Hamric v. Wilderness Expeditions, Inc.,

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] 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.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


One paragraph would have eliminated this lawsuit.

Badly written release and a bad attempt to tie two documents together almost cost the defendant outfitter.

Hamric v. Wilderness Expeditions, Inc

State: Colorado, United States Court of Appeals, Tenth Circuit

Plaintiff: Alicia Hamric, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor

Defendant: Wilderness Expeditions, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2021

Summary

Deceased died while repelling with the defendant and surviving spouse sued Colorado company in Colorado but attempted to use Texas law, where the release was signed, as a way to void the release.

Facts

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. [emphasize added]

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

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

The Tenth Circuit Court of Appeals is an appellate court that sits in Denver. The Tenth Circuit hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming federal district courts. The court, consequently, hears a few appeals of recreation cases because of Colorado, Utah, New Mexico and Wyoming recreation activities.

This appealed covered four different legal issues. Three of the issues were procedural and won’t be reviewed here. The fourth was the dismissal of the case by the lower-court magistrate on a motion for summary judgement because of the release.

The plaintiff argued the release should be read using Texas law because the release was read and signed in Texas.

There was no Jurisdiction and Venue Clause in the Release!

The defendant had the deceased sign two forms. One was a release, and the second was a medical form. Neither form had a venue or jurisdiction clause. Having a medical information formed signed is a quick give away that the defendant does not understand the legal issues involved. The defendant wrote both forms, so they conflicted with each other in some cases and attempted to tie the forms together. Neither really worked.

The plaintiff argued the forms were one because they conflicts would have made both forms basically invalid.

Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise, the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.

However, after a lengthy review, the court found the forms were two different documents and ignored the medical form and the release like language in it.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI.

The next issue is what law should apply to determine the validity of the release. Choice of laws is a compete course you can take in law school. I still have my Choice of Laws’ textbook after all these years because it is a complicated subject that hinges on minutia in some cases to determine what court will hear a case and what law will be applied.

The case was filed in the Federal Court covering Colorado. Since the defendant was not a Texas business or doing business in Texas, the lawsuit needed to be in the defendant’s state. Federal Court was chosen because disputes between citizens of two states should be held in a neutral court, which is the federal courts. A Texan might not feel they are getting a fair deal if they have to sue in a Colorado state court. That is called the venue. What court sitting where will hear the case.

If the defendant had operated in Texas, been served in Texas or had a history of actively looking for clients in Texas this would have been a Texas lawsuit, probably with a different outcome.

So, the decision on what court to sue was somewhat limited. However, that is not the end. Once the court is picked, venue, the next argument is what law will be applied to the situation. The Plaintiff argued Texas Law. Texas has stringent requirements on releases. If Texas law was applied to the release, there was a chance the release would be void under Texas law. The defendant argued Colorado law, which has much fewer requirements for releases.

Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas.

Here is the court’s analysis on what states laws should apply.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

It is not a slam dunk for Colorado law. In this case, the plaintiff made a very good argument that Texas law should apply. The deceased was a Texas resident recruited in Texas by the defendant. The release had been given to the deceased in Texas, and he signed it in Texas. If the analysis ended there Texas law would have applied.

However, there was more to the investigation the court is required to do.

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado.

Honestly, the trial court and appellate court bent over backwards to help this defendant.

This argument switched the discussion from applying Texas law to Colorado law.

Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law; such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

It is significant to note that the court looked at the issue of waiting until customers arrive in the state of Colorado to have them sign the release. The court intimated that doing so would put pressure on them to sign after already traveling to Colorado. Legally, that could be argued as duress, which voids a release or contract.

It is these small statements in decisions that must be watched and remembered so that in the future they are not used to void a release. You must have your clients sign a release as soon as possible and waiting until they travel to Colorado maybe to late to have the release survive in court.

In a rare statement, the court also commented on the outdoor recreation industry in Colorado and the need for releases.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado.

The final analysis the court discussed on the issue was the legal issue of binding effect. When a contract does define what is required to create the contract, such as the signature of both parties to the contract, then the last act that gives life or that is necessary to form the contract is considered the point when the contract was valid. Where that last act occurs is the place where the contract should be litigated and the law that should be applied to the contract. Here the last act occurred when the deceased was in Colorado and the church group he was with, handed over the signed releases.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI, and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release.

The plaintiff then argued the release did not meet the requirements of Colorado or Texas law. The plaintiff argued the contract was ambiguous. Colorado has five factors that must be considered to determine if a contract is ambiguous.

In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.”

The court reviewed the release and found it was not ambiguous. Only one factor the last one, whether the plaintiff has experience in the activity, was possible and the Colorado Supreme Court had weakened that requirement.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver.

So, the court first determined that the release should be reviewed under Colorado law and then determined that under Colorado law, the release was valid and stopped the claims of the plaintiffs.

Finally, I have to comment about one incredibly stupid move on the part of the defendant. As quoted in the facts and by the court.

Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course.

Besides eliminating the defense of assumption of the risk by doing this, you have created a situation where you have increased the chance of a participant getting injured or as in this case died. You cannot assume a risk which you don’t know about.

First, what are you doing taking beginners rappelling over an overhang. This is not a beginner move.

Second, you have a scary section you CANNOT hide it from people, especially if they cannot see it or understand it. You MUST inform your participants of the risk.

Third, the defendant did not tell the deceased how to correct the problem if they found themselves in a compromised position. That is the main goal of any safety talk, to tell your participants how to keep themselves safe and how to rescue or be rescue.

Fourth, you need to hire new guides because it is clear your current guides do not understand the gravity of the situation, let alone the legal liability, of doing this to someone.

So Now What?

However, for one simple paragraph, or actually, one sentence, this lawsuit would have never gotten off the ground. The issue is a jurisdiction and venue clause. If the release would have stated any lawsuit must be in Colorado and Colorado law must apply, this lawsuit would not have had a chance.

Of special note in writing a release in Colorado and a few other states, if you do not outline or identify the possible risks to the participant signing the release, the release may be ambiguous. This issue is facing more scrutiny by the plaintiffs, and you are seeing more courts have to deal with the issue. On top of that, failing to identify the possible risks, eliminates the defense of assumption of the risk, which might be needed.

The other issue that the court waded through that could have done the defendant in was the competing language in the two contracts. First why collect information you cannot use, such as medical information? Only a physician and the participant have the ability to make the decision, as to whether or not they can medically undertake an activity. If you, the activity, business or program, decide a person can’t participate because of a medical issue, you are practicing medicine without a license which is a crime.

That does not mean you cannot collect information that you might need if a participant is injured.

Worse the above in this case, was both documents attempted to include release language and neither agreement had language stated which one was controlling. If you have your participants sign multiple documents you need to make sure that the release is not voided by another contract. You need to make sure one contract is primary, and the other contact has nothing in it that cancels, modifies or revokes the release.

What do you think? Leave a comment.

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Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

United States District Court for the District of Colorado

January 8, 2013, Decided; January 8, 2013, Filed

Civil Action No. 11-cv-01500-WJM-MJW

Reporter

2013 U.S. Dist. LEXIS 2675 *; 2013 WL 93183

ALVA MESSER, Plaintiff, v. HI COUNTRY STABLES CORPORATION, Defendant.

Prior History: Messer v. Hi Country Stables Corp., 2012 U.S. Dist. LEXIS 170499 (D. Colo., Nov. 30, 2012)

Counsel:  [*1] For Alva Messer, Plaintiff: Donald L. Salem, Feldmann Nagel, LLC-Denver, Denver, CO.

For Hi Country Stables Corporation, Defendant, Counter Claimant: Kenneth H. Lyman, Malcolm S. Mead, Hall & Evans, LLC-Denver, Denver, CO.

For Alva Messer, Counter Defendant: Donald L. Salem, Michael G. Bryan, Feldmann Nagel, LLC-Denver, Denver, CO.

Judges: William J. Martinez, United States District Judge.

Opinion by: William J. Martinez

Opinion

AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant’s Motion for Summary Judgment. (ECF. No. 41.) Plaintiff Alva Messer (“Plaintiff”) has filed a Response to this Motion (ECF No. 42.) and Defendant Hi Country Stables Corporation (“HCS” or “Defendant”) has filed a Reply. (ECF No. 45.) The Motion is ripe for adjudication.

Having reviewed the briefs and the relevant portions of the record, the Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND1

A. Factual Background

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County  [*2] Stables. (ECF No. 41 at 3.) Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). (ECF No. 41 at 7.) HCS is one of two equestrian companies owned by Rex Walker. (Id.) The other equestrian company is Sombrero Ranches, Inc. (“SRI”). (Id.) Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). (Id.) The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. (Id. at 4.) The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI. (Id.)

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. (Id. at 5.) For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009. (Id. at 5; see also, Exh. C, Walker Dep. at 29:13 – 30:5.)

Typically, when customers  [*3] arrive at HCS, they are informed that they must sign a Release. (Id. at 6; Exh. D, Marshall Dep. at 29.) Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.” (Id.)

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. (Id.) She also requested that they indicate their riding ability, which Plaintiff did. (Id.) Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. (Id.) The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.” (ECF No. 41, Exh. A.)

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. (Id. at 8; see also, Exh B, Alva Messer Dep. at 35:16-24). The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey. (Id.)

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey. (ECF No. 41,  [*4] Exh. B, Alva Messer Dep. at 49:1 – 50:1; Exh., Humphrey Dep. at 44:18-25; 45:7 – 46:1; 47:13-22; Exh. F, Donald Messer Dep. at 22:10-17).2

At the midway point, the Messer group stopped to take a rest break. (ECF No. 41, Exh. B, Alva Messer Dep. at 47:10-20). Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right. (ld. at 50:2-9)

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) (ECF No. 42, Exh. E, Humphrey Dep. at 54:15- 55:10; Exh. F, Donald Messer Dep. at 27:1- 28:6.) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident. (ECF No.1 at ¶¶ 14 and 57.)

II. LEGAL STANDARDS

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if under  [*5] the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). With this approach of resolving factual ambiguities against the moving party, the Court, as it should, thus favors the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

III. ANALYSIS

Defendant’s instant Motion seeks reformation of the Release and moves for summary judgment as to the Plaintiff’s claims—including: negligence; product liability; and, wilful and wanton conduct. If granted, Defendant argues that the Release should bar the negligence and product liability claims. The Court will first address  [*6] this issue.

A. Effect of the Release on the Negligence and Product Liability Claims

1. Reformation

Defendant seeks to reform the Release to reflect the true intent of the parties by substituting the name HCS for SRI. (ECF No. 41 at 22.)

Reformation of a contract is an “equitable remedy, and the formulation of such remedy rests with the court’s discretion.” May v. Travelers Property Casualty Co. 2006 U.S. Dist. LEXIS 80849, 2006 WL 3218852 at *2-3 (D. Colo. 2006, November 6, 2006). “Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Maryland Cas. Co. v. Buckeye Gas Prod. Co., 797 P.2d 11, 13 (Colo. 1990).3 Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.” Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423, 426-27 (Colo. 1961).

An “essential prerequisite to a court’s power to reform a contract on the ground  [*7] of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.” Maryland Cas. Co., 797 P.2d at 13. Prior agreement must be found from the evidence presented, which must be “clear and unequivocal”, and appropriate under the “circumstances.” Id.
See also, Segelke 360 P.2d at 426-27.

Here, Defendant asserts that the intent of the Release was to bind Plaintiff Alva Messer and Defendant HCS. Defendant contends that reference to SRI on the Release was a mutual mistake and that SRI should be substituted with HCS. The Court agrees. This holding is supported by Plaintiff Messer’s own testimony, which clearly reflects the parties’ common understanding of the signed document and shows acknowledgment by Plaintiff that the Release was, in fact, releasing HCS – not SRI. Such testimony is found in the following passage:

Q. You were told it was a release, correct?

A. Correct.

Q. And did you have any conception or understanding of what that meant?

A. Well, I assume a release is to release the people, you know, the stables.

Q. And when you were presented this at Hi Country Stables, was it your understanding  [*8] that you were releasing Hi Country [Stables]?

A. Correct.

(Messer Deposition at 32:3-22).

Because the above testimony is clear and unequivocal, the Court finds that it reflects the parties’ true intentions of the Release that the contract was between Plaintiff Messer and Defendant HCS.

Additionally, Plaintiff signed the Release at a location owned by HCS immediately before embarking on a trail ride guided by HCS employees. (ECF No. 41, Exh A.) Given that Plaintiff signed the document at HCS, it is difficult to see how the Release was intended to apply to any entity other than HCS.

Accordingly, the Court finds that there was mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

2. Application of Release to Plaintiff’s Negligence Claim

As the Court has found that the Release should be reformed, the next issue is whether the Release shields Defendant from Plaintiff’s negligence claim. For the  [*9] reasons below, the Court concludes that it does.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).4

As to the first factor, Colorado law is clear that businesses engaged in recreational services do not perform services that implicate  [*10] a public duty. This favors Defendant’s position as to the validity of the Release. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).

With respect to the second factor, the Court similarly finds for Defendant because horse-back riding is “not an essential service.” Hamill v. Cheley Colorado Camps, 262 P.3d 945, 949-50 (Colo. App. 2011) Horse-back riding is one of choice, not necessity.

As to third factor, this also cuts in favor of Defendant since there is no evidence to suggest that the Release was entered into unfairly. Instead, Plaintiff signed the Release “in consideration for the opportunity” to ride the trail led by HCS wranglers. (ECF No. 41, Exh A.) Plaintiff also indicated her riding ability. This suggests that she had ample time to review the Release and become familiar with its conditions. It is these facts, amongst others, that rebut any notion that the Release was unfair. Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-475 (D. Colo. 1992).

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether  [*11] this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). Here, the test is met since the Release specifically uses the word “negligence” throughout the document. Reference to the word negligence expressly indicated that HCS would not be liable for such claims. Also, like the release in Jones, the Release in this case similarly points to the “specific risks” of property and personal injury damage that may “arise out of negligence.” Jones, 623 P.2d at 376. Such language serves to reinforce the intent of the Release and thatPlaintiff agreed to “assume such risks” during the course of the HCS led trail-ride. (ECF No. 41, Exh. A.)

In sum, the Court concludes that the Release shields Defendant from Plaintiff’s negligence claim. To the extent that Defendant’s Motion is directed towards that claim, the Motion for Summary Judgment is granted.5

3. Application of the Release to Plaintiff’s Strict Product Liability Claims

In addressing whether the Release applies to Plaintiff’s product liability claims, the Court finds this result is controlled by existing case law: Boles v. Sun Ergoline, 223 P.3d 724, 727-728 (Colo. 2010). That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.” Id. (emphasis added). The Court holds that this passage has equal application here. As distinct from the negligence claim, Boles provides that the Release does not shield Defendant from the strict product liability claims.

Alternatively, Defendant argues that the broad language of the Release covers product liability claims.  [*13] Clause 2 provides: “that [the Customer] know[s] and understand[s] that horse riding . . . risks of . . . including the risk that [HCS]. . . may act negligently in . . . preparing or maintaining the horse . . . equipment or premises . . .” (ECF No. 41 Exh A.) Nothing in Clause 2 suggests that the Release covers claims which involve “leasing” or “manufacturing” saddles used in conjunction with Defendant’s trail rides, which would give rise to a products liability claim. Because exculpatory agreements are strictly construed against the party seeking exception, Defendant’s argument that the Release bars this claim must fail. Barker v. Colorado Region-Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. App., 1974.)6

Accordingly, Plaintiff’s product liability claims are not barred by the HCS Release.7

B. Merits of the Product Liability Claims

Defendant also moves for summary judgment on the merits of Plaintiff’s product liability claim. In these claims, Plaintiff alleges (1) that HCS leased a defective saddle to Plaintiff by placing it in the “stream of commerce” and (2) that HCS manufactured a defective saddle that was used by Plaintiff (ECF No. 41 at 35; ECF No. 25 at ¶ ¶ 36-55.)8 Defendant offers two alternative arguments below as to why grant of summary judgment is justified with respect to these claims. The Court will address each in turn.

1. Horse-Back Riding by HCS is a Service and Does Not Give Rise to Products Liability

Defendant contends that summary judgment should be granted on Plaintiff’s product liability claims because the primary purpose of the contract was the provision of a service—not a product. This, Defendant contends, does not give rise to liability in tort. (ECF No. 41 at 37.) See, Yarbro v. Hilton Hotels, 655 P.2d 822, 828 (Colo. 1982)

To buttress its position, Defendant relies on Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Colo. 1985). There, Judge John L. Kane of this District Court refused to treat “a saddled horse, or a ride on a horse with a saddle” as a product. Id. at 238. Judge Kane held that it was incongruent with strict product liability doctrine and cited several cases that have refused to extend the concept of strict liability to “persons rendering services.”9
Id. at 238 n.3. Defendant asserts that Kaplan has equal application here.

Plaintiff seeks to distinguish Kaplan by making specific reference to “SADDLE EQUIPMENT” in the Complaint. (See ECF No. 25 at ¶ ¶ 36- 51.) Plaintiff seeks to separate the saddle from the horse, and attempt to succeed on that basis.

The Court finds Kaplan persuasive. Like that case, the Court holds that a saddle (on a horse) is not a product—particularly in the context of horse-back riding services. The Court further finds Plaintiff’s distinction is misplaced because it fails to appreciate that the saddle was incidental to the primary purpose of the contract. Plaintiff entered into a contract for a guided five-hour horse back ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service).10 Without a product, the product liability claims cannot succeed. Yarbro 655 P.2d at 828.

Because the saddle was only incidental to the contract for services, Plaintiff has failed to show a “trial  [*17] worthy” issue as to her product liability claims. Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1223-24 (D.Colo.2011).

