Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546
Jasmine Nicole Morgan, et al., Plaintiffs,
Water Toy Shop, Inc., et al., Defendants.
Civil No. 16-2540 (PAD)
United States District Court, D. Puerto Rico
March 30, 2018
OPINION AND ORDER
PEDRO A. DELGADO HERNÁNDEZ, United States District Judge
This case arises out of a tragic accident, a collision between two jet skis -one ridden by plaintiffs Jasmin Nicole Morgan and Jarita Kennedy, and the other by Mark A. Castro- in the territorial waters of Puerto Rico (Docket No. 1). In essence, the complaint alleges that: (1) Castro was grossly negligent in operating the jet ski, seriously injuring plaintiffs (id. at ¶ 51); and (2) Water Toy Shop, Inc., Acosta Water Sports, Inc., and Axel Acosta, who rented the jet skis, did not adequately train Castro to operate the jet ski, and as owners of the jet ski that Castro was riding are liable for the damages claimed. Id.
Before the court is defendants Water Toy Shop’s, Axel Acosta’s and Ironshore Indemnity, Inc.’s “Motion for Summary Judgment and Memorandum of Law in Support Thereof” (Docket No. 52), which plaintiffs opposed (Docket No. 61). Defendants replied (Docket Nos. 69), and plaintiffs surreplied (Docket No. 73). For the reasons explained below, the motion is GRANTED and plaintiffs’ claims against the appearing defendants DISMISSED.
I. SUMMARY JUDGMENT STANDARD
Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when the record shows no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the litigation. Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011)(quoting Rodríguez-Rivera v. Federico Trilla Regional Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008)).
In assessing a motion for summary judgment, the court must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor. Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, and no room for the judge to superimpose his own ideas of probability and likelihood . Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore conclusory allegations, improbable inferences, and unsupported speculation. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).
II. UNCONTESTED FACTS
Plaintiffs are residents of Washington, D.C. See, Docket No. 52-1, “Statement of Uncontested Material Facts in Support of Motion for Summary Judgment” (“SUMF” at ¶ 1). While vacationing in Puerto Rico, they rented a jet ski from Archie Jet Ski Rental (SUMF ¶ 4), the name used to advertise Water Toy Shop and Acosta Water Sports, two separate corporations that operate different jet ski rental stands in the Isla Verde beach area in Carolina, Puerto Rico. See, PSUMF at ¶ 6 and defendants’ response at Docket No. 69-1 pp. 26-27. Water Toy owned the jet skis involved in the accident, and operated the stand where the jet skis were rented. SUMF ¶ 5; PSUMF ¶¶ 14, 6, 36.
In order to rent the jet ski, both plaintiffs signed a “Personal Watercraft Rental Operations Release of Liability, Waiver of Claims, Express Assumption of Risk and Indemnity Agreement” (“Rental Agreement”) and a “Declaration of Fitness to Operate Personal Watercraft” (“Declaration of Fitness”). SUMF ¶ 7, ¶10. The Rental Agreements read as follows:
PERSONAL WATERCRAFT RENTAL OPERATIONS RELEASE OF LIABILITY, WAIVER OF CLAIMS, EXPRESS ASSUMPTION OF RISK AND INDEMNITY AGREEMENT
Please and be certain you understand the implications of signing. Express Assumption of Risk Associated with use of rental of Personal Watercraft and Related Activities I,, do hereby affirm and acknowledge that I have been fully informed of the inherent hazards and risks associated with motorized (e.g., jet ski) or non-motorized (e.g., kayak) and related water sport activities to which I am about to engage, including but not limited to:
1) changing water flow, tides, currents, wave action, and ship’s wakes;
2) collision with any of the following:
a) other participants,
b) the watercraft,
c) other watercraft,
d) man made or natural objects,
e) shuttle boat;
3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature;
4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions;
5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning;
6) the presence of insects and marine life forms;
7) equipment failure or operator error;
8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration;
9) fatigue, chill and/or reaction time and increased risk of accident.
I specifically acknowledge that I read, understand and agree to abide by the Personal Watercraft Operational instructions at all times and that I have been trained in the safe use of watersport equipment to my complete satisfaction, and I am physically/mentally able to participate in the water sport activities to which I am about to engage.
I specifically waive any defense insofar as this contract is concerned that may arise as a result of any state or local law and/or regulation or policy that may impact its enforceability.
RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT.
In consideration of being allowed to participate in the above-described activities, as well as the use of any of the facilities and the use of the equipment of the below listed releases, I hereby agree as follows:
1) To waive and release any and all claims based upon negligence, active or passive, with the exception of intentional, wanton, or willful misconduct that I may have in the future against all of the following named persons or entities herein referred to as releasees.
Water Toy Shop, Inc. Owner (Company and/ or Individual)
___ (Scheduled Personal Watercraft)
___ (Scheduled Shuttle Boat (if applicable)
2) To release the releasees, their officers, directors, employees, representatives, agents, and volunteers, and vessels from any liability and responsibility whatsoever and for any claims or causes of action that I, my estate, heirs, executors, or assigns may have for personal injury, property damage, or wrongful death arising from the above activities, whether caused by active or passive negligence of the releassees or otherwise, with the exception of gross negligence. By executing this document, I agree to hold the releases harmless and indemnify them in conjunction with any injury or loss of life that may occur as a result of engaging in the above activities.
3) By entering into this agreement, I am not relying on any oral or written representation or statements made by the releasees, other than what is set forth in this Agreement.
I hereby declare that I am of legal age and am competent to sign this Agreement or, if not, that my parent or legal guardian shall sign on my behalf and that my parent or legal guardian is in complete understanding and concurrence with this Agreement.
I have read this Agreement, understand it, and I agree to be bound by it. SUMF at ¶¶ 8, 20 (bold emphasis in the original, underlined emphasis added). The Declarations of Fitness state: “by signing this form I still choose to participate in the activity with the rental property and agree to waive all responsibilities to all the above mentioned parties concerning any consequences that would result from my actions.” SUMF at ¶ 9. Morgan did not read the contents of the Rental Agreement and Declaration of Fitness before signing them, or at any time before boarding the rented jet ski, despite having around one hour to spare between the time she signed the documents and when she boarded the jet ski. Neither did she ask Water Toy personnel anything about the document. SUMF at ¶ 11.
Before Castro was allowed to rent the jet ski, he was asked for his I.D. in order to verify that he was old enough to rent a jet ski, which he was; he signed a Rental Agreement and Declaration of Fitness; and was informed of the boundaries within which he could ride, the applicable speed limit and to stay clear of other people. SUMF at ¶ 13, 15. To that end, Mr. Héctor Peralta informed Castro the price for the jet ski ride; explained that he could only ride between the ESJ Tower and the Water Club Hotel; warned him stay away from the swimming area; told him to go slow until he passed the buoys; cautioned him not to get close to a nearby natural reserve and to stay away from other objects or persons because jet skis don’t have breaks; described how the jet skis worked; let him know that when his time was up an employee would let him know; and provided him copy of a Rental Agreement and Declaration of Fitness, explaining their contents and having him sign them. SUMF at ¶ 16.
Additionally, Mr. Jonathan Pérez informed Castro of the boundaries he had to observe whilst riding, by pointing out the ESJ Tower, the Water Club Hotel and the buoys; told him not to ride too far away so that help could get to him straight away in case something happened; warned him not to go over five miles per hour as he left the buoys area in front of the Water Toy stand and when he rode back to it to return his jet ski; and asked him to stay far away from people to avoid any accident. SUMF at ¶ 17. Plaintiffs were taking a break in their jet ski, drifting next to the buoys in front of the Water Toy stand, when Castro’s jet ski collided with theirs at high speed, without warning. SUMF at ¶ 19.
A. General Principles
Plaintiffs claim defendants are liable to them under Puerto Rico law (Docket No. 61, pp. 2-3), which defendants deny (Docket No. 51, p. 1), stating that general principles of maritime law rather than local law apply in this case, and under those principles they are not liable. Id. at p. 2. Because this case “involves a watercraft collision on navigable waters, it falls within admiralty’s domain.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996). With admiralty jurisdiction comes the application of substantive admiralty law. Id. Federal maritime law may be supplemented by state law to the extent that it “would not disturb the uniformity of maritime law.” Kossick v. United Fruit Co., 365 U.S. 731, 738 (1961).
In maritime law, “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests [e.g., passengers] the duty of exercising reasonable care under the circumstances of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959); Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 (1st Cir. 1988)(under maritime law, “a carrier owes a duty of exercising reasonable care towards its passengers under the circumstances”). The degree of required care must be in proportion to the apparent risk. See, Muratone, 845 F.3d at 353 (discussing concept)(citing Prosser, Law of Torts, Section 34, at 180 (4th ed. 1971)).
Plaintiffs contend that defendants are directly and vicariously liable under Puerto Rico law because Congress allowed Puerto Rico to adopt liability standards inconsistent with maritime law (Docket No. 61 at pp. 12-20). Congress can alter, qualify, or supplement admiralty law as it sees fit, provided it neither excludes a thing that falls clearly within the admiralty and maritime law nor includes a thing that clearly falls without, as long as the statute is coextensive with and operates uniformly in the whole of the United States. See, Zych v. Unidentified Wrecked and Abandoned Vessel, Believed to be the Seabird, 19 F.3d 1136, 1140 (7th Cir. 1994)(examining congressional power to revise and supplement maritime law).
However, Puerto Rico is an unincorporated territory of the United States. See, Maysonet-Robles v. Cabrero, 323 F.3d 43, 53 (1st Cir. 2003)(so describing Puerto Rico). It belongs to, but is not part of the United States, a category considered “foreign … in a domestic sense.” See, United States v. Lebrón-Cáceres, 157 F.Supp.3d 80, 88 & n.11 (D.P.R. 2016)(discussing Puerto Rico’s territorial status)(quoting Downes v. Bidwell, 182 U.S. 244, 287, 341-342, 346-347 (1901)). Accordingly, “… Congress can, pursuant to the plenary powers conferred by the Territorial Clause [U.S. Const. art. IV, § 3, cl. 2], legislate as to Puerto Rico in a manner different from the rest of the United States.” U.S. v. Rivera-Torres, 826 F.2d 151, 154 (1st Cir. 1987).
In 1917, Congress enacted Puerto Rico’s second organic act, commonly known as the Jones Act, 39 Stat. 951, Act of March 2, 1919. Under Section 37 of the Jones Act, the legislative authority of Puerto Rico extended “to all matters of a legislative character not locally inapplicable.” In turn, Section Eight read:
The harbor areas and navigable streams and bodies of water and submerged lands underlying the same in and around the island of Puerto Rico and the adjacent islands and waters, owned by the United States on March 2, 1917, and not reserved by the United States for public purposes, are placed under the control of the government of Puerto Rico … All laws of the United States for the protection and improvement of the navigable waters of the united States and the preservation of the interests of navigation and commerce, except so far as the same may be locally inapplicable, shall apply to said island and waters to its adjacent islands and waters.
Both provisions were reenacted as part of the Federal Relations Act. See, 48 U.S.C. §§ 749 and 821. Interpreting and applying them in the context of admiralty and maritime law, the First Circuit held in Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1956), that the rules of admiralty and maritime law of the United States “are presently in force in the navigable waters of the United States in and around the island of Puerto Rico to the extent that they are not locally inapplicable either because they were not designed to apply to Puerto Rican waters or because they have been rendered inapplicable to these waters by inconsistent Puerto Rican legislation, ” provided that legislation does not “supplant a rule of maritime law which Congress in the exercise of its constitutional power has made applicable to Puerto Rican waters.” Id. at p. 355 (Emphasis added). In line with Garrido, plaintiffs argue that defendants authorized Castro to operate the jet ski, and as a result, are liable for the resulting damages under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 §§ 5141-5142, and Puerto Rico Law 430 of December 21, 2000, P.R. Laws Ann. tit. 12 §§ 1401-1411 (Docket No. 61, pp. 4-7, 15-20). Because it is undisputed that Water Toy owned and rented the jet skis, unless otherwise stated the court circumscribes the discussion of potential liability to that entity.
