Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946

Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946

Sally Rumpf & Louis Rumpf, Plaintiffs, v. Sunlight, Inc., Defendant.

Civil Action No. 14-cv-03328-WYD-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 3, 2016, Decided

August 3, 2016, Filed

CORE TERMS: exculpatory, ski lift, rental agreement, lift tickets, ski, summary judgment, sports, recreational, snow, service provided, ski area, loading, skiing, language contained, unambiguous language, adhesion contract, unambiguously, exculpation, bargaining, equipment rental, loss of consortium, negligence claims, collectively, safely, riding, Ski Safety Act, question of law, ski resort, standard of care, moving party

COUNSEL: [*1] For Sally Rumpf, Louis Rumpf, Plaintiffs: Michael Graves Brownlee, Brownlee & Associates, LLC, Denver, CO USA.

For Sunlight, Inc., Defendant: Jacqueline Ventre Roeder, Jordan Lee Lipp, Davis Graham & Stubbs, LLP-Denver, Denver, CO USA.

JUDGES: Wiley Y. Daniel, Senior United States District Judge.

OPINION BY: Wiley Y. Daniel

OPINION

ORDER

I. INTRODUCTION AND RELEVANT FACTUAL BACKGROUND

This matter is before the Court on the Defendant’s Motion for Summary Judgment (ECF No. 39) and the response and reply to the motion. For the reasons stated below, Defendant’s motion is granted.

I have reviewed the record and the parties’ respective submissions, and I find the following facts to be undisputed, or if disputed, I resolve them in the light most favorable to the Plaintiffs.

On December 24, 2012, Plaintiffs Sally Rumpf and her husband Louis Rumpf traveled to Glenwood Springs, Colorado to visit family and go skiing. On December 27, 2012, Plaintiffs went to Sunlight, a ski resort near Glenwood Springs. Prior to skiing, Plaintiffs rented ski equipment from Sunlight. As part of the ski rental, the Plaintiffs each executed a release, which provides in pertinent part:

I understand that the sports of skiing, snowboarding, skiboarding, [*2] snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent and other risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment.

* * *

I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owners, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.

I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment.

This agreement is governed by the applicable law of this state or province. [*3] If any provision of this agreement is determined to be unenforceable, all other provisions shall be given full force and effect.

I THE UNDERSIGNED, HAVE READ AND UNDERSTAND THIS EQUIPMENT RENTAL & LIABILITY RELEASE AGREEMENT.

(ECF No. 39, Ex. 2) (emphasis in original).

The Plaintiffs also purchased lift tickets from Sunlight, which included the following release language:

Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW and EXCLUSIVE JURISDICTION [*4] shall be in the State or Federal Courts of the State of Colorado. …

(ECF No. 39, Ex. 4) (emphasis in original).

Plaintiff Sally Rumpf injured her shoulder when she attempted to board the Segundo chairlift at Sunlight. Plaintiffs Sally and Louis Rumpf bring this action against Defendant Sunlight alleging claims of negligence, negligence per se, and loss of consortium. (Compl. ¶¶ 21-35).¹

1 Plaintiff Sally Rumpf asserts the two negligence claims while Plaintiff Louis Rumpf asserts the loss of consortium claim.

The Defendant moves for summary judgment on all three claims, arguing that (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf was negligent per se under the Ski Safety Act.

II. STANDARD OF REVIEW

Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the … moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must ‘view [*5] the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). “‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'” Id. (quotation omitted). Summary judgment may be granted only where there is no doubt from the evidence, with all inferences drawn in favor of the nonmoving party, that no genuine issue of material fact remains for trial and that the moving party is entitled to judgment as a matter of law. Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984).

III. ANALYSIS

I first address Defendant’s argument that it is entitled to summary judgment on Plaintiffs’ three claims for relief based on the exculpatory agreements contained in both the ski rental agreement and the lift ticket. It is undisputed that Plaintiff Sally Rumpf read and understood that she was bound by the release language on both the rental agreement and the lift ticket. (Sally Rumpf Dep. at 72:17-23, 97-8-17, 99:2-25, 101:11-25, 102:1-21, 106:6-25, 107:1-25, 108:1-25, and 109:1-7).²

2 The evidence reveals that Plaintiff Louis Rumpf also understood and agreed to the release language on both the [*6] rental agreement and the lift ticket.

Defendant argues that the exculpatory language is valid and enforceable under the four-factor test set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the Court. Jones, 623 P.2d at 376. Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Id. Additionally, the terms of exculpatory agreements must be strictly construed against the drafter. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1990). Pursuant to Jones, in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones, 623 P.2d at 376; Heil Valley Ranch, 784 P.2d at 784, see Robinette v. Aspen Skiing Co., L.L.C., No. 08-cv-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. April 23, 2009).