2. Use of the Saddle Did Not Constitute a Lease

In the alternative, Defendant argues that summary judgment is warranted on Plaintiff’s product liability claims because it is not a “seller”of a product. That is, Defendant does not fall within the definition of “seller” under the statute because Defendant is not a “lessor” of products, nor a “manufacturer”. See generally, C.R.S. § 13-21-401; Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1018 (10th Cir. 2000).11 Again, the Court agrees.

Contrary to Plaintiff’s position, the Court finds that Defendant does not “lease” saddles to its customers. Plaintiff signed a Release “in consideration for the opportunity to ride” a horse through RMNP. (ECF No. 41, Exh A.) The “opportunity to ride” does not create a lease. Its use is too short. Nor does it constitute ownership of the saddle itself.

Moreover, HCS cannot be considered a manufacturer because it does not manufacture saddles. (ECF No. 41, Exh. G, Humphrey  [*18] Dep. at ¶11; Exh H, Walker Dep. at ¶ 8.) Plaintiff argues that the “offside billet [of the saddle] is a product and that it became defective while in the course of it distribution from the original manufacturer through Defendant to her as the consumer.” (ECF No. 42 at 34-35). The Court treats this as an admission that Defendant never manufactured the billet. It also supports the finding that no product is involved in the present case.

Plaintiff has failed to show a genuine issue of fact as to whether Defendant leased or manufactured a saddle. Thus, Defendant’s Motion as to both of the product liability claims is granted.

3. Plaintiff’s Argument re Blueflame Gas

Plaintiff argues that Defendant placed a defective saddle “in the course of the distribution process” and is, therefore, liable for product liability. (ECF No. 42 at 33. (emphasis added.)) In support, Plaintiff heavily relies on Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984). There, the defendant purchased propane from Diamond Shamrock. Defendant then transported and sold the propane directly to residential customers. A gas explosion occurred at a residential home. The plaintiff claimed, inter alia, strict liability  [*19] based Defendant’s failure to odorize the propane, making it a defective product. The Supreme Court held that a defective product must have arisen at the time of manufacture or “in the course of the distribution process” to the plaintiff. Id. at 590.

The Court is not compelled to find in Plaintiff’s favor based on Blueflame.12 The saddle in this case was not sold to Plaintiff. The saddle was not part of a distribution process. And, unlike the customers in Blueflame, the Court finds that Plaintiff is not permitted to pursue her product liability claim based on a “distribution process” theory.

Therefore, in addition to the reasons addressed above, Plaintiff’s reliance on Blueflame does not save her product liability claims from summary judgment.

C. Merits of the Wilful and Wanton Claim

Plaintiff’s claim for wilful and wanton conduct is trial worthy. First, a waiver cannot release wilful tortfeasors (alleged or otherwise). The Release has no bearing  [*20] on this claim. Barker v. Colorado Region Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. 1974).

Second, willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.” Brooks v. Timberline Tours, 127 F.3d 1273, 1276 (10th Cir. 1997). Because key facts going to this mental state are disputed, Defendant is not entitled to judgment as a matter of law. For example, Plaintiff contends that Humphrey did not perform the number of saddle “checks” he asserts. (Alva Messer Dep. at 43:4-44:18; 48:3-11; 48:21-49:17.) Plaintiff also disputes whether Humphery noticed the “saddle rolling to the right” during the trail ride. (Id.) These examples reflect material facts ripe for jury determination. If the jury credits Plaintiff’s testimony on these points, it could reasonably find that Defendant’s actions were wilful and wanton.

The Court finds that Plaintiff has shown a genuine dispute of material fact as to her wilful and wanton conduct claim. As to this claim, Defendant’s Motion for Summary Judgment is denied. See Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).

III. CONCLUSION

Based on the foregoing, the Court hereby ORDERS as follows:

1. Defendant’s  [*21] Motion for Summary Judgment (ECF No. 41) is GRANTED IN PART and DENIED IN PART;

2. Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims for negligence and product liability;

3. The Clerk shall enter judgment in favor of Defendant on Plaintiff’s negligence and product liability claims;

4. Defendant’s Motion for Summary Judgment is DENIED as to Plaintiff’s wilful and wanton claim; and

5. Trial will proceed solely on Plaintiff’s willful and wanton claim, as previously scheduled, on March 11, 2013.

Dated this 8th day of January, 2013

BY THE COURT:

/s/ William J. Martinez

William J. Martinez

United States District Judge


Knowingly Luring Bears

Colorado Statutes

Title 33. PARKS AND WILDLIFE

WILDLIFE

Article 6. Law Enforcement and Penalties – Wildlife

Part 1. GENERAL PROVISIONS

§ 33-6-131. Knowingly luring bears

(1)     Unless otherwise permitted by commission rule, it is unlawful for any person to place food or edible waste in the open with the intent of luring a wild bear to such food or edible waste.

(2)

(a)     This section shall not apply to acts related to agriculture, as defined in section 35-1-102(1), C.R.S.

(b)     For the purposes of this section, “food or edible waste” shall not include live animals or food that is grown in the open prior to such food being harvested.

(3)     Any person who violates this section shall be given a warning. Upon a second or subsequent violation of this section, the person is guilty of a misdemeanor and, upon conviction, shall be punished by a fine not to exceed:

(a)     Two hundred dollars for a first offense;

(b)     One thousand dollars for a second offense; or

(c)     Two thousand dollars for a third or subsequent offense.

Cite as C.R.S. § 33-6-131

History. Amended by 2019 Ch. 423, §15, eff. 7/1/2019.

L. 2003: Entire section added, p. 2618, § 1, effective June 5.


States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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Join Save the Colorado to Help Save the Colorado

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Save The Colorado
Hi Friends of the Colorado River!

HERE’S WHAT YOU NEED TO KNOW: WE ARE IN THE THICK OF THE FIGHT TO PROTECT THE COLORADO RIVER!

It may end up being one of the hottest, driest summers in Colorado River basin history as scorching temperatures are recorded from Denver all the way to Los Angeles. The river itself is under extreme stress with some of the “lowest flows in history” recorded in the Colorado River and its tributaries. But the dam builders are not slowing down, and so neither is Save The Colorado!

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We’ve had a flurry of news coverage over the last month about our fights to stop proposed new dams in Wyoming, Utah and Colorado. Further, as the Colorado River declines, the questions continue to increase about the viability of Lake Powell and Glen Canyon Dam.

First, Aspen Journalism wrote a story about our lawsuit to stop the proposed “Windy Gap Firming Project” in Colorado which would drain a new nine billion gallons of water directly out of the Colorado River every year. Titled, “Court Battle Continues Over Windy Gap Firming Project“, the story quotes me as saying, “We are just trying to inject some sanity and stop the madness,” said Gary Wockner, director of Save the Colorado, an environmental nonprofit based in Ft. Collins that supports the Colorado River and is the lead petitioner in the case. “The Colorado River is the most dammed, drained, depleted river on the planet.”

Second, Wyofile, a non-profit news agency in Wyoming, wrote two stories about our work in Wyoming to stop proposed new dams and diversions, including the “Fontenelle Dam Expansion” which would take over twenty-five billion gallons out of the Green River every year which is a tributary to the Colorado River. One story titled “As Water Shortages Loom, Wyoming Seeks Water-Bank Bill” quotes me here: “In Fort Collins, a group called Save the Colorado has vowed to fight every new diversion and impoundment in the basin. Gary Wockner, the group’s president, said all entities are in a gold rush. “Everybody’s trying to get while they can still get,” he told WyoFile.

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Another story in Wyofile about three projects in the Green River basin titled, “Conflict Looms As Wyoming Seeks More Green River Water“, quotes me here: “Gary Wockner, president of the Save the Colorado conservation group, wants no new dams or diversions in the basin. His group is watchdogging the rip-rap project and two other water-storage efforts in Wyoming — the proposed $80 million dam on the West Fork of Battle Creek and a plan to expand the Big Sandy Reservoir. “We weighed in publicly on all three,” Wockner said in a phone interview from Fort Collins, Colorado. “The Colorado River is already one of the most dammed and diverted rivers. Zero water reaches the sea.”

Third, the Boulder Weekly in Boulder, Colorado, is turning into one of the lead news agencies about the Colorado River chaos. Over the last month, they’ve run three important stories, two of which highlight Save The Colorado’s work.

One, a May 31st Boulder Weekly article titled “Draining The Bathtub: Critics claim Fontenelle project will harm Colorado River Basin” quotes me here, “The Fontenelle Dam riprap would allow them to drain the reservoir and their water rights would allow them to drain it twice per year,” says Gary Wockner, president of Save the Colorado. “We oppose them reengineering this dam so they can drain 150,000 acre-feet of water out of the Green River every year. And that’s what it would give them the opportunity to do.”

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Two, the front-page story on May 31st in the Boulder Weekly is an editorial taking direct, critical aim at the Walton Family Foundation (the WalMart heirs) and their funding of environmental groups, scientists, government agencies, and the media in the Colorado River basin. The long column is a good read for an insider’s view of what’s going on, and is titled: “The New Model For Saving The Colorado River Might Just Kill It“. Take a look at this story if you want a deep dive into some of the ‘dirty laundry’ of behind-the-scenes Colorado River motives and funding.

Three, on July 12, the Boulder Weekly printed another long front-page story titled “A Drop In The Bucket: Water Banking Pilot Program Finished, For Now” about the failed effort to save Lake Powell over the last three years. Save The Colorado is quoted heavily in the article because we’ve taken a lead voice in the fight to drain Lake Powell and tear down Glen Canyon Dam. I’m quoted here as saying, “This isn’t a temporary situation, this is ongoing and permanent,” Gary Wockner says. “They still haven’t even gotten remotely close to the root cause of the problem, which is climate change is real and every scientist indicates that it’s going to get worse and that Lake Powell is not sustainable.”

Wherever a proposal is moving forward to further dam, drain, divert, or deplete the river, Save The Colorado is in the face of the dam builders, in the media, in the courtroom, and in the state and federal agency’s eyes. We are an aggressive watchdog for the ecological health of the river — the proposed new dams and diversions must be stopped!

All of this work is made possible by your support! Thank you and stay tuned for more of the action!


Colorado Snowpack is Extremely Dangerous and getting Worse

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FEBRUARY 2018 ISSUE |Large & Dangerous
We Have a Deep Problem
After a dry start to the winter, the snowpack in the Colorado mountains is rapidly increasing. The increase in snow over the last few weeks is building a thick slab on top of a weak foundation. This weak layer of snow that sits near the ground has been producing avalanches for most of the winter. With a thicker slab, the avalanches are now much larger. Avalanches are breaking at the ground and are hundreds, sometimes more than a thousand, feet wide. If you get caught, it will be hard to survive.

These are very large Persistent and Deep Persistent Slab avalanches. These types of avalanches are especially dangerous as you may not see the usual signs of unstable snow that you rely on: shooting cracks, rumbling collapses or recent avalanches. The only way to stay safe from these avalanches is to avoid terrain over 30 degrees in the areas that can produce these types of destructive avalanches. The snowpack this winter is unlike the past few winters. The steep slope that you rode safely last season or last month, may now be dangerous.

This is an important time to take a step back and carefully consider the terrain you want to ride. These conditions could last for the rest of the winter. Many of the big avalanche paths that you see in Colorado were formed during avalanche years like this one. Watch the video below and share with your friends. Always get the forecast before you head into the backcountry.

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Cheers to CAIC with Coffee!
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There is nothing better than a hot cup of coffee before, during and after your backcountry ventures! Bivouac Coffee is our official coffee partner for the 2017-2018 season! When you purchase their delicious coffee beans you are directly supporting your avalanche center.

10% of all Bivouac Coffee purchases support avalanche awareness and forecasting throughout Colorado.

Let’s cheers to that! Visit Bivouac Coffee’s website today.

Upcoming Events
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Down for Change!

Sunday, March 4
Breckenridge Ski Resort
How many vertical feet can you ski or ride in a day? Take part in this competition and benefit CAIC while doing it! Learn more by clicking here.

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On-Snow Pop Up!

Saturday, March 3
Location TBD
Join Friends of CAIC and Bivouac Coffee at one of the popular backcountry trailheads along I-70 for some coffee, swag and more. Check back in soon for more information!

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WP Beers & Cheers

Sunday, March 18
Hideaway Park Brewery, Winter Park
Coming at you, Winter Park! Join us for beers and cheers in support of your avalanche center. Check back in soon for more information!

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Party for a Purpose

Saturday, March 24
Highlands Alehouse, Aspen
Mark your calendars, Aspen! The party you love is back thanks to Strafe Outerwear. Check back in soon for more information!

Featured Follower
Tag us for a chance to be featured!
@friendsofcaic | #friendsofcaic
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“Breaking on through to the weekend. Plenty of new snow and hidden dangers in the backcountry so be safe. Know b4 you go!”
– JJ, @peter_deepinpow
Want to Give Back?
Whether you use the CAIC forecasts every day or once a year, please consider making a donation to support avalanche forecasting and education in Colorado. A donation of even $10 helps us continue to improve our programs. Please donate today and support your avalanche center.
Donate Now
Copyright © 2017 Friends of Colorado Avalanche Information Center, All rights reserved.

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Mountainsmith Sample Sale September 8th


Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)

Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)
Eric Bayer, Plaintiff-Appellant, v. Crested Butte
Mountain Resort, Inc., Defendant-Appellee.
No. 97SA145
Supreme Court
May 18, 1998
Petition for Rehearing DENIED. EN BANC. June 22, 1998
Certification of Questions of Law from the United States Court of
Appeals for the Tenth Circuit Pursuant to C.A.R. 21.1
CERTIFIED QUESTIONS ANSWERED

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Purvis, Gray, Schuetze & Gordon, Robert A. Schuetze, Glen F. Gordon, Boulder, Colorado, Attorneys for Plaintiff-Appellant.

White & Steele, P.C., Glendon L. Laird, John M. Lebsack, Peter W. Rietz, Denver, Colorado, Attorneys for Defendant-Appellee.

EN BANC
JUSTICE KOURLIS dissents, and CHIEF JUSTICE VOLLACK joins in the dissent.
JUSTICE HOBBS delivered the Opinion of the Court.

[1] Pursuant to C.A.R. 21.1, we agreed to answer the following questions certified to us by the United States Court of Appeals for the Tenth Circuit

What standard of care governs the duty owed by ski lift operators in Colorado to users of those lifts in the winter season?

Separately, and more particularly, does the Colorado Passenger Tramway Safety Act and/or the Colorado Ski Safety and Liability Act preempt or otherwise supersede the pre-existing Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season?

[2] These questions arise in connection with Eric Bayer’s negligence suit against Crested Butte Mountain Resort, Inc. (Crested Butte) involving serious injuries he sustained after falling approximately 30 feet from a ski lift at the Crested Butte ski area.

[3] The federal district court concluded that the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act) have substituted a lesser degree of care for ski lift operators than the highest degree of care, thus superseding our holding in Summit County Development v. Bagnoli, 166 Colo. 27, 40, 441 P.2d 658, 664 (1968). Based on its ruling that a standard of ordinary care applies, the district court granted summary judgment and dismissed the case.

[4] In answering the certified questions, we reaffirm our holding in Bagnoli. A ski lift operator must exercise the highest degree of care commensurate with the lift’s practical operation, regardless of the season.

I.

[5] Eric Bayer, a 19-year-old college student and resident of Florida, was skiing at the Crested Butte ski area on December 31, 1992. He boarded the Paradise Lift, a double-chair, center pole lift, with a person whom he did not know. This lift was not equipped with restraining devices on the chairs. Bayer rode the Paradise Lift for about 100 yards, lost consciousness, slumped in his chair, and slid feet first to the ground below. He suffered serious and permanent head injuries from the fall. The cause of his unconsciousness remains unknown.

[6] The Passenger Tramway Safety Board (Board), which regulates ski lifts in Colorado, requires the use of restraining devices during summer lift operation but has no companion requirement for winter operation. Bayer does not dispute that Crested Butte complied with applicable Board regulations.

[7] The existence and scope of a legal duty of care is a question of law. See United Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo. 1992). In Bagnoli, we determined that a ski lift operator must exercise the highest degree of care commensurate with practical operation of a lift. Bagnoli, 166 Colo. at 40, 441 P.2d at 664. In answering the certified questions, we must determine whether the Tramway Act or the Ski Safety Act, or the two in combination, have modified or preempted our holding in Bagnoli.[fn1]

II.

[8] We hold that the Tramway Act and the Ski Safety Act, alone or in combination, have not preempted or superseded the common law standard requiring a ski lift operator to exercise the highest degree of care commensurate with the practical operation of the ski lift. The General Assembly did not intend by either act to substitute a standard of care lesser than the highest degree.

[9] Under the Tramway Act, the primary responsibility for the design and operation of ski lifts, consistent with our holding in Bagnoli, rests with the operators; the board is to adopt reasonable standards for the industry, but these are not intended to preclude common law negligence actions or the duty to exercise the highest degree of care. The Ski Safety Act establishes the relative duties of skiers and ski area operators on the ski slopes, limits damage awards, and precludes liability claims resulting from the inherent dangers and risks of skiing, while expressly excluding ski lift accidents from these limitations.

A.

[10] The Highest Degree of Care

[11] A basic proposition of tort law is that the amount of care demanded by the standard of reasonable conduct must be in proportion to the risk; the greater the danger, the higher is the degree of caution which the person owing the duty must exercise. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 34, at 208-09 (5th ed. 1984). As we said in Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587 (Colo. 1984), “It is axiomatic in the law of negligence that the greater the risk, the greater the amount of care required to avoid injury to others.”