B. Puerto Rico Law
Article 1802 imposes liability for personal acts, not for acts of others, providing in part that “a person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.” P.R. Laws Ann. tit. 31 § 5141. See, Burgos-Oquendo v. Caribbean Gulf Refining Corp., 741 F.Supp. 330, 332 (D.P.R. 1990)(discussing concept). To establish liability, the plaintiff must show: (i) a duty of care requiring defendant to conform to a certain standard of conduct; (ii) breach of that duty; (iii) damages; and (iv) a causal connection between the breach and the damages. See, De-Jesús-Adorno v. Browning Ferris Industries of Puerto Rico, Inc., 160 F.3d 839, 842 (1st Cir. 1995)(so explaining).
In general, the duty of care is defined by the tenet that one must act as would a prudent and reasonable person under the same circumstances. See, Vázquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007)(so observing). This includes complying with statutes, regulations, and ordinances relevant to the action. See, Sánchez v. Seguros Triple S, Inc., 687 F.Supp.2d 6, 9 (D.P.R. 2010)(setting forth and applying formulation). The standard applies to those who operate businesses for profit, commanding them to exercise reasonable care toward business invitees. See, Calderón-Ortega v. U.S., 753 F.3d 250, 252 (2014)(recognizing obligation).
In turn, Article 1803 codifies a special type of vicarious liability, a type of liability based in part on the acts or omissions of others. See, P.R. Laws Ann. tit. 31 § 5142. To that end, it states that the obligation imposed by Article 1802 “is demandable not only for personal acts and omissions, but also for those of the persons for whom …[the defendant is] responsible, ” including under that rubric the liability of the father or mother for damages caused by minor children; of guardians for the damage cause by the person under their authority who live with them; of employers for the damage caused by an employee acting in the course of his employment; of masters or directors of arts and trades for damage caused by their pupils or apprentices; and of the Government of Puerto Rico under certain pre-established circumstances. Id. The enumeration is taxative, not of an exemplary nature. See, Burgos-Oquendo, 741 F.Supp. at 333 (so acknowledging). Imposition of vicarious liability in other instances must be anchored in alternate precepts or legislation, like Law 430. See, id. (dismissing complaint brought against lessor under Article 1803 in absence of provision establishing responsibility in the lessor for actions of the lessee).
At common law, vicarious liability implies that by reason of some preexisting relation between two parties, one of them may be held automatically liable to a third party for the negligence of the other even if he is free from fault. See, Prosser and Keeton, The Law of Torts, West Publishing Co., 1984, p. 499 (explaining concept). The doctrine applies in admiralty unless excluded by statute. See, Thomas J. Schoenbaum, supra at p. 188 (so noting). In that context, the negligence of employees is imputed to the owner of the vessel upon a finding of master-servant relationship, but in absence of that relationship, the shipowner is not liable in personam for the negligence of persons to whom the vessel is entrusted. Id. Under Article 1803, however, liability does not attach if the defendant shows that he employed the diligence expected of a good father of family, the bonus pater familias, to prevent the damage. Id. Diligence is predicated on how a prudent and reasonable man would have acted in connection with the obligations arising from the situations enumerated in Article 1803. See, Pueblo v. Rivera Rivera, 23 P.R. Offic. Trans. 641, 1989 WK 607294, *§ V (Rebollo López, J., concurring)(analyzing standard).
By contrast, Law 430 operates much like vicarious liability does at common law, providing in part that “[t]he owner of any ship or navigation vessel shall be responsible for damages caused when operating any of these, with fault or negligence, and when it is operated or under control of any person who, with the main purpose of operating or allowing it to be operated by a third party, obtains possession of it through express or tacit authorization of the owner.” P.R. Laws Ann. tit. 12 § 1406(6)(h). By extension, it imposes liability on the principal -the vessel’s owner- for the damages caused by the wrongful operation of the vessel when that vessel has been operated with the owner’s express or tacit authorization, irrespective of whether the owner has acted -in the words of Article 1803 of the Civil Code- with the diligence of a good father of family to avoid the damage.
As enacted, the provision is preempted by the Limitation of Liability Act of 1851, as amended, 46 U.S.C. § 30501 et seq., because it conflicts with the negligence standard set in the federal statute. See, In the Matter of Rockaway Jet Ski, LLC, 2016 WL 8861617, *603-*604, (holding New York’s Navigation Act § 48 preempted by Limitation Act, as it imposes vicarious liability on the owners of personal watercrafts if the watercraft is operated by a person who used it with the owner’s permission, irrespective of the owner’s wrongdoing)(quoting In re Hartman, 2020 WL 1529488, *4 n.10 (D.N.J. Apr. 15, 2010)(to the extent the claimant argues that the jet ski owner is strictly liable under state law, the claim is preempted because the state’s strict liability standard directly conflicts with the negligence standard of the Limitation Act)). For the same reason, so too here. And given that the Limitation Act applies in Puerto Rico,  its preemptive effect comports with Garrido, banning reliance on Law 430 to impose vicarious liability on the vessel owner in the absence of the owner’s negligence.
Against this background, plaintiffs argue that Water Toy Shop violated Law 430 in: (1) operating an illegal additional kiosk a quarter of a mile east of the area specified in the permit issued by the Puerto Rico Department of Natural Resources (“DNR”); (2) renting a jet ski that was not expressly identified in the permit; (3) using a rental ski as a patrol boat operated by a licensed individual who nevertheless had not received the required first aid training; (4) operating a rental stand without a valid navigation license; (5) keeping defective records lacking customers’ identification, addresses, tag of the jet ski used and date and time it was returned; and (6) renting skis without informing customers of navigation rules, safety briefing and prohibited activities (Docket No. 61 at pp. 5-7), making it liable for the collision and resulting damages. But merely violating a statute or regulation is not a synonym for liability in Puerto Rico, since in order for liability to attach, there must be a causal relationship – adequate cause – between the violation and the damages. See, González v. Puerto Rico Elec. Power Authority, 1993 WL 525644, *8 (D.P.R. Nov. 23, 1993)(so holding)(citing Pacheco v. A.F.F., 12 P.R. Offic. Trans. 367 (1982)).
Adequate cause is not an event in the absence of which the damage would not have occurred, but that which in general experience causes it. See, Cárdenas Mazán v. Rodríguez Rodríguez, 125 D.P.R. 702, 710 (1990) (so stating); Ganapolsky v. Boston Mut. Life Ins. Co., 138 F.3d 446, 447-448 (1st Cir. 1998)(accidental injury to plaintiff’s left foot resulting from tripping on a two-inch step at entrance to men’s room in a theater not adequate cause of gangrene requiring foot’s amputation, as the infection that lead to the gangrene normally does not arise from tripping on a step). As such, causation is a function of foreseeability, requiring plaintiff to show that the injury was reasonably foreseeable. See, Marshall v. Pérez Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)(discussing foreseeability as part of the “causal nexus” element of tort action); Vázquez-Filipetti, 504 F.3d at 49 (highlighting centrality of foreseeability to a successful tort claim).
Within this framework, that violations may have occurred in connection with items (1) to (5)-an unsubstantiated assumption at best- is not causally linked to Castro’s crashing of his jet ski onto plaintiffs’, for there is no evidence in the record showing it was foreseeable for a reasonable person to anticipate that a jet-ski collision would result from those violations. Foreseeability cannot be established through the simple fact that an accident occurred. Id. (so recognizing).The situation is no different in admiralty. See, Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004)(dismissing claim in admiralty for lack of proof that under the circumstances, there was a reasonable possibility that compliance with the regulatory standard would have prevented the accident).
Water Toy’s obligation to provide Castro with an oral or written orientation on the navigation rules the Commissioner of Navigation of Puerto Rico prepared in accordance with Law 430 stands on a different footing, as it directly implicates the provision of information necessary to safely operate the jet ski. See, Wills v. Amerada Hess Corp., 379 F.3d 32, 42-45 (2d Cir. 2004)(distinguishing between statutory or regulatory provisions naturally and logically linked to maritime safety and those not so linked). The uncontested facts, however, show that Water Toy did provide adequate training to Castro in connection with the operation of the jet ski as well as of the applicable navigation rules. See, SUMF at ¶ 15-17. And the Rental Agreement Castro executed additionally confirms that he: (1) was fully informed of the inherent risks associated with jet skis; (2) understood and agreed to abide by the personal watercraft operational instructions he was given; and (3) was trained in the safe use of water sport equipment to his complete satisfaction. All in all, the record does not sustain a finding of liability against Water Toy deriving from a negligent act causally connected to the damages claimed.
Beyond the issue of liability, plaintiffs executed a waiver precluding liability as to Water Toy and Axel Acosta – Water Toy’s sole owner and president, representative and agent – except for gross negligence, which the complaint only imputed to Castro. Plaintiffs attack the waiver, essentially characterizing it as unenforceable (Docket No. 61, at pp. 20-31). Voluntary waivers of liability for negligence in maritime activities are enforceable provided they: (1) are consistent with public policy; (2) do not configure a contract of adhesion; and (3) are drafted in clear and unambiguous language. See, Olmo v. Atlantic City Parasail, 2016 WL 1704365, *9 (D.N.J. April 28, 2016)(articulating and applying test)(citing Olivelli v. Sappo Corp., Inc., 225 F.Supp.2d 109, 116 (D.P.R. 2002)). By these standards, the waivers that plaintiffs signed are valid and enforceable.
First, exculpatory clauses waiving liability for negligence in maritime recreational activities are consistent with public policy. See, Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F.Supp.2d 1295, 1299 (D. Nevada 2013)(so acknowledging); Olmo, 2016 WL 1704365, at *10 (same). Thus, parties may enter into agreements to allocate risks inherent in those activities, allowing operators to contractually disclaim liability for their own negligence. See, Brozyna v. Niagara Gorge Jetboarding, Ltd., 2011 WL 4553100, *4-*5 (W.D. N.Y. Sept. 29, 2011)(explaining exculpatory waivers). Relying on In the Matter of Rockaway Jet Ski LLC, 2016 WL 8861617, however, plaintiffs argue the waiver violates public policy because it has been invoked to prevent them from asserting negligence claims based on the violation of Law 430, a safety statute which, at bottom, does not contain a waiver authorization clause (Docket No. 61, at pp. 23, 27).
In Rockaway, the court evaluated whether an exculpatory clause can release negligence claims premised on the violation of a state safety statute, New York Navigation Law 73(a)(2), which (1) required businesses renting personal watercraft to provide a video or in-water demonstration of how to safely operate watercraft; and (2) prohibited those businesses from renting a personal watercraft to an individual unless that individual demonstrated ability to (i) operate the personal watercraft, and (ii) use applicable safety equipment. Id. at *595-*596. The court surveyed relevant caselaw, finding that some jurisdictions considering the same question did not permit parties to waive negligence claims premised on the violation of safety statutes, whereas other jurisdictions permitted the waivers. Id. at *598-*599. It sided with the former, noting “the apparent absence of an established admiralty rule on this question, ” (id. at *601); that statutory violations amount to negligence per se; and that waivers of a negligence per se claim violate public policy. Id. at *602.
Applying the reasoning to Law 430, the only statutory item involving safety is the one requiring information to safely operate the jet ski. But renting out a jet ski without taking steps to provide for its safety operation falls within the realm of negligence regardless of whether it is statutorily required. See, In re Hartman, 2010 WL 1529488, *4 (D.N.J. Apr. 15, 2010)(no need to resort to state safety statute to establish negligence in case originating in jet ski accident, because irrespective of statute, ski owner owed plaintiff a duty of care). And as pointed out above, those actions may be waived. See, Waggoner, 141 F.3d at *8-*9 (rejecting argument that exculpatory clause in recreational boat rental contract violated public policy based in part on Restatement (Second) of Contracts’ explanation that “a party to a contract can ordinarily exempt himself from liability for harm caused by his failure to observe the standards of reasonable care imposed by the law of negligence”). Moreover, although Law 430 imposes vicarious liability, that type of liability is less about boat safety and more about ensuring compensation for injured parties. See, Rockaway, 2016 WL 8861617 at *604 (so observing in validating waiver to protect vessel owner from vicarious liability imposed by state navigation law). In the end, Law 430 does not prohibit waivers, and neither does public policy.
