Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Corinne Dawson et al., Plaintiffs, v. Mt. Brighton, inc. et al., Defendants.

Civil Action No. 11-10233

United States District Court, E.D. Michigan, Southern Division.

March 27, 2013

ORDER DENYING MOTION FOR SUMMARY JUDGMENT, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS AND ORDER SETTING FINAL PRETRIAL CONFERENCE AND TRIAL DATES

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

On August 10, 2011, a First Amended Complaint was filed by Plaintiffs Corinne Dawson, individually and as co-Next Friend of A.M., a minor, Peter Miles, co-Next Friend of A.M., a minor, Justine Miles and Dwaine Dawson against Defendants Mt. Brighton, Inc. and Robert Sturgis alleging: By A.M., by and through his Co-Next Friends, Statute Violations against All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count I); By Corinne Dawson, Dwaine Dawson and Justine Miles, Statute Violations by All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count II); By A.M., by and through his Co-Next Friends, Common Law Premises Liability against All Defendants (Count III); and, By Corinne Dawson, Dwaine Dawson and Justine Miles, Common Law Premises Liability against All Defendants (Count IV).

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

This matter is now before the Court on Defendants’ Motion for Summary Judgment. Plaintiffs filed a response, along with various documents, including “Plaintiffs’ Separate Statement of Facts”, Declaration of Larry Heywood, and Declaration of Timothy A. Loranger. Defendants filed a reply. Plaintiffs also filed a document titled “Plaintiffs’ Evidentiary Objections and Motion to Strike” portions of Defendants’ summary judgment motion. Defendants replied to this motion. Defendants filed a Motion to Adjourn Scheduling Order Dates seeking adjournment of the December 4, 2012 trial date, to which Plaintiffs submitted a response that they did not object to the motion.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that 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.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.

B. Michigan’s Ski Area Safety Act

Defendants argue they are entitled to summary judgment under Michigan’s Ski Area Safety Act (“SASA”) which bars recovery for any injuries under common law premises liability or negligence claims. Plaintiffs respond that because of Defendants’ violation of SASA, specifically failing to post any signs that grooming was taking place, Defendants are not immune from liability under SASA. Plaintiffs also argue that SASA does not apply since the place where the incident occurred was not a ski run, slope or trail.

SASA was enacted in 1962. The purposes of SASA include, inter alia, safety, reduced litigation, and economic stabilization of an industry which contributes substantially to Michigan’s economy. Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848, 850 (6th Cir. 1999). The Michigan legislature perceived a problem with respect to the inherent dangers of skiing and the need to promote safety, coupled with the uncertain and potentially enormous ski area operators’ liability. Id. (citation omitted) Given the competing interests between safety and liability, the legislature decided to establish rules regulating ski operators and the ski operators’ and skiers’ responsibilities in the area of safety. Id. The Legislature decided that all skiers assume the obvious and necessary dangers of skiing, limiting ski area operators’ liability and promoting safety. Id. The statute states:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in areas which are marked as open for skiing on the trial board…

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

M.C.L. § 408.342. This subjection identifies two types of dangers inherent in the sport. Anderson v. Pine Knob Ski Resort, Inc., 469 Mich. 20, 24 (2003). The first is described as natural hazards and the second as unnatural hazards. Id. Both types of examples are only examples because the Legislature used the term “dangers include, but are not limited to.” Id. at 25.

A.M. was injured by snow-grooming equipment, which is expressly noted in SASA. Plaintiffs argue that there was no sign posted regarding the use of snow-grooming equipment, as required in the statute, M.C.L. § 408.326(a), which states,

Each Ski Area operator shall, with respect to operation of a ski area, do all of the following:

* * *

(f) Place or case to be placed, if snow grooming or snow making operations are being performed on a ski run, slope, or trial while the run, slope, or trial is open to the public, a conspicuous notice at or near the top of the entrance to the run, slope, or trail indicating that those operations are being performed.

M.C.L. § 408.326(a).