[12] Our holding in Bagnoli squarely placed on lift operators the duty to exercise the highest degree of care consistent with the practical operation of the ski lift because (1) passengers give up their freedom of action and movement, surrendering themselves to the care and custody of the ski lift operator, (2) there is usually nothing passengers can do to cause or prevent the accident, and (3) the operator has exclusive possession and control of the ski lift. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664. We derived these factors directly from our prior decision in Lewis v. Buckskin Joe’s, Inc., 156 Colo. 46, 56, 396 P.2d 933, 938-39 (1964), wherein we held that amusement ride operators must “exercise the highest degree of care commensurate with the practical operation” of the ride.[fn2]

[13] Underlying our adoption in Bagnoli of the Lewis factors is that ski lifts are operated at considerable height from the ground over rough, elevated, often precipitous Colorado terrain. A fall from the lift can be calamitous. Passengers entrust their safety to the lift operators. Operation of a ski lift thus entails both greater danger and greater responsibility than circumstances involving ordinary care.

[14] In addressing the federal district court’s conclusion that the Tramway Act and the Ski Safety Act supersede Bagnoli, we first discuss the legislative design and purposes of the two acts.

B.

[15] The Tramway Act And The Ski Safety Act [16] The statutory canons of construction require us to give effect to the plain meaning of statutory enactments; we must employ rules of grammar and common usage and accord to technical terms and legislative definitions their particular meaning. See 2-4-101, 1 C.R.S. (1997).

[17] The Colorado General Assembly initially addressed ski safety in Colorado through the 1965 Tramway Act. The act’s purpose is to assist in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.[fn3] See 25-5-701, 8 C.R.S. (1997). The act establishes a Board “to prevent unnecessary mechanical hazards” and to “assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of, passenger tramways.” 25-5-701, 8 C.R.S. (1997). The General Assembly has confirmed that, notwithstanding the powers and duties of the Tramway Board, “[t]he primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators” of passenger tramway devices. 25-5-705, 8 C.R.S. (1997) (emphasis added).

[18] The legislature has empowered the Board[fn4] with rulemaking and enforcement authority to carry out its functions. The Board is authorized, but not required, to utilize the standards adopted by the American National Standards Institute (ANSI), see 25-5-704, 8 C.R.S. (1997), and has authority to conduct investigations and inspections, to discipline ski area operators, to issue licenses, to order emergency shut downs, and to engage in other functions related to the purpose of the Tramway Act, see 25-5-704 to -716, 8 C.R.S. (1997).[fn5] The Board by regulation has adopted the ANSI 1992 standards, with some additions, revisions, and deletions. See Rule 0.1, 3 C.C.R. 718-1 at 1.

[19] Building on the construct of the Tramway Act, the General Assembly followed with the Ski Safety Act in 1979. This act supplements the Tramway Act’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. See 33-44-102, 9 C.R.S. (1997). In 1990 amendments to the Ski Safety Act, the legislature limited the liability of ski area operators for accidents on the slopes involving the “inherent dangers and risks of skiing.” See ch. 256, sec. 7, 33-44-112, 1990 Colo. Sess. Laws, 1543; see also ch. 256, sec. 1, Legislative Declaration, 1990 Colo. Sess. Laws, 1540; Graven v. Vail Assocs., 909 P.2d 514, 517-18 (Colo. 1995).

[20] Included within the inherent risks of skiing are dangers or conditions that are an “integral part of the sport of skiing,” such as weather, snow conditions, collisions with natural and man-made objects, and terrain variations. See 33-44-103(3.5), 9 C.R.S. (1997). The skier must know the range of his or her ability, ski in control, maintain a proper lookout while skiing, avoid collisions with other skiers, and not use a ski slope or trail or passenger tramway while impaired by alcohol or other controlled substances. See 33-44-109, 9 C.R.S. (1997). The statute provides 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.” 33-44-112, 9 C.R.S. (1997). See also Graven, 909 P.2d at 518-21.

[21] For their part, ski area operators must maintain a sign system, including signs indicating the level of difficulty of the area’s slopes and trails, notices that warn of danger areas, closed trails, and ski area boundaries, and the marking of man-made structures that are not readily visible to skiers. See 33-44-107, 9 C.R.S. (1997). They must undertake safety precautions related to the operation of equipment such as snowmobiles and motorized snow-grooming vehicles on slopes and trails within ski area boundaries. See 33-44-108, 9 C.R.S. (1997).

[22] The Ski Safety Act also addresses aspects of ski lift operation through several provisions which regulate passenger conduct. Passengers must have sufficient physical dexterity to use a lift safely and are required to observe certain conduct when embarking, riding, and disembarking a ski lift. See 33-44-105, 9 C.R.S. (1997). They may not move outside designated areas, throw objects from the tramway, engage in conduct that could cause injury to others, or disobey instructions from the ski area operator. See id. On the other hand, ski area operators must maintain a sign system including specific instructions such as “Keep Ski Tips Up,” and “Unload Here.” See 33-44-106, 9 C.R.S. (1997).

[23] Any violation of the statute’s provisions applicable to skiers constitutes negligence on their part; in tandem, any violations by a ski area operator of the Ski Safety Act or the Tramway Act constitute negligence as to them. See 33-44-104, 9 C.R.S. (1997). The effect of these statutory provisions is to make violations of the Ski Safety Act and/or Tramway Act negligence per se.

C.

[24] Effect Of The Tramway Act And The Ski Safety Act On The Degree Of Care Applicable To Ski Lift Operators

[25] Of controlling significance in answering the certified questions of law is that we infer no abrogation of a common law right of action absent clear legislative intent. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997); Farmers Group, Inc. v. Williams, 805 P.2d 419, 423 (Colo. 1991). If the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent “expressly or by clear implication.” McMinn, 945 P.2d at 408.

[26] Crested Butte contends, and the federal district court determined, that the legislature has replaced the high standard we announced in Bagnoli with a standard of ordinary care. In arguing for a duty of care lesser than the highest degree, Crested Butte relies on the 1965 provision in the Tramway Act exempting ski lifts from laws of the state applicable to “common carriers.” It also argues, in the alternative, that the “legislature’s enactment of a comprehensive statutory and regulatory scheme for safety requirements at ski areas manifests the intent to preempt the field of common law liability, especially where the claim is that a particular safety device was not installed on a lift.”

[27] To the contrary, we conclude that the Tramway Act and the Ski Safety Act, together with the Bagnoli standard of care, provide a comprehensive Colorado 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.

1.

[28] The Common Carrier Provision Of The Tramway Act [29] The Tramway Act states that Provisions in lieu of others. The provisions for regulation, registration, and licensing of passenger tramways and the area operators thereof under this part 7 shall be in lieu of all other regulations or registration, or licensing requirements, and passenger tramways shall not be construed to be common carriers within the meaning of the laws of this state.

[30] 25-5-717, 8 C.R.S. (1997) (emphasis added.)[fn6]

[31] We must read and interpret statutory language in its context. See 2-4-101, 1 C.R.S. (1997) (“Words and phrases shall be read in context.”). The phrase concerning common carriers in section 25-5-717 is an integral part of a provision dealing with regulation, registration, and licensing of passenger tramways. Its evident purpose in the context of the “meaning of the laws of this state” is to prohibit any board or agency, other than the Tramway Board, from registering, regulating, or licensing ski lifts. For example, ski lifts are not to be considered common carriers subject to Public Utilities Commission (PUC) jurisdiction. Without this provision, ski lifts arguably would have been under the very broad statutory definition of “common carriers” for regulatory purposes. See 40-1-102(3)(a)(I), 11 C.R.S. (1997).[fn7]

[32] We did not rely in Bagnoli on the notion that ski lift operators are common carriers when enunciating the applicable standard of care. Rather, we applied the Lewis factors to ski lift operators because of the degree of control they exercise over passengers, the relative powerlessness of a passenger to secure his or her own safety under the circumstances, and the consequent state of dependence and trust which a passenger must place in the lift operators. In Lewis, we said It is not important whether defendants were serving as a carrier or engaged in activities for amusement. The important factors are, the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of this case, the defendants had exclusive possession and control of the facilities used in the conduct of their business and they should be held to the highest degree of care.

[33] Lewis, 156 Colo. at 57, 396 P.2d at 939 (emphasis added). One of the justices vigorously dissented as to the degree of care expected, on the basis that “this is not a `carrier case.'” Id. at 72, 396 P.2d at 947 (McWilliams, C.J., dissenting).

[34] In Bagnoli, we nevertheless adhered to the basic proposition that enunciating the degree of care to be exercised depends on the danger and degree of responsibility involved. We emphasized that the duty in negligence actions “remains one of exercising due care, and due care depends upon the attendant circumstances.” 166 Colo. at 38-39, 441 P.2d at 664 (emphasis added). We held that the attendant circumstances of ski lift operation, like amusement rides, demand the highest degree of care. We pointed out that other jurisdictions had imposed on ski lift operators a common carrier status in requiring the higher duty of care, but that, in Colorado, common carrier status made no difference in this regard in light of the Lewis factors. See Bagnoli, 166 Colo. at 39-40, 441 P.2d at 664.[fn8] Thus, in Bagnoli, we held that a Colorado jury instruction need not designate a ski lift operator as a common carrier. Because of the existence of the above described rule of Lewis, supra, and the nature and purpose of our statutes pertaining to common carriers at the time of this accident, there was no need to designate the ski lift operator as a common carrier in Instruction No. 15.

[35] Id. We said that the inclusion of the “common carrier” description in the actual instruction delivered to the jury in Bagnoli was of no consequence, since the paramount purpose of Instruction No. 15 was to convey to the jury the rule of law that a chair ski lift operator must exercise the highest degree of care commensurate with the practical operation of the ski lift.

[36] Id., 441 P.2d at 664-65 (emphasis added).

[37] Thus, while common carriers may be required to exercise the highest degree of care towards their passengers, it does not follow that transport device operators who are not classified as common carriers are dispensed from exercising the highest degree of care when the attendant circumstances warrant such caution.

2.

[38] Legislative Action Subsequent To Bagnoli

[39] The legislature has carefully chosen how to let stand, supplement, or limit application of the common law in the arena of ski safety; it has chosen not to alter the standard of care applicable to ski lift safety. In 1990, the General Assembly limited the liability of ski area operators for claims involving the inherent dangers and risks of skiing. However, the amendments expressly prevent ski lift operators from claiming that the limitation on a ski area’s liability applies to causes of action arising from ski lift accidents. See 33-44-103(3.5), 33-44-112, 9 C.R.S. (1997).[fn9] As further confirmation of the intent to exclude ski lift accidents from the liability limitations, the bill’s chief sponsor, Representative Scott McInnis, testified that the 1990 amendments to the Ski Safety Act would not affect common law tort liability as it related to ski lifts: “This bill does not exclude a ski area from negligence and the liability it faces with ski lifts.” House floor debate on S.B. 80, Mar. 21, 1990.

[40] Another example of the General Assembly’s careful distinctions between ski slope and ski lift accident liability is found in section 33-44-113. This provision limits the amount of damages recoverable from a ski lift operator for accidents that occur while skiing but specifically excludes damages “associated with an injury occurring to a passenger while riding on a passenger tramway.” 33-44-113, 9 C.R.S. (1997).[fn10] Thus, in both a limitation of liability provision and in a limitation of damages provision related to skiing, the General Assembly chose to write an exception preserving the liability and damages law applicable to ski lift accidents.

[41] The legislature has amended the Tramway Act eleven times since the Bagnoli decision: in 1973, 1976, 1977, 1979, 1983, 1985, 1986, 1987, 1988, 1991 and 1993.[fn11] None of those amendments altered the ski lift operator liability rules or shifted to the Tramway Board the operator’s “primary responsibility for design, construction, maintenance, operation, and inspection.” 25-5-705, 8 C.R.S. (1997). The Ski Safety Act was passed in 1979[fn12] and substantively amended in 1990,[fn13] with cross references being made to the Tramway Act. The General Assembly did not choose to overrule Bagnoli on either of these occasions.

3.

[42] Statutory Preemption Of Common Law Causes Of Action And Standards Of Care

[43] Crested Butte further suggests that the Tramway Act and the Ski Safety Act together manifest the legislature’s intent to preempt the field of ski lift safety and, thus, abrogate common law negligence actions and/or the applicable standard of care. Crested Butte insists that the following provisions, which make violations of the Tramway Act and the Ski Safety Act negligence per se, replace common law liability except as provided therein

Negligence — civil actions. . . .

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

[44] 33-44-104(2), 9 C.R.S. (1997) (emphasis added), and, Inconsistent law or statute. Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.

[45] 33-44-114, 9 C.R.S. (1997).

[46] We disagree with Crested Butte’s proposed construction of these provisions. In section 33-44-104(2),[fn14] the legislature determined that any violation of the Tramway Act, or Board regulations, would constitute negligence for purposes of a tort suit based on an alleged violation. A statutory provision which defines violation of a statute or rule as negligence per se is not necessarily inconsistent with maintenance of a common law negligence action, and the creation of a statutory remedy does not bar preexisting common law rights of action, in the absence of clear legislative intent to negate the common law right. See McMinn, 945 P.2d at 408; see also Trigg v. City & County of Denver, 784 F.2d 1058, 1059-60 (10th Cir. 1986) (in ski lift accident case, both common law negligence and negligence per se Colorado jury instructions may be required, if justified by sufficient evidence). We conclude that section 33-44-104(2) demonstrates no indication that the legislature wished to bar, rather than supplement, common law actions in ski lift cases.

[47] Crested Butte contends that the Tramway Act’s provisions (1) establishing a Board to “assure that . . . accepted safety devices . . . are provided for,” see 25-5-701, 8 C.R.S. (1997), and (2) empowering the Board to “establish reasonable standards of design and operational practices,” see 25-5-709, 8 C.R.S. (1997), necessarily imply that the General Assembly intended to preempt the field of common law liability in ski lift cases. See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo. 1995) (stating that “resort to common law principles is preempted regarding issues to which the . . . statute expressly applies or where there are other pertinent statutory provisions. However, if the . . . statute is inapplicable and no other applicable statutes exist, we will rely on the common law”).

[48] The primary responsibility for design and operation of a ski lift rests with the operator. The standards adopted by the Board are intended to be reasonable regulatory standards, not to comprise the operator’s sole duty in regard to passenger safety. Compliance with these standards is evidence of due care but not conclusive evidence.

[49] In our electricity cases, for example, we have explained that regulatory standards for the safe operation of a dangerous instrumentality do not preclude a finding of negligence under the common law. For example, in City of Fountain v. Gast, 904 P.2d 478, 480 (Colo. 1995), and Yampa Valley Electric v. Telecky, 862 P.2d 252, 257-58 (Colo. 1993), we held that, despite the existence of comprehensive National Electric Safety Code standards for the industry, a person may maintain a negligence action against a utility for breach of a common law duty of care. In this state, electric utilities must exercise the highest degree of care to protect the public. See Gast, 904 P.2d at 480.

[50] Evidence of a defendant’s compliance with industry standards, while relevant and admissible for determining whether the defendant breached its duty of care, is not conclusive evidence of due care. See Telecky, 862 P.2d at 257 (compliance with NESC standards is only a part of the determination that the jury was required to make); see also Gast, 904 P.2d at 480 (compliance with NESC standards does not conclusively establish that the highest degree of care was exercised, but is merely one factor to be considered in determining the highest degree of skill and care); Blueflame Gas v. Van Hoose, 679 P.2d 579, 591 (Colo. 1984) (compliance with an administrative safety regulation by propane supplier does not conclusively establish that the highest degree of care was exercised, but is merely one circumstance to be considered).[fn15]

[51] Although the Restatement (Second) of Torts does not have the force of law, we may look to it as a summary of guiding legal principles. The Restatement (Second) of Torts 288C (1965), supports our conclusion that additional tort remedies remain available despite statutory regulation of an industry “Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.” In the comment to this section, the Restatement explains that, “Where a statute, ordinance or regulation is found to define a standard of conduct . . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. This legislative or administrative minimum does not prevent a finding that a reasonable man would have taken additional precautions where the situation is such as to call for them.” Id. 288C, cmt. a.

[52] We reject Crested Butte’s argument that section 285 rather than section 288C of the Restatement should assist our reasoning in this case. Section 285 states that the determination of the standard of conduct of a reasonable person applicable to a given case may be: (a) established by a legislative enactment or administrative regulation which so provides; or (b) adopted by the court from a legislative enactment or administrative regulation which does not so provide; or (c) established by judicial decision; or (d) applied to the facts of the case by the trial judge or the jury if there is no such enactment, regulation, or decision. See Restatement (Second) of Torts 285 (1965).

[53] Crested Butte’s analysis fails to account for the logic of section 288C, which states that a standard of conduct defined by statute, ordinance, or regulation as described in section 285 is normally a “minimum standard,” and does not prevent a finding that a reasonable person would have taken additional precautions when the situation requires. Id. 288C.

[54] If Crested Butte could point to some part of the Tramway Board’s statutes or regulations which prohibits it from taking additional safety precautions, or a patent conflict preventing utilization of a particular safety device under the circumstances, its argument that Board standards preempt common law negligence actions might have merit. For example, in Jefferson County School District R-1 v. Gilbert, 725 P.2d 774, 778-79 (Colo. 1986), we held that a city met its duty of care to make streets safe because it met engineering standards prescribed by statute; the statute specifically prohibited the city from installing a traffic signal unless an intersection met certain criteria. Thus, we held that the city did not have a duty to install traffic devices where the statute specifically prohibited the city from installing them except under certain conditions. Here, although the Board required restraining devices during summer operation and not winter, its regulations did not prohibit operation with restraining devices during winter operation.

