New Wrinkle in the skiing out of bound’s odyssey. Douglas County Nevada law prohibits it, even though US Forest Service says it is not illegal.
Posted: December 30, 2015 Filed under: Ski Area | Tags: backcountry, Boundary, Heavenly, Heavenly Ski Area, Out of Bounds, Side Country, Ski Area Boundary Leave a commentMan skiing out of bounds, missing & SAR goes looking for him. When he shows up, he is issued a ticket for violating an out of bounds skiing law in Douglas County, Nevada.
A skier a Tahoe NV resident, ducked a rope at Heavenly Ski Resort and ski out of bounds. When he did not come back after two hours, and the resort had closed his friends called the sheriff’s office.
The Douglas County Sheriff’s office and Douglas County Search and Rescue (SAR) team started a search. Four hours later, the missing skier contacted the sheriff’s office and notified them he was OK.
Soon thereafter, the sheriff’s office met the individual and issued him a ticket for skiing out of bounds. Bail was $640.00.
Nevada has a Skier Responsibility Code, which specifically allows counties to enact their own codes if they do not conflict with the Nevada state skier responsibility code. Consequently, Douglas County has added to the responsibilities with its code, which affects Heavenly.
(How the civil requirements and prohibitions are applied from a criminal code is confusing.)
The main difference between the state statute and the county ordinance is the skiing out of bound’s section.
In this case, based on the facts from various articles, the skier probably should have been fined ducking a rope by himself and disappearing for four hours.
However, several other news stories reported the US Forest Service side of the story which says skiing on US Forest Service land is not illegal. See the article in the local paper, The Record Courier: Skiing out of bounds is not a crime. It is a fairly well written article.
The article states that three people needed rescued after exiting through ski area gates.
Every ski area concessionaire’s contract I’ve seen requires at least one gate allowing access from the ski area to US Forest Service land. Consequently, the ski area cannot say the person violated any of their rules about ducking a rope or going out of bounds because it is required.
At the same time, it is legal to be on US Forest Service land unless the US Forest Service closes the land. So far, the US Forest Service only closes land to certain types of vehicles or for the land to recover. No winter closures have ever occurred to my knowledge.
California does have a statute that allows law enforcement to close land based on Avalanche risk. However, the actual authority to close US Forest Service land vests only with the US Forest Service. Here is the California Statute:
§ 409.6. Power of peace officers to close area after avalanche; Unauthorized entry
So if you are not in California where the land was allegedly was closed, and you duck a rope to ski US Forest Service land can you be criminally charged? Yes. However, only if a specific set of facts have occurred, and this can probably never happen.
If the ski area boundary rope is on the boundary of the concessionaire’s permit with the US Forest Service then ducking the rope is not illegal. You can legally gain access to the US Forest Service land. However, the boundary rope must be on the US Forest Service land or right on the border.
However, ski areas do not place their boundary ropes on the US Forest Service land. The boundary ropes are always offset from the boundary. If you duck a rope and enter closed ski area land, then you have committed two crimes under most state statutes.
You have ducked a rope, and you have trespassed onto closed land.
More importantly don’t be an idiot. You ski or board out of bounds, that triggers a search for your butt; I hope they do find you and fine you. The hard-working VOLUNTEER men and women of county Search and Rescue units have enough idiots to find every year. Don’t add your name to their list.
See Tahoe man cited for skiing out of bounds
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Have you read your health and life policy to see if your activities are excluded. This travel insurance policy excluded mountaineering and skiing
Posted: February 17, 2014 Filed under: Contract, Insurance, Mountaineering, Skiing / Snow Boarding, Wisconsin | Tags: Ambiguous, Exclusion, Grand Teton, Grand Teton National Park, Grand Teton National Policy, Health insurance, Health Insurance Policy, Insurance, Insurance policy, Mountaineering, Policy Exclusion, Ski, Ski Area Boundary, Ski Mountaineering, Ski Resort, skiing, Travel insurance Leave a commentFirst this case defines mountaineering, legally! The court carefully picked its way through the language of the policy to keep the injured plaintiff in the lawsuit a little longer. That probably means the insurance company settled the case rather than spend more money fighting, but that is only speculation.
Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089
Date of the Decision: January 15, 2014
Plaintiff: Ryan M. Redmond
Defendant: Sirius International Insurance Corporation
Plaintiff Claims: breach of contract and insurance bad faith
Defendant Defenses: the contract
Holding: Cross motions for summary judgment denied, case headed for trial
The plaintiff in this case when ski mountaineering in Grand Teton National Park. Half way up Ellingwood Couloir, the plaintiff and a friend stopped climbing and started to ski down. Two other friends proceeded up the couloir. The plaintiff fell, tumbling down the mountain. He was eventually airlifted from the park.
The plaintiff had purchased a travel policy. The insurance company that issued the travel policy, relying upon the exclusions in the policy, denied coverage for the plaintiff’s injuries. The plaintiff and the defendant insurance company filed motions for summary judgment covering multiple issues, including a dismissal of the case due to the policy exclusions.
Summary of the case
The policy exclusions stated:
All charges, costs, expenses and/or claims (collectively “Charges”) incurred by the Insured Person and directly or indirectly relating to or arising from or in connection with any of the following acts …:
* * *
(11) Charges incurred for any surgery, Treatment or supplies relating to, arising from or in connection with, for, or as a result of:
* * *
(d) any Injury or Illness sustained while taking part in mountaineering activities where specialized climbing equipment, ropes or guides are normally or reasonably should have been used, Amateur Athletics, Professional Athletics, aviation (except when traveling solely as a passenger in a commercial aircraft), hang gliding and parachuting, snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body), racing of any kind including by horse, motor vehicle (of any type) or motorcycle, spelunking, and subaqua pursuits involving underwater breathing apparatus (except as otherwise expressly set forth in Section Q. Recreational Underwater Activities). Practice or training in preparation for any excluded activity which results in injury will be considered as activity while taking part in such activity; and/or
(e) any Illness or Injury sustained while participating in any sporting, recreational or ad-venture activity where such activity is undertaken against the advice or direction of any local authority or any qualified instructor or contrary to the rules, recommendations and procedures of a recognized governing body for the sport or activity….
Basically the policy attempted to exclude recreational activities except skiing at a ski area.
The court first looked at the requirements for either party to win a motion for summary judgment. Similar in most courts in most cases.
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A material fact is one that might affect the outcome of the case, and a nonmoving party’s dispute is “genuine” only if a reasonable finder of fact could find in the nonmoving party’s favor at trial. The court views the facts in the light most favorable to the non-moving party, and likewise it draws all inferences in the non-movant’s favor. The court may not weigh the evidence or make credibility determinations. Thus, the nonmoving party will defeat a motion for summary judgment if it is able to produce admissible evidence that, when viewed in the most favorable light, would be sufficient to enable the finder of fact to return a verdict in its favor.
The court then looked at the requirements on interpreting an insurance policy. Insurance policies are contracts and must meet all contract requirements. Insurance policies in many states also have to meet specific requirements and have different ways of interpreting some specific insurance issues. In Wisconsin policies are interpreted as a contract first.
“An insurance policy is a contract, and as such is subject to the same rules of construction as other contracts.” Because contract interpretation is primarily a question of law, it is a matter that is generally well-suited for summary judgment. “When interpreting an insurance contract courts must look at the contract as a whole.” In construing an insurance contract, the court should do “so as not to render any words, phrases, or terms ineffective or meaningless.” Terms should be given their plain and ordinary meaning. In determining the “plain and ordinary meaning” of a term, courts will frequently turn to dictionaries.
However, if a provision of an insurance contract is ambiguous, it is to be construed strictly against the insurer. An insurance contract is not ambiguous simply because parties each have their own interpretation of a provision. Rather, “[a]n insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.”
Construction against the author of a contract is a common occurrence in the law. The party that drafts the contract is the party that loses if the court is faced with a situation where the exact intention of the language is not clear. Instead of tossing a coin, the writer of the contract loses.
The court looked at the exclusion language above to determine if the activity of climbing up a couloir and skiing down is mountain climbing.
First the court determined that mountaineering did not encompass the action of skiing down the mountain. When in doubt in defining words courts use dictionaries.
The Oxford English Dictionary defines “mountaineering” as, “The action or sport of climbing mountains.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/239554.
Merriam-Webster similarly defines it as “the sport or technique of scaling mountains.” Merriam-Webster, (January 15, 2014), http://www.merriam-webster.com/dictionary/mountaineering.