The Michigan courts have held that even if there are allegations that provisions of SASA were violated which may have caused injury, there is no limitation in SASA as to the risks assumed. Rusnak v. Walker, 273 Mich.App. 299, 307 (2006). Rusnak was a suit under SASA involving a collision between two skiers. In Rusnak, the Michigan Court of Appeals noted that, “the Legislature did not start off the subsection by stating except for violations of other sections of this act, ‘ the skier assumes the obvious and necessary dangers inherent in the sport.” Id . (italics added). The assumption of the risk provision in M.C.L. § 408.342 is “clear and unambiguous, providing that a skier assumes the risk of obvious and necessary dangers that inhere in the sport, and [t]hose dangers’ specifically include collisions” with snow groomers. Id.

The Michigan Supreme Court has made clear that the Legislature created a certainty concerning a ski area operator’s liability risks. Anderson, 469 Mich. at 26. In a case where a skier collided at the end of a ski run with a shack that housed race timing equipment, the Michigan Supreme Court noted:

To adopt the standard plaintiff urges would deprive the statute of the certainty the Legislature wished to create concerning liability risks. Under plaintiff’s standard, after any accident, rather than immunity should suit be brought, the ski-area operator would be engaged in the same inquiry that would have been undertaken if there had been no statute ever enacted. This would mean that, in a given case, decisions regarding the reasonableness of the place of lift towers or snow groomers, for example, would be placed before a jury or judicial fact-finder. Yet it is just this process that the grant of immunity was designed to obviate. In short, the Legislature has indicated that matters of this sort are to be removed from the common-law arena, and it simply falls to us to enforce the statute as written. This we have done.

Id. There is no need to consider whether the ski operator retains a duty under common-law premises liability. Id. at 26-27. Plaintiffs’ argument that Defendants violated SASA by failing to post the appropriate sign that snow grooming was taking place does not override the express assumption of the risk by the skier enacted by the Legislature.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” Rusnak, 273 Mich.App. at 309. However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.” Id. “Indeed, we cannot favor one section, such as the assumption-of-risk provision, over other equally applicable sections, such as the duty and liability provisions.” Id. The Rusnak panel held that a plaintiff does assume the risks set forth in the statute. Id. The provisions must be read together while giving them full force and effect. Id. However, a plaintiff can still recover limited damages against a defendant if the plaintiff can prove that a defendant violated SASA, causing the injuries suffered by the plaintiff. Id. In such a situation, the defendant’s acts would be relevant for a “comparative negligence” evaluation. Id. at 311. Depending on the facts, the actions of a defendant may be relevant for purposes of determining the allocation of fault and, perhaps damages. Id. at 313. Reading the provisions together is consistent with the plain language of the two provisions at issue, which conform to the legislative purpose of SASA – to reduce the liability of ski operators, while at the same time placing many, but not all, risks of skiing on the individual skiers. Id. at 314.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.” The State of Michigan Investigator and Defendants’ expert, Mark Doman, stated at his deposition that the area where the incident occurred could be described as a “ski run, slope, or trail” even though Defendants argue that this area is a “transition area.” (Doman Dep., p. 74) Summary judgment on the issue of notice under M.C.L. § 408.236a(f) is denied. Although there is no genuine issue of material fact that A.M. assumed the risk as to snow groomers under SASA, Defendants’ actions as to their duties under M.C.L. § 408.236a(f) as to notice is relevant for purposes of determining the allocation of fault and damages under a comparative negligence analysis.

III. SANCTIONS

Defendants seek sanctions against Plaintiffs under the Court’s inherent power. Defendants argue that Plaintiffs have no intention to follow applicable well established court and ethical rules, including: page limit; entering onto Mt. Brighton for inspection in violation of Fed.R.Civ.P. 34 without notice to Defendants; and having contact with the owner of Mt. Brighton without counsel in violation of the Michigan Rules of Professional Conduct 4.1 and 4.2. Defendants seek dismissal based on Plaintiffs’ alleged pattern of discovery abuse. Defendants claim that Plaintiffs’ counsel took an oath in this Circuit to follow the rules and practice with integrity, yet counsel had no plans to follow the oath and this Court must sanction Plaintiffs’ counsel to deter any further continued conduct. Plaintiffs respond that they did not violate the court or ethical rules.