Based on the Plaintiffs’ response, it does not appear that they [*7] are contesting that the exculpatory language contained in the rental agreement or the lift ticket satisfies the above-mentioned Jones criteria, arguing instead that because “this case arises from a ski lift attendant’s negligence, the exculpatory release language is inapplicable and irrelevant.” (Resp. at 1). Citing Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998), Plaintiffs claim that Colorado law “specifically provides negligence causes of action for skiers injured getting on and getting off ski lifts.” (Resp. at 10).

In Bayer, the plaintiff was injured when he attempted to board a ski lift at Crested Butte ski resort. After the Tenth Circuit Court of Appeals certified various questions to the Colorado Supreme Court, the Colorado Supreme Court held that “the standard of care applicable to ski lift operators in Colorado for the design, construction, maintenance, operation, and inspection of a ski lift, is the highest degree of care commensurate with the practical operation of the lift. Neither the Tramway Act nor the Ski Safety Act preempt or otherwise supersede this standard of care, whatever the season of operation.” Id. at 80. I agree with Defendant, however, that Bayer is not controlling here because the question of the applicability [*8] of exculpatory language was not presented.

Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift. (Resp. at 11).

I now analyze the exculpatory language at issue using the four Jones factors mentioned above. In Jones, the court instructed that for an exculpatory agreement to fail, the party seeking exculpation must be engaged in providing a service of great importance to the public, which is often a matter of practical necessity to some members of the public. Jones, 623 P.2d at 376-77. Here, the service provided is recreational and not an essential service that gives the party seeking exculpation an unfair bargaining advantage. Thus, there is no public duty that prevents enforcement of either the ski rental agreement or the exculpatory language included in Sunlight’s lift ticket.

To the extent that Plaintiffs contend that the exculpatory language at issue was “adhesive,” I note that Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.” Id. at 374. However, [*9] printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract. Clinic Masters v. District Court, 192 Colo. 120, 556 P.2d 473 (1976). Rather, “[t]here must a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.” Id. In Jones, the court held that the agreement was not an adhesion contract and the party seeking exculpation did not possess a decisive bargaining advantage “because the service provided … was not an essential service.” Jones, 623 P.2d at 377-78. Thus, here, I find that the exculpatory agreements were fairly entered into and are not adhesion contracts.

Finally, I examine whether the exculpatory agreements express the parties’ intent in clear and unambiguous language. Plaintiffs argue that loading or riding a ski lift is outside the scope of the exculpatory language set forth in both the ski rental agreement and the lift ticket.

“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996). Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of [*10] confusion or failure of a party to recognize the full extent of the release provisions. See Heil Valley Ranch 784 P.2d at 785; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Specific terms such as “negligence” or “breach of warranty” are not required to shield a party from liability. What matters is whether the intent of the parties to extinguish liability was clearly and unambiguously expressed. Heil Valley Ranch, 784 P.2d at 785.

After carefully reviewing the relevant language set forth in both the ski rental agreement and the lift ticket, I find that both agreements clearly and unambiguously express the parties’ intent to release Sunlight from liability for certain claims. When Plaintiffs executed the ski rental agreement, they agreed to

RELEASE AND HOLD HARMLESS the equipment rental facility [Sunlight], its employees, owners, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury … which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.

(ECF [*11] No. 39, Ex. 2) (emphasis in original). I find that this language unambiguously encompasses the use of Sunlight’s ski lifts. Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.” (ECF No. 39, Ex. 4) (emphasis in original). I find that the language at issue is neither long nor complicated and clearly expresses the intent to bar negligence claims against Sunlight arising from the participation in recreational snow sports, which includes loading or riding ski lifts. Accordingly, Plaintiffs’ negligence claims and loss of consortium claim are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket. Defendant’s motion for summary judgment is granted.³

3 In light of my findings in this Order, I need not address Defendant’s additional, independent arguments in support of summary judgment.

IV. CONCLUSION

Accordingly, it is

ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 39) is GRANTED. This [*12] case is DISMISSED WITH PREJUDICE, and Judgment shall enter in favor of Defendant against the Plaintiffs. It is

FURTHER ORDERED that the Defendant is awarded its costs, to be taxed by the Clerk of the Court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.

Dated: August 3, 2016

BY THE COURT:

/s/ Wiley Y. Daniel

Wiley Y. Daniel

Senior United States District Judge