[55] Crested Butte also asserts that the Bagnoli standard, if it still applies, should be limited to ski lift negligence actions based on operational errors or defects in equipment and not to design of the lift. Although the facts in Bagnoli related to operation of the lift in the loading procedure and not the design of the lift, section 25-5-705 of the Tramway Act affirms the ski lift operator’s primary responsibility for “design, construction, maintenance, operation, and inspection,” without restriction to the season of operation. The General Assembly has not stated in this regard that the operator’s duty is limited to exercising ordinary care. The Lewis and Bagnoli factors are applicable to each of these components of ski lift safety, and we hold that the ski lift operator must exercise the highest degree of care in regard to each.

[56] A differential standard between operation and design could discourage lift operators from adopting safer designs. Operators would be held to Bagnoli’s higher standard when operating with new safety devices, but a lower standard when choosing to stay with existing equipment. Adoption of Crested Butte’s argument that the Tramway Act and Ski Safety Act preempt common law liability would entail no responsibility on the part of ski operators to ensure safe design, other than to comply with the Board’s regulations. This notion is contrary to the legislature’s intent in assigning the primary responsibility for design to the operators, as well as contrary to a fundamental precept of tort law — that conduct adverse to evolving safety norms should not be rewarded. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 33, at 194-95 (5th ed. 1984).

III.

[57] Answers To Certified Questions

[58] The Tramway Act and the Ski Safety Act do not contain express language or a clear implication to preempt common law actions or the standard of care for ski lift accident cases; rather, they evidence the opposite implication. The legislature’s intent in the Tramway Act is to “assist in safeguarding life, health, property, and the welfare of this state.” See 25-5-701, 8 C.R.S. (1997) (emphasis added). “The primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators of passenger tramway devices.” 25-5-705, 8 C.R.S. (1997). In the context of common law actions, our role has been to enunciate the degree of care which ski lift operators must exercise. Ordinary care is not applicable; the factors of passenger safety and operator control attendant to operation of a ski lift require the operator to exercise the highest degree of care. The legislature, despite numerous occasions in the adoption and amendment of the two acts, has not altered the applicability of the Bagnoli standard.

[59] We therefore answer the certified questions as follows: we hold that the standard of care applicable to ski lift operators in Colorado for the design, construction, maintenance, operation, and inspection of a ski lift, is the highest degree of care commensurate with the practical operation of the lift. Neither the Tramway Act nor the Ski Safety Act preempt or otherwise supersede this standard of care, whatever the season of operation.

[60] JUSTICE KOURLIS dissents, and CHIEF JUSTICE VOLLACK joins in the dissent.

[fn1] Of course, we do not determine whether Crested Butte breached its duty of care or any other issue remaining in the federal court litigation.

[fn2] Decided after passage of the Tramway Act based on an accident occurring before its passage, Bagnoli has been the law of Colorado for the last 30 years. The Colorado Jury Instructions include the following summary of its holding

12:13 AMUSEMENT DEVICES AND SKI LIFTS DUTY OF CARE WHERE USER LACKS FREEDOM OF MOVEMENT It is the duty of the (owner)(operator) of an (amusement device)(ski lift) to exercise the highest degree of care a reasonably careful person could exercise under the same or similar circumstances, in keeping with the practical operation of such a device, for the safety of any person using the device with the (owner’s)(operator’s) express or implied permission.

The failure to exercise such care is negligence. CJI-Civ 3d

12:13 at 98. This instruction is used in ski lift and amusement ride cases and for “those kinds of devices which, to use, the user is required to give up his or her freedom of movement and control of the situation and submit him or herself to the control of the operator.” Id. at 99. The Instruction’s “Notes on Use” state that neither the Passenger Tramway Safety Act nor the Ski Safety and Liability Act changed the applicability of the instruction to ski lifts, except that a negligence per se instruction will be used in cases involving a violation of the Ski Safety Act or regulations of the Board. See id. Although the content of a Colorado Jury Instruction is not legally definitive, its long and common usage is persuasive on the matter of being a correct summary of the law. See Wade v. Olinger Life Ins. Co., 192 Colo. 401, 409 n. 7, 560 P.2d 446, 452 n. 7 (1977). [fn3] A passenger tramway is “a device used to transport passengers uphill on skis, or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans.” 25-5-702(4), 8 C.R.S. (1997).

[fn4] The Board is comprised of one member representing the U.S. Forest Service and six members appointed by the governor, two representing the ski industry, two representing the public at large, and two members with experience in the tramway industry, to regulate passenger tramway devices. See 25-5-703, 8 C.R.S. (1997).

[fn5] The power and duties of the tramway board were specifically enumerated and reorganized into separate sections in the 1993 amendments to the tramway act. See ch. 267, secs. 7-8, 25-5-704 to -719, 1993 Colo. Sess. Laws, 1536-44.

[fn6] Section 25-5-718 was repealed and recodified as section 25-5-717 by the 1993 amendments to the Tramway Act. See ch. 267, sec. 8, 1993 Colo. Sess. Laws, 1538 & 1543. The provisions are nearly identical, and we refer to the most recent codification.

[fn7] “Common carrier” is defined in the public utilities statute as: “Every person directly or indirectly affording a means of transportation, or any service or facility in connection therewith, within this state by motor vehicle, aircraft, or other vehicle whatever by indiscriminately accepting and carrying for compensation passengers between fixed points or over established routes or otherwise . . . .” 40-1-102(3)(a)(I), 11 C.R.S. (1997).

[fn8] Courts in other jurisdictions have addressed the issue of the duty of care owed by ski lift operators, with widely varying results. Some jurisdictions have stated that ski lifts constitute common carriers for purposes of tort liability. See Squaw Valley Ski Corp. v. Superior Court, 3 Cal.Rptr.2d 897, 900 (Cal.App. 1992) (ski lift is a common carrier for tort purposes); D’Amico v. Great American Recreation, Inc. 627 A.2d 1164, 1166 (N.J. Super. Law Div. 1992) (ski area operators are common carriers in the operation of ski lifts). But see McDaniel v. Dowell, 26 Cal. Rptr. 140 (Cal.App. 1962) (rope tow not a common carrier for tort liability purposes).

Whether or not they considered ski lifts to be common carriers, courts have differed as to the degree of care ski lift operators must exercise. Some states require the highest degree of care commensurate with a ski lift’s practical operation, see Hunt v. Sun Valley Co., 561 F.2d 744, 746 (9th Cir. 1977) (applying Idaho law); Fisher v. Mt. Mansfield Co., 283 F.2d 533, 534 (2d Cir. 1960) (applying Vermont law); D’Amico, 627 A.2d at 1166-67; Squaw Valley, 3 Cal.Rptr.2d at 899-900, and other states require only ordinary care, see Pessl v. Bridger Bowl, 524 P.2d 1101, 1107 (Mont. 1974); Bolduc v. Herbert Schneider Corp., 374 A.2d 1187 (N.H. 1977); Friedman v. State, 282 N.Y.S.2d 858, 860 (Ct. Cl. 1967).

The question of the degree of care owed by ski lift operators to passengers is grounded in the common law and statutes particular to each state. We look to Colorado law as the basis for our determination that the highest degree of care applies to ski lift operators in this state.

[fn9] Section 33-44-103(3.5) provides in pertinent part:

Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

[fn10] Section 33-44-113 provides:

The total amount of damages which may be recovered from a ski area operator by a skier who uses a ski area for the purpose of skiing or for the purpose of sliding downhill on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or any other device and who is injured, excluding those associated with an injury occurring to a passenger while riding on a passenger tramway, shall not exceed one million dollars, present value, including any derivative claim by any other claimant, which shall not exceed two hundred fifty thousand dollars, present value, and including any claim attributable to noneconomic loss or injury, as defined in sections 13-21-102.5(2) C.R.S., whether past damages, future damages, or a combination of both, which shall not exceed two hundred fifty thousand dollars.

(Emphasis added.)

[fn11] See ch. 395, sec. 29, 66-25-9, 1973 Colo. Sess. Laws 1373; ch. 126, secs. 1-10, 1976 Colo. Sess. Laws 660-63; ch. 354, secs. 1-16, 1977 Colo. Sess. Laws 1288-92; ch. 433, secs. 120-122, 25-5-708 to -710, 1979 Colo. Sess. Laws 1661; ch. 315, secs. 1-7, 1983 Colo. Sess. Laws 1071-73; ch. 101, sec. 23, 25-5-717, 1985 Colo. Sess. Laws 411; ch. 193, secs. 1-10, 1986 Colo. Sess. Laws 974-78; ch. 172, sec. 83, 25-5-710, 1987 Colo. Sess. Laws 971; ch. 36, sec. 11, 25-5-710, 1988 Colo. Sess. Laws 317; ch. 301, sec. 40, 25-5-710, 1991 Colo. Sess. Laws 1917-18; ch. 267, secs. 1-11, 1993 Colo. Sess. Laws 1532-44.

[fn12] See ch. 323, secs. 1-3, 1979 Colo. Sess. Laws 1237-44.

[fn13] See ch. 256, secs. 1-11, 1990 Colo. Sess. Laws 1540-44.

[fn14] Section 33-44-104(2) was amended in 1994 to refer to section 25-5-704(1)(a) of the Tramway Act instead of section 25-5-710(1)(a) because of the 1993 amendments to the Tramway Act. See ch. 276, sec. 74, 33-44-104, 1994 Colo. Sess. Laws, 1644. Because the substance of the section is the same, we refer to the most recent codification.

[fn15] In Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 683 (Colo. 1985), before the 1990 amendments to the Ski Safety Act, we noted that the risks associated with skiing do not rise to the level of those associated with supplying electricity, operating amusement devices, and selling propane gas. However, in that case we were speaking to the dangers associated with skiing — such as variations in terrain, which skiers can guard against — and not the dangers related to the operation of ski lifts. See id. Rather, we stated in Bagnoli that the risks associated with operating ski lifts are much like those associated with operating amusement rides and based our conclusion regarding the applicable degree of care on the same factors we discussed in Lewis. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664.

[61] JUSTICE KOURLIS dissenting

[62] Because I do not believe that the common carrier standard of care enunciated in Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 33, 441 P.2d 658, 661 (1968), survives the General Assembly’s express pronouncements in the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act), I respectfully dissent.

I.

[63] The issues certified to this court by the United States Court of Appeals for the Tenth Circuit are: (1) what standard of care governs the duty owed by ski lift operators in Colorado to winter season lift users; and (2) does the Tramway Act and/or the Ski [Safety] Act preempt or otherwise supersede the preexisting Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season? I would answer the second question affirmatively, and clarify that the standard of care applicable to ski lift operators is one of ordinary negligence, as provided in the two Acts.

II.

[64] The plaintiff in this case, Eric Bayer, asks Crested Butte to insure him from injury while riding a ski lift, whether or not such injury was occasioned by negligence through mechanical, design or operational failure of the ski lift. Eric Bayer became unconscious and fell from the lift he was riding at Crested Butte ski area incurring severe injury. Bayer claims that Crested Butte had a duty to exercise “the highest degree of care,” and that such level of care would have required the installation of a restraining device on the lift from which he fell. He asserts no other wrongful action or omission by Crested Butte. Bayer concedes that the majority of ski lifts in Colorado do not have restraining devices and are certified for operation without them by the Colorado Passenger Tramway Safety Board (Safety Board). He also concedes that no statute, rule or regulation requires lifts to be equipped with such devices for winter operation. The federal district court granted summary judgment to Crested Butte, ruling that the applicable standard of care was reasonable care and that Crested Butte had exercised such reasonable care in the installation of the lift. On appeal, Bayer continues to argue that under Bagnoli, Crested Butte should be held to a higher standard of care than ordinary negligence. In my view, Bagnoli has no continuing life in light of intervening legislation; and the appropriate standard of care is ordinary and reasonable care.

III.

[65] In Bagnoli, this court determined that a lift operator was a “common carrier” with respect to the plaintiff and therefore owed the plaintiff “the highest degree of care commensurate with the practical operation of the chairlift.” Id. at 33, 441 P.2d at 661.

[66] The higher standard of care imposed in Bagnoli has traditionally been reserved for inherently dangerous activities. See Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 111-12, 570 P.2d 239, 241-42 (1977). Ultra-hazardous or abnormally dangerous activities warrant a rule of strict liability. See Western Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 379, 578 P.2d 1045, 1050 (1978).

[67] The law has held common carriers to the higher standard of care, even though their activities are not necessarily inherently dangerous. The rationale for that higher standard arose out of their acceptance of an unusual responsibility to the public. See William L. Prosser, The Law of Torts 184 (3d ed. 1964). Additionally, burden of proof considerations played a role in the analysis, based upon the fact that a passenger on a mode of transport for hire is not familiar with the instrumentalities and appliances used for transportation and would be disadvantaged if required to prove the specific cause of the accident. See Denver & R.G.R. Co. v. Fotheringham, 17 Colo. App. 410, 68 P. 978 (1902).

[68] The common carrier standard of care was initially rejected by this court in Hook v. Lakeside Park Co., 142 Colo. 277, 351 P.2d 261 (1960), as applied to amusement park devices on the theory that the “presumptions or inferences available to a passenger in an action against a carrier are not available” in an amusement park setting. Hook, 142 Colo. 283, 351 P.2d at 265.

[69] The court revisited the issue in Lewis v. Buckskin Joe’s Inc., 156 Colo. 46, 396 P.2d 933 (1964), and concluded that amusement park devices should be treated as common carriers[fn1] because “the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of the case, the defendants had exclusive possession and control of the facilities used in the conduct of their business.” Id. at 56-57, 396 P.2d at 939. Three members of the Lewis court dissented on that point, distinguishing common carriers from recreational providers.

[70] If, indeed, a higher standard of care evolves primarily out of either an inherently dangerous activity or out of a common carrier status, clearly the court in Lewis was

relying upon the common carrier analysis, not a conclusion that amusement park devices are inherently dangerous.

[71] And thus, the court came to Bagnoli. In Bagnoli, the court noted that not all of the factors present in Lewis similarly applied to Bagnoli, but concluded nonetheless that Summit County Development Corporation was a common carrier and, as such, owed the plaintiff the highest degree of care. The court cited various other states that had similarly imposed a common carrier status on ski lift operators.

[72] The Bagnoli rationale turned on the common carrier status of the defendant. The court declared that a “ski lift facility, like other transportation facilities, and like the stagecoach amusement ride in Lewis, requires the operator to exercise the highest degree of care commensurate with its practical operation.” Bagnoli, 166 Colo. at 40, 441 P.2d at 664.

[73] However, after we decided Bagnoli, the legislative landscape changed around the nation, including in Colorado. The chronology reflects that courts initially defined ski lifts as common carriers, and thereby activated a higher standard of care. Many legislatures, like Colorado’s General Assembly, then chose to act and declared that passenger tramways are not common carriers. Following legislative pronouncements that ski lifts were not to be treated as common carriers, other states have retreated from a determination that a higher standard of care applies.

[74] For example, in Pessl v. Bridger Bowl, 524 P.2d 1101 (Mont. 1974), the Montana Supreme Court concluded that the duty of care owed by ski lift operators in Montana was one of reasonable and ordinary care because of the enactment of Montana’s Passenger Tramway Act which, in pertinent part, parallels the Tramway Act before us today.[fn2] See Pessl, 524 P.2d at 1107. See also Bolduc v. Herbert Schneider Corp., 374 A.2d 1187 (N.H. 1977)(holding same as Pessl, and recognizing that states adopting such statutes typically did so in response to court decisions which imposed a higher degree of care); D’Amico v. Great American Recreation, Inc., 627 A.2d 1164 (N.J. 1992)(applying highest degree of care because New Jersey’s ski safety act did not include language exempting operators from common carrier status); Albert v. State, 362 N.Y.S.2d 341 (N.Y. Ct. Cl. 1974)(finding that chairlift operators are not common carriers under similarly worded N.Y. statute); Friedman v. State, 282 N.Y.S.2d 858 (N.Y. Ct. Cl. 1967)(same as Albert); Donald M. Zupanec, Annotation, Liability for Injury or Death from Ski Lift, Ski Tow, or Similar Device, 95 A.L.R.3d 203 (1979). The New Hampshire Supreme Court specifically recognized in Bolduc that the legislative decision to remove passenger tramways from common carrier status was in response to court cases like Bagnoli. See Bolduc, 374 A.2d at 1189.

[75] Hence, other courts around the nation have specifically deferred to the legislative determination that passenger tramways may no longer be treated as common carriers. Bagnoli explicitly concludes that lift operators should be treated as common carriers, and such a conclusion is no longer valid. Additionally, the Lewis factors relied upon in Bagnoli cannot stand as an independent basis for the imposition of a higher standard of care unrelated to common carrier status, because they are merely an articulation of the reasons why common carriers are held to a different standard. Those factors cannot stand alone.[fn3] Hence, in my view, the legislature has removed the cornerstone of the foundation upon which Bagnoli rested. As the California Court of Appeal stated in McDaniel v. Dowell, 26 Cal.Rptr. 140, 143 (Dist. Ct. App. 1962), absent classification of a ski lift operation as a common carrier, “[t]here is no other basis for the imposition upon the defendant [] of a duty to exercise the utmost care and diligence for the safety of the plaintiff.”[fn4] IV.

[76] The accident in Bagnoli occurred on April 21, 1962, three years prior to the effective date of the Tramway Act. The court in Bagnoli thus did not apply the Tramway Act even though the actual decision was handed down in 1968, after the Act’s passage.

[77] On July 1, 1965, the following provision of the Tramway Act went into effect The provisions for regulations, registration and licensing of passenger tramways and the operators thereof under this Part 7 shall be in lieu of all other regulations or registration, or licensing requirements, and passenger tramways[fn5] shall not be construed to be common carriers within the meaning of the laws of this state.

[78] 25-5-717, 11A C.R.S. (1989)(emphasis supplied).