A. Page Limit

As to the page limit claim, Defendants argue that Plaintiffs violated Local Rule 7.1 regarding page limits since Plaintiffs submitted separate documents setting forth their version of “material facts” separate from Plaintiffs’ response brief, in addition to other documents including “objection” to the summary judgment motion and “declarations” by Plaintiffs’ experts.

Plaintiffs respond that as to the page limit issue, this matter was argued at the time the Court heard the summary judgment motion. In any event, Plaintiffs claim they did not exceed the page limit since Local Rule 7.1(d)(3) states that the text of a brief may not exceed 20 pages and that Plaintiffs’ response brief was only 19 pages. Plaintiffs agree that the accompanying documents in support of their brief included declaration of expert witness, list of material facts, a motion to Defendants’ report and objections to Defendants’ purported “evidence.” These documents are not part of their response “brief” but other documents supporting Plaintiffs’ arguments. Plaintiffs argue that while there is nothing in the rules which requires the filing of a separate document of undisputed facts, there is nothing prohibiting such a filing.

Local Rule 7.1(d)(3) provides, “[t]he text of a brief supporting a motion or response, including footnotes and signatures, may not exceed 20 pages. A person seeking to file a longer brief may apply ex parte in writing setting forth the reasons.” E.D. Mich. LR 7.1(d)(3). A review of Plaintiffs’ “Response” to the Motion for Summary Judgment (Doc. #28) shows that the brief is only 19 pages, which does not violate Local Rule 7.1(d)(3). However, Plaintiffs did file other documents supporting their opposition including a separate document entitled “Plaintiffs’ Separate Statement of Material Facts” (Doc. #29) which consists of 14 pages. This document highlights facts and source of the facts, including declarations and deposition page numbers. Plaintiffs also filed a separate document entitled “Plaintiffs’ Evidentiary Objections and Motion to Strike” (Doc. #30) which consists of 9 pages. Plaintiffs also filed two documents entitled “Declaration of Larry Heywood” (Doc. #31) and “Declaration of Timothy A. Loranger, Esq.” (Doc. #32).

Defendants did not cite to any authority, other than the Court’s inherent power, that violation of a Local Rule must result in dismissal of a case. It is noted that at the time of the filing of the response and other documents in September 2012, Defendants did not object to these filings by a separate motion until the instant motion which was filed on November 26, 2012. Defendants addressed the documents Plaintiffs filed in Defendants’ reply brief and so argued at oral arguments. Generally, exhibits and declarations supporting motions or response briefs are “attached” as exhibits to the main brief. As to Plaintiffs’ Separate Statement of Material Facts and Evidentiary Objections and Motion to Strike, these arguments should have been made in Plaintiffs’ main brief.[1] These documents may have been filed to circumvent the page limit requirement. However, the Court has the discretion to allow filings separate from the parties’ main brief. A violation of the page limit local rule does not support dismissal of the case as sanctions.

B. Rule 34

Defendants argue that Plaintiffs violated Fed.R.Civ.P. Rule 34 regarding inspection of land when Plaintiffs’ counsel went to Mt. Brighton, without notice to Defendants and their counsel on two occasions.

Plaintiffs admit that counsel visited Mt. Brighton property without providing any notice to the defense because Plaintiffs believed no such notice was necessary since Mt. Brighton was open to the public for business when they visited. Plaintiffs argue that Rule 34 only states that a party “may” serve a request to permit entry and that the rule does not state “must.” Plaintiffs admit photographs were taken at that time, but that taking photographs was not prohibited by Mt. Brighton. Plaintiffs claim that admissions of these photographs at trial should be brought as motions in limine.

Rule 34 of the Rules of Civil Procedure provides:

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

* * *

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Fed. R. Civ. P. 34(a)(2).

