also concludes that the conduct of BOEC’s instructor, Ms. Phillips, was [*39] intentional, willful, and reckless.
The conduct of BOEC’s instructor Jennifer Phillips fell well below the PSIA standards. As a PSIA certified instructor, she was or should be well aware of the policies, procedures, and standards for bi-ski instruction particularly terrain selection. The plethora of written PSIA instructional methodology and information addresses skill based instructional activities with safety as a fundamental priority and duty. She intentionally made the decision to abandon the PSIA lesson plan and sequential format for bi-ski instruction. This conduct demonstrates intentional, willful, and reckless disregard for Miss Squire[s’] safety.
(Doc. # 56-5 at 1 of 8, ¶ 5.3). Mr. Gale further identifies reckless conduct with regard to the use of slip knots to ensure that the bi-ski would remain tethered to the BOEC instructor. He concludes that:
Defendant BOEC was or should have been fully aware of the dangers of a detached bi-ski caused by the reckless choice not to properly utilize or dangerously utilize BOEC’s own slip knot rule powerfully hitting some object, person, or a tree. The safety procedures, training, and program risk management did not match the risk nor fully [*40] address the safety requirements dealing with a detached and out of control bi-ski loose on the slope. The foreseeable consequence was a serious injury to the student, the public, or both. The entities recklessly disregarded Miss Squires[‘] safety and willfully created this higher than normal risk for Miss Squires. There were no prudent or careful precautions taken to reduce or lessen the risk of this predictable and foreseeable incident.
(Doc. # 56-5 at 2 of 8, ¶ 5.5).
Mr. Bil Hawkins of Knott Laboratories also provided an expert report. (See Doc. # 56-2). Mr. Hawkins has a B.S. in civil engineering and is a certified Level II Rope Access Technician. (See Doc. # 88-5). Mr. Hawkins examined the safety knot, or slip knot, used to fasten the bi-ski’s tether to BOEC instructor Ms. Phillips. This knot was the only mechanism that prevented the downhill movement of the bi-ski. Mr. Hawkins concludes in his expert report:
Based upon Knott Laboratory’s inspection, the available evidence, and this engineer’s education, training, and experience, the following conclusions have been reached within a reasonable degree of engineering certainty:
o Ms. Phillips was not certified to [i]nstruct students on [*41] a bi-ski device at the time of Ms. Squires[‘] accident on February 13, 2010
o BOEC knew or should have known that Ms. Phillips was not certified to instruct participants on a bi-ski device at the time of Ms. Squires[‘] accident on February 13, 2010
o Ms. Phillips did not follow BOEC’s written policy by providing two independent means of anchor when providing sole support to a participant on a rope device
o The safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly
(Doc. # 56-2 at 11 of 11).
There is thus some evidence in the record that it may have been reckless for Ms. Phillips to take Ms. Squires on Cashier, a blue run, on the day of the Accident. Ms. Squires was a blind, first-time skier strapped to a bi-ski with no means to control her own speed or direction. It was BOEC policy to start such a student on a green run. (See Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2). But see Deposition of Stanley Gale (Doc. # 90-5) at 2 of 2 (“Q: Are you saying — are you saying that it’s wrong to have an adaptive bi-skier on Cashier run? A: No.”); Expert Report of Ruth Ann DeMuth (Doc. # 100-5) at 5 of 6 [*42] (BOEC employee Jennifer Phillips “did not compromise the safety of Miss Squires by going up the Beaver Run Lift to Cashier.”).