[79] In answering the questions before us today, the Majority observes that we infer no abrogation of a common law right of action absent clear legislative intent. Maj. op. at 12. I find just such clear legislative intent apparent in the unambiguous language of the Tramway Act. Crested Butte operates ski lifts. Ski lifts are passenger tramways, and under the Tramway Act passenger tramways “shall not be construed to be common carriers.” 25-5-717, 11A C.R.S. (1989).

[80] The legislature expressly decided that ski lifts were not to be treated as common carriers in Colorado. In addition, the legislature implicitly occupied the field by enacting pervasive and comprehensive legislation for safety requirements regarding ski lifts. See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo. 1995)(noting that statutory preemption of areas of the common law may arise expressly or by clear implication).

[81] The Tramway Act is comprehensive in its scope of regulation of Colorado ski lifts In order to assist in safeguarding life, health, property and the welfare of this state, it is the policy of the State of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of ski tows, lifts and tramways and to assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operations of ski tows, ski lifts and passenger tramways.

[82] 25-5-701, 11A C.R.S. (1989).[fn6]

[83] The Tramway Act further authorizes the Safety Board to “adopt reasonable rules and regulations relating to public safety in the design standards, construction, operation and maintenance of passenger tramways.” 25-5-710(a), 11A C.R.S. (1989). The Tramway Act directs the Safety Board to use general guidelines and standards adopted by the American Standards Association, Inc., see id.; and the Act makes the Safety Board responsible for establishing “reasonable standards of design and operational practices.” 25-5-710.1, 11A C.R.S. (1989).

[84] In 1979, the legislature expanded the scope of its pronouncements when it enacted the Ski Safety Act.[fn7] The express purpose of that Act was “to establish reasonable safety standards for the operation of ski areas and for skiers using them.” 33-44-102, 14 C.R.S. (1995).

[85] For purposes of the issue before the court, the Ski Safety Act achieves four results. First, it supplements the Tramway Act and further defines the relative rights and responsibilities of ski area operators and skiers. See 33-44-102. Second, it clarifies that negligent operation of a ski lift is not an “inherent risk of skiing.” Id. Third, it provides that a violation by a ski area operator of any portion of the Ski Safety Act or of any rule or regulation promulgated by the Safety Board shall constitute negligence. See 33-44-104(2). Lastly, it includes preemptive language as follows: “Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.” 33-44-114 (emphasis added).

[86] The cumulative effect of those provisions leaves no doubt as to the legislative intent to set forth the governing law concerning ski area liability: both with respect to operation of ski slopes and ski lifts. The Tramway Act removes ski lifts from common carrier status. The Ski Safety Act incorporates the requirements of the Tramway Act and the Safety Board’s regulations and further mandates that inconsistent provisions of the common law are abrogated.

[87] Since the Tramway Act eliminates the elevated common carrier status of ski lift operators as a basis for a higher standard of care, the applicable standard reverts to that of ordinary care. The Tramway Act delegates to the Safety Board the task of establishing reasonable standards of design for ski lifts. The Ski Safety Act warns that failure to comply with any rule or regulation promulgated by the Safety Board shall constitute negligence on the part of the operator. The standard of care owed by ski lift operators to users of those lifts in the winter season is, therefore, ordinary and reasonable care consistent with the rules and regulations of the Safety Board.[fn8] [88] Indeed, not only should this court accede to legislative mandate, but additionally the fixing of an elevated standard of care is without basis in fact or law once the common carrier status rationale is eliminated.

V.

[89] In the absence of statutory edict, the courts must develop the common law. However, the General Assembly retains the authority to repeal common law rights or duties. See 2-4-211, 1 C.R.S (1997). In determining whether a legislative enactment serves to supplement the common law, or to repeal it, the courts have rightfully proceeded with caution. However, the principle of statutory construction that statutes in derogation of the common law must be narrowly construed should never be invoked to defeat the plain and clear intent of the legislature. See Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237, 251-52 (Colo. 1992). Legislative intent that is clearly expressed must be given effect. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992)(finding a clear intent by the General Assembly to change the common law rule and require damages to be set off by certain non-exempt collateral source contributions); Pigford v. People, 197 Colo. 358, 360, 593 P.2d 354, 356 (1979)(noting a clear statement of legislative intent to change the common law in order to permit admissibility of certain prior offenses in criminal prosecutions for unlawful sexual behavior).

[90] When the legislature overrules a court decision that does not involve a constitutional issue, the court must comply with the legislative direction. “It is not within the purview of this court to question the legislature’s choice of policy.” City of Montrose v. Public Utils. Comm’n, 732 P.2d 1181, 1193 (Colo. 1987)(recognizing that legislature effectively overruled City of Montrose v. Public Utils. Comm’n, 197 Colo. 119, 590 P.2d 502 (1979), with respect to the means by which a utility was permitted to surcharge municipal fees).

[91] It is my view that the Majority is, indeed, declining to recognize the appropriate exercise of legislative authority and policy-making in defining the standard of care applicable to ski lift operators. Hence, I respectfully dissent.

[92] I am authorized to state that CHIEF JUSTICE VOLLACK joins in this dissent.

[fn1] At pages 15-16, the Majority includes a reference from Bagnoli, citing Lewis, to the effect that the actual common carrier status was not important. In fact, the Lewis language was merely clarifying that it was not important to distinguish between a stagecoach “prepared and maintained by the defendant for the carriage or amusement of those who pay the required fee.” Lewis, 156 Colo. at 56, 396 P.2d at 939 (emphasis in original).

[fn2] The Montana court also noted that Montana cases had rejected the analogy between a passenger of a common carrier for hire and a patron of an amusement place. See Pessl, 524 P.2d at 1106.

[fn3] There is an inference in some of the cases, including Hook, that amusement park devices are inherently dangerous and, thus, possibly deserving of a higher standard of care on that basis. This court has expressly rejected this rationale for ski area operators. See Pizza v. Wolf Creek, 711 P.2d 671, 683 (Colo. 1985)(expressly rejecting analogy comparing operating a ski area to inherently dangerous activities).

[fn4] The California court was concerned with whether a rope tow should be classified as a common carrier, and concluded that it should not. The court was not addressing the import of a statute, because at that time, California had no passenger tramway act.

[fn5] A “passenger tramway” is defined as “a device used to transport passengers uphill on skis or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans.” 25-5-702(4), 11A C.R.S. (1989).

[fn6] I also note that emergency shutdown of a passenger tramway is justified only if the lift is shown to be an “unreasonable” hazard, 25-5-716, 11A C.R.S. (1989), lending further credence to the conclusion that the Tramway Act supplants any elevated standard of care and reestablishes an ordinary standard of reasonable care.

[fn7] In 1990, the legislature amended the Ski Safety Act to clarify the law regarding the duties and responsibilities of skiers and ski area operators and to provide additional protection for ski area operators. See Graven v. Vail Assocs., 909 P.2d 514, 517, 517 n. 3, 524 n. 4 (Colo. 1995). None of the 1990 amendments impact upon the question before us today, although they do further display the legislative intent to limit the causes of action available to skiers against ski areas.

[fn8] I do not believe that the “highest standard of care” is applicable to ski lift operators in the wake of the Tramway Act and the Ski Safety Act. Therefore, I do not reach the question of the interrelationship between compliance with the statutory and regulatory standards and that elevated standard of care. (Maj. op at 24-28). Further, I do not believe the question is before us as to whether evidence in addition to compliance with applicable standards and regulations should be adduced on the issue of negligence. In answering certified questions, the court should be brief and confine itself to the precise questions propounded. See In re Interrogatories of the U.S. District Court, 642 P.2d 496, 497 (Colo. 1982).


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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CAIC 9th Annual Benefit Bash is coming December 3

Tickets are selling quickly. Do you have yours?

Join us on Saturday, December 3, at the Riverwalk Center in Breckenridge and support the CAIC in their continued efforts in avalanche forecasting and education throughout Colorado. We hope you can join us! Tickets are on sale now! Get yours today.

Saturday, December 3
9th Annual CAIC Benefit Bash
Breckenridge Riverwalk Center
5:00pm – 10:00pm
Tickets:
http://caicbenefitbash.eventbrite.com/?aff=email1
More info: http://avalanche.state.co.us/about-us/events/

Here are few things you have to look forward to:
•   Live music from
Pearl and Wood and The Davenports.
•   Fantastic beer from Breckenridge Brewery, Broken Compass Brewing Company, Backcountry Brewery, Pug Ryan’s Brewing Company, Dillon Dam Brewery, and The Baker’s Brewery.
•   Amazing catered dinner from
Food Hedz.
•   Over $60,000 in our silent auction and door prizes that must go home with our guests!
 

 


List of Enhancements at Colorado Ski Resorts for the 2016-17 season.

Colorado Ski Country USA Enhances Guest Experience for 2016/17 Season

with Major Capital Improvements

Resorts Invest In New Dining Options, Lifts and Transportation Upgrades

 

Photo Credit: Arapahoe Basin, Dave Camara

Colorado Ski Country USA (CSCUSA) member resorts are dedicated to providing a guest experience that sets the standard in ski vacations, from friendly employees providing personal interactions and a welcoming spirit, to unmatched guest services including top of the line amenities, customized programs and innovative activities.

CSCUSA resorts regularly invest to improve facilities and enhance the guest experience both on and off the mountain. For the 2016/17 season, guests will find new dining options, new chairlifts and new terrain enhancements, as well as other improvements that will elevate the premier skiing and snowboarding experience at CSCUSA resorts.

Below is a summary of the many upgrades at CSCUSA resorts that guests will enjoy during the 2016/17 ski season.

Arapahoe Basin

To celebrate A-Basin’s 70th Anniversary, the resort has made significant investments into improving the base area including renovating buildings, improving walkways and ramps, upgrading skier services, expanding Arapahoe Sports and providing better outdoor seating and viewing areas for the main stage.

A-Basin has recently updated all of its webcams, installing new ones last season in the base area and facing the Pali terrain and invested in a partnership with Prism for the Divide Cam, situated at the summit. For more information, visit www.arapahoebasin.com.

Aspen Snowmass

Aspen Snowmass has undergone significant renovations in anticipation of the 2016/17 season including an extensive remodel at Gwyn’s High Alpine Restaurant that will expand the building’s capacity from 350 to 800, and add a bar complete with a large wood-burning fire and big-screen televisions. Additionally the cafeteria will have a “market” setup that will improve diners’ access to food.

Lynn Britt Cabin, debuted in the spring of 2016, introduced LBC Après, a lively après party at the quaint cabin featuring $6 Woody Creek Distillers Gin & Juice Cocktails alongside après food specials starting at $5.

Aspen will host the 2017 Audi FIS Ski World Cup Finals March 15-17, 2017, marking the first time the event has been held in the U.S. in 20 years. The races will feature the best men’s and women’s alpine skiing athletes in the world competing in downhill, super-G, giant slalom, slalom and nation’s team event. For more information, visit www.aspensnowmass.com.

Cooper

This season Cooper will unveil a new mountaintop yurt lodge, a comfortable place to kick back for a break, complete with food and beverage and a large deck with stunning panoramic mountain views.

Other ski area improvements include a new Pistenbully 400 slope groomer to continue to provide the softest and smoothest snow around. There are also new administrative offices at the mountain and a new point-of-sale system in food and beverage and the retail shop. For more information, visit www.skicooper.com.

Copper Mountain

On the Rockies is Copper’s new bar and entertainment hotspot in the resort’s Center Village. Just steps from the American Eagle chairlift, On the Rockies specializes in craft whiskeys from Colorado and beyond as well as craft beer. It also features a full menu of sandwiches, salads and other American fare.

A second new eatery, Eagle BBQ, will offer a variety of barbeque options in a Colorado-themed atmosphere in Center Village’s Copper Junction building. The restaurant’s patio is as close to the snow as possible, making it a perfect après location. It is expected to open in November 2016.

Recently Copper’s Green Team secured a grant from the State of Colorado to install four Level 2 electric car charging spaces, allowing vehicles to charge in 4-8 hours. Located at the entrance of the Beeler parking lot in Copper’s Center Village, the Chargepoint interface allows users to schedule appointment times through a smartphone app, free of charge.

For 2016/17, Copper will offer a new option for those looking for luxury accommodations during their visit. White River Luxury Rentals will allow guests to book units through the White River Luxury Rentals website and coppercolorado.com. For more information, visit www.coppercolorado.com.

Crested Butte

For 2016/17 Crested Butte Mountain Resort will feature a new coffee shop, Coal Breaker Coffee, named after the Ruby-Anthracite. Coal Breaker is located in the Treasury Center in the base area and offers made-to-order crepes, breakfast sandwiches, espresso and hand scooped ice cream.

Another feature for 2016/17 is a new, quarter million dollar, state-of-the-art Montana Crystal Glide Finish automated tuning machine to provide speedy and accurate tuning of skis and snowboards to the Gunnison Valley.

A new program at the resort will debut this season, Women’s Tips on Tuesday’s is a half-day women’s specific ski school led by Crested Butte’s top female pros that concludes with a glass of wine. For more information, visit www.skicb.com.

Eldora

For 2016/17 Eldora added new runs on Indian Peaks as well as upgraded key facilities in both Timbers Lodge and Indian Peaks Lodge. Other improvements include upgrades to snowmaking equipment and guest Wi-Fi internet. For more information, visit www.eldora.com.

Monarch Mountain

For 2016/17 Monarch is adding three designated uphill travel routes that will allow guests to trek from the base area to the top of the Continental Divide. Guests must register at the information desk to receive the complimentary uphill travel ticket.

Also new this season, Monarch will have one, all-mountain point-of-sale system, Siriusware, that allows guests to log in online and reload their ticket products, skipping the ticket windows and increasing convenience. For more information, visit www.skimonarch.com.

Purgatory

New this season guests will notice the Columbine beginner area has been expanded and re-graded to improve the area where beginners learn to ski and snowboard. Also, the Snow Coaster Tubing Hill has been relocated, redesigned, and enhanced for a better user experience and a hazard tree mitigation project will vastly improve the health of the forest and enhance tree skiing at the resort.

A modernized rope tow, the new T-3 surface lift, will transport skiers on the backside of the mountain heading west to the Legends Lift 8 high-speed detachable-quad chairlift, which debuted last winter. The T-3 lift will also connect a new trail to the Legends Lift 8. The Legends Bypass, which opened last winter as an alternative way down to Lift 8, will be widened and re-graded.

Additionally, the snowmaking system has been enhanced with additional snow guns and upgraded nozzles, making snowmaking efforts more productive and efficient allowing for snowmaking as early as October.

Purgatory installed a new point-of-sale software that will make it easier for consumers who are making purchases throughout the resort, providing them with faster transactions at the Ticket Office, Snow Sports School, rentals, retail, and restaurants.

This fall, Purgatory is opening a new convenient retail, rental and repair services shop in Durango at 2615 Main Ave. The remodel will provide a new storefront for outdoor recreation apparel, gear, rentals, repair services, ticket/pass purchases, as well as the resort’s reservation center. For more information, visit www.skipurg.com.

Silverton

As Silverton celebrates its 15th anniversary season in 2016/17, the ski area will unveil a new custom ski basket for helicopter skiing which will allow the Silverton heli to fly higher and faster than ever before and allow guests to get in more runs during their stay. Also new this season, redesigned entrance steps to the tent will greet visitors.

Other improvements include an all new demo fleet featuring state of the art Marker demo bindings.

Silverton’s largest hotel, The Grand Imperial Hotel, recently completed a multi-million dollar renovation this year to return this historic building to its former luster with huge upgrades to all aspects of the facility. For more information, visit www.silvertonmountain.com.

Ski Granby Ranch

Ski Granby has added one new groomer and five new snow guns, which will increase snow making capability by more than 100 acres. Additionally, there will be new TVs and a new menu at the Grill. From more information, visit www.granbyranch.com.

Sunlight

In preparation for the season, Sunlight has updated its fleet of rental equipment with the purchase of several hundred sets of new skis, snowboards, and boots plus new tuning equipment. Coupled with a fresh wax and high-precision tuning, visitors will be ready to shine during Sunlight’s 50th anniversary season. For more information, visit www.sunlightmtn.com.

Steamboat

For 2016/17 Steamboat will replace its Elkhead fixed-grip quad with a Dopplemayr high-speed detachable quad, cutting ride times by more than half. Safety bars will also be added to the new lift. The increased speed and capacity of the new Elkhead lift is expected to substantially improve the guest experience in the popular Sunshine and Priest Creek areas of the mountain, especially at lunchtime and end-of-day egress.

Steamboat’s new mountain coaster will operate year-round in the vicinity of Christie Peak Express lift. The mountain coaster will allow guests to ride a gravity driven sled up the mountain and then slide down the rails while controlling the sled.

A new flight will offer travelers a chance to experience Steamboat’s legendary Champagne Powder® with a direct flight from San Diego International Airport (SAN) to Steamboat/Hayden Airport (HDN). Alaska Airlines will fly routes twice a week from Dec. 17, 2016 to March 25, 2017.

The resort partnered with Marmot on a new concept store located on the corner of 7th Street and Lincoln Ave in historic downtown Steamboat. The new 1,800-square-foot branded retail space will focus extensively on outerwear, apparel and accessories from the award-winning, high-performance company.

Improvements to snowmaking equipment include a new Leitwolf snowcat and an upgrade to the pumphouse to increase water capacity for snowmaking. For more information, visit www.steamboat.com.

Telluride

The beloved Telluride Mountain Village Gondola system will celebrate its 20th anniversary in December. A celebration with a series of events and a festive gala will take place during the anniversary month while a number of events will take place to celebrate the Gondola and its contribution to the region throughout the season.