Generally, if a party seeks protection from certain discovery matters, that party usually files a Motion for protective order under Fed.R.Civ.P. Rule 26(c). Here, Defendants did not seek such protection, nor did Defendants object to Plaintiffs’ entry of the land once they learned of the first instance in June 29, 2012 during the deposition of David Mark Doman wherein Plaintiffs’ counsel admitted he had sent an agent to take pictures of Defendant’s premises without notice to defense counsel. The instant Motion as filed in November 2012. Discovery rule violations are usually addressed under Rule 37. Defendants did not file a motion under Rule 37 to prohibit Plaintiffs from using any photographs they took in connection with any pre-trial proceedings at that time.

The second incident occurred on November 14, 2012, the same day oral argument was heard on the summary judgment motion. Joseph Bruhn, owner of Mt. Brighton, indicated he met three gentlemen who did not identify themselves but indicated they were there for “breakfast” even though it was 11:00 a.m. (Bruhn Aff., ¶ 5) Mr. Bruhn indicated the restaurant was not open and later noticed the gentlemen were taking pictures from the deck. (Bruhn Aff., ¶ 8) Mr. Bruhn learned the gentlemen were lawyers from Los Angeles in town to attend facilitation of this matter to be held the next day, November 15, 2012. (Bruhn, Aff., ¶9) This second incident is troublesome. Although Mr. Bruhn did not identify himself as the owner of Mt. Brighton, Plaintiffs’ counsel themselves knew the purpose of their visit – to inspect the property and take pictures.

In general, Rule 37(b)(2)(B) of the Rules of Civil Procedure provides for sanctions where a party fails to comply with a court order requiring the party to produce another person for examination, including prohibiting the disobedient party from introducing matters in evidence, striking pleadings, rendering default judgment against the disobedient party, treating as contempt of court the failure to obey an order or any further “just orders.” Fed.R.Civ.P. 37(b)(2)(B); 37(b)(2)(A). Here, no order has been entered by the Court striking the photographs or finding that Plaintiffs violated Rule 34. The “spirit” of Rule 34 was violated in that Plaintiffs did not notify the defense they were inspecting the premises for discovery purposes, even if the property is open to the public. The property is private property, but open to the public. The lay of the land is at the core of these proceedings. Plaintiffs should have notified the defense they sought to inspect the land as required under Rule 34. “Trial by surprise” is not a tactic in civil actions and related discovery proceedings. However, dismissal of the case is not warranted at this time, but the Court will consider this matter at trial by way of a motion in limine or objection if any testimony or exhibit is sought to be introduced relating to Plaintiffs’ first visit to Mt. Brighton. The second visit is addressed below.

C. Violation of Michigan Rules of Professional Responsibility

Defendants seek dismissal as sanctions because they allege that Plaintiffs’ counsel violated the Michigan Rules of Professional Responsibility (“MRPC”) by contacting Mt. Brighton’s owner without counsel. Plaintiffs respond that when counsel visited Mt. Brighton unannounced, counsel did not know that the gentleman greeting him at the Mt. Brighton restaurant was Mr. Bruhn, the owner of Mt. Brighton. Mr. Bruhn informed counsel that the kitchen was not open but he never indicated that Mt. Brighton was closed. Plaintiffs’ counsel then went out onto the patio to take a few photographs of the ski/golf area. Plaintiffs claim that Defendants admit in their moving papers that Plaintiffs did not violate MRPC 4.2 since there was no discussion of any aspect of the “subject of the representation” but that because counsel did not identify himself to Mr. Bruhn. Mr. Bruhn indicated in an affidavit that he did not learn of Plaintiffs’ counsel identity until the facilitation in this matter the day after.

MRPC 4.2 provides, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Although Defendants admit that “arguably” Plaintiffs did not directly speak with Mr. Bruhn as to the “subject of the representation, ” Plaintiffs’ counsel knew the reason they were on the premises was to take photographs of the property. Defendants seek an order from this Court finding that Defendants violated Rule 4.2 and that the proper sanction is to dismiss the case.