Second, adhesion contracts are “take it or leave it” contracts with no opportunity for negotiation between parties with unequal bargaining power. Id. at *6 (delineating elements of adhesion). The definition does not fit waivers used in connection with voluntary recreational pursuits rather than rendition of essential services such as medical care, where courts would be more likely to find that a contract of adhesion exists. See, Olmo, 2016 WL 1704365 at *10 (so recognizing). For the same reason, liability waivers for voluntary recreational activities in navigable waters are not considered adhesion contracts, as the plaintiff has the option of signing or turning around and declining to do business with the defendant. Id. (waiver in case involving parasailing and related activities). So too here, for plaintiffs were free to choose another jet ski rental company or leave the beach without ridding a jet ski at all. See Olivelli, 225 F.Supp.2d at 110-11, 118-120 (waiver of liability not considered adhesion contract in part because scuba diving is a strictly voluntary recreational pursuit and deceased was free to decline defendant’s services if she did not wish to assent to the terms of the waiver); Brozyna, 2011 WL 4553100 at *6 (same with respect to jetboating excursion, as plaintiff had to option to decline to participate in the excursion); Murley ex rel. Estate of Murley v. Deep Explorers, Inc., 281 F.Supp.2d 580, 589-590 (E.D.N.Y. 2003)(if scuba diver did not agree to or understand any of the clauses of the release, he was free to write “VOID” or decline defendant’s services).
Third, the waivers are clear and unambiguous. Their language (1) identified the specific risks inherent to and associated with riding a jet ski; (2) explained and highlighted the fact that, by executing the Agreement, plaintiffs waived and released any and all claims based upon negligence against Water Toy, its officers, directors, employees, representatives, agents, and volunteers and vessels; and (3) stated that plaintiffs accepted responsibility for the consequences of riding the rented jet skis. The language should have put plaintiffs on notice of its legal significance and effect. Murley, 281 F.Supp.2d at 580-581, 591 (validating liability release with similar characteristics in dismissing action arising out of scuba diving accident that resulted in diver’s death). Even more, both plaintiffs and Castro signed the Agreements before boarding their respective jet skis, acknowledging that they (1) were fully informed of the hazards and risks associated with the jet ski and related water sports activities, including collision with other participants or watercrafts; (2) read, understood, and agreed to abide by the “Personal Watercraft Operational” instructions at all times; (3) were trained in the safe use of watersports equipment to their complete satisfaction; and (4) were physically and mentally able to participate in the water sports activities.
Fourth, plaintiffs are college-educated U.S. citizens, who were interested in participating in a recreational, hazardous maritime activity, one conditioned upon the jet ski’s owner and renter being released from liability as set forth in the waivers, a condition plaintiffs voluntarily agreed to. Plaintiffs state that Ms. Morgan signed the documents without reading them (Docket No. 61-1 at ¶ 11). Nonetheless, the defendant is entitled to rely in good faith upon the reasonable appearance of consent that plaintiff created. See, Chieco v. Paramarketing, Inc., 228 A.D.2d 462, 643 N.Y.S.2d 668 (2d Dept. 1996)(holding release and waiver for paragliding lesson valid despite plaintiff’s allegation that he did not read or understand the document), cited in Murley, 281 F.Supp.2d at 591; Dan B. Dobbs, The Law of Torts, 217-218 (West 2000) (discussing defendant’s reasonable reliance on plaintiff’s acts and words to infer binding consent). Private and uncommunicated reservations to a waiver does not subject defendant to liability. See, Dan B. Dobbs, supra (so noting). Therefore, plaintiffs cannot escape the consequences of their voluntary decisions, bypassing the contracts they signed to avoid the legal consequences of their free choice, for there is no evidence of deceit, violence or intimidation exerted on plaintiffs to coerce or wrongfully induce them to sign the waivers, or that they did so by mistake, thinking they were signing something else. See, P.R. Laws Ann. tit. 31 § 3404 (codifying elements voiding consent under Puerto Rico law, to include violence, intimidation, deceit and error); Cutchin v. Habitat Curacao-Maduro Dive Fanta-Seas, Inc., 1999 WL 33232277, *3 (S.D. Fla. Feb. 8, 1999)(applying pre-accident waiver to dismiss action arising from diving accident, as there was no evidence showing that plaintiff was coerced to sign the document); Murley, 281 F.Supp.2d at 590 (dismissing suit based on scuba diver’s death in part because there was no evidence that defendants procured release by fraud or that deceased signed release under duress); .
Plaintiffs posit the waivers mention negligence but not fault, and cannot bar their action because the complaint alleges that their damages result from defendants’ “fault” or “negligence” (Docket No. 61 at p. 25). These terms have specific meanings in the civil code context of Puerto Rico law. See, CMI Capital Market Investment, LLC v. González-Toro, 520 F.3d 58, 64 (1st Cir. 2008)(so recognizing). Fault consists in the failure to exercise due diligence, the use of which would have prevented the wrongful result, and requires the execution of a positive act causing a damage to another person different from the one who executed it. Id. Negligence supposes an omission producing the same effect as fault (id.), predicated as with fault, on the failure to exercise due diligence. See, Sánchez v. Esso Standard Oil de Puerto Rico, Inc., 2010 WL 3069551, *4 (D.P.R. Aug. 2, 2010)(discussing terms). Both concepts “have in common that the act be executed or the omission incurred without an injurious intent, ” González-Toro, 520 F.3d at 64, and for the same reason, have been described as “faces of the same coin.” Sánchez, 2010 WL 3069551 a *4 (quoting Gierbolini v. Employers Fire Ins. Co., 4 P.R. Offic. Trans. 1197, 1201 (1976).
On this reading, it is apparent that to the extent the waiver mentions negligence it necessarily contemplates the failure to exercise due diligence, the same operative feature underlying fault, reflecting the waiver’s reference to both active and passive negligence. See, Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991)(“An actor is at fault, or negligent, when he fails to exercise due diligence to prevent foreseeable injury”)(emphasis added). Even more, plaintiffs’ factual allegations are couched in negligence, not fault. See, Complaint, ¶ 30 (“As a consequence of the accident caused by the negligence of all defendants, … [Ms. Morgan] has suffered mental anguish, physical injuries and scars;” ¶ 43 (“As a consequence of the accident caused by the negligence of all defendants,, , [Ms. Kennedy] has suffered mental anguish, and physical injuries”).
Plaintiffs allege the waiver does not mention Axel Acosta, the insurance company, or Acosta Water Sports (Docket No. 61, pp. 27-28). Nonetheless, the waiver expressly releases Water Toy Shop’s officers, directors, and agents, and Axel Acosta is Water Sports’ president and resident agent (Docket No. 61-1 at ¶ 23). In addition, the insurance company’s exposure is linked to that of its insured. If the action fails as to Water Toy Shop and Axel Acosta, there is no viable claim against their insurer. Acosta Water Sports would not benefit from the waiver, though, as it is not one of the releases. Only one conclusion follows: the waivers and releases are valid, and must be enforced except as to Acosta Water Sports.
For the reasons stated, the motion for summary judgment (Docket No. 52) is GRANTED and the claims against Water Toy, Axel Acosta and Ironshore Indemnity DISMISSED WITH PREJUDICE. Since it is uncontested that Acosta Water Sports is not the owner of the jet skis at issue, and did not seem to have incurred in any wrongdoing related to the accident, plaintiffs shall show cause, by April 20, 2018 as to why their claims against Acosta Water Sports should not be dismissed as well. In their motion, plaintiffs shall include relevant caselaw arising out of analogous facts and procedural settings in support of their position.
 Collisions have been described as “the most feared catastrophe of every mariner.” Thomas J. Schoenbaum, Admiralty and Maritime Law, Vol. 2, 103 (West 5th ed. 2011).
 Castro was sued and served with process, but failed to appear and the Clerk entered default against him (Docket No. 77).
 Except otherwise noted, the facts included in this section are drawn from the parties’ Local Rule 56 submissions (Docket No. 52-1, Docket No. 61-1, Docket No. 69-1). Local Rule 56 is designed to “relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute.” CMI Capital Market Investment, LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for summary judgment to accompany its motion with a brief statement of facts, set forth in numbered paragraphs and supported by citations to the record, that the movant contends are uncontested and material. Local Rule 56(b) and (e). The opposing party must admit, deny, or qualify those facts, with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present, in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c). While the district court may “forgive” a violation of Local Rule 56, litigants who ignore the rule do it “at their peril.” Mariani-Colón v. Department of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).
 At his deposition, Axel Acosta explained that these corporations operate separately, with their own permit and insurance. Their personnel, however, is interchangeably used. See, Plaintiffs’ Exhibit 3 at p. 84, lines: 6-20. Water Toy Shop owns the stand adjacent to the San Juan Hotel, whereas Acosta Water Sports owns the stand adjacent to the Intercontinental Hotel. See, PSUMF ¶¶ 6, 36.
 Plaintiffs stated they were rushed into signing the documents. However, that do not contest the fact that both of them signed the documents. Moreover, the deposition testimony submitted in support of their contention does not prove that they were rushed to sign documents, but that they “were rushing” (Defendants’ Exh. 2 at p. 94). At any rate, in their opposition to the motion for summary judgment, plaintiffs seem to have abandoned the “rushing” characterization of the events, focusing instead on the alleged invalidity of the releases (Docket No. 61 at pp. 20-29).
 Plaintiffs’ explanation as to who gave them the documents does not controvert the language of the Rental Agreements that each plaintiff signed. Their undeveloped and unsupported contention as to the “content and admissibility of the documents” – without any analysis, case law or support whatsoever – does not contest the statement either.
 The “disputed” and generalized statement made by plaintiffs “as to the content and admissibility of the documents” does not contest the language of the Rental Agreement and Declaration of Fitness.
 Plaintiff testified during her deposition that “thirty to forty five maybe an hour” elapsed (Docket No. 52-3 at p. 100, lines 14-17).
 Plaintiffs “disputed” this statement as follows: “Disputed as to hearsay and admissibility of the documents. With the exception of the witness testimonies, Defendants have not yet produced a single piece of evidence that can confirm the identity, address or telephone number of the person who caused the collision, someone allegedly named Mark Castro.” See, Docket No. 61-1. But in addition to the general language disputing this statement, plaintiffs provided no discussion or authority in support of the argument. As such, the statement is deemed admitted. See, U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)(“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones”). Moreover, their “dispute” language does not comply with Local Rule 56 either. See also, Natal-Pérez v. Oriental Bank & Trust, —F.3d.—-, 2018 WL 618598, *1-*2 (D.P.R. January 30, 2018)(explaining what constitutes a proper denial or qualification under Local Rule 56).
 Plaintiffs’ denial does not comply with Local Rule 56. This time, they refer the court’s attention to certain portions of plaintiffs’ Exhibit 6. But nothing in those pages serve to properly controvert defendants’ SUMF ¶ 16. Therefore, the statement is deemed admitted.
 Plaintiffs did not admit, deny or qualify this statement as required by Local Rule 56. Moreover, their explanation does not contest this statement.
 The Territorial Clause gives Congress authority to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” As a territorial entity subject to congressional authority under the Territorial Clause, Puerto Rico nevertheless boasts “a relationship to the United States that has no parallel in … [United States’] history.” Puerto Rico v. Sánchez-Valle, —U.S.—-, 136 S.Ct. 1863, 1876 (2016). In a well-documented and comprehensive commentary, “Why Puerto Rico Does Not Need Further Experimentation With Its Future: A Reply To The Notion of ‘Territorial Federalism’, ” 131-3 Harvard Law Review Forum (January 2018), Juan R. Torruella examines the different phases of Puerto Rico’s territorial relationship with the United States, divided into what the author has labeled “the four ‘experiments’ in the colonial governance of Puerto Rico by the United States.” Id. at pp. 65-66.
