Tennessee still has not caught up, and assumption of the risk is not a defense to sport or recreational activities.
Posted: December 2, 2019 Filed under: Cycling, Tennessee | Tags: Assumption of risk, assumption of the risk, Assumption of the Risk Doctrine. Comparative Fault, ball, bicycle, Bike, circumstances, comparative fault, Cycling, Cyclists, deposition, Duty of care, foreseeable, front, Genuine Issue of Material Fact, happened, hit, inherent dangers, Inherent Risk, moving party, nonmoving party, Paceline, participating, rider, riding, slow down, Sports, suddenly, Summary judgment, summary judgment motion, summary judgment stage, Tennessee Rule, Wheel, Wind, wreck Leave a commentThere is no assumption of the risk defense in Tennessee. Consequently, cyclists in a paceline who crash can be liable to each other for the crash.
Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852
State: Tennessee, Court of Appeals of Tennessee, At Knoxville
Plaintiff: Carolyn Crisp
Defendant: Michael Nelms, et Al.
Plaintiff Claims: negligence
Defendant Defenses: inherent risk
Holding: for the plaintiff
Year: 2018
Summary
Cyclists in a paceline could be liable for the fatality of one of the riders because Tennessee has no assumption of the risk as a defense. Paceline riding is inherently dangerous; however, the court chose to ignore that issue. Recreation in Tennessee is risky for sports & recreation participants.
Facts
A paceline is a group of riders cycling right behind the first ride, a single file in a row. Cyclists do this because it increases the speed of the entire group and saves everyone’s energy. The rider in front is expanding 10% or more, with less energy and the riders behind can expand up to 30% less energy. Pacelines are what you see in large cycling races like the Tour de France.
On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3] and regular cycling companions, were in their 70s.
The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms’ front tire struck Long’s back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that “another rider hit” Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.
Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: “I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand.” On August 22, 2014, Decedent died.
In February 2015, Plaintiff, Decedent’s widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4] June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.
Analysis: making sense of the law based on these facts.
What a crock.
I’ve written extensively about most states bringing back the assumption of the risk defense for sports and recreational activities. Without players being protected from the risks of the sport, the sport or activity will have no enthusiasm and very little value. Tennessee has not adopted that doctrine. Tennessee states that assumption of the risk is a factor used to help determine the damages. Meaning when the jury determines if there was any negligence and then determines damages, the damages can be reduced by how much of the risk the plaintiff assumed.
Assumption of the risk is a complete bar to litigation in the vast majority of states. Not in Tennessee.
Tennessee still prevents litigation over inherently risky activities. However, this court in its zeal to allow the plaintiff to win, totally ignore the fact that riding in a paceline is an inherently dangerous activity.
Defendants argue that paceline riding is an inherently risky activity as described by the experts and participants, especially for a rider of Decedent’s age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.
By ignore, I mean the court bent over backward to find a way to allow this case to proceed by simply ignoring the law concerning inherently dangerous activities. The court moved from inherently dangerous to finding a duty. No duty is owed in an inherently dangerous activity.
INHERENTLY DANGEROUS: An activity is inherently dangerous if there is (a) an existence of a high degree of risk of some harm to the person; (2)likelihood that any harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of commons usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which value to the community is outweighed by its dangerous attributes. (Restatement, Torts 2d § 519(1))
See Definitions.
If assumption of the risk is not a defense, and if you ignore the issue of whether the risk is inherently dangerous. Consequently, you are back to simple negligence and the duties that each person owes to another.
Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others.
The court even acknowledged why assumption of the risk is a doctrine that should be adopted in sporting and recreation situations.
The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition.
However, Tennessee does not believe it.
We do not share these court’s concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a person’s conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a person’s conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.
If there is a duty of reasonable care, you can then proceed to prove negligence. Negligence in Tennessee is defined as a five-step process.
To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation.
From there it was easy to fabricate the idea that paceline riders owed each other a duty of reasonableness.
Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each paceline rider in the instant case had a duty to act reasonably under the circumstances.
Think about the absurdity of the above statement. A group of cyclists in a paceline has the right of way. A large truck pulls out in front of the first rider. Based on the analysis of the facts by the court, the first rider is now supposed to hit or get hit by the truck. He or she cannot apply their brakes.
The Tennessee Appellate Court sent the case back for trial.
So Now What?
Honestly, this is a scary case. Because Tennessee’s law is antiquated, any participant in any outdoor recreation activity or sporting event could be sued for any injury they receive during the event. Insurance costs in Tennessee will continue to rise because it will be cheaper to settle these cases than to try to win at trial.
And the court’s refusal to look at the inherent risks of cycling in a paceline was a plaintiff’s dream. Even professionals crash in pacelines. Amateurs are always going to be at risk and there is nothing you can do about the risks. Don’t ride in a Paceline, and you don’t get the benefits that a Paceline provides.