The definition within the American Heritage Dictionary states, “The climbing of mountains, especially using special equipment and techniques on rock, ice, or snow.
Also called mountain climbing.” American Heritage Dictionary, (January 15, 2014), http://www.ahdictionary.com/word/search.html?q=mountaineering.
The definitions all defined mountaineering as climbing and climbing means going up. However, the court also found that:
Thus, if “mountaineering” is defined by reference to “climbing” and climbing can denote either ascent or descent, then necessarily, “mountaineering” must include both ascent and descent. The court finds this understanding of mountaineering to be the only logical definition. After all, in the context of mountaineering, the proverb “What goes up, must come down,” is generally literally true.
The next issue then if skiing down was not mountaineering and excluded, was the issue, whether the activity which injured the plaintiff violated the ski terms of the policy. The court then had to consider if skiing in a couloir in a national park is skiing out of bounds. The defendant argued that ski mountaineering was encompassed by the term mountaineering. However, the court did not agree. “The court also rejects the defendant’s contention that the mountaineering exclusion encompasses “ski mountaineering,” which the defendant characterizes as a subset of mountaineering.”
The plaintiff argued that ski mountaineering required the use of ropes and other specialized equipment. The court found that the term mountaineering did not encompass ski mountaineering.
Thank heavens for us; the court did not accept either of these definitions.
The next issue was whether or not the acts of the plaintiff fell within the exclusions in the policy concerning skiing. The court reviewed the policy and the skiing exclusion and defined the exclusion this way.
This provision, moving back and forth between coverage and exclusions, is far from a model of clarity. It first excludes coverage for injuries sustained while snow skiing but then immediately excludes from the exclusion (and thus covers) injuries sustained while “recreational downhill and/or cross country snow skiing,” and then adds a parenthetical to now exclude from the exclusion to the exclusion (and thus deny coverage for) injuries sustained while “skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body.” The net effect of this provision is that injuries sustained as a result of recreational snow skiing are covered provided the skiing was not unlawful, against the advice of certain entities, or “away from prepared and marked in-bound territories.”
(You always wondered what someone learns in law school. You learn to read policy exclusions and then interpret them as explained above. The court found the language in the policy: “This provision, moving back and forth between coverage and exclusions, is far from a model of clarity.”)
The plaintiff argued that he was skiing in an area allowed by the insurance policy because anywhere within Grand Teton National Park was allowed to be skied, and he did not leave the park boundary. Inbounds meaning in the National Park. The court then looked at other aspects of the policy to determine what was meant.
“Recreational” is not ambiguous. It is readily understood as, “An activity or pastime which is pursued for the pleasure or interest it provides.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/159954.
There is no evidence that Redmond was skiing for any purpose other than the pure pleasure or interest the sport provides, and thus the court concludes that Redmond’s skiing on the day of his injury was recreational.
Thus, competitive or commercial skiing likely would not be covered under the policy.
The net effect of the review was the court could not determine if the actions of the plaintiff were excluded by the policy. The definitions the court used and defined in making this determination do have value.
…Redmond [plaintiff] was skiing away from prepared and marked in-bound territories, this plainly encompasses more than simply skiing in an area where skiing is not barred. Thus, having concluded that “away from” means roughly “outside of,” restating this exclusion as a positive question, the issue before the court becomes, “Was Redmond skiing in a prepared and marked in-bound territory when he was injured?” Only if he was would the policy possibly afford coverage for his injures.
The court then looking at the overview of skiing could not determine what the terms in the skiing exclusion meant.
The court presumes that if a ski area is bordered on the sides by signs and ropes demarcating the boundaries of the permissible skiing area, it is likely “marked” within the scope of the policy. But is this the only kind of identification that will render an area “marked?” What if the area is depicted on a map that includes boundary lines indicating the recommended areas for skiing? If markings on a map are sufficient, who must prepare such a map to render the area marked? Must the map be prepared by the entity in charge of the area, e.g. the National Park Service, or would a map prepared by a person with special knowledge of the area suffice? Or must the markings even relate to the in-bound territories? Would a sign in the vicinity of the mountain stating “Ski at your own risk,” suffice as a marking? Perhaps there are many other plausible understandings of this term.
The court finally determined that the terms “prepared” and “marked” were not defined adequately in the policy. Therefore, the policy was ambiguous. The court could not grant the defendant’s motion for summary judgment. That issue was left for a jury to decide.