 For a description of the main features of the Jones Act, see, Lebrón-Cáceres, 157 F.Supp.3d at 92. Juan R. Torruella, supra, focuses on the historical context of the statutory enactment. The first organic act, known as the Foraker Act, 31 Stat. 77-86, had been enacted in 1900, two years after the United States invaded Puerto Rico during the Hispanic American War. It established a civilian government in the territory, replacing the military government that had exerted control over Puerto Rico from October 1898. See, Lebrón-Cáceres, 157 F.Supp.3d at 91-92 & n.17 (sketching statute); Juan R. Torruella, supra (surveying historical setting).
 Lebrón-Cáceres, 157 F.Supp.2d at 92-93, 99-101, and Juan R. Torruella, supra, provide useful information about this statute.
 Gustavo A. Gelpí, “Maritime Law in Puerto Rico, An Anomaly in a Sea of Federal Uniformity, ” published as part of The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present), Interamerican University of Puerto Rico, Metropolitan Campus (2017), p. 57, discusses Garrido and other judicial decisions in light of the interplay between Federal maritime law and Puerto Rico.
 See, Aponte v. Caribbean Petroleum, 141 F.Supp.3d 166, 171 (D.P.R. 2015)(applying Limitation Act in Puerto Rico).
 The term “adequate cause” is similar to “proximate cause.” See, Rodríguez v. Puerto Rico, 825 F.Supp.2d 341, 347 (D.P.R. 2011)(so noting)(citing Tokyo Marine and Fire Ins. Co., Ltd. v. Pérez &Cia. de Puerto Rico, Inc., 142 F.3d 1, 7 &n. 5 (1st Cir. 1998)(referring to Puerto Rico decisions explaining adequate cause)).
 Foreseeability allows courts to reconcile physical or natural cause and effect relationships with the causation necessary to establish civil liability. See, González, 1993 WL 525644 at *4 (so explaining). If that were not so, “damages following a breach … [would] be linked to each other in an endless chain of events.” Federal Deposit Insurance Corporation v. Arrillaga-Torrens, 212 F.Supp.3d 312, 353 (D.P.R. 2016).
 At the most, those alleged violations would warrant administrative sanctions under Section 1407 of Law 430. Yet there is no evidence that the DRN sanctioned, fined, suspended or revoked Water Toy’s permit for those reasons.
 See also, Marshall, 828 F.2d at 848 (comparing Negrón v. Orozco, 113 D.P.R. 921 (1983)(finding Puerto Rico Police liable for a shooting death in a police station because intervening act, though criminal and intentional, was reasonably foreseeable) with Rivera v. Cruz, 87 J.T.S. 51(1987)(no liability since defendant had no reason to anticipate the criminal act)).
 Poulis-Minott measured liability against the so-called Pennsylvania Rule, pursuant to which if a plaintiff in admiralty establishes both that the defendant breached a statutory duty and the breach is relevant to the causal question, the defendant assumes the burden of proving that its breach could not have caused plaintiff’s damages. See, Poulis-Minott, 388 F.3d at 363 (describing Pennsylvania Rule). The Rule aims to enforce strict compliance with maritime regulations pertaining to the safe operation of ships. Id. So to invoke it, the plaintiff must show a relationship between the regulatory violation and the injury. Id. Plaintiffs never invoked the Pennsylvania Rule, but assuming they had done so, there is no evidence linking a safety-related statutory violation with the accident.
 Public policy does prohibit a party to a maritime contract to shield itself contractually from liability for gross negligence. See, Royal Ins. Co. of America v. Southwest Marine, 194 F.3d 1009, 1016 (9th Cir. 1999)(discussing issue). The prohibition does not apply here, because as pointed out in the text, the complaint only raised gross negligence allegations as to Castro.
 Congress could block the enforceability of these waivers like it did in 46 U.S.C. § 183(c), which prohibits a vessel owner from limiting its liability for its own negligence when carrying passengers between ports of the United States or from a port of the United States to a foreign port. But that provision applies only to common carriers. See, Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162, *5-*6 (4th Cir. 1998)(unpublished)(so holding). No common carrier was involved in the case sub judice.
 Still and all, “adhesion does not imply nullity of contract” in Puerto Rico. Nieves v. Intercontinental Life Ins. Co. of Puerto Rico, 964 F.2d 60, 63 (1st Cir. 1992). If the wording of the contract is explicit and its language clear, its terms and conditions are binding on the parties. Id. As will be discussed, the waivers here satisfy this requirement.
 Those risks included (1) changing water flow, tides, currents, wave action, and ship’s wakes; (2) collision with any of the following: a) other participants, b) the watercraft, c) other watercraft, d) man made or natural objects, e) shuttle boat; (3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature; (4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions; (5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning; (6) the presence of insects and marine life forms; (7) equipment failure or operator error; (8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration; (9) fatigue, chill and/or reaction time and increased risk of accident.
 Morgan had signed similar documents in order to rent jet skis before the accident. At the time of the accident, she had a Bachelor’s degree in Biology, and Kennedy had a High School diploma with one year of nursing school. SUMF at ¶ 2.
The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.
This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.
Last Updated April 24, 2018
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
A 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.
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
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.
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Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.Posted: February 26, 2018
Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.
State: Florida: United States District Court for the Southern District of Florida
Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva
Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff
Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant
Plaintiff Claims: Negligence Per Se
Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.
Holding: For the Plaintiff
If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.
Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.
The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.
The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.
The defendants relied on four defenses:
(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;
(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;
(3) Florida statutory law does not apply; and
(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.
The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.
Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.
The Florida statutes in question were:
Florida Statute § 327.39
§ 327.39. Personal watercraft regulated.
(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.
The second statute was Florida Statute § 327.54
§ 327.54. Liveries; safety regulations; penalty.
(1) A livery may not knowingly lease, hire, or rent a vessel to any person:
(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:
1. Operational characteristics of the vessel to be rented.
2. Safe vessel operation and vessel right-of-way.
3. The responsibility of the vessel operator for the safe and proper operation of the vessel.
4. Local characteristics of the waterway where the vessel will be operated.
Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.
The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.
Analysis: making sense of the law based on these facts.
Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:
…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.
Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.
The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.
Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.
There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.
These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.
Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”
The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.
However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.
For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.
The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.
For the defendant to use this defense, required a two-step test:
(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.
Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.
The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.
[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”
In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.
The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.
So Now What?
Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.
Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.
More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.
Don’t get into business without knowing the law.
More articles on Negligence Per Se
Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
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Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva, a minor, Plaintiffs, vs. Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff, vs. Jeffrey Wilkerson, Third-Party Defendant.
Case No. 06-10116-CIV-MOORE/GARBER
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2007 U.S. Dist. LEXIS 46490
June 27, 2007, Decided
June 27, 2007, Entered
SUBSEQUENT HISTORY: Judgment entered by, Motion denied by Tassinari v. Key W. Water Tours, L.C., 2007 U.S. Dist. LEXIS 80872 (S.D. Fla., Oct. 31, 2007)
PRIOR HISTORY: Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 43858 (S.D. Fla., June 18, 2007)
CORE TERMS: watercraft, maritime law’s, collision, boater, fault, summary judgment, boating, unseaworthiness, admiralty, maritime, handling, genuine, rental, vessel, safe, statutory rule, tour guide, public policy, per se, exoneration, privity, renters, ship, panicked, State Boating Law Administrators Betz Depo, liability arising, negligence per se, negligence cases, statutes enacted, standard of care
COUNSEL: [*1] For Ronald Tassinari, an individual, Sheila Silva, an individual and next best friend of Ashley Silva, Ashley Silva, a minor, Plaintiffs: Domingo Carlos Rodriguez, LEAD ATTORNEY, Rodriguez Aronson & Essington, Miami, FL; Patricia Leigh McMillan Minoux, LEAD ATTORNEY, Rodriguez, Aronson & Essington, P.A., Coral Gables, FL.
For Key West Water Tours, L.C., a Florida Corporation, Defendant: Bruce Michael Trybus, Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.
For Key West Water Tours, L.C., a Florida Corporation, ThirdParty Plaintiff: Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.
JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.
OPINION BY: K. MICHAEL MOORE
ORDER GRANTING SUMMARY JUDGMENT AS TO DEFENDANT’S LIABILITY
THIS CAUSE came before the Court upon Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) and Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46).
UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.
Plaintiffs are residents [*2] of Massachusetts. Defendant Key West Water Tours, L.C. (“Defendant” or “Water Tours”) is a Florida corporation doing business in Monroe County, Florida, as a personal watercraft (jet skis and/or waverunners) rental agency and provider of guided personal watercraft tours to the public. On or about July 9, 2004, Defendant rented personal watercraft to Plaintiffs at or near Key West, Monroe County, Florida. Defendant then took a group of personal watercraft renters, including Plaintiffs and Third-Party Defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters.
During the tour, the watercraft operated by Third-Party Defendant Jeffrey Wilkerson collided with the watercraft operated by Plaintiffs Ronald Tassinari and Ashley Silva, injuring Plaintiffs Ronald Tassinari and Ashley Silva.
Defendant argues that it is entitled to summary judgment on the following issues: (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence [*3] or unseaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement. Plaintiffs argue that they are entitled to summary judgment because Defendant violated certain Florida State statutes making Defendant negligent per se. Plaintiffs further argue that if Defendant is negligent per se, then Defendant is not entitled to have its liability limited to the value of the watercraft.
II. Standard of Review
The applicable standard for reviewing a summary judgment motion is unambiguously stated in Rule 56(c) of the Federal Rules of Civil Procedure:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). [*4] An issue of fact is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). It is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.
In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party:
may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e). “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
A. The Pennsylvania Rule and Florida Statutory Law
Plaintiffs argue that Defendant is negligent per se because Defendant violated [*5] Florida State statutes enacted to protect the safety of personal watercraft renters. Pl. Mot. at 9-14. Federal maritime law’s unique version of negligence per se is embodied in what is called the “Pennsylvania Rule.” In re Superior Constr. Co., 445 F.3d 1334, 1340 (11th Cir. 2006). “Under the Pennsylvania Rule, when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” Id. (citing The Pennsylvania, 86 U.S. 125, 136, 22 L. Ed. 148 (1873)).
Defendant argues that State law does not apply in a case brought under federal maritime law; therefore, the Pennsylvania rule does not apply to violations of Florida statutes. Def. Resp. at 6-8. However, the Seventh Circuit recognized that “[s]everal courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances.” Complaint of Wasson, 495 F.2d 571, 583 (7th Cir. 1974) [*6] (citations omitted); see also Protectus Alpha Nav. Co., Ltd. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1382-83 (9th Cir. 1985) (violation of Washington State statute would support negligence per se).
Further, State law has been applied in admiralty cases where there is no direct conflict with established federal maritime law. Wilburn Boat Co. v. Fireman’s Fund Insur. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955); 1 T. Schoenbaum, Admiralty and Maritime Law § 4-2 (4th ed.); see also Smith v. Haggerty, 169 F. Supp. 2d 376 (E.D. Pa. 2001) (applying State law regulations to negligence claims arising from a boating accident) (vacated on other grounds). The Supreme Court has recognized that “[i]n the field of maritime contracts, as in that of maritime torts, the National Government has left much regulatory power in the States.” Wilburn Boat, 348 U.S. at 313 (the Supreme Court ultimately declined to adopt a federal admiralty rule governing insurance policy provisions and decided to leave that area up to State regulation).
In the present case, Plaintiffs cite to several Florida statutes that were enacted, in part, in response to an act of Congress intended to “encourage greater State participation and [*7] uniformity in boating safety efforts, and particularly to permit the States to assume the greater share of boating safety education, assistance, and enforcement activities.” 46 U.S.C. § 13102 (2007). The Court is not persuaded that statutes enacted in response to Congress’s stated purpose of permitting the states to assume more responsibility in regulation of recreational boat safety are inapplicable merely because they were enacted by a state government.