If you engage in any event in Tennessee, you can walk away as a defendant. Stay away from Tennessee if you are recreating.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.
Posted: March 5, 2018 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: avalanche, Collision, Colorado Skier Safety Act, de novo review, deceleration, enlargement, exhaustive, feet, inherent dangers, Inherent Risks, lamp, man-made, Negligence per se, parked, recommendation, Respondeat Superior, right to appeal, Ski, Ski Areas, Ski Resort, ski run, Ski Safety Act, Skier, skiing, Slope, Snow, Snowmobile, Sport, statutory definition, Steamboat, Steamboat Ski Area, Terrain, Trail Leave a commentA Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.
Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Linda Schlumbrecht-Muniz, M.D.
Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT
Plaintiff Claims: negligence, negligence per se, and respondeat superior
Defendant Defenses: Colorado Skier Safety Act
Holding: for the Defendant
Year: 2015
The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.
The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.
The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements necessary to properly plead a claim.
“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”
This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.
The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…”
Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:
Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.
The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.
Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.
The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:
…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.
In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.
I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.
The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”
The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.
Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”
Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.
Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”
The final claim was based on respondeat superior.
Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)
Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.
So Now What?
This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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This decision is either normal, or ground breaking. The release info is nothing new. However, the court found the language on the back of the lift ticket created a release which barred the plaintiff’s claims.
Posted: January 15, 2018 Filed under: Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: bargaining, common law, discovery, Equine, essential service, exculpatory, harmless, holder, inherent dangers, Inherent Risks, lesson, lift, Lift Ticket, Negligence per se, practical necessity, practically, public policies, quotation marks omitted, recreational, recreational activities, Release, riding, service provided, signer, Ski, ski area, ski lifts, Skier, skiing, Statutory Language, Summary judgment, unenforceable 11 Comments11th Circuit Court of Appeals upholds lower decision dismissing claims of a plaintiff who broke her femur unloading a lift during a ski lesson.
Lower Court decision was based on Colorado Premises Liability Act. This decision was based on the release the plaintiff signed to take the ski lesson.
For an analysis of the lower court decision see: Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
State: Colorado: United States Court of Appeals for the Tenth Circuit
Plaintiff: Teresa Brigance
Defendant: Vail Summit Resorts, Inc. (Keystone Ski Area)
Plaintiff Claims: (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115
Defendant Defenses: Release and the lift ticket
Holding: For the Defendant Ski Area, Vail
Year: 2018
This case looks at the law concerning releases in Colorado. Writing a release requires three skills. The first is an understanding of the law that will be applied to the release in question. The second is an understanding of the activity, and the risks associated with the activity the release must cover. The third is what do judges want to see in the release and what they don’t want to see.
The first and third items are what I specialize in. The second item is what we have to specialize in. Writing a release is not handing a contract job to an attorney. It is understanding how you want to run your business, the guests you want to serve and the types of problems you want to prevent from turning into litigation.
If you need a release for your business, activity or program consider working with me to design one. You also have the option of purchasing a pre-written release based upon the needs of your business, type of activity and the state where you are located.
To help you understand release law, here is an article about how a release was written correctly and then used to stop a claim.
Summary
This decision does not stand out among decisions concerning release law in Colorado. However, it is an extreme change from Colorado law and the law of most other states when it states the backside of a lift ticket is a release. The lower court decision was analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
The plaintiff was taking a ski lesson when she fell getting off the lift. She sued for the normal negligent issues. The court throughout her claims based upon the release she signed to take the ski lesson.
Facts
The plaintiff signed up to take a ski lesson with Keystone Resorts, a ski area owned by the defendant Vail Summit Resorts, Inc. and ultimately by Vail Resorts Management Company. (There may be some more corporations or LLC’s in the middle.) When she signed up for the lesson, she signed a release which is a common practice at ski areas.
When she was unloading a lift, the edge of the chair caught the top of her ski boot, and she fell eventually breaking her femur.
She sued. Her case was thrown out by the trial court. See Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662 analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
On a side note. One of her claims was the lift did not stop immediately. One defense I never see to this claim; lifts don’t stop immediately. If the lift stopped immediately, everyone riding the lift would be thrown off. Lift’s decelerate at a speed that allows the lift to stop as quickly as possible without ejecting everyone riding on the lift. If nothing else it is a save everyone else on the lift and sacrifice the person who can’t unload.
Analysis: making sense of the law based upon these facts.
The 10th Circuit Court of Appeals is a federal court. The plaintiff filed this case in federal court because she was from Florida. Vail and the locations of the accident are in Colorado. That allowed her to have federal jurisdiction in the case because the plaintiff and the defendant were from two different states.
When a federal court has a case like this, it applies the law of the state that has jurisdiction as if the case were not in federal court. In this case, the decision looks at Colorado law as it applies to ski areas and releases. There is no Federal law concerning ski areas, other than general laws on leasing Forest Service land for a ski area.