The case went on for multiple pages discussing all the motions filed by each side. This issue was the only one of importance.
So Now What?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created this exclusion in health insurance policies. The exclusion is legal, but up to an insurance company to enact and place its policies. Several attempts have been made since HIPAA was enacted to correct this issue; however, all have died in committee.
Simply put the court worked hard to determine a way the plaintiff would have insurance. The simple term “ski area,” added to the definition of skiing would have made the purpose of the lawsuit irrelevant. Obviously, the ski area description was solely for skiing inbounds not in a park.
If you enjoy recreating in the outdoors, make sure that you have the insurance coverage you believe you are paying for. Read your policy or find someone who can read it for you. An insurance policy is more than something to read when you can’t get to sleep at night.
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Ciocian v. Vail Corporation, 2010 Colo. App. LEXIS 1353
Posted: November 1, 2010 Filed under: Colorado, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: @VailMtn, Colorado Skier Safety Act, Negligence, Negligence per se, ski area, Ski Area Boundary, skiing, Vail Leave a commentTo Read an Analysis of this decision see
Colorado Appellate Court finds Vail’s boundary marking not enough to prevent a lawsuit.
Melissa Ciocian and Chris Ciocian, Plaintiffs-Appellants, v. Vail Corporation, a Colorado corporation, d/b/a Vail Associates, Defendant-Appellee.
Court of Appeals No. 09CA1568
COURT OF APPEALS OF COLORADO, DIVISION THREE
2010 Colo. App. LEXIS 1353
September 16, 2010, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
SUBSEQUENT HISTORY: Related proceeding at Anderson v. Vail Corp., 2010 Colo. App. LEXIS 1350 (Colo. Ct. App., Sept. 16, 2010)
PRIOR HISTORY: [*1]
Eagle County District Court No. 08CV47. Honorable Frederick W. Gannett, Judge.
DISPOSITION: JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS.
OUTCOME: The trial court’s orders granting summary judgment were vacated, and the case was remanded to the trial court for further proceedings.
COUNSEL: Scott R. Larson, P.C., Scott R. Larson, Denver, Colorado, for Plaintiffs-Appellants.
The Rietz Law Firm, LLC, Peter W. Rietz, Maryjo C. Falcone, Dillon, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE ROY. Roman and Booras, JJ., concur.
OPINION BY: ROY
OPINION
Jesse Anderson (skier # 1) and Melissa Ciocian (skier # 2) 1 and Chris Ciocian appeal the entries of summary judgment in favor of the Vail Corporation (ski resort) in their respective cases. These two appeals, though arising from different skiing accidents and different civil cases, are consolidated for the purpose of the opinion because they present virtually identical facts, the same legal issues, and the parties are represented by the same counsel. Slight factual differences between the two cases are noted.
1 Melissa Ciocian was snowboarding at the time of her accident, but under the Ski Safety Act the term “‘[s]kier’ means any person using a ski area for the purpose of skiing, which includes, without limitation, sliding downhill or jumping on snow or ice on . . . a snowboard . . . .” § 33-44-103(8), C.R.S. 2010. Therefore, [*2] we will refer to her as a skier.
The skiers argue that the trial court erred by: (1) concluding that there was no genuine issue of any material fact and that the ski resort was entitled to judgment as a matter of law as to the marking of the ski resort’s boundary; (2) relying on photographs, submitted without proper foundation, as attachments to the ski resort’s reply brief in support of summary judgment; (3) concluding that the ski resort’s exculpatory agreement did not violate public policy; and (4) concluding that the ski resort’s exculpatory agreement was clear and unambiguous.
We agree with skiers that there is a genuine issue of material fact, which precludes the entry of summary judgment on the issue of whether the ski resort boundary was adequately marked, and, therefore, we need not address whether the trial court could properly consider the disputed photographs. We also agree with the skiers, and the ski resort concedes, that if the ski resort failed to properly mark the ski area boundary as required by the statute, the exculpatory agreement does not release the ski resort from liability. Therefore, we need not consider whether the exculpatory agreement is clear and unambiguous. [*3] Thus, we vacate the trial court’s orders granting summary judgment, and remand for further proceedings.