Further, Defendant has not pointed to any established federal maritime law directly conflicting with and preempting these State statutes. In cases where a State statute conflicts with established federal maritime law or would materially frustrate a tenant of admiralty law, the State statutes should generally not be applied. Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986); Branch v. Schumann, 445 F.2d 175 (5th Cir. 1971); Miami Valley Broadcasting Corp. v. Lang, 429 So. 2d 1333 (Fla. 4th DCA 1983). Defendant overstates the holdings in Branch and Lang, arguing that State law can never be used in maritime negligence cases. Branch and Lang merely stand for the principle that State law cannot change established [*8] substantive maritime law. In Branch and Lang, the State law would have imposed a stricter burden than that established by federal maritime law; because it conflicted with federal maritime law and would have effectively changed the accepted maritime standard of care, the State law could not be applied. The Florida statutes at issue were not designed to circumvent federal maritime law or substitute a stricter standard of care in negligence cases; rather, they were designed to help regulate recreational boating safety. The Pennsylvania rule is an established principle of federal maritime law, which may be applied to violations of Florida State statutes; this application does not, in and of itself, conflict with federal maritime law.
Florida Statute § 327.39 makes it unlawful for the owner of a personal watercraft to “authorize or knowingly permit the [watercraft] to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.” Florida Statute § 327.54 requires that the instruction in the safe handling of personal watercraft with a motor of 10 horsepower or greater be delivered by a person [*9] who has “successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.” These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.
In this case, Defendant owned or had control over the personal watercraft involved in the collision. At the time of the collision, Defendant employed Chris Betz (“Betz”) as a personal watercraft tour guide and allowed Betz to provide the safety instruction to persons operating the personal watercraft on the tour, including Jeffrey Wilkerson. Def. Mot. at 4-6. Betz admitted in his deposition that he had never completed a boater’s safety course approved by the National Association of State Boating Law Administrators. Betz Depo. at 12. Co-owner Gerald Grogan admitted that Key West Water Tours does not require its tour guides to have passed a safe boating course. Grogan Depo. at 19. Therefore, Defendant violated Florida [*10] statutes designed to protect boater safety and prevent collisions, by entrusting personal watercraft to persons who were not instructed in the safe handling of the personal watercraft as the law requires. Co-owner Jeremy Ray indicated that he was not very familiar with the Florida statutes at issue. Ray Depo. at 9, 20-21. However, ignorance of the law is not a defense.
Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident. Defendant argues that “[t]he sole cause of the subject accident was the negligent operation of a personal watercraft by Third-Party Defendant Jeffrey Wilkerson.” Def. Mot. at 11. Defendant asserts that “[t]here is not a single additional instruction that would have prevented the subject accident.” Id. Betz gave safety instructions. Betz Depo. at 32-33. According to Betz, Jeffrey Wilkerson “was coming in way too fast . . . just like an old lady in a car, panicked, eyes wide open, completely wide open, staring straight at the group and a panic in his face [*11] because he’s going too fast, and never let off the throttle until he hit.” Def. Mot. at 7. Defendant further asserts that Defendant had never had an accident previously and that Jeffrey Wilkerson had operated the watercraft without problem for about two hours before the accident. It is undisputed that Jeffrey Wilkerson panicked and that the watercraft was at full throttle until impact. However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.
C. Exoneration From Liability
“An owner will be exonerated from liability when he, his vessel, and crew are found to be completely free of fault.” In re Complaint of Caribbean Sea Transport, 748 F.2d 622, 626 (11th Cir. 1984) (citing Tittle v. Aldacosta, 544 F.2d 752, 755 (5th Cir. 1977)). As discussed above, Defendant cannot be said to be completely free of fault; therefore, Defendant is not entitled to exoneration.
D. Limitation of Liability Under Limitation [*12] Act
The Eleventh Circuit has held that the determination of whether the owner of a vessel is entitled to limitation of liability requires a two-step analysis: (1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.” Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990) (citing Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)). “Privity and knowledge are deemed to exist where the owner had the means of knowledge or, as otherwise stated, where knowledge would have been obtained from reasonable inspection.” China Union Lines, Ltd. v. A.O. Andersen & Co., 364 F.2d 769, 792-93 (5th Cir. 1966). Under the Pennsylvania rule, as discussed above, Defendant’s violation of Florida statutes regarding proper instruction in safely operating the personal watercraft is presumed to have caused the collision. The owners of Key West Water Tours, L.C. knew, should have known, and could have discovered upon minimal investigation whether its tour guides, who they hired, had completed [*13] approved boater safety courses and whether the requirements of Florida law regarding proper safety and instruction were being met. Therefore, Defendant is not entitled to limitation of liability to the value of the watercraft.
E. Waiver and Hold Harmless Provisions of the Rental Agreement
“[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.” Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 631 (S.D.W. Va 2004) (citations omitted); Restatement (Second) of Contracts § 195 comment a (1981) (“If, for example, a statute imposes a standard of conduct, a court may decide on the basis of an analysis of the statute, that a term exempting a party from liability for failure to conform to that standard is unenforceable.”). In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on [*14] owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) is DENIED. It is further
ORDERED AND ADJUDGED that Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46) is GRANTED. The pretrial conference to discuss remaining issues will be held as scheduled, on June 28, 2007.
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of June, 2007.
K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE
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
11th 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?
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
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.
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.
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.”
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:
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.
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:
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.
Copyright 2017 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
By Recreation Law Recfirstname.lastname@example.org James H. Moss
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Teresa Brigance, Plaintiff – Appellant, v. Vail Summit Resorts, Inc., Defendant – Appellee.
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
2018 U.S. App. LEXIS 397
January 8, 2018, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:15-CV-01394-WJM-NYW).
Brigance v. Vail Summit Resorts, Inc., 2017 U.S. Dist. LEXIS 5447 (D. Colo., Jan. 13, 2017)
OVERVIEW: HOLDINGS: -In an action brought by an injured skier, an examination of each of the Jones v. Dressel factors for determining the enforceability of an exculpatory agreement led to the conclusion that none of them precluded enforcement of a Ski School Waiver or Lift Ticket Waiver. The factors included the existence of a duty to the public, the nature of the service performed, whether the contract was fairly entered into, and whether the intention of the parties was expressed in clear and unambiguous language; -The district court properly determined that the provisions of the Colorado Ski Safety Act of 1979 and the Passenger Tramway Safety Act had no effect on the enforceability of defendant ski resort’s waivers. Colorado law had long permitted parties to contract away negligence claims in the recreational context; -The skier’s claims were barred by the waivers.
OUTCOME: The court affirmed the district court’s grant of summary judgment in favor of the ski resort and the partial grant of the resort’s motion to dismiss.
CORE TERMS: ski, exculpatory, skiing, lift ticket, recreational, lesson, lift, ski area, practical necessity, recreational activities, public policies, bargaining, skier, inherent dangers, unenforceable, service provided, essential service, inherent risks, discovery, holder, signer, summary judgment, riding, equine, common law, ski lifts, negligence per se, quotation marks omitted, practically, harmless
COUNSEL: Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff – Appellant.
Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant – Appellee.
JUDGES: Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
OPINION BY: McHUGH
McHUGH, Circuit Judge.
During a ski lesson at Keystone Mountain Resort (“Keystone”), Doctor Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance filed suit against Vail Summit Resorts, Inc. (“VSRI”), raising claims of (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted VSRI’s motion for summary judgment on the remaining claims, concluding the waiver Dr. Brigance signed before participating [*2] in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
A. Factual Background
Keystone is a ski resort located in Colorado that is operated by VSRI. In March 2015, Dr. Brigance visited Keystone with her family and participated in a ski lesson. At the time, ski lesson participants, including Dr. Brigance, were required to sign a liability waiver (the “Ski School Waiver”) before beginning their lessons. The Ski School Waiver signed1 by Dr. Brigance contained, among other things, the following provisions:
RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT
THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.
. . .
2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a “skier” (as may be defined by statute or other applicable law).
3. I expressly acknowledge and assume all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers [*3] and risks of the Activity, including but not limited to: Falling; free skiing; following the direction of an instructor or guide; . . . equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . the negligence of Participant, Ski Area employees, an instructor . . . or others; . . . lift loading, unloading, and riding; . . . . I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.
4. Participant assumes the responsibility . . . for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts. . . .
. . .
6. Additionally, in consideration for allowing the Participant to participate in the Activity, I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION [*4] IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL NEGLIGENCE . . . .
Aplt. App’x at 117 (emphasis in original).
1 Although VSRI did not produce an original or copy of the Ski School Waiver signed by Dr. Brigance, it provided evidence that all adults participating in ski lessons at Keystone are required to sign a waiver and that the Ski School Waiver was the only waiver form used by VSRI for adult ski lessons during the 2014-15 ski season. Before it was clear that VSRI could not locate its copy of the signed waiver, Dr. Brigance indicated in discovery responses and deposition testimony that she signed a waiver before beginning ski lessons. See Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4 (D. Colo. Jan. 13, 2017). Based on this evidence and Dr. Brigance’s failure to argue “that a genuine question remains for trial as to whether she did in fact sign the Ski School Waiver in the form produced or whether she agreed to its terms,” 2017 U.S. Dist. LEXIS 5447, [WL] at *4, the district court treated her assent to the Ski School Waiver as conceded and concluded that “there is no genuine dispute as to whether [Dr. Brigance] consented to the terms of the Ski School Waiver,” id.
On appeal, Dr. Brigance offers no argument and points to no evidence suggesting that the district court’s conclusion was erroneous in light of the evidence and arguments before it. Instead, she merely denies having signed the Ski School Waiver and reiterates that VSRI has yet to produce a signed copy of the waiver. But in response to questioning at oral argument, counsel for Dr. Brigance conceded that this court could proceed with the understanding that Dr. Brigance signed the Ski School Waiver. Oral Argument at 0:41-1:23, Brigance v. Vail Summit Resorts, Inc., No. 17-1035 (10th Cir. Nov. 13, 2017). Three days later, counsel for Dr. Brigance filed a notice with the court effectively revoking that concession.
Dr. Brigance’s assertion that she did not execute the Ski School Waiver is forfeited because she failed to adequately raise it as an issue below. Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016); see also Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4 (“[N]otwithstanding the absence of a signed copy of the [Ski School Waiver], [Dr. Brigance] does not argue that this issue presents a genuine dispute requiring trial.”). But even if we were to entertain the argument, it would fail to defeat summary judgment. Despite her obfuscation, VSRI’s inability to produce the signed Ski School Waiver and Dr. Brigance’s assertions that she did not sign the waiver–which contradict her discovery responses and deposition testimony–are insufficient to establish that the district court erred in concluding that no genuine dispute exists as to whether Dr. Brigance agreed to the terms of the waiver. [HN1] “Although the burden of showing the absence of a genuine issue of material fact” rests with the movant at summary judgment, “the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006) (internal quotation marks omitted). Indeed, the
party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)–(B). Dr. Brigance made no such showing below, nor does she attempt to do so on appeal.
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
HOLDER AGREES AND UNDERSTANDS THAT SKIING . . . AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.
Under state law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the [*5] ski area operator for any injury resulting from any of the inherent dangers and risks of skiing. Other risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder is responsible for having the physical dexterity to safely load, ride and unload the lifts and must control speed and course at all times. . . . Holder agrees to ASSUME ALL RISKS, inherent or otherwise. Holder agrees to hold the ski area harmless for claims to person or property. . . .
. . .
NO REFUNDS. NOT TRANSFERABLE. NO RESALE.
Id. at 121 (emphasis in original).
After receiving some instruction during her ski lesson on how to load and unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed Dr. Brigance forward, fracturing her femur.
B. Procedural Background
Dr. Brigance filed suit against VSRI in the United States District Court for the District of Colorado as a result of the injuries she sustained while attempting to unload [*6] from the Discovery Lift.2
In her amended complaint Dr. Brigance alleged that the short distance between the ground and the Discovery Lift at the unloading point–coupled with the inadequate instruction provided by her ski instructor, the chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and supervision of employees–caused her injuries. She consequently asserted the following six claims against VSRI: (1) negligence; (2) negligence per se; (3) negligent supervision and training; (4) negligence (respondeat superior); (5) negligent hiring; and (6) liability under the PLA.