Although Plaintiffs’ counsel, as noted by the defense, did not “arguably” violate Rule 4.2, the Court cannot expressly so find. Violations of the professional responsibility code must be brought under E.D. Mich. LR 83.22. Defendants have not sought such a formal request. The Court, however, under Fed.R.Civ.P. 37(b)(2), will not allow Plaintiffs to offer any photographs taken of the property during the second visit to Mt. Brighton on November 14, 2012 since they knew the purpose of their visit was to take photographs and could have so indicated to opposing counsel, Mr. Bruhn or to any of Defendants’ agents. Plaintiffs had notice since June 2012 and under the discovery rules that they were required to notify Defendants of any access to Defendants’ property.

D. Rule 11 Sanctions

In Plaintiffs’ response, they indicate they may seek sanctions under Rule 11 themselves. Generally, Rule 11 provides that prior to requesting/filing a Motion for sanctions under this rule, the party must serve notice to the opposing party under the safe harbor provision of Rule 11. Fed.R.Civ.P. 11(c)(1)(A). Rule 11(c) states that the Motion shall not be filed if not submitted to the opposing party. Pursuant to the “safe harbor” provision in Rule 11, a party seeking sanctions under the rule must first serve notice to the opposing party that such a Motion will be filed. If either party seeks to file such Rule 11 sanctions, they must do so with the “safe harbor” provision in mind.

IV. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 21) is DENIED as more fully set forth above.

IT IS FURTHER ORDERED that the Motion to Adjourn Scheduling Order Dates (Doc. No. 23) is MOOT.

IT IS FURTHER ORDERED that the Motion to Strike Portions of Defendants’ Summary Judgment Motion or Submit Evidence (Doc. No. 30) is DENIED.

IT IS FURTHER ORDERED that the Motion for Sanctions (Doc. No. 39) is GRANTED IN PART and DENIED IN PART. The second set of photographs is disallowed to be used as evidence in this case. The request for dismissal as sanctions is denied.

IT IS FURTHER ORDERED that a Final Pretrial Conference date is scheduled for Monday, June 10, 2013, 2:30 p.m. The parties must submit a proposed Joint Final Pretrial Order by June 3, 2013 in the form set forth in Local Rule 16.2. All parties with authority to settle must appear at the conference. The Magistrate Judge may reschedule the cancelled facilitation and submit a notice to the Court by June 3, 2013 once facilitation is complete.

IT IS FURTHER ORDERED that Trial is scheduled for Tuesday, July 9, 2013, 9:00 a.m.

Notes:

[1] The parties are referred to E.D. Mich. LR 7.1 and CM/ECF Pol. & Proc. R5 and R18 governing filing of motions, briefs and exhibits. See, http://www.mied.usourts.gov.


NASTAR release was held by the Michigan Appellate court to be written narrowly and only protect the ski area when the guest was racing or training.

Michigan Ski Safety Act did not apply because it was too early in the proceedings to determine if a rope hanging below the chairlift was an inherent risk of skiing under the act.

Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711

State: Michigan, Court of Appeals of Michigan

Plaintiff: Ronald Ritari, JR. and Tama Ritari

Defendant: Peter E. O’dovero, Inc., doing business as Marquette Mountain

Plaintiff Claims: was negligent by having ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures to prevent plaintiff from catching his skis on the rope, failing to employ the emergency stop when plaintiff yelled for help, and failing to adequately supervise and control the chair lift

Defendant Defenses: Release and Michigan Ski Area Safety Act (SASA)

Holding: For the Plaintiff

Year: 2017

Summary

Your release must be written to cover the risks and activities you need to cover. If your release fails, as in this case, then you are faced with proving the activity that injured your guest was an inherent risk of skiing.

A rope hanging below a lift, low enough a ski could be caught in the lift is going to be an interesting argument at trial to prove it is an inherent risk of skiing.