The court cannot conclusively determine based on the evidence before it whether there was a purposeful or conscious failure to use a slipknot or tie the properly. The use of a slipknot with a bi-ski is the established BOEC policy. (See Deposition of Jennifer L. Phillips (Doc. # 100-3) at 2-3 of 3; Deposition of Paul E. Gamber (Doc. # 100-4) at 4 of 4). Witnesses who were asked agreed that it could be reckless to conduct a bi-ski lesson without a properly-tied slip knot tethering a bi-ski with fixed outriggers. (See Deposition of Jennifer L. Phillips (Doc. # 90-8) at 2 of 2; Deposition of Peter W. Axelson (Doc. # 97-9) at 3 of 3; Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2; (Doc. # 90-7) at 2 of 2; Deposition of Ruth Ann DeMuth (Doc. # 90-6) at 2 of 2; Deposition of Patrick B. Kelley (Doc. # 90-4) at 2 of 3). Mr. Hawkins concludes that “[t]he safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly.” (Doc. # 56-2 at 11 of 11).
This evidence and these conclusions by the [*43] expert witnesses could demonstrate reckless, grossly negligent, and willful and wanton acts and omissions. A jury could conclude there was purposeful conduct committed recklessly with conscious disregard for the rights and safety of Ms. Squires. The evidence, viewed in a light most favorable to Ms. Squires, might lead a reasonable jury to conclude that BOEC was conscious of its conduct and the existing conditions and knew there was a strong probability that injury to Ms. Squires would result. The court concludes that Ms. Squires is properly afforded an opportunity to present to a jury evidence of the alleged willful and wanton, reckless, or grossly negligent acts or omissions. It will best be determined at trial, after the submission of Ms. Squires’ case in chief, whether BOEC acted recklessly.
The court addresses separately Ms. Squires’ argument that BOEC volunteer, Mr. Trisler’s, “acts and omissions” were “more than mere recklessness.” (See Doc. # 56 at 14 of 19). Mr. Gale concludes that
[t]he conduct of BOEC trained Jim Trisler fell below the duty of a blocker. He did absolutely nothing to prevent the collision or intervene prior to the collision between Jennifer Phillips and Michael [*44] Goodwin. He failed in his essential duties which were to prevent the collision, or at the very least, to reduce the severity of the consequences.
(See Doc. # 56-5 at 2 of 8, ¶ 5.4). See also Doc. # 56-4 at 10 of 11 (“he did not do his job as a blocker, look-out, or make his presence known to Michael Goodwin. Apparently, he did not hear or see Michael Goodwin coming down out of control before the powerful impact. He was not vigilant nor did he fulfill his duty and responsibility to protect and warn. It seems that he was not on the look-out as he should have been or he would have likely seen Michael Goodwin skiing too close, out of control, and headed for Jennifer Philips and Miss Squires[‘] bi-ski device.”). Ms. Squires argues that ‘[a]lthough Mr. Gale does not specifically use the word reckless in describing Mr. Trisler’s acts and omissions, his analysis and description describe more than mere recklessness.” (Response (Doc. # 56) at 14 of 19). The court disagrees. Colorado law defines negligence as “a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect [*45] . . . others from bodily injury, . . .” CJI-Civ. 9:6 (2011). The evidence in the record, including Mr. Gale’s opinion, amounts to no more than negligence by Mr. Trisler. As to Mr. Trisler, there is insufficient evidence to create a genuine issue of material fact that he acted willfully and wantonly, that is, that he consciously chose a dangerous course of action with knowledge of facts that, to a reasonable mind, created a strong probability that injury to Ms. Squires would result. The Release thus bars Ms. Squires’ claim based on Mr. Trisler’s conduct.
Accordingly, IT IS ORDERED that:
1. Defendant BOEC’s Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52) is GRANTED IN PART AND DENIED IN PART.
2. The Fifth Claim for Relief in the Second Amended Complaint (Doc. # 13) shall proceed against Defendant Breckenridge Outdoor Education Center only on the alleged willful and wanton, reckless, or grossly negligent acts or omissions.
3. The court will hold a Telephonic Status Conference on Thursday December 8, 2011 at 8:30 a.m. Counsel for the parties shall create a conference call and then telephone the court at 303-844-2117 at the scheduled time.
DATED at Denver, Colorado, this 8th [*46] day of November, 2011.
BY THE COURT:
/s/ Craig B. Shaffer
United States Magistrate Judge