2 The district court properly invoked diversity jurisdiction because Dr. Brigance is a citizen of Florida and VSRI is a Colorado corporation with its principal place of business in Colorado, and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1332(a), (c)(1)(B)–(C).
VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of her respondeat superior and PLA claims. The district court granted in part and denied in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance I“), No. 15-cv-1394-WJM-NYM, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *1-5 (D. Colo. Mar. 11, 2016). It dismissed Dr. Brigance’s negligence claim as preempted by the PLA. 2016 U.S. Dist. LEXIS 31662, [WL] at *3-4. It also dismissed her negligence per se claim, concluding that she “fail[ed] to identify any requirement” of the Colorado Ski Safety Act of 1979 (the “SSA”), Colo. Rev. Stat. §§ 33-44-101 to -114, that VSRI had allegedly violated. Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2. In dismissing this claim, the district court also held that the [*7] provisions of the Passenger Tramway Safety Act (the “PTSA”), Colo. Rev. Stat. §§ 25-5-701 to -721, relied upon by Dr. Brigance “do[ ] not provide a statutory standard of care which is adequate to support [a] claim for negligence per se.” Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr. Brigance’s claims regarding negligent supervision and training and negligent hiring. 2016 U.S. Dist. LEXIS 31662, [WL] at *4-5.
Upon completion of discovery, VSRI moved for summary judgment on the basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr. Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA claim and (2) her common-law negligence claims are preempted by the PLA and otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in part that the waivers are unenforceable under the SSA and the four-factor test established by the Colorado Supreme Court in Jones v. Dressel, 623 P.2d 370 (Colo. 1981). Dr. Brigance also asserted that her common-law negligence claims are not preempted by the PLA and that she presented sufficient evidence to allow her claims to be heard by a jury.
The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *10 (D. Colo. Jan. 13, 2017) [*8] . It determined that the Ski School Waiver and Lift Ticket Waiver are enforceable under the factors established by the Colorado Supreme Court in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *5-9. It then determined that all of Dr. Brigance’s remaining claims fall within the broad scope of the waivers and are therefore barred. 2017 U.S. Dist. LEXIS 5447, [WL] at *10. This appeal followed.
Dr. Brigance challenges the district court’s enforcement of both the Ski School Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and negligence per se claims. [HN2] “[B]ecause the district court’s jurisdiction was based on diversity of citizenship, [Colorado] substantive law governs” our analysis of the underlying claims and enforceability of the waivers. Sylvia v. Wisler, 875 F.3d 1307, 2017 WL 5622916, at *3 (10th Cir. 2017) (internal quotation marks omitted). We “must therefore ascertain and apply [Colorado] law with the objective that the result obtained in the federal court should be the result that would be reached in [a Colorado] court.” Id. (internal quotation marks omitted). In doing so, “we must defer to the most recent decisions of the state’s highest court,” although “stare [*9] decisis requires that we be bound by our own interpretations of state law unless an intervening decision of the state’s highest court has resolved the issue.” Id. (internal quotation marks omitted).
Although the substantive law of Colorado governs our analysis of the waivers and underlying claims, [HN3] federal law controls the appropriateness of a district court’s grant of summary judgment and dismissal of claims under Federal Rule of Civil Procedure 12(b)(6). See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). We therefore review the district court’s grant of summary judgment and dismissal of claims pursuant to Rule 12(b)(6) de novo, applying the same standards as the district court. Id.; see also Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *4, 16. “However, we may affirm [the] district court’s decision[s] on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Stickley, 505 F.3d at 1076 (internal quotation marks omitted).
“Summary judgment should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *16 (internal quotation marks omitted). Because it is undisputed that all of Dr. Brigance’s claims–including those dismissed pursuant [*10] to Rule 12(b)(6)–fall within the broad scope of either waiver if they are deemed enforceable under Colorado law, the first, and ultimately only, question we must address is whether the Ski School Waiver and Lift Ticket Waiver are enforceable.
[HN4] Under Colorado law, “exculpatory agreements have long been disfavored,” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). See also Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016) (“Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct.”). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza, 809 F.3d at 1152; accord Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Neither does it always preclude exculpatory agreements as to claims of negligence per se. Espinoza, 809 F.3d at 1154-55.
Accordingly, [HN5] the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the [*11] contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” J/ones, 623 P.2d at 376. It appears that if an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable. Although consideration of these factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that “other public policy considerations” not necessarily encompassed in the Jones factors may invalidate exculpatory agreements. See Boles, 223 P.3d at 726 (“[M]ore recently, we have identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.”); see, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-37 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107.
The district court examined each of the Jones factors and concluded that none of them preclude enforcement of the Ski School Waiver or Lift Ticket Waiver. Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *5-8. It also determined that the provisions of the SSA and PTSA “have no effect on the enforceability” of the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *9. We agree.
A. The Jones Factors
1. Existence of a Duty to the Public
[HN6] The first Jones factor requires us to examine whether there is an “existence of a duty to the public,” Jones, 623 P.2d at 376, or, described another way, “whether [*12] the service provided involves a duty to the public,” Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002). The Colorado Supreme Court has not specified the precise circumstances under which an exculpatory agreement will be barred under this factor, but it has explained that unenforceable exculpatory agreements
generally involve businesses suitable for public regulation; that are engaged in performing a public service of great importance, or even of practical necessity; that offer a service that is generally available to any members of the public who seek it; and that possess a decisive advantage of bargaining strength, enabling them to confront the public with a standardized adhesion contract of exculpation.
Chadwick, 100 P.3d at 467. The Colorado Supreme Court has expressly “distinguished businesses engaged in recreational activities” from the foregoing class of businesses because recreational activities “are not practically necessary” and therefore “the provider[s of such activities] owe[ ] no special duty to the public.” Id.; see also Espinoza, 809 F.3d at 1153 (“Though some businesses perform essential public services and owe special duties to the public, the [Colorado Supreme] [C]ourt has held that ‘businesses engaged in recreational activities’ generally do not.” (quoting Chadwick, 100 P.3d at 467)).
And, indeed, [*13] Colorado courts examining exculpatory agreements involving recreational activities under Colorado law have almost uniformly concluded that the first Jones factor does not invalidate or render unenforceable the relevant agreement. See, e.g., Chadwick, 100 P.3d at 467-69; Jones, 623 P.2d at 376-78; Stone v. Life Time Fitness, Inc., No. 15CA0598, 2016 COA 189M, 2016 WL 7473806, at *3 (Colo. App. Dec. 29, 2016) (unpublished) (“The supreme court has specified that no public duty is implicated if a business provides recreational services.”), cert. denied, No. 17SC82, 2017 Colo. LEXIS 572, 2017 WL 2772252 (Colo. Jun. 26, 2017); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011) (“Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.”); see also Espinoza, 809 F.3d at 1153-56; Mincin, 308 F.3d at 1110-11; Patterson v. Powdermonarch, L.L.C., No. 16-cv-00411-WYD-NYW, 2017 U.S. Dist. LEXIS 151229, 2017 WL 4158487, at *5 (D. Colo. July 5, 2017) (“Businesses engaged in recreational activities like [defendant’s ski services] have been held not to owe special duties to the public or to perform essential public services.”); Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (“Providing snowmobile tours to the public does not fall within” the first Jones factor.); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (holding white-water rafting is recreational in nature and is therefore “neither a matter of great public importance nor a matter of practical necessity” (internal quotation marks omitted)), aff’d sub nom., Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997).
The relevant services provided by VSRI–skiing and ski lessons–are [*14] clearly recreational in nature. Like horseback riding and skydiving services, see Chadwick, 100 P.3d at 467; Jones, 623 P.2d at 377, skiing and ski lessons are not of great public importance or “matter[s] of practical necessity for even some members of the public,” Jones, 623 P.2d at 377. They therefore do not implicate the type of duty to the public contemplated in the first Jones factor. Although it appears the Colorado Supreme Court and Colorado Court of Appeals have yet to address the first Jones factor within the context of skiing or ski lesson services, the few courts that have considered similar issues have reached the unsurprising conclusion that ski-related services are recreational activities and do not involve a duty to the public. See, e.g., Rumpf v. Sunlight, Inc., No. 14-cv-03328-WYD-KLM, 2016 U.S. Dist. LEXIS 107946, 2016 WL 4275386, at *3 (D. Colo. Aug. 3, 2016); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992).
Dr. Brigance fails to address the principle “that businesses engaged in recreational activities that are not practically necessary . . . do not perform services implicating a public duty.” Hamill, 262 P.3d at 949. Instead, she contends VSRI owes a duty to the public because the ski and ski lesson services provided by VSRI implicate a number of additional factors the California Supreme Court relied upon in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963), to determine whether an exculpatory agreement should be deemed invalid as affecting [*15] public interest.3 Specifically, Dr. Brigance contends VSRI owes a duty to the public because the Colorado ski industry is subject to express regulation under the SSA and PTSA, VSRI is willing to perform its services for any member of the public who seeks them, VSRI maintains an advantage in bargaining strength, and skiers are placed under the complete control of VSRI when riding their lifts.
3 Dr. Brigance separately argues that the waivers are invalid under the provisions and public policies contained within the SSA, PTSA, and PLA. Although she incorporates these arguments in her analysis of the first Jones factor, we address them separately in Section II.B, infra.
The Colorado Supreme Court has cited Tunkl and noted its relevance in determining whether a business owes a duty to the public. Jones, 623 P.2d at 376-77. But when analyzing the first Jones factor, particularly within the context of recreational services, courts applying Colorado law focus on and give greatest weight to whether the party seeking to enforce an exculpatory agreement is engaged in providing services that are of great public importance or practical necessity for at least some members of the public. See, e.g., Espinoza, 809 F.3d at 1153-54; Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 896-97 (D. Colo. 1998); Potter, 849 F. Supp. at 1409; Jones, 623 P.2d at 376-77; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. And the additional factors listed by Dr. Brigance are insufficient to establish that the recreational services offered by VSRI are of great public importance or practically necessary. An activity does not satisfy the first Jones factor simply because it is subject to state regulation. [*16] As we have explained, the first Jones factor does not
ask whether the activity in question is the subject of some sort of state regulation. Instead, [it] ask[s] whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational one. [Jones,] 623 P.2d at 376-77. And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one. After all, state law imposes various rules and regulations on service providers in most every field these days–including on service providers who operate in a variety of clearly recreational fields.
Espinoza, 809 F.3d at 1154; see also Chadwick, 100 P.3d at 467-68. Furthermore, Dr. Brigance’s argument regarding VSRI’s bargaining strength is more properly addressed under the third Jones factor, and her remaining arguments concerning VSRI’s willingness to provide services to the public and its control over skiers are not sufficiently compelling to sway us from departing from the principle “that [HN7] no public duty is implicated if a business provides recreational services.” [*17] Stone, 2016 COA 189M, 2016 WL 7473806, at *3.
The district court therefore did not err in concluding that the first Jones factor does not render the Ski School Waiver and the Lift Ticket Waiver unenforceable.
2. Nature of the Service Performed
[HN8] Under the second Jones factor, we examine “the nature of the service performed.” Jones, 623 P.2d at 376. Analysis of this factor is linked to and in many respects overlaps the analysis conducted under the first Jones factor, as it calls for an examination of whether the service provided is an “essential service” or a “matter of practical necessity.” See Espinoza, 809 F.3d at 1153; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. As is evident from our discussion of the first Jones factor, Colorado “courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3; see also Chadwick, 100 P.3d at 467 (noting “recreational activities . . . are not practically necessary”); Jones, 623 P.2d at 377-78 (holding the skydiving service provided by defendants “was not an essential service”); Hamill, 262 P.3d at 949 (acknowledging recreational camping and horseback riding services are not essential or matters of practical necessity). And as previously established, the ski and ski lesson services offered by VSRI are recreational in nature and therefore, like other recreational activities examined by this and other [*18] courts, cannot be deemed essential or of practical necessity. See, e.g., Mincin, 308 F.3d at 1111 (“[M]ountain biking is not an essential activity.”); Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational service, not an essential service”); Rowan, 31 F. Supp. 2d at 897 (“[S]kiing is not an essential service.”); Potter, 849 F. Supp. at 1410 (disagreeing with plaintiff’s argument that “ski racing for handicapped skiers rises to the level of an essential service [as] contemplated by Colorado law”); Bauer, 788 F. Supp. at 474 (noting “free skiing[, equipment rentals, and ski lessons] for travel agents do[ ] not rise to the level of essential service[s] contemplated by Colorado law.”).