I. Facts
Primrose, an intermediate (blue) trail, commences at the top of Larkspur Bowl. Primrose splits shortly thereafter, and the left fork remains Primrose but becomes a beginner’s (green) trail; the right fork becomes Bitterroot, an intermediate trail. Two ski lifts, Strawberry Park Express and Upper Beaver Creek Mountain Express, terminate just below the split, affording access to Primrose, Bitterroot, and a glade, which is a forested area with no separate difficulty rating, separating Primrose and Bitterroot. Some distance downhill from the split, Primrose and Bitterroot are connected by Overshot, a trail or catwalk, 2 which cuts through and traverses the glade commencing at Primrose and terminating at Bitterroot. Because it terminates at an intermediate (blue) trail, Overshot itself is an intermediate (blue) trail.
2 A “catwalk” is “a gentle, narrow trail that joins one ski slope to another or that winds down the entire mountain.” http://www.rei.com/expertadvice/articles’skiing”+glossary.html (last visited 7/30/2010). Catwalks frequently look like roads and are used by maintenance vehicles [*4] and equipment to traverse the mountain.
The downhill edge of Overshot is a ski area boundary. Immediately below the boundary are three private ski in-ski out residences built on private property. Immediately below the residences is a paved access road.
Skier # 1’s accident occurred on February 25, 2007, and skier # 2’s accident occurred on March 3, 2007. Both skiers skied off of the Strawberry Park Express Lift. Skier 2 immediately entered the glade. It is not clear where Skier 1 entered the glade. The glade is not closed to skiers, is within the ski resort’s area boundaries, and extends below Overshot.
Skiers proceeded though the glade until they reached Overshot, crossed Overshot near its downhill terminus, and continued downhill through the glade. Skier # 2 noticed “the very different surroundings and the drastic change in terrain,” but she testified that the trees were “fairly spread out,” with “natural gaps” that “made it easy to turn.” Skier # 1 acknowledged he did not look up Overshot as a skier would normally do when crossing a trail, and estimated his speed at twenty miles an hour, or approximately thirty feet per second. 3 There is no evidence of the width of Overshot at the [*5] point of crossing but the ski resort’s counsel, in oral argument, estimated its width as approximately thirty feet. Shortly after crossing Overshot, the skiers skied off of a 19-foot retaining wall, dropped onto the paved access road, and sustained injuries.
3 Speed in feet/second can be estimated by multiplying the speed in miles per hour by 1.5. Thus 5,280 feet, the distance traveled in one minute by a vehicle driving sixty miles per hour, divided by sixty (the number of seconds in a minute) yields eighty-eight feet per second, an error of 2.22%.
Skiers do not dispute that there were nine ski area boundary signs facing uphill across Overshot, to their left, as they crossed Overshot. These signs are located at various points along the downhill side of Overshot, 24 to 51 yards apart, over a distance of 303 yards. A double strand rope closure terminates 44 yards uphill from the first sign, and another rope closure commences 72 yards downhill from the last sign. Skiers skied through this 72 yard gap approximately 56 yards downhill from the last sign and 16 yards uphill from the rope closure. Skiers testified in their depositions that they had no knowledge that the wooded area downhill from [*6] Overshot was closed to the skiing public and that they did not see any boundary signs or rope closures.
Skier’s safety expert (the expert), who visited the scene on April 3, 2007, stated in his report that (1) the forest area (glade) above Overshot “was an open and well skied forest . . . suitable for recreational resort skiing and snowboarding”; (2) the boundary signs to the skiers’ left were “virtually invisible . . . and unreadable in any case as [the nearest sign] would have been edge on to [the skiers’] line of sight as [they] crossed Overshot”; and (3) the rope closure to the skiers’ right and downhill was “hidden behind trees and not visible at all.” The expert also opined that the ski resort failed to post sufficient boundary signs and rope closures alerting skiers to the ski area boundary.
With respect to skier # 1, a responding member of the ski patrol testified in his deposition that he “could see how this happened” and responded affirmatively to the question, “you didn’t believe that it was sufficiently clear that that was the area boundary?” With respect to skier # 2, the ski patrol supervisor confirmed that he probably told her that there was “no way she could have known [*7] the trees were beyond the ski area boundary and, therefore, it was not her fault,” or words to that effect.