Telluride’s newest restaurant, Altezza at the Peaks, offers incredible views. Altezza, which means “height” in Italian, offers an Italian-inspired menu, with a variety of main courses such as traditional pastas and Colorado-inspired dishes. To broaden the overall resort experience, Telluride is adding a number of ongoing, free, family-friendly events to take place when the lifts stop turning for the day including a kids’ zone, a holiday prelude and movie series, other movie nights and live music in the mountain village.

Skiers and riders will also have new transportation options with Allegiant Airlines adding a flight between Montrose/Telluride and Denver. The seasonal flights will operate twice weekly and fly nonstop between Montrose Regional Airport (MTJ) and DIA (DEN) with one-way fares as low as $44.

Telluride continues to invest in its infrastructure by enhancing the snowmaking capabilities in the Meadows area that caters to Ski School and beginner skiers and snowboarders. For more information, visit www.tellurideskiresort.com.

Winter Park

The Winter Park Express ski train returns, restoring passenger rail service from Denver’s Union Station to the slopes of Winter Park with service beginning Saturday, January 7 and continuing every weekend and holiday Monday through Sunday, March 26. This service is the only one of its kind in the United States.

There are four new state-of-the-art snowcats that can be used year-round to trim trees and bushes in the summer that have a tendency to peek through the snow in the winter. At peak output the resort will be able to groom almost 1,000 acres, which is a lot of corduroy. For more information, visit www.winterparkresort.com.

Wolf Creek

Wolf Creek Ski Area will debut a new lift for the 2016/17 ski season, the Lynx Lift, which will link the existing base area to a new teaching area. The top of the Lynx Lift terminal building will house a ski school greeting area facility designed for greater customer service for beginner skiers.

A portion of the Tranquility Parking Lot has been paved and other damaged areas have been repaired with 2,600 tons of asphalt. The ski and snowboard rentals have increased their fleet for next season with new demos, sport and standard models from some of the best manufactures in the industry. Guests will also see cosmetic improvements to the base area buildings as well as the Bonanza Lift.

This season marks the 40th year Wolf Creek Ski Area has been owned and operated by the Pitcher family, which is committed to operating a sustainable ski area with a low-density skiing experience that remains affordable to the public.

Other improvements include an upgrade in the food and beverage department from traditional cash registers to a point-of-sale system. Improvements to the online reservation system include allowing guests to book ski school lessons and access to the entire rental fleet. Radio telemetry for activating avalanche control exploders along the Knife Ridge out of the Horseshow Bowl were added this spring while maintenance on the the D. Boyce Poma Lift will keep piece of Wolf Creek history operating. For more information, visit www.wolfcreekski.com.


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

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

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

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

Download a copy of the bill here: 1034_enr

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

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10th annual Colorado Environmental Film Festival: Attend, Volunteer, Spread the Word!

 

Please join me!!!! You can buy tickets in advance at certain Whole Foods stores. Visit www.ceff.net for locations and details.

Or volunteer:

We’re using VolunteerSpot (the leading online Sign-up and reminder tool) to organize our upcoming Sign-ups for the 10th Annual Colorado Environmental Film Festival February 18-20, 2016.

Here’s how it works in 3 easy steps:

1) Click this link to see our Sign-up on VolunteerSpot: http://vols.pt/GaNPio

2) Review the options listed and choose the spot(s) you like.

3) Sign up! It’s Easy – you will NOT need to register an account or keep a password on VolunteerSpot.

Note: VolunteerSpot does not share your email address with anyone. If you prefer not to use your email address, please contact ceffchair and we can sign you up manually.

ceff_press_release_Final.pdf


Colorado River Outfitters Act

COLORADO REVISED STATUTES

TITLE 33. PARKS AND WILDLIFE

OUTDOOR RECREATION

ARTICLE 32. RIVER OUTFITTERS

33-32-101. Legislative declaration.. 1

33-32-102. Definitions. 2

33-32-103. Powers and duties of the commission – rules. 3

33-32-103.5. Variances. 3

33-32-104. License required – fee. 3

33-32-105. Minimum qualifications and conditions for a river outfitter’s license. 4

33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors. 4

33-32-106. Equipment required – employees required to meet minimum qualifications. 5

33-32-107. River outfitters – prohibited operations – penalties. 5

33-32-108. Enforcement 6

33-32-109. Denial, suspension, or revocation of license – disciplinary actions. 8

33-32-110. Advisory committee – repeal 9

33-32-111. Fees – river outfitters cash fund. 9

33-32-112. Repeal of article. 9

C.R.S. 33-32-101 (2015)

33-32-101. Legislative declaration

The general assembly declares that it is the policy of this state to promote and encourage residents and nonresidents alike to participate in the enjoyment and use of the rivers of this state and, to that end, in the exercise of the police powers of this state for the purpose of safeguarding the health, safety, welfare, and freedom from injury or danger of such residents and nonresidents, to license and regulate those persons who provide river-running services in the nature of equipment or personal services to such residents and nonresidents for the purpose of floating on rivers in this state unless the provider of such river-running services is providing such river-running services exclusively for family or friends. It is not the intent of the general assembly to interfere in any way with private land owner rights along rivers or to prevent the owners of whitewater equipment from using said equipment to accommodate friends when no consideration is involved; nor is it the intent of the general assembly to interfere in any way with the general public’s ability to enjoy the recreational value of state rivers when the services of river outfitters are not utilized or to interfere with the right of the United States to manage public lands and waters under its control. The general assembly recognizes that river outfitters, as an established business on rivers flowing within and without this state, make a significant contribution to the economy of this state and that the number of residents and nonresidents who are participating in river-running is steadily increasing.

HISTORY: Source: L. 84: Entire article added, p. 928, § 1, effective May 9.L. 88: Entire section amended, p. 1169, § 1, effective October 1.L. 94: Entire section amended, p. 1226, § 1, effective, July 1.

33-32-102. Definitions

As used in this article, unless the context otherwise requires:

(1) “Advertise” or “advertisement” means any message in any printed materials or electronic media used in the marketing and messaging of river outfitter operations.

(1.4) and (2) Repealed.

(3) “Guide” means any individual, including but not limited to subcontractors, employed for compensation by any river outfitter for the purpose of operating vessels.

(4) “Guide instructor” means any qualified guide whose job responsibilities include the training of guides.

(5) “Person” means any individual, sole proprietorship, partnership, corporation, nonprofit corporation or organization as defined in section 13-21-115.5 (3), C.R.S., limited liability company, firm, association, or other legal entity either located within or outside of this state.

(5.5) (a) “Regulated trip” means any river trip for which river-running services are provided which has been the subject of an advertisement or for which a fee has been charged regardless of whether such fee is:

(I) Charged exclusively for the river trip or as part of a packaged trip, recreational excursion, or camp; or

(II) Calculated to monetarily profit the river outfitter or is calculated merely to offset some or all of the actual costs of the river trip.

(b) “Regulated trip” does not include a trip in which a person is providing river-running services exclusively for family or friends as part of a social gathering of such family or friends.

(6) “River outfitter” means any person advertising to provide or providing river-running services in the nature of facilities, guide services, or transportation for the purpose of river-running; except that “river outfitter” does not include any person whose only service is providing motor vehicles, vessels, and other equipment for rent, any person whose only service is providing instruction in canoeing or kayaking skills, or any person who is providing river-running services exclusively for family or friends.

(7) “Trip leader” means any guide whose job responsibilities include being placed in charge of a river trip.

(8) “Vessel” means every description of watercraft used or capable of being used as a means of transportation of persons and property on the water, other than single-chambered air-inflated devices or seaplanes.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) amended, (4) and (5) R&RE, and (6) to (8) added, pp. 1169, 1170, § § 2, 3, effective October 1.L. 94: (1), (5), and (6) amended and (1.4) and (5.5) added, p. 1227, § 2, effective July 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1641, § 4, effective August 11.L. 2012: (1.4) and (2) repealed, (HB 12-1317), ch. 248, p. 1229, § 70, effective June 4.

33-32-103. Powers and duties of the commission – rules

The commission shall promulgate rules to govern the licensing of river outfitters, to regulate river outfitters, guides, trip leaders, and guide instructors, to ensure the safety of associated river-running activities, to establish guidelines to enable a river outfitter, guide, or trip leader to make a determination that the condition of the river constitutes a hazard to the life and safety of certain persons, and to carry out the purposes of this article. The commission may promulgate rules specifically outlining the procedures to be followed by the commission and by the enforcement section of the division in the event of a death or serious injury during a regulated trip. The commission shall e-mail a notice of every proposed rule to each licensee. The commission shall adopt rules regarding notification to outfitters of certain division personnel changes within ten days of the change and safety training standards and customer and outfitter interaction training standards for division rangers who monitor regulated trips.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section amended, p. 1170, § 4, effective October 1.L. 94: Entire section amended, p. 1228, § 3, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1641, § 5, effective August 11.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 71, effective June 4.

33-32-103.5. Variances

The director may grant variances from rules adopted by the commission pursuant to section 33-32-103 to any river outfitter on a case-by-case basis if the director determines that the health, safety, and welfare of the general public will not be endangered by the issuance of such variance.

HISTORY: Source: L. 94: Entire section added, p. 1228, § 4, effective July 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 72, effective June 4.

33-32-104. License required – fee

(1) No person shall act in the capacity of a paid river outfitter or advertise or represent himself or herself as a river outfitter in this state without first obtaining a river outfitter’s license in accordance with rules prescribed by the commission.

(2) An applicant for a river outfitter’s license shall meet the minimum qualifications pursuant to section 33-32-105 and shall apply on a form prescribed by the commission. All applicants shall pay a nonrefundable license fee in an amount determined by the commission, which fee shall be adequate to cover the expenses incurred for inspections, licensing, and enforcement required by this article, and shall renew such license pursuant to a schedule adopted by the commission upon payment of the fee. License terms shall not exceed three years. The commission may offer licenses that differ in the length of their terms and may stagger the length of license terms so that approximately equal numbers of licensees renew their licenses each year.

(3) Every river outfitter’s license shall, at all times, be conspicuously placed on the premises set forth in the license.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) added, p. 1170, § 5, effective October 1.L. 2010: (1) and (2) amended, (HB 10-1221), ch. 353, p. 1641, § 6, effective August 11.L. 2012: (1) and (2) amended, (HB 12-1317), ch. 248, p. 1230, § 73, effective June 4.

33-32-105. Minimum qualifications and conditions for a river outfitter’s license

(1) A river outfitter’s license may be granted to any river outfitter, either within or without this state, meeting the following minimum qualifications and conditions:

(a) The river outfitter, if a corporation, shall be incorporated pursuant to the laws of this state or duly qualified to do business in this state.

(b) The river outfitter shall submit to the commission evidence of liability insurance in the minimum amount of three hundred thousand dollars’ combined single limit for property damage and bodily injury.

(c) The river outfitter shall meet the safety standards for river-running established by the commission by regulation.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section R&RE, p. 1170, § 6, effective October 1.L. 2012: (1)(b) and (1)(c) amended, (HB 12-1317), ch. 248, p. 1230, § 74, effective June 4.

33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors

(1) Individuals providing the services of guides, trip leaders, or guide instructors shall have the following minimum qualifications and such additional qualifications as the commission may establish by rule:

(a) Guides shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have fifty hours of training on the river as a guide from a qualified guide instructor.

(b) Trip leaders shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least five hundred river miles, of which at least two hundred fifty river miles shall have been logged while acting as a qualified guide and no more than two hundred fifty river miles shall have been logged while acting as a guide on nonregulated trips. Miles from nonregulated trips shall be documented and signed by the trip leader under penalty of perjury, and the licensee shall retain the documents during the term of the trip leader’s employment.

(c) Guide instructors shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least fifteen hundred river miles, of which at least seven hundred fifty river miles shall have been logged while acting as a qualified guide.

(2) (Deleted by amendment, L. 2010, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11, 2010.)

HISTORY: Source: L. 88: Entire section added, p. 1171, § 7, effective October 1.L. 94: Entire section amended, p. 1228, § 5, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11.L. 2012: IP(1) amended, (HB 12-1317), ch. 248, p. 1230, § 75, effective June 4.

33-32-106. Equipment required – employees required to meet minimum qualifications

(1) All licensed river outfitters shall provide the river-outfitting equipment required by rules promulgated by the commission, and said equipment shall be in a serviceable condition for its operation as required by the rules promulgated by the commission.

(2) All river outfitters who employ or contract with guides, trip leaders, or guide instructors shall employ or contract only with such individuals who meet the qualifications provided in section 33-32-105.5 (1) and provided by those rules promulgated by the commission.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 88: Entire section amended, p. 1171, § 8, effective October 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1230, § 76, effective June 4.

33-32-107. River outfitters – prohibited operations – penalties

(1) (a) No river outfitter shall operate a river-outfitting business without a valid license as prescribed by section 33-32-104 or without insurance as provided in section 33-32-105 (1) (b). Any river outfitter that violates this paragraph (a):

(I) Commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.;

(II) Is liable for an administrative penalty of five times the annual licensing fee established pursuant to section 33-32-104 (2).

(b) If the river outfitter is a corporation, violation of this subsection (1) shall result in the officers of said corporation jointly and severally committing a class 2 misdemeanor, and said officers shall be punished as provided in section 18-1.3-501, C.R.S.

(2) It is unlawful for any river outfitter, guide, trip leader, or guide instructor to:

(a) Violate the safety equipment provisions of section 33-13-106. Any person who violates the provisions of this paragraph (a) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars; except that any person who fails to have one personal flotation device for each person on board as required by section 33-13-106 (3) (a) commits a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(b) Operate a vessel in a careless or imprudent manner without due regard for river conditions or other attending circumstances, or in such a manner as to endanger any person, property, or wildlife. Any person who violates the provisions of this paragraph (b) is guilty of a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(c) Operate a vessel with wanton or willful disregard for the safety of persons or property. Any person who violates the provisions of this paragraph (c) is guilty of a class 2 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(3) (Deleted by amendment, L. 94, p. 1229, § 6, effective July 1, 1994.)

(4) (a) No river outfitter or guide shall operate or maintain physical control of or allow any other person to operate or maintain physical control of a vessel on a regulated trip if such river outfitter, guide, or person is under the influence of alcohol or any controlled substance or any combination thereof, as specified in section 33-13-108.1.

(b) Any person who violates this subsection (4) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9; (2)(a) amended, p. 1125, § 46, effective June 7.L. 88: (1), IP(2), and (3) amended, p. 1171, § 9, effective October 1.L. 94: (3) amended and (4) added, p. 1229, § 6, effective July 1.L. 97: (2)(a) amended, p. 1607, § 7, effective June 4.L. 2002: (1), (2), and (4)(b) amended, p. 1545, § 299, effective October 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1642, § 8, effective August 11.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (1), (2), and (4)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For comment, “The Public Trust Doctrine — A Tool for Expanding Recreational Rafting Rights in Colorado”, see 57 U. Colo. L. Rev. 625 (1986).

33-32-108. Enforcement

(1) (a) Every peace officer, as defined in this section, has the authority to enforce the provisions of this article and in the exercise of such authority is authorized to stop and board any vessel.

(b) As used in this section, “peace officer” means any division of parks and wildlife officer or any sheriff or city and county law enforcement officer certified by the peace officers standards and training board pursuant to part 3 of article 31 of title 24, C.R.S.

(2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any.

(b) Pursuant to paragraph (a) of this subsection (2), any expenses incurred by governmental entities stemming from search and rescue efforts that are reimbursed by a river outfitter shall be distributed as follows:

(I) If to local law enforcement agencies, on a pro rata basis in proportion to the amount of assistance rendered thereby;

(II) If to the division of parks and wildlife, one-half of the moneys shall be credited to the parks and outdoor recreation cash fund, created in section 33-10-111, and one-half shall be credited to the wildlife cash fund, created in section 33-1-112.

(III) (Deleted by amendment, L. 2011, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1, 2011.)

(3) (a) (I) If an authorized representative of the division conducts an inspection or investigation and determines that any provision of this article or any regulation promulgated pursuant to this article has been violated and that such violation creates or may create an emergency condition which may have a significant adverse effect on the health, safety, or welfare of any person, then such authorized representative shall immediately issue an order to the violating party to cease and desist the violating activity.

(II) Any order issued pursuant to this paragraph (a) shall set forth:

(A) The section of this article or the regulation promulgated pursuant to this article allegedly violated;

(B) The factual basis for the allegation of a violation; and

(C) A mandate that all violating activities cease immediately.

(III) (A) The recipient of any cease and desist order issued pursuant to this paragraph (a) may request a hearing to determine whether a violation of this article or of any regulation promulgated pursuant to this article has actually occurred if such request is made in writing within thirty days after the date of the service of the cease and desist order.

(B) Any hearing conducted pursuant to this subparagraph (III) shall be in accordance with article 4 of title 24, C.R.S.

(b) If a person fails to comply with a cease and desist order issued pursuant to paragraph (a) of this subsection (3), the director may request the attorney general or the district attorney for the judicial district in which the alleged violation occurred to bring an action for a temporary restraining order and for injunctive relief to enforce such cease and desist order.

(c) No stay of a cease and desist order may be issued until a hearing at which all parties are present has been held.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 94: Entire section amended, p. 1229, § 7, effective July 1.L. 2011: (1)(b), IP(2)(b), (2)(b)(II), and (2)(b)(III) amended, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1.L. 2012: (1)(b) amended, (HB 12-1283), ch. 240, p. 1136, § 54, effective July 1.

Cross references: For the legislative declaration in the 2012 act amending subsection (1)(b), see section 1 of chapter 240, Session Laws of Colorado 2012.