Dr. Brigance raises no argument specific to this factor other than asserting that “the ski industry is a significant revenue generator for the State of Colorado” and the services provided by VSRI are “public [in] nature.” Aplt. Br. 47. Dr. Brigance cites no authority suggesting that either factor would render the recreational services provided by VSRI essential in nature. And given Colorado courts’ assertion that “recreational services [are] neither essential nor . . . matter[s] of practical necessity,” Stone, 2016 COA 189M, 2016 WL 7473806, at *3, we conclude the district court did not err in determining that the second Jones factor also does not dictate that the waivers be [*19] deemed unenforceable.
3. Whether the Waivers Were Fairly Entered Into
[HN9] The third Jones factor requires us to examine “whether the contract was fairly entered into.” Jones, 623 P.2d at 376. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 262 P.3d at 949 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989)). When engaging in this analysis, we examine the nature of the service involved, Espinoza, 809 F.3d at 1156, the circumstances surrounding the formation of the contract, id., and whether the services provided are available from a source other than the party with which the plaintiff contracted,
see Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 950.
The Colorado Court of Appeals has identified “[p]ossible examples of unfair disparity in bargaining power [as] includ[ing] agreements between employers and employees and between common carriers or public utilities and members of the public.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. It has also expressly acknowledged an unfair disparity in bargaining power in residential landlord-tenant relationships, presumably based in part on its holding “that housing rental is a matter of practical necessity to the public.” Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996). But the Colorado Court of Appeals has also held that “this type of unfair disparity [*20] is generally not implicated when a person contracts with a business providing recreational services.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. This is because recreational activities are not essential services or practically necessary, and therefore a person is not “at the mercy” of a business’s negligence when entering an exculpatory agreement involving recreational activities. Hamill, 262 P.3d at 949-50. As we have previously explained, “Colorado courts have repeatedly emphasized that . . . because recreational businesses do not provide ‘essential’ services of ‘practical necessity[,]’ individuals are generally free to walk away if they do not wish to assume the risks described” in an exculpatory agreement. Espinoza, 809 F.3d at 1157; see also Mincin, 308 F.3d at 1111 (noting that a disparity of bargaining power may be created by the “practical necessity” of a service, but that no such necessity existed because “mountain biking is not an essential activity” and therefore the plaintiff “did not enter into the contract from an inferior bargaining position”).
We reiterate, at the risk of redundancy, that the ski and ski lesson services offered by VSRI are recreational in nature and do not constitute essential services or matters of practical necessity. As a result, Dr. Brigance did not enter the Ski [*21] School Waiver or Lift Ticket Waiver from an unfair bargaining position because she was free to walk away if she did not wish to assume the risks or waive the right to bring certain claims as described in the waivers. This conclusion is supported by a number of cases involving similar recreational activities, including those we have previously addressed under the first two Jones factors. See, Jones, 623 P.2d at 377-78 (holding an exculpatory release related to skydiving services was not an unenforceable adhesion contract “because the service provided . . . was not an essential service” and therefore the defendant “did not possess a decisive advantage of bargaining strength over” the plaintiff); see also Squires, 829 F. Supp. 2d at 1071 (“Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage.”); Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (“[T]he recreational services offered by [defendant] were not essential and, therefore, [it] did not enjoy an unfair bargaining advantage.”); Bauer, 788 F. Supp. at 475 (“Here, defendants’ recreational services were not essential and, therefore, they did not enjoy an unfair bargaining advantage.”).
Moreover, the circumstances surrounding Dr. Brigance’s entry into the exculpatory agreements indicate she [*22] did so fairly. Dr. Brigance does not identify any evidence in the record calling into question her competency, ability to comprehend the terms of the agreements, or actual understanding of the agreements. Nor does she point to anything in the record reflecting an intent or attempt by VSRI to fraudulently induce her to enter the agreements or to conceal or misconstrue their contents. In addition, there is nothing in the record to suggest Dr. Brigance’s agreement to the terms of the Ski School Waiver was not voluntary. See Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4.
Notwithstanding the well-established law that exculpatory agreements involving businesses providing recreational services do not implicate the third Jones factor, Dr. Brigance argues her assent to the terms of the Lift Ticket Waiver was obtained unfairly and that VSRI had an advantage in bargaining strength. This is so, she contends, because she “did not have a chance to review the exculpatory language contained on the back of the non-refundable [lift] ticket before she purchased it” and that “[o]nce the ticket was purchased, she was forced to accept the exculpatory language or lose the money she invested.” Aplt. Br. 47. Dr. Brigance’s argument fails to account for her [*23] voluntary acceptance of the Ski School Waiver. And although Dr. Brigance asserts she “did not have a chance to review” the Lift Ticket Waiver before purchasing it, she does not identify any evidence that VSRI prevented her from reviewing the Lift Ticket Waiver before she used it to ride the Discovery Lift, and “Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these.” Espinoza, 809 F.3d at 1157. Most importantly, Dr. Brigance did not raise this argument below and does not provide a compelling reason for us to address it on appeal.4
See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”).
4 In fact, the district court noted that Dr. Brigance “neither disputes the relevant facts nor counters VSRI’s argument that she accepted the contractual terms of the Lift Ticket Waiver by skiing and riding the lifts.” Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4. As a result, the district court concluded Dr. Brigance had agreed to the terms of the Lift Ticket Waiver and would be bound to its terms to the extent it was otherwise enforceable. Id.
For these reasons, the district court did not err in concluding that the third Jones factor does not render the Ski School Waiver or the Lift Ticket Waiver unenforceable.
4. Whether the Parties’ Intent Was Expressed Clearly and Unambiguously
[HN10] The fourth and final Jones factor is “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. The inquiry conducted under this factor “should be whether the intent of the parties was to extinguish liability and [*24] whether this intent was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785. The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, we [may] examine[ ] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.”
Chadwick, 100 P.3d at 467. We may also take into account a party’s subsequent acknowledgement that it understood the provisions of the agreement. Id.
In addition, it is well-established that the term “negligence” is not invariably required for an exculpatory agreement to be deemed an unambiguous waiver or release of claims arising from negligent conduct. Id.
The Ski School Waiver contains approximately a page and a half of terms and conditions in small, but not unreadable, font.5 It prominently identifies itself as, among other things, a “RELEASE OF LIABILITY . . . AGREEMENT”–a fact that is reiterated in the subtitle of the agreement by inclusion of the statement “THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.” Aplt. App’x 117. The provisions of the waiver include the signer’s express acknowledgment [*25] and assumption of “ALL INHERENT DANGERS AND RISKS of the Activity, including those of a ‘skier’ (as may be identified by statute or other applicable law),” as well as “all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a lengthy list of specific events and circumstances that includes “lift loading, unloading, and riding.” Id. In addition to this assumption-of-the-risk language, the Ski School Waiver provides that the signer
AGREE[S] TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY.
5 Although Dr. Brigance denies that she signed the Ski School Waiver, see supra note 1, she has not made any arguments regarding the readability or font size of the terms and conditions.
The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing [*26] some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.” Id. at 121.
Neither waiver is unduly long nor complicated, unreadable, or overburdened with legal jargon. Most importantly, the intent of the waivers is clear and unambiguous. In addition to the language indicating Dr. Brigance’s assumption of all risks of skiing, inherent or otherwise, both waivers contain clear language stating that Dr. Brigance agreed to hold VSRI harmless for injuries to her person as a result of skiing at Keystone. Moreover, the Ski School Waiver clearly and unambiguously provides that Dr. Brigance agreed to “RELEASE, INDEMNIFY, AND NOT TO SUE” VSRI for personal injuries arising in whole or in part from her participation in ski lessons, including claims based on VSRI’s “ALLEGED OR ACTUAL NEGLIGENCE.” Id. at 117. Dr. Brigance does not argue that any of the language regarding her agreement to hold harmless, indemnify, release, or not to sue VSRI is ambiguous or confusing. [*27] And like this and other courts’ examination of similarly worded provisions, we conclude the relevant release language of the Ski School Waiver and Lift Ticket Waiver cannot be reasonably understood as expressing anything other than an intent to release or bar suit against VSRI from claims arising, in whole or in part, as a result of Dr. Brigance’s decision to ski and participate in ski lessons at Keystone, including claims based on VSRI’s negligence. See Espinoza, 809 F.3d at 1157-58; Mincin, 308 F.3d at 1112-13; Chadwick, 100 P.3d at 468-69; B & B Livery, 960 P.2d at 137-38; Hamill, 262 P.3d at 950-51.
Dr. Brigance’s argument on appeal regarding the fourth Jones factor centers on the assumption-of-the-risk language contained in both waivers. Specifically, Dr. Brigance contends the intent of the waivers is ambiguous because the provisions providing that she assumes all risks of skiing, “inherent or otherwise,” conflict with the SSA because the statute’s provisions only bar a skier from recovering against a ski area operator “for injury resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112; see also id. at 33-44-103(3.5). Because of this alleged conflict, Dr. Brigance asserts that she could not know whether she was “releasing [VSRI] of all liability as indicated by the [waivers], or only for the inherent risks of skiing as [*28] mandated by the SSA.” Aplt. Br. 50-51.
Dr. Brigance’s argument is unavailing for a number of reasons. First, it only addresses the assumption-of-the-risk language contained in each waiver. But the more pertinent provisions of the waivers are those regarding Dr. Brigance’s agreement to hold harmless, release, indemnify, and not to sue VSRI. These provisions appear independent from the assumption-of-the-risk language and therefore their plain meaning is unaffected by any potential ambiguity in the “inherent or otherwise” clauses. Dr. Brigance does not contest the clarity of the release provisions and, as previously described, we believe those provisions unambiguously reflect the parties’ intent to release VSRI from claims arising from Dr. Brigance’s participation in ski lessons at Keystone.
Second, the Lift Ticket Waiver’s “assumes all risks, inherent or otherwise” phrase, as well as a similar phrase contained in the Ski School Waiver, are not ambiguous. Rather, their meanings are clear–the signer of the agreement or holder of the ticket is to assume all risks of skiing, whether inherent to skiing or not. The term “otherwise,” when “paired with an adjective or adverb to indicate its contrary”–as [*29] is done in both waivers–is best understood to mean “NOT.” Webster’s Third New Int’l Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. Dr. Brigance offers no alternative reading of the phrases and does not specify how “inherent or otherwise” could be understood as only referring to the inherent risks identified in the SSA. And while the Ski School Waiver contains a provision in which the signer agrees to assume all inherent dangers and risks of skiing as may be defined by statute or other applicable law, the next provision of the agreement clearly expands that assumption of risk, stating that the signer “expressly acknowledge[s] and assume[s] all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a rather extensive list of circumstances or events that may occur while skiing, including “lift loading, unloading, and riding.” Aplt. App’x at 117. That same provision continues, indicating that the signer understands the description of risks in the agreement is “NOT COMPLETE,” but that the signer nevertheless [*30] voluntarily chooses to “EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.” Id. Reading the “inherent or otherwise” phrase in context clearly indicates that, at a minimum, the Ski School Waiver includes an assumption of risk above and beyond the inherent risks and dangers of skiing as defined in the SSA. See Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (“In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.”); Moland v. Indus. Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004) (“The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.”).