The trial court granted summary judgment in favor of the ski resort based on its finding that “after thoroughly reviewing the number, location and orientation of nine (9) boundary signs, the Court finds them to be ”in a fashion readily visible to skiers under conditions of ordinary visibility’ consistent with C.R.S. § 33-44-107(6) [the Ski Safety Act] and within the reasonable standards established in the legislative declaration of the Ski Safety Act.” Further, based on this finding, the trial court found that the exculpatory agreements did not supplant the ski resort’s statutory duties and did not offend public policy based on the Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) factors, and were clear and unambiguous.
II. Summary Judgment
Skiers contend that the trial court improperly applied the summary judgment standard. More specifically, they argue the trial court improperly made findings of fact on disputed issues of material fact. We agree.
A. Standard of Review
[HN1] We review an order granting summary judgment de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). [*8] [HN2] Summary judgment should be granted only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992). A litigant is entitled to have disputed facts determined by the finder of fact following a trial, and it is only in the clearest of cases, where no doubt exists concerning the facts, that summary judgment is warranted. Moses v. Moses, 180 Colo. 397, 402, 505 P.2d 1302, 1304 (1973). Summary judgment is only appropriate in those circumstances where there is no role for the fact finder to play.
[HN3] In determining whether summary judgment is proper, the court must give the party opposing the motion the benefit of all favorable inferences that reasonably may be drawn from the facts presented. Peterson, 829 P.2d at 376. [HN4] “[T]he trial court may not assess the weight of the evidence or credibility of witnesses in determining a motion for summary judgment . . . .” Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714, 718 (Colo. 1987).
[HN5] Statutory interpretation is a question of law that we review de novo. Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009). [HN6] Our primary duty in [*9] construing legislation is to effectuate the intent of the General Assembly, looking first to the statute’s plain language. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). When legislative language is ambiguous, we construe the statute in light of the General Assembly’s objective, employing the presumption that the legislature intended a consistent, harmonious, and sensible effect. Matter of Title, Ballot Title & Submission Clause, & Summary for 1997-98 No. 62, 961 P.2d 1077, 1079 (Colo. 1998).
B. Analysis
Skiers alleged in the trial court, and now argue here, that the ski resort acted negligently and violated the Act by failing to properly mark the ski area boundaries. Skiers premise their allegations and arguments on section 33-44-107(6), which provides: [HN7] “The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility.” (Emphasis added.) Skiers argue that the ski area failed to comply with section 33-44-107(6) because there were no boundary signs or other markings alerting them that they were approaching a ski area boundary.
The trial court found that the ski resort marked its boundary in a fashion readily visible [*10] to skiers under conditions of ordinary visibility based solely on the placement of the nine boundary signs over the distance of 303 yards along the downhill side of Overshot.
The legislative declaration of the Act provides:
[HN8] The general assembly hereby finds and declares 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. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is . . . to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.
§ 33-44-102, C.R.S. 2010. [HN9] The Act then provides the duties of both ski area operators and skiers. Further, the Act states, “A violation by a ski area operator of any requirement of this article . . . shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” [*11] § 33-44-104(2), C.R.S. 2010.
The trial court correctly noted that [HN10] section 33-44-107(6) “does not explicitly or implicitly require a certain number, specific placement or distance between ski area boundary signs.” However, the statute requires that the boundary must be marked in a fashion readily visible to skiers. § 33-44-107(6). [HN11] A “[s]kier” is defined as “any person using a ski area for the purpose of skiing . . . or for the purpose of using any of the facilities of the ski area, including but not limited to ski slopes and trails.” § 33-44-103(8). And, [HN12] “[s]ki slopes or trails” are defined as “all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for any of the purposes enumerated in subsection (8) of this section.” § 33-44-103(9), C.R.S. 2010 (emphasis added).
Under this language, [HN13] ski area operators do not simply have a duty to mark ski area boundaries in a fashion readily visible to skiers who are located in certain “designated” areas; but instead, they are required to mark boundaries in a fashion readily visible to any person skiing on a slope, trail, or adjoining skiable [*12] terrain. The ski resort protests that such a reading would create an “impossible burden” because it cannot anticipate how skiers on its ski slopes and trails will be approaching ski area boundaries. However, skiing past boundary lines presents serious consequences, and the General Assembly dictated this strict requirement. In addition, we note that the “reasonableness” standard in the legislative declaration will impact the factual determination of whether a ski resort met the requirements of the statute.