The court started its analysis by reviewing the release and Colorado law on releases.
Colorado has a tag it applies to releases; like a few other states, that releases are disfavored under Colorado law. However, disfavored a release may be; that statement seems to be something to provide the plaintiff with an idea of fairness rather than the reality that if you write your release correctly, it will be upheld in Colorado.
For a decision that was lost because the defendant did not write the release correctly see Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.
There are four tests a release must pass to be valid in Colorado.
(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.
The court found plenty of Colorado law stating that a recreation service or activity does not owe a duty to the public and is not a service that should be questioned, which covers the first two requirements. The release was well-written, and the plaintiff did not argue that the release was not entered into fairly. Consequently, the court was able to state the release was valid the plaintiff’s claims were barred by the release.
One argument of the plaintiff’s the court did spend some time on was the Ski Area Safety Statute and the Passenger Tramway Safety Act created a public duty. Thus, the nature of the relationship between the ski area and a guest was one not of recreation but of a public duty, therefore, the release was not valid. This argument was an attempt to void the release based on the first two requirements set out above.
However, the court found that the creation of both statutes was done so that releases were not voided for skiing in Colorado. Looking at Colorado law the court found:
Our conclusion that the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims.
The court found all four requirements for a release to be valid in Colorado were met.
What was exciting about this case wad the Court found the lift ticket was a release.
What is of note about this case is the Appellate Court like the lower court, looked at the language on the back side of the lift ticket as a release. The court starts by calling the language a “Lift Ticket Waiver.”
The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.”
Emphasize added
No other court in Colorado has ever looked at the language on the back of the lift ticket as being a release. That language is there because it is required by statute. Colorado Ski Safety Act C.R.S. §§ 33-44-107. Duties of ski area operators – signs and notices required for skiers’ information. (8) states:
(8) (a) Each ski area operator shall post and maintain signs which contain the warning notice specified in paragraph (c) of this subsection (8). Such signs shall be placed in a clearly visible location at the ski area where the lift tickets and ski school lessons are sold and in such a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift. Each sign shall be no smaller than three feet by three feet. Each sign shall be white with black and red letters as specified in this paragraph (a). The words “WARNING” shall appear on the sign in red letters. The warning notice specified in paragraph (c) of this subsection (8) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.
(b) Every ski lift ticket sold or made available for sale to skiers by any ski area operator shall contain in clearly readable print the warning notice specified in paragraph (c) of this subsection (8).
(c) The signs described in paragraph (a) of this subsection (8) and the lift tickets described in paragraph (b) of this subsection (8) shall contain the following warning notice:
WARNING
Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.
Emphasize added
The court specifically stated the language highlighted above in yellow contains “waiver of claims.” Based on the statute and the language, this is solely a list of the risks a skier assumes by statute when skiing inbounds in Colorado. However, now this court has found more in the text.
For more on lift tickets baring claims see Lift tickets are not contracts and rarely work as a release in most states. The reason most courts find that the language on the back of a lift ticket is not a release is there is no meeting of the minds, no one points out to the purchaser of a lift ticket there is a contract they are agreeing to.
In this case that would be impossible because the case states the husband purchased the lift ticket so the plaintiff could not have agreed to the contract.
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Key-stone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
Emphasize added
As stated above, the court notes that the husband and not the plaintiff purchased the lift tickets. No contract could be created in this case, yet somehow; the court found the lift ticket was a contract and as such was a release of liability. There was no meeting of the minds and there was no consideration passing between the plaintiff and the ski area.
However, this has monstrous meaning to all other ski areas in Colorado. If the language required by statute to be placed on the back of lift tickets is also a release of liability, then a new defense is available to all injuries of any skier, boarder, tuber or other person on the ski area who purchases a lift ticket.
More importantly you could require everyone coming on to the ski area to purchase a lift ticket no matter the reason. The cost could only be one dollar, but the savings to the ski area would be immense. If you are skiing you lift ticket is $200. If you are just going to dinner or watching your kids ski the lift ticket is $1.00 and gives you a $1.00 discount on your first drink.
Everyone who has a lift ticket at a ski area has effectively signed a release now.
However, remember, this is a federal court interpreting state law, the law of Colorado. Until the Colorado Courts weight in on the subject and the Colorado Supreme Court decides the issue, its value may be suspect. It is reliable in Federal Court as this condition is precedent setting, however, I would lean hard on the decision, not stand on it.
The court concluded, and in doing so provided a better idea about how Colorado looks are releases, that:
In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.
So Now What?
Overall, the case has nothing new on release law and is another affirmation that releases in Colorado, if written correctly, will stop claims for negligence.
However, if the Colorado courts follow the reasoning contained in this decision about the validity of the language on the back of a lift ticket as a bar to claims, then this is the first step in making almost impossible to sue a ski area in Colorado for any reason.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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