Third, the Colorado Supreme Court rejected a similar argument in B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998). There, the Colorado Supreme Court examined an exculpatory agreement that included a statutorily mandated warning that equine professionals are not liable to others for the inherent risks associated with participating in equine activities, “as well as a broader clause limiting liability from non-inherent risks.” Id. at 137-38. It concluded that “the [*31] insertion of a broader clause further limiting liability does not make the agreement ambiguous per se” and instead “merely evinces an intent to extinguish liability above and beyond that provided” in the statute. Id. at 137; see also Hamill, 262 P.3d at 951 (upholding enforcement of an exculpatory agreement that purported to cover “inherent and other risks,” as well as claims against “any legal liability,” and noting that “[t]o hold . . . that the release did not provide greater protection than the release from liability of inherent risks provided by the equine act . . . would render large portions of the agreement meaningless”). Furthermore, the waivers do not conflict with the SSA merely because they purport to cover a broader range of risks than those identified by the statute as inherent to skiing. See Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (unpublished) (“If one could never release liability to a greater degree than a release provided in a statute, then one would never need to draft a release, in any context.”); Chadwick, 100 P.3d at 468 (“[T]his court has made clear that parties may, consistent with the [equine] statute, contract separately to release sponsors even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.”).
Finally, the single [*32] case relied upon by Dr. Brigance that applies Colorado law is distinguishable. In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), the district court determined an exculpatory agreement was ambiguous and therefore unenforceable in part because it first recited “the risks being assumed in the broadest possible language,” expressly including risks associated with the use of ski lifts, and then later addressed the assumption of risk in terms of the inherent risks and dangers of skiing as defined in the SSA, which indicates the use of ski lifts does not fall within its definition of inherent risks. The release therefore conflicted with itself and the relevant statutory language.
See Cunningham v. Jackson Hole Mountain Resort Corp., 673 F. App’x 841, 847 (10th Cir. Dec. 20, 2016) (unpublished). But unlike the waiver at issue in Rowan, the Ski School Waiver and Lift Ticket Waiver do not define the inherent risks of skiing in a manner contrary to the SSA. Nor do they contain conflicting provisions. The non-exhaustive list of inherent risks identified in the Lift Ticket Waiver appears to be drawn directly from the SSA, while the Ski School Waiver indicates inherent risks include those “as may be defined by statute or other applicable law.” Aplt. App’x at 117, 121. In addition, after referencing the inherent risks of skiing and providing that the signer [*33] of the agreement assumes those risks, the Ski School Waiver goes on to identify other, non-inherent risks associated with skiing and ski lessons and expressly provides that the signer assumes those risks. Specifically, the waiver makes clear that the risks assumed by Dr. Brigance include “all additional risks and dangers . . . above and beyond the inherent dangers and risks” of skiing and ski lessons, whether described in the waiver or not, known or unknown, or inherent or otherwise. Id. at 117. Unlike the provisions at issue in Rowan that provided conflicting statements regarding the risks assumed, the waivers here unambiguously provide that Dr. Brigance agreed to not only assume risks and dangers inherent to skiing, but also those risks and dangers not inherent to skiing.
Accordingly, the district court did not err in concluding that the fourth Jones factor does not invalidate the waivers.
Based on the foregoing analysis, we agree with the district court that application of the Jones factors to the Ski School Waiver and Lift Ticket Waiver do not render them unenforceable.
B. The SSA and PTSA
Although analysis of the Jones factors is often sufficient to determine the validity of an exculpatory [*34] agreement, the Colorado Supreme Court has “identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.” Boles, 223 P.3d at 726. At various points on appeal, either as standalone arguments or embedded within her analysis of the Jones factors, Dr. Brigance contends the Ski School Waiver and the Lift Ticket Waiver are unenforceable as contrary to Colorado public policy because they conflict with the SSA, PTSA, and the public policies announced therein.6 The district court considered these arguments and determined that the statutes do not affect the enforceability of either waiver as to Dr. Brigance’s claims. We find no reason to disagree.
6 Dr. Brigance also argues that the PLA prohibits use of exculpatory agreements as a defense to claims raised under its provisions and that the Ski School Waiver and Lift Ticket Waiver conflict with the public policies set forth in its provisions. But Dr. Brigance forfeited these arguments by failing to raise them in the district court. Avenue Capital Mgmt. II, 843 F.3d at 884. Although we may consider forfeited arguments under a plain-error standard, we decline to do so when, as here, the appellant fails to argue plain error on appeal. Id. at 885; see also Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). We decline to address Dr. Brigance’s argument that the waivers are unenforceable because their language is broad enough to encompass willful and wanton behavior for the same reason.
In 1965, the Colorado General Assembly enacted the PTSA with the purpose of assisting “in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.” Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 73 (Colo. 1998). [HN11] The PTSA provides that “it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways” and to assure that reasonable design and construction, periodic inspections, and adequate devices and personnel are provided with respect to passenger [*35] tramways. Colo. Rev. Stat. § 25-5-701. The General Assembly empowered the board “with rulemaking and enforcement authority to carry out its functions,” including the authority to “conduct investigations and inspections” and “discipline ski area operators.” Bayer, 960 P.2d at 73-74; see also Colo. Rev. Stat. §§ 25-5-703 to -704, -706 to -707. With its authority, the board adopted the standards, with some alterations, utilized by the American National Standards Institute for passenger tramways. Bayer, 960 P.2d at 73-74.
The General Assembly enacted the SSA fourteen years later. The SSA “supplements the [PTSA]’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes.” Id. at 74. [HN12] The provisions of the SSA indicate that “it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them” and that the SSA’s purpose is to supplement a portion of the PTSA by “further defin[ing] the legal responsibilities of ski area operators . . . and . . . the rights and liabilities existing between the skier and the ski area operator.” Colo. Rev. Stat. § 33-44-102. [HN13] In addition to the SSA’s provisions defining various responsibilities and duties of skiers and ski area operators, [*36] the 1990 amendments to the SSA limited the liability of ski area operators by providing that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” Id. at 33-44-112. The SSA also provides that any violation of its provisions applicable to skiers constitutes negligence on the part of the skier, while “[a] violation by a ski area operator of any requirement of [the SSA] or any rule or regulation promulgated by the passenger tramway safety board . . . shall . . . constitute negligence on the part of such operator.” Id. at 33-44-104. “The effect of these statutory provisions is to make violations of the [SSA] and [the rules and regulations promulgated by passenger tramway safety board] negligence per se.” Bayer, 960 P.2d at 74. [HN14] Ultimately, the SSA and PTSA together “provide a comprehensive . . . framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.” Id. at 75.
Dr. Brigance contends the waivers conflict with the public policy objectives of the SSA and PTSA because enforcing [*37] either waiver would allow VSRI to disregard its statutorily defined responsibilities and duties. We find Dr. Brigance’s argument unpersuasive.
At the outset, it is worth reiterating that [HN15] under Colorado law exculpatory agreements are not invalid as contrary to public policy simply because they involve an activity subject to state regulation. Espinoza, 308 F.3d at 1154; see also id. at 1155 (acknowledging the Colorado Supreme Court has allowed enforcement of exculpatory agreements with respect to equine activities despite the existence of a statute limiting liability for equine professionals in certain circumstances, while still allowing for liability in other circumstances); Mincin, 308 F.3d at 1111 (“The fact that the Colorado legislature has limited landowner liability in the contexts of horseback riding and skiing is relevant to the question of whether landowner liability might be limited in other circumstances absent a contract.”). Similarly, exculpatory agreements do not conflict with Colorado public policy merely because they release liability to a greater extent than a release provided in a statute.
See Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3; Chadwick, 100 P.3d at 468; B & B Livery, 960 P.2d at 137-38.
[HN16] It is true that the SSA and PTSA identify various duties and responsibilities that, if violated, may subject a ski area operator to [*38] liability. But the acts establish a framework preserving common law negligence actions in the ski and ski lift context, Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance does not identify a single provision in either the SSA or PTSA suggesting the enforcement of exculpatory agreements in the ski and ski lift context is impermissible or contrary to public policy. Moreover, “Colorado law has long permitted parties to contract away negligence claims in the recreational context” and we “generally will not assume that the General Assembly mean[t] to displace background common law principles absent some clear legislative expression of that intent.” Espinoza, 809 F.3d at 1154, 1155. This principle is particularly relevant in the context of exculpatory agreements because “[t]he General Assembly . . . has shown that–when it wishes–it well knows how to displace background common law norms and preclude the release of civil claims.” Espinoza, 809 F.3d at 1154-55.
Our conclusion that [*39] the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims. In 2002, the Colorado Supreme Court concluded that Colorado public policy prohibits a parent or guardian from releasing a minor’s prospective claims for negligence. See Cooper, 48 P.3d at 1237. The Colorado Supreme Court’s broad holding appeared to apply even within the context of recreational activities, as the relevant minor had injured himself while skiing. Id. at 1231-35. The following year, the General Assembly enacted Colo. Rev. Stat. § 13-22-107, which expressly declared that the General Assembly would not adopt the Colorado Supreme Court’s holding in Cooper. Colo. Rev. Stat. § 13-22-107(1)(b). Instead, the General Assembly explained that, among other things, it is the public policy of Colorado that “[c]hildren . . . should have the maximum opportunity to participate in sporting, recreational, educational, and other activities [*40] where certain risks may exist” and that “[p]ublic, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits.” Id. at 13-22-107(1)(a)(I)-(II). Accordingly, the General Assembly established that “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Id. at 13-22-107(3). The General Assembly’s enactment of § 33-22-107 reaffirms Colorado’s permissive position on the use of exculpatory agreements in the recreational context, and its authorization of parental releases and waivers suggests it did not intend and would not interpret the SSA as barring such agreements for adults.
Notwithstanding the lack of any statutory suggestion that the SSA and PTSA prohibit the enforcement of exculpatory agreements as a matter of public policy, Dr. Brigance contends two Colorado Court of Appeals decisions support her assertion to the contrary. In Stanley v. Creighton, the Colorado Court of Appeals analyzed an exculpatory clause in a residential rental agreement under the Jones factors and concluded that the agreement involved a public interest sufficient to invalidate the exculpatory [*41] clause. 911 P.2d at 707-08. The Stanley court reached this conclusion because, among other things, Colorado has long regulated the relationship between landlords and tenants, the PLA “confirms that landowner negligence is an issue of public concern,” and “a landlord’s services are generally held out to the public and . . . housing rental is a matter of practical necessity to the public.” Id. Although the Stanley court’s partial reliance on the existence of state regulations tends to support Dr. Brigance’s assertion that the existence of the SSA and PTSA render the Ski School Wavier and Lift Ticket Waiver either contrary to public policy or sufficient to satisfy the first Jones factor, the circumstances here are readily distinguishable. Unlike residential housing, skiing is not essential nor a matter of practical necessity. Among other considerations not present here, the Stanley court “placed greater emphasis on the essential nature of residential housing” and “alluded to a distinction between residential and commercial leases, implying that an exculpatory clause might well be valid in the context of a commercial lease.” Mincin, 308 F.3d at 1110.
Similarly, Dr. Brigance’s reliance on Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983), does not alter our conclusion. In Phillips [*42]
, the Colorado Court of Appeals stated that “[s]tatutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute.” Id. at 987. Applying this principle, the Phillips court concluded that because the SSA “allocate[s] the parties’ respective duties with regard to the safety of those around them, . . . the trial court correctly excluded a purported [exculpatory] agreement intended to alter those duties.” Id. But apparently unlike the agreement at issue in Phillips, the Ski School Waiver and Lift Ticket Waiver do not appear to alter the duties placed upon VSRI under the SSA. See, Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3. And the court’s application of this principle to the SSA appears to be inconsistent with the more recent pronouncements by the Colorado Supreme Court and General Assembly regarding Colorado policies toward the enforceability of exculpatory agreements in the context of recreational activities. Moreover, as detailed above, the SSA and PTSA do not express a policy against exculpatory agreements.
“Given all this,” particularly the SSA’s and PTSA’s silence with respect to exculpatory agreements, “we do not think it our place to adorn the General Assembly’s handiwork with revisions to [*43] the [SSA, PTSA, and] common law that it easily could have but declined to undertake for itself.” Espinoza, 809 F.3d at 1155.
In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” Espinoza, 809 F.3d at 1153. And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.
We AFFIRM the district court’s grant of summary judgment in favor of VSRI and, on this alternative basis, its partial grant of VSRI’s motion to dismiss.