Skiers presented evidence that the boundary signs were not readily visible to skiers in their line of travel; the closest being more than fifty yards uphill from the crossing and none downhill, the direction toward which skiers tend to apply more focus. According to a site diagram, the distance between the end of the uphill and downhill rope line is 419 yards. There are nine ski area boundary signs (and therefore ten gaps) over that distance. Eight of the signs (eight gaps) are immediately above three residences. The longest of the gaps is 51 yards, the shortest is 24 yards, and the average gap is 39 yards. The ninth gap, through which the skiers skied, and below which is glade, is [*13] 72 yards. Further, the skiers’ expert testified in his deposition that the downhill rope closure was not visible to the skiers, a fact which the ski resort may dispute. A member of the ski resort’s ski patrol admitted that he could see how this happened, implying that the boundary was inadequately marked. The evidence presented, viewed in the light most favorable to skiers, presents a genuine issue of material fact as to whether the boundary signs were “readily visible” to skiers approaching Overshot near its downhill terminus.
The ski resort’s argument that [HN14] section 33-44-109(5), C.R.S. 2010, creates a presumption that the skiers “have seen and understood all information posted” is unpersuasive because the statute conditions this presumption on “all information posted in accordance with this article . . . .” Therefore, the presumption is only effective if the ski resort complied with section 33-44-107(6), which, ultimately, is a question that must be submitted to the trier of fact if, as here, there is conflicting evidence.
The ski resort’s argument that [HN15] under section 33-44-109(5), the skiers had a duty to “locate and ascertain” its boundary signs is also misplaced because this duty [*14] is only placed upon skiers in “decreased visibility” and only in the event the ski resort boundary lines are marked in accordance with section 33-44-107, C.R.S. 2010. “‘Conditions of normal visibility’ means daylight and, where applicable, nighttime in nonprecipitating weather.” § 33-44-103(3), C.R.S. 2010. There is evidence that both accidents occurred during daylight hours and that the weather was clear and visibility was good. The weather and general visibility, notwithstanding, it may well be that skiing through trees limits visibility and diverts attention. However, if the skiers’ statutory duty arises, the issue of whether the skiers breached that duty is also a question of fact addressed to the trier of fact in the event there is conflicting evidence.
Viewing the evidence in the light most favorable to skiers, we conclude that there are legitimate disputes of material fact as to whether the ski resort boundary was adequately marked. Therefore, summary judgment was inappropriate, the orders must be vacated, and the case must be remanded for further proceedings.
III. Photographs
Next, skiers argue that the trial court inappropriately relied upon unauthenticated photographs submitted [*15] by the ski resort with its reply brief. Because of our resolution of skiers’ first argument, we need not address this issue.
IV. Exculpatory Agreement
The ski resort also argued in the trial court that skiers’ claims were barred by the Season Pass Application, which included an exculpatory agreement 4 that both skiers signed. However, the ski resort conceded in its briefs on appeal, and in oral argument, that it “is not (and did not) attempt to contract away its statutory duties, rather, the exculpatory agreement precludes only those claims for negligence above and beyond the requirements with which [ski resort] was statutorily required to comply, and with which it did comply.” (Emphasis in original answer briefs.) The ski resort also admits that “[its] release does not supplant [its] statutory duties,” and that its “liability waiver does not dilute or limit the statutory duties with which it must comply. Rather, [its] waiver precludes any claim for negligence or liability beyond those statutory duties with which [it] is required by law to comply . . . .”
4 The exculpatory agreement stated, in pertinent part, as follows:
The Undersigned expressly ASSUMES ALL RISKS associated with holder’s [*16] participation in the Activity, known or unknown, inherent or otherwise. . . . The Undersigned understand and acknowledge: . . . 2) Holder is responsible for reading, understanding, and complying with all signage. . . . IN CONSIDERATION OF ALLOWING HOLDER TO USE THE SKI AREA FACILITIES, THE UNDERSIGNED AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY. . . [THE SKI RESORT] FROM ANY AND ALL LIABILITY. . . .
Therefore, the ski resort agrees with skiers on the scope of the exculpatory agreement and we need not address the issue further. It logically follows that we need not address skiers’ argument that the exculpatory agreement was ambiguous.
We reverse the summary judgments and remand for further proceedings consistent with the views expressed in this opinion.
JUDGE ROMAN and JUDGE BOORAS concur.
Recreation Law 