33-32-109. Denial, suspension, or revocation of license – disciplinary actions

(1) The commission may deny, suspend, or revoke a river outfitter license, place a licensed river outfitter on probation, or issue a letter of admonition to a licensed river outfitter if the applicant or holder:

(a) Violates section 33-32-105 or 33-32-106 or uses fraud, misrepresentation, or deceit in applying for or attempting to apply for licensure;

(b) Unlawfully acts as a river outfitter if such violation results in a conviction;

(c) Advertises as a river outfitter in this state without first obtaining a river outfitter license;

(d) Violates any provision of law regulating the practice of river outfitting in another jurisdiction if such violation resulted in disciplinary action against the applicant or holder. Evidence of such disciplinary action shall be prima facie evidence for the possible denial of a license or other disciplinary action in this state if the violation resulting in the disciplinary action in such other jurisdiction would be grounds for disciplinary action in this state.

(e) Violates section 18-4-503 or 18-4-504, C.R.S., resulting in two or more second or third degree criminal trespass convictions within any three- to five-year period while acting as a river outfitter or guide; except that the commission shall be governed by section 24-5-101, C.R.S., when considering any such conviction;

(f) Violates section 33-32-105.5 (1) by employing any person as a guide who fails to meet the requirements of such section; or

(g) Violates any order of the division or commission or any other provision of this article or any rules promulgated under this article.

(2) A plea of nolo contendere or a deferred prosecution shall be considered a violation for the purposes of this section.

(3) (a) Any proceeding to deny, suspend, or revoke a license granted under this article or to place a licensee on probation shall be pursuant to sections 24-4-104 and 24-4-105, C.R.S. Such proceeding may be conducted by an administrative law judge designated pursuant to part 10 of article 30 of title 24, C.R.S.

(b) Any proceeding conducted pursuant to this subsection (3) shall be deemed final for purposes of judicial review. Any appeal of any such proceeding shall be made to the court of appeals pursuant to section 24-4-106 (11), C.R.S.

(4) The commission may deny an application for a river outfitter license or a renewal of a river outfitter’s license if the applicant does not meet the requirements specified in section 33-32-105 or 33-32-106.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 1172, § 10, effective October 1.L. 94: Entire section amended, p. 1230, § 8, effective July 1.L. 2012: IP(1), (1)(e), (1)(g), and (4) amended, (HB 12-1317), ch. 248, p. 1231, § 77, effective June 4.

33-32-110. Advisory committee – repeal

(1) The commission shall appoint a river outfitter advisory committee, consisting of two river outfitters and one representative of the division. The committee shall review and make recommendations concerning rules promulgated and proposed pursuant to this article.

(2) (a) This section is repealed, effective July 1, 2019.

(b) Prior to its repeal, the advisory committee shall be reviewed as provided for in section 2-3-1203, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 86: Entire section amended, p. 423, § 54, effective March 26.L. 88: (2)(a) amended, p. 1172, § 11, effective October 1.L. 89: Entire section repealed, p. 1147, § 3, effective April 6.L. 94: Entire section RC&RE, p. 1232, § 9, effective July 1.L. 2000: Entire section repealed, p. 185, § 2, effective July 1.L. 2010: Entire section RC&RE, (HB 10-1221), ch. 353, p. 1643, § 9, effective August 11.L. 2012: (1) amended, (HB 12-1317), ch. 248, p. 1231, § 78, effective June 4.

33-32-111. Fees – river outfitters cash fund

All fees collected under this article shall be transmitted to the state treasurer who shall credit the same to the river outfitters cash fund, which fund is hereby created. The general assembly shall make annual appropriations from such fund for the direct and indirect costs of administration of this article.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 94: Entire section amended, p. 1232, § 10, effective July 1.

33-32-112. Repeal of article

This article and the licensing function of the division are repealed, effective September 1, 2019. Prior to such termination, the licensing function shall be reviewed as provided for in section 24-34-104, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 931, § 20, effective April 28; entire section amended p. 1172, § 12, effective October 1.L. 94: Entire section amended, p. 1232, § 11, effective July 1.L. 2004: Entire section amended, p. 297, § 3, effective August 4.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1640, § 3, effective August 11.

Editor’s note: Amendments to this section by House Bill 88-1036 and House Bill 88-1138 were harmonized.


Colorado 3rd annual Partners in the Outdoors Conference Registration Open

For More Information: 3rd Annual Partners in the Outdoors Conference

Respectfully,

Lauren Truitt

Statewide Partnership Coordinator

Education, Partnership & Volunteer Section

CPW-DNR-Logos

P 303.291.7252| C 720.498.0472 | F 303.291.7113

6060 Broadway, Denver, CO 80216

Lauren.Truitt| cpw.state.co.us I CPW Partners in the Outdoors

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Partners in the Outdoors Conference Invitation.pdf


Job Opportunity: The Nature Conservancy Director of Forests and Fire

As most of you know, I recently accepted a new position as the Deputy State Director for The Nature Conservancy in Colorado. As a result, we are looking for great candidates to fill our Director of Forest Restoration and Fire position! The job is now posted and will be open through January 17th. I’ve attached the job description, but you can also click here to view the public posting on nature.org/careers.

Please share this announcement widely with your networks. I am happy to answer questions or provide more information.

Happy Holidays and all the best in the New Year!

Paige

Please consider the environment before printing this email

Director of Forests Job Description.pdf


Rulemaking for Colorado Roadless Areas SEIS Comment Period Extended

You are subscribed to Rulemaking for Colorado Roadless Areas Supplemental Environmental Impact Statement. This information has recently been updated, and is now available.

USDA granted an 11-day extension of the comment period in response for adequate time to review documents and provide input on the proposed rule and the supplemental draft EIS over the holiday season. Notice will be published in the Federal Register.

Your comments are requested by 1/15/2016.

Comments on the SDEIS can be submitted electronically through:

  1. Web: go.usa.gov/3JQwJ
  2. Mail:

Colorado Roadless Rule

740 Simms Street

Golden, CO 80401

  1. Fax: 303-275-5134

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20151221+CRR_Exten_NR.pdf


Colorado has a new Epinephrine law allowing most outdoor programs the ability to stock and administer epinephrine without criminal liability

That means recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, ski areas, and sports arenas can carry epinephrine.

NOTE: The governor signed this measure on 5/14/2015.

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HOUSE BILL 15-1232

BY REPRESENTATIVE(S) Ginal and Landgraf, Buckner, Esgar, Fields, Mitsch Bush, Pettersen, Primavera, Rosenthal, Ryden, Salazar, Tyler, Vigil, Williams, Young, Hullinghorst; also SENATOR(S) Todd and Martinez Humenik, Kefalas, Kerr, Newell.

CONCERNING THE EMERGENCY USE OF EPINEPHRINE AUTOINJECTORS BY AUTHORIZED ENTITIES, AND, IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows:

ARTICLE 47 Use of Epinephrine Injectors by Authorized Entities

25-47-101.  Definitions. AS USED IN THIS ARTICLE:

(1)  “ADMINISTER MEANS TO DIRECTLY APPLY AN EPINEPHRINE AUTOINJECTOR TO THE BODY OF AN INDIVIDUAL.

(2)  “AUTHORIZED ENTITY MEANS AN ENTITY OR ORGANIZATION, OTHER THAN A SCHOOL DESCRIBED IN SECTION 22-1-119.5, C.R.S., OR A HOSPITAL LICENSED OR CERTIFIED PURSUANT TO SECTION 25-1.5-103 (1) (a)

(I) (A) OR 25-1.5-103 (1) (a) (II), AT WHICH ALLERGENS CAPABLE OF CAUSING ANAPHYLAXIS MAY BE PRESENT. THE TERM INCLUDES BUT IS NOT LIMITED TO RECREATION CAMPS, COLLEGES AND UNIVERSITIES, DAY CARE FACILITIES, YOUTH SPORTS LEAGUES, AMUSEMENT PARKS, RESTAURANTS, PLACES OF EMPLOYMENT, SKI AREAS, AND SPORTS ARENAS.

(3)  “EMERGENCY PUBLIC ACCESS STATION OR “EPAS” MEANS A LOCKED, SECURE CONTAINER USED TO STORE EPINEPHRINE AUTOINJECTORS FOR USE UNDER THE GENERAL OVERSIGHT OF A MEDICAL PROFESSIONAL, WHICH ALLOWS A LAY RESCUER TO CONSULT WITH A MEDICAL PROFESSIONAL IN REAL TIME BY AUDIO, TELEVIDEO, OR OTHER SIMILAR MEANS OF ELECTRONIC COMMUNICATION. UPON AUTHORIZATION OF THE CONSULTING MEDICAL PROFESSIONAL, AN EPAS MAY BE UNLOCKED TO MAKE AN EPINEPHRINE AUTOINJECTOR AVAILABLE.

(4)  “EPINEPHRINE AUTOINJECTOR MEANS A SINGLEUSE DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF EPINEPHRINE INTO THE HUMAN BODY.

(5)  “HEALTH CARE PRACTITIONER MEANS A PERSON AUTHORIZED BY LAW TO PRESCRIBE ANY DRUG OR DEVICE, ACTING WITHIN THE SCOPE OF HIS OR HER AUTHORITY.

(6) “MEDICAL PROFESSIONAL MEANS A PHYSICIAN OR OTHER PERSON AUTHORIZED BY APPLICABLE LAW TO PRESCRIBE DRUGS IN THIS STATE OR ANOTHER STATE.

(7)  “PHARMACIST HAS THE MEANING SET FORTH IN SECTION 12-42.5-102 (28), C.R.S.

(8)  “PROVIDE MEANS TO SUPPLY ONE OR MORE EPINEPHRINE AUTOINJECTORS TO AN INDIVIDUAL.

 

25-47-102.  Stock supply of epinephrine auto-injectors ­emergency administration. (1)  NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY:

(a) Prescribing to an authorized entity permitted. A HEALTH

CARE PRACTITIONER MAY DIRECT THE DISTRIBUTION OF EPINEPHRINE AUTOINJECTORS FROM AN INSTATE PRESCRIPTION DRUG OUTLET TO AN AUTHORIZED ENTITY FOR USE IN ACCORDANCE WITH THIS ARTICLE, AND HEALTH CARE PRACTITIONERS MAY DISTRIBUTE EPINEPHRINE AUTOINJECTORS TO AN AUTHORIZED ENTITY; AND

(b)  Authorized entities permitted to maintain supply. AN AUTHORIZED ENTITY MAY ACQUIRE AND STOCK A SUPPLY OF EPINEPHRINE AUTOINJECTORS PURSUANT TO A PRESCRIPTION ISSUED IN ACCORDANCE WITH THIS SECTION.

(2)  EPINEPHRINE AUTOINJECTORS MUST BE STORED:

(a) IN A LOCATION THAT WILL BE READILY ACCESSIBLE IN AN EMERGENCY;

(b)  ACCORDING TO THE APPLICABLE INSTRUCTIONS FOR USE; AND

(c) IN COMPLIANCE WITH ANY ADDITIONAL REQUIREMENTS THAT MAY BE ESTABLISHED BY THE DEPARTMENT OF HEALTH.

(3)  AN AUTHORIZED ENTITY SHALL DESIGNATE EMPLOYEES OR AGENTS WHO HAVE COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 TO BE RESPONSIBLE FOR THE STORAGE, MAINTENANCE,CONTROL, AND GENERAL OVERSIGHT OF EPINEPHRINE AUTOINJECTORS ACQUIRED BY THE AUTHORIZED ENTITY.

25-47-103. Use of epinephrine auto-injectors. (1)  AN EMPLOYEE OR AGENT OF AN AUTHORIZED ENTITY OR OTHER INDIVIDUAL WHO HAS COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 MAY USE EPINEPHRINE AUTOINJECTORS PRESCRIBED PURSUANT TO SECTION 25-47-102 TO PROVIDE OR ADMINISTER AN EPINEPHRINE AUTOINJECTOR TO ANY INDIVIDUAL WHO THE EMPLOYEE, AGENT, OR OTHER INDIVIDUAL BELIEVES IN GOOD FAITH IS EXPERIENCING ANAPHYLAXIS, REGARDLESS OF WHETHER THE INDIVIDUAL HAS A PRESCRIPTION FOR AN EPINEPHRINE AUTOINJECTOR OR HAS PREVIOUSLY BEEN DIAGNOSED WITH AN ALLERGY, OR TO PROVIDE AN EPINEPHRINE AUTOINJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL; AND

(2)  THE ADMINISTRATION OF AN EPINEPHRINE AUTOINJECTOR IN ACCORDANCE WITH THIS SECTION IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.

25-47-104.  Training. (1)  AN EMPLOYEE, AGENT, OR OTHER INDIVIDUAL MUST COMPLETE AN ANAPHYLAXIS TRAINING PROGRAM BEFORE USING AN EPINEPHRINE AUTOINJECTOR. THE TRAINING MUST BE CONDUCTED BY A NATIONALLY RECOGNIZED ORGANIZATION EXPERIENCED IN TRAINING LAYPERSONS IN EMERGENCY HEALTH TREATMENT OR BY AN INDIVIDUAL OR ENTITY APPROVED BY THE DEPARTMENT OF HEALTH. THE DEPARTMENT OF HEALTH MAY APPROVE SPECIFIC ENTITIES OR INDIVIDUALS TO CONDUCT TRAINING OR MAY APPROVE SPECIFIC CLASSES BY INDIVIDUALS OR ENTITIES. THE TRAINING MAY BE CONDUCTED ONLINE OR INPERSON AND, AT A MINIMUM, MUST COVER:

(a) HOW TO RECOGNIZE THE SIGNS AND SYMPTOMS OF SEVERE ALLERGIC REACTIONS, INCLUDING ANAPHYLAXIS;

(b)  THE STANDARDS AND PROCEDURES FOR THE STORAGE AND ADMINISTRATION OF AN EPINEPHRINE AUTOINJECTOR; AND

(c) EMERGENCY FOLLOWUP PROCEDURES.

(2)  THE INDIVIDUAL OR ENTITY THAT CONDUCTS THE ANAPHYLAXIS TRAINING PROGRAM SHALL ISSUE A CERTIFICATE, ON A FORM DEVELOPED OR APPROVED BY THE DEPARTMENT OF HEALTH, TO EACH PERSON WHO SUCCESSFULLY COMPLETES THE ANAPHYLAXIS TRAINING PROGRAM.

 

25-47-105.  Reporting. AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTOINJECTORS SHALL SUBMIT TO THE DEPARTMENT OF HEALTH, ON A FORM DEVELOPED BY THE DEPARTMENT OF HEALTH, A REPORT OF EACH INCIDENT ON THE AUTHORIZED ENTITYS PREMISES THAT INVOLVES THE ADMINISTRATION OF AN EPINEPHRINE AUTOINJECTOR PURSUANT TO SECTION 25-47-103. THE DEPARTMENT OF HEALTH SHALL ANNUALLY PUBLISH A REPORT THAT SUMMARIZES AND ANALYZES ALL REPORTS SUBMITTED TO IT UNDER THIS SECTION.

25-47-106.  Emergency public access stations – life-saving allergy medication. (1)  NOTWITHSTANDING ANY LAW TO THE CONTRARY:

 

(a) A MEDICAL PROFESSIONAL MAY PRESCRIBE A STOCK SUPPLY OF EPINEPHRINE AUTOINJECTORS TO ANY AUTHORIZED ENTITY FOR STORAGE IN AN EPAS, AND MAY PLACE A STOCK SUPPLY OF EPINEPHRINE AUTOINJECTORS IN AN EPAS MAINTAINED BY AN AUTHORIZED ENTITY;

(b) A MEDICAL PROFESSIONAL MAY CONSULT THE USER OF AN EPAS AND MAKE THE EPINEPHRINE AUTOINJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; AND

(c) ANY PERSON MAY USE AN EPAS TO ADMINISTER OR PROVIDE AN EPINEPHRINE AUTOINJECTOR TO AN INDIVIDUAL BELIEVED IN GOOD FAITH TO BE EXPERIENCING ANAPHYLAXIS OR TO PROVIDE AN EPINEPHRINE AUTOINJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL.

 

(2)  THE USE OF AN EPAS IN ACCORDANCE WITH THIS ARTICLE IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.

25-47-107. Good samaritan protections – liability. (1)  THE FOLLOWING INDIVIDUALS AND ENTITIES ARE IMMUNE FROM CRIMINAL LIABILITY AND FROM SUIT IN ANY CIVIL ACTION BROUGHT BY ANY PERSON FOR INJURIES OR RELATED DAMAGES THAT RESULT FROM AN ACT OR OMISSION TAKEN PURSUANT TO THIS ARTICLE:

(a) AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTOINJECTORS OR AN EPAS AND THE ENTITYS EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;

(b)  AN AUTHORIZED ENTITY THAT DOES NOT POSSESS OR MAKE AVAILABLE EPINEPHRINE AUTOINJECTORS OR AN EPAS AND THE ENTITYS EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;

(c) AN INDIVIDUAL OR ENTITY THAT CONDUCTS AN ANAPHYLAXIS TRAINING PROGRAM;

(d)  AN INDIVIDUAL WHO PRESCRIBES OR DISPENSES AN EPINEPHRINE AUTOINJECTOR;

 

(e) AN INDIVIDUAL WHO ADMINISTERS OR PROVIDES AN EPINEPHRINE AUTOINJECTOR;

 

(f)  A MEDICAL PROFESSIONAL WHO CONSULTS THE USER OF AN EPAS AND MAKES THE EPINEPHRINE AUTOINJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; OR

(g)  AN INDIVIDUAL WHO USES AN EPAS.

(2)  IMMUNITY UNDER SUBSECTION (1) OF THIS SECTION DOES NOT APPLY TO ACTS OR OMISSIONS THAT ARE GROSSLY NEGLIGENT OR WILLFUL AND WANTON.