Facts

The plaintiff was a season pass holder at the ski area and enjoyed racing NASTAR. One evening while riding the chair lift his skis were caught on a nylon rope hanging below the lift when a gust of wind pulled the chair down. The plaintiff was pulled out of the chair by the rope where he fell 12′ to the ground sustaining a fractured pelvis and fracture ribs.

The plaintiff filed suit. The Defendant ski area filed a motion for summary judgment based on the NASTAR release and the Michigan Ski Area Safety Act. The plaintiff seems to have signed two releases, one when he purchased a season pass, however, only the NASTAR release was argued at trial.

The trial court dismissed the defendant’s motion for summary judgment finding the release was ambiguous, and the rope hanging below the chairlift was not an inherent risk of skiing. The defendant appealed the trial court’s decision.

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

The court first looked at the release. The trial court had found the release was ambiguous. “A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation.”

The scope of a release is governed by the intent of the parties as it is expressed in the release. If the text in the release is unambiguous, the parties’ intentions must be ascertained from the plain, ordinary meaning of the language of the release. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity.

To determine if a contract is valid the contract “…must be read as a whole, construed so as to give effect to every word or phrase as far as practicable…” An ambiguous contract is also referred to as a contract “…reasonable susceptible to more than one interpretation.”

The appellate court found the release was not ambiguous.

We conclude that, when read as a whole and interpreted in conjunction with the NASTAR registration form on its reverse side, the language of the Participant release is unambiguous and in-tended to relieve defendant of “all liability” for injuries suffered during training for or participating in a racing competition.

The plaintiff also argued that the release only applied when the plaintiff was racing or training for NASTAR. Here the court found for the plaintiff. On this issue, the appellate court agreed with the trial court and held that the release could be interpreted to only be for racing or training for NASTAR events.

A rope hanging below the chairlift was not a listed risk in the Michigan Ski Area Safety Act. Therefore, the court needed to determine if the ski area safety act applied to this risk.

There is no dispute that the nylon rope that entangled plaintiff is a hazard not listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10), these material facts must be undisputed and defendant must be entitled to judgment as a matter of law.

The court held the jury had to determine if the risk was obvious and necessary and inherent to skiing.

The appellate court sent the case back to the trial court for additional discovery by the parties and trial.

So Now What?

Any time you have an incident on the lift outside of the loading and unloading area it is going to create a problem for the courts and a question of fact. In several states, like Colorado, the operator of a lift owes the highest degree of care to the lift riders. In Colorado, this case would be based on how much the check would be, not if there was going to be a check.

Furthermore, a rope hanging below a lift that a skier could catch a ski or board with is also suspect. Whether the riders were bouncing on the lift or a gust of wind did force the chair down, that is a risk that needed to be looked at from all angles. Skiers running into people and legs extending from the chair and people on the chair catching their fee in it is a risk of roping off an area under a lift.

What do you think? Leave a comment.

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

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

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

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

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

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

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

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

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

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

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

I.

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

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

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

II.

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

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

A.

[10] The Highest Degree of Care

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

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

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

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

B.

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

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

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

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

[20] Included within the inherent risks of skiing are dangers or conditions that are an “integral part of the sport of skiing,” such as weather, snow conditions, collisions with natural and man-made objects, and terrain variations. See 33-44-103(3.5), 9 C.R.S. (1997). The skier must know the range of his or her ability, ski in control, maintain a proper lookout while skiing, avoid collisions with other skiers, and not use a ski slope or trail or passenger tramway while impaired by alcohol or other controlled substances. See 33-44-109, 9 C.R.S. (1997). The statute provides that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” 33-44-112, 9 C.R.S. (1997). See also Graven, 909 P.2d at 518-21.

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

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

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

C.

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

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

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

[27] To the contrary, we conclude that the Tramway Act and the Ski Safety Act, together with the Bagnoli standard of care, provide a comprehensive Colorado framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.

1.

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

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

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

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

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

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

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

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

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

2.

[38] Legislative Action Subsequent To Bagnoli

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

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

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

3.

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

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

Negligence — civil actions. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.

[57] Answers To Certified