(3)  THIS SECTION DOES NOT ELIMINATE, LIMIT, OR REDUCE ANY OTHER IMMUNITY OR DEFENSE THAT MAY BE AVAILABLE UNDER STATE LAW, INCLUDING THE PROTECTIONS SET FORTH IN SECTION 13-21-108, C.R.S. PROVIDING OR ADMINISTERING AN EPINEPHRINE AUTOINJECTOR BY AN ENTITY OR INDIVIDUAL IS DEEMED EMERGENCY CARE OR EMERGENCY ASSISTANCE FOR PURPOSES OF SECTION 13-21-108, C.R.S.

(4)  AN AUTHORIZED ENTITY LOCATED IN THIS STATE THAT PROVIDES OR ADMINISTERS AN EPINEPHRINE AUTOINJECTOR OUTSIDE OF THIS STATE IS NOT LIABLE FOR ANY RESULTING INJURIES OR RELATED DAMAGES IF THE AUTHORIZED ENTITY:

(a) WOULD NOT BE LIABLE FOR THE INJURIES OR RELATED DAMAGES IF THE EPINEPHRINE AUTOINJECTOR HAD BEEN PROVIDED OR ADMINISTERED IN THIS STATE; OR

(b)  IS NOT LIABLE FOR INJURIES OR RELATED DAMAGES UNDER THE LAW OF THE STATE WHERE THE AUTHORIZED ENTITY PROVIDED OR ADMINISTERED THE EPINEPHRINE AUTOINJECTOR.

 

25-47-108.  Health care professionals – hospitals – obligations under state and federal law. NOTHING IN THIS ARTICLE LIMITS THE OBLIGATIONS OF A HEALTH CARE PROFESSIONAL OR HOSPITAL UNDER STATE OR FEDERAL LAW IN PRESCRIBING, STORING, OR ADMINISTERING DRUGS OR DEVICES.

SECTION 2.  In Colorado Revised Statutes, 12-36-117, amend

(1.8) as follows:

 

12-36-117.  Unprofessional conduct. (1.8)  A licensee shall IS not be subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, C.R.S., or for the actions taken by a school nurse or by any designated school personnel who administer epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, C.R.S., OR FOR PRESCRIBING EPINEPHRINE AUTOINJECTORS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.

 

SECTION 3.  In Colorado Revised Statutes, 12-38-125, add (1) (o) as follows:

12-38-125.  Exclusions. (1)  No provision of this article shall be construed to prohibit:

(o)  A PRESCRIPTION BY AN ADVANCED PRACTICE NURSE WITH PRESCRIPTIVE AUTHORITY FOR THE USE OF EPINEPHRINE AUTOINJECTORS BY AN AUTHORIZED ENTITY IN ACCORDANCE WITH ARTICLE 47 OF TITLE 25,

C.R.S.

SECTION 4.  In Colorado Revised Statutes, 12-42.5-102, amend

(42) (b) (XV) as follows:

12-42.5-102.  Definitions. As used in this article, unless the context otherwise requires or the term is otherwise defined in another part of this article:

(42) (b)  “Wholesale distribution” does not include:

(XV)  The distribution, donation, or sale by a manufacturer or wholesaler of a stock supply of epinephrine auto-injectors to public schools or nonpublic schools for emergency use by designated school personnel in accordance with the requirements of section 22-1-119.5, C.R.S., OR TO OTHER ENTITIES FOR EMERGENCY USE IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.

SECTION 5. Appropriation. For the 2015-16 state fiscal year, $23,736 is appropriated to the department of public health and environment for use by the disease control and environmental epidemiology division.

This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.4 FTE. To implement this act, the division may use this appropriation for costs to implement this act.

 

SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.  

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Colorado Safe Routes to Schools Bill in Danger: Need your Help ASAP

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ACTION ALERT:

Colorado Safe Routes to School in Danger

Safe Routes to SchoolPlease call or email your state senator TODAY and ask them to support House Bill 1003—Safe Routes to School. If the bill does not pass the Colorado Senate, the Safe Routes to School program will die.

We just received notice that the first Senate vote could be as soon as Wednesday. The legislative session ends in just one week and each vote is critical.

Now is the time for every Colorado Senator to hear that child safety and health is important to Colorado. Please ask them to stand up and support safe routes to school.

STEP 1: Find your Senate district

Find your Colorado Senate District Number by entering your home address at openstates.org. Select your Colorado State Senator to see their phone and email.

STEP 2: Call or email your State Senator

Ask them to please support House Bill 1003-Safe Routes to School. Briefly share why you think children’s safety and health are important and include your address. More info here. Even if it is after hours, you can still call and leave a voice mail.

STEP 3: Ask your friends and family to call

We don’t issue action alerts unless it really matters. Will you please take a minute to send an email or place a call? Without this bill, the statewide safe routes to school program will come to an end. Your call can help change that.

Check the latest status and learn more about the bill.

Thank you for your help!


Colorado Agency now regulating Zip Lines and Ropes Courses in Ohio

From: OPS Amusement Rides and Devices Program [mailto:cdle_amusements@state.co.us]
Sent: Monday, April 06, 2015 3:26 PM
To: undisclosed-recipients:
Subject: Proposed Revisions to the Amusement Rides and Devices Regulations and New Certificate of Inspection Form

Dear Amusement Rides and Devices Stakeholder,

The Amusement Rides and Devices Program hosted a stakeholder meeting on February 20, 2015, to discuss proposed changes to our rules, which included:

  • adding language for the regulation of challenge courses and trampoline parks;
  • improving current language in regulation regarding zip lines;
  • adding language for patron responsibility;
  • clarifying language for reportable injuries; and
  • updating and/or including applicable standards and definitions.

We took all comments and feedback provided during the meeting into consideration and have postponed the effective date of the proposed changes to July 30, 2015, in order to conduct a second stakeholder meeting to discuss the revisions made after the meeting on February 20th. A draft copy of the revised proposed regulations is attached to this email for your review.

The second stakeholder meetings is scheduled for Tuesday, April 28, 2015 at 1 pm in Conference Room 5C at the CDLE offices (633 17th Street, Denver, Colorado 80202). If you cannot attend the meeting, we encourage you to submit feedback to Scott Narreau at scott.narreau or 303-318-8495. If you plan to attend the meeting:

  • Please RSVP by sending an email to cdle_amusements; include your organization’s name and your contact information in your email.
  • When you arrive for the meeting, please check in on the 2nd floor, and then you will be directed to the 5th floor conference room.

In addition to the rule changes, we have also made changes to our Certificate of Inspection form. The purpose of changing the form is to further streamline the application process by reducing the amount of documentation submitted to our office. With the new form, a Third-Party Inspector can submit inspection certification information for up to 10 devices on one single form. We have attached a draft copy of the new Certificate of Inspection form to this email. We encourage you to review it and advise us if these or other changes would benefit you as either an operator or a Third-Party inspector.

As always, we thank you for your participation in our program.

Kind regards,

Division of Oil and Public Safety

Amusement Rides and Devices Program

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We Keep Colorado Working.

P 303.318.8552 | F 303.318.8488

633 17th St., Suite 500, Denver, CO 80202

cdle_amusements | www.colorado.gov/ops/amusementrides

**How are we doing? Please complete this survey to provide your feedback: OPS Customer Survey.**

Amusements Certificate of Inspection (Draft).pdf

Amusement Rides and Devices Proposed Rule Changes Effective 07-30-15 (Draft).pdf


USA Pro Challenge Stage 6 Route Announced: Loveland to Fort Collins

Stage 6 of 2015 USA Pro Challenge will take Riders from Loveland to Fort Collins

Fans Helped Shape Stage 6 of Colorado Professional Cycling Race

Denver (Dec. 22, 2014) – With the majority of the host cities announced for the 2015 USA Pro Challenge, organizers looked to fans to help determine the start and finish locations for Stage 6. Thousands of fans submitted their opinions, providing more than 20 start and finish city options. In the end, nearly half the responses encouraged a return to Northern Colorado resulting in a Stage 6 start in Loveland and a finish in Fort Collins.

“Loveland and Fort Collins have been such great host cities in the past and we’re looking forward to visiting them again,” said Shawn Hunter, CEO of the USA Pro Challenge. “Last year, we gave fans the chance to weigh in on the final stage of the race and we got a huge response with people voicing their support for the two different options. This year, the fans once again showed their passion for the sport through an overwhelming number of responses regarding where Stage 6 should take place.”

After the initial host cities announcement just over two weeks ago, during which six of the seven stages for the 2015 race were revealed, fans were given the opportunity to provide suggestions for Stage 6 through Facebook and the race website.

USA Pro Challenge fan Michael DePalma wanted a return to Northern Colorado stating it, “offers some of the most spectacular cycling opportunities in the state.” And many spoke to returning to areas that were greatly damaged by the 2013 floods. Gary Crews said the Pro Challenge will, “help us further recover from the flooding and put a smile on the face of riders and residents alike.”

With the fans’ opinions taken into account, the Stage 6 host cities have been determined. And while the host cities are familiar to the race, after visiting them in 2013, the route through Larimer County promises to be new and unique in 2015.

“It has been incredible to witness the outpouring of support from the Northern Colorado community who has rallied together to bring back the USA Pro Challenge in 2015,” said Local Organizing Member Eric Thompson. “We are honored to have been selected for Stage 6 next summer and look forward to sharing the excitement with the cycling fans that made it happen.”

Taking place Aug. 17-23, the host cities and stages of the 2015 USA Pro Challenge include:

  • Stage 1: Monday, Aug. 17 – Steamboat Springs Circuit Race
  • Stage 2: Tuesday, Aug. 18 – Steamboat Springs to Arapahoe Basin
  • Stage 3: Wednesday, Aug. 19 – Copper Mountain Resort to Aspen
  • Stage 4: Thursday, Aug. 20 – Aspen to Breckenridge
  • Stage 5: Friday, Aug. 21 – Breckenridge Individual Time Trial
  • Stage 6: Saturday, Aug. 22 – Loveland to Fort Collins
  • Stage 7: Sunday, Aug. 23 – Golden to Denver

Additional details regarding the start and finish locations of the 2015 race, as well as the specific, detailed route will be announced in the spring.

About the USA Pro Challenge

Referred to as “America’s Race,” the USA Pro Challenge will take place August 17-23, 2015. For seven consecutive days, the world’s top athletes race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure. One of the largest cycling events in U.S. history and the largest spectator event in the history of the state, the USA Pro Challenge is back for 2015.

More information can be found online at www.USAProChallenge.com and on Twitter at @USAProChallenge.


Colorado making new rules for operating Zip Lines & Rope Courses. Meeting February 6 to find out

OPS AMUSEMENT RIDES AND DEVICES PROGRAM

Stakeholder Meeting Notice

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Proposed Regulation Updates

The Division of Oil and Public Safety (OPS) intends to begin a permanent rule change process for the Amusement Rides and Devices regulations with the purpose of:

  • Adding language for the regulation of trampoline parks;
  • Improving current language in regulations regarding zip line and challenge course operations;
  • Discussing the possibility of adding language for patron responsibility;
  • Clarifying language for reportable injuries; and
  • Updating and/or including applicable standards and definitions, namely:
  • Adopting new standards from American Society for Testing and Materials (ASTM) F2970-13 (Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts); and
  • Updating the regulations to reflect the adoption of current ASTM standards.

The draft of the proposed rule changes will be available to download from our website after December 30, 2014.

Stakeholder Meeting Invitation

OPS will begin holding stakeholder meetings to discuss these proposed changes on February 6, 2015, at 1:30 pm in Conference Room 5C at the CDLE offices (633 17th Street, Denver, Colorado 80202).

If you plan to attend the meeting:

  • Please RSVP by sending an email to mailto:cdle_amusements; include your organization’s name and your contact information in your email.
  • When you arrive for the meeting, please check in on the 2nd floor, and then you will be directed to the 5th floor conference room.

If you cannot attend the meeting, we encourage you to submit feedback to Scott Narreau at mailto:scott.narreau or 303-318-8495.


USA ProChallenge Host Cities for 2015 Announced. Different cities, Going to be a slightly Different Race. Cool!

Host Cities Announced for 2015 USA Pro Challenge

Fans Can Help Shape the Route for America’s Most Difficult Professional Cycling Race

Colorado’s largest sporting event is back for 2015, and today race officials unveiled seven of the host cities that will be highlighted as starts and finishes for the 2015 USA Pro Challenge. Taking place Aug. 17-23, the race will feature several dramatic changes for 2015, including a new overall start in beautiful Steamboat Springs, new host communities Arapahoe Basin and Copper Mountain and a challenging individual time trial course in in the scenic town of Breckenridge. And with six of the seven stages set, organizers are looking to fans to help determine the location of Stage 6.

“The start and finish cities for the 2015 USA Pro Challenge are going to create some unique challenges for the riders while also showcasing some of Colorado’s most beautiful regions to our worldwide audience,” said Rick Schaden, owner of the USA Pro Challenge. “We are always humbled by the amount of interest we receive from cities across the state that want to host the race and we feel confident that the partners we’ve selected this year will help us continue to raise the bar for professional cycling in America.”

After drawing more than 1 million fans each year and generating $130 million in economic impact to the State of Colorado in 2014 alone, the USA Pro Challenge will make its return with an overall start in Steamboat Springs. Over the course of seven days of intensely competitive racing, the world’s best riders will return to iconic Colorado cities that have been key parts of the race in previous years, such as Aspen and Denver.

In a mix of new and prior host cities, the stages of the 2015 USA Pro Challenge include:

  • Stage 1: Monday, Aug. 17 – Steamboat Springs Circuit Race
  • Stage 2: Tuesday, Aug. 18 – Steamboat Springs to Arapahoe Basin
  • Stage 3: Wednesday, Aug. 19 – Copper Mountain Resort to Aspen
  • Stage 4: Thursday, Aug. 20 – Aspen to Breckenridge
  • Stage 5: Friday, Aug. 21 – Breckenridge Individual Time Trial
  • Stage 6: Saturday, Aug. 22 – ???
  • Stage 7: Sunday, Aug. 23 – Golden to Denver

Last year, fans weighed in on the final stage and ultimately determined a route that took the riders from Boulder, through Golden and finished in Downtown Denver. Due to overwhelming fan interest and support, organizers are again letting people have a say in the course. Fans will be able to help shape the race by logging on to www.prochallenge.com/2015stage6 before 11:59 p.m. MT December 12, and giving their opinion on what part of the state Stage 6 should visit.

“Last year we turned to our dedicated fans to help determine the route for the final stage of the Pro Challenge,” said Shawn Hunter, CEO of the USA Pro Challenge. “The enthusiasm and valuable opinions that we received convinced us that we should look to our supporters again for their input on the 2015 race. We know our fans are passionate about the sport and we’re looking forward to hearing where they want Stage 6 to go.”

A new overall start for the Pro Challenge, Steamboat Springs, with a population of just more than 12,000, should see that number at least double on race day. Located just west of the Continental Divide and Rabbit Ears Pass, Steamboat is the perfect location to kick off the race and showcase Colorado’s unique scenic beauty. And as the Colorado city that has produced more Olympians than any other, the riders should feel right at home.

In one of the most significant changes to the 2015 route, Breckenridge will host the individual time trial. Located 9,600 ft. above sea level, this course will test the riders with challenging, hilly terrain. With these additions combined with new host cities Arapahoe Basin and Copper Mountain Resort, the 2015 course will create dramatic moments for the riders and fans.

Known for lung-searing altitudes and intense climbs through the Colorado Rockies, the race is the largest spectator event in the history of the state. The 2014 USA Pro Challenge saw part-time Aspen resident Tejay van Garderen of BMC Racing Team take the overall win for the second year in a row this past August in Denver.

“I am so happy to hear the USA Pro Challenge is going through Aspen again,” said van Garderen. “It is always great to be able to race in front of my family and close friends. Of course, I am curious to see the route they will pick and I am expecting it to be the most challenging route yet.”

Additional details regarding the exact start and finish locations of the 2015 race, as well as the specific, detailed route will be announced in the spring.


Colorado Avalanche Information Center has a new Email Design: Informative and Easy to Understand

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Backcountry Avalanche Forecast
Front Range

danger

Summary

Winds have finally backed off their mission of stripping away the November 10 to 16 storm snow. Temperatures have finally started to warm too, and the valley inversions have begun to ease. Our over-riding avalanche problem remains the Persistent Slab. Reported activity has started to slow, but the persistent weak layer that created the problem still exists.
Fresh loading of snow into starting zones backed off quite a bit beginning yesterday, so that helps relieve some of the building tension in the snowpack that ramped up with wind speeds last weekend. Our snowpack will be in a general holding pattern until our next storm cycle appears later this coming weekend.

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What You Need to Know About These Avalanches

Persistent slabs can be triggered by light loads and weeks after the last storm. You can trigger them remotely and they often propagate across and beyond terrain features that would otherwise confine wind and storm slabs. Give yourself a wide safety buffer to handle the uncertainty.

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What You Need to Know About These Avalanches

Wind slabs can take up to a week to stabilize. They are confined to lee and cross-loaded terrain features and can be avoided by sticking to sheltered or wind scoured areas.

Weather Forecast for 11,000ft

Issued Thursday, November 20, 2014 at 6:36 AM by Scott Toepfer

Thursday Thursday Night Friday
Temperature (ºF) 22 to 27 10 to 15 22 to 27
Wind Speed (mph) 10 to 20 7 to 17 8 to 18
Wind Direction W W W
Sky Cover Mostly Cloudy Mostly Cloudy Partly Cloudy
Snow (in) 0-Tr AM 0 to Tr 0

© 2008-2014 Colorado Avalanche Information Center. All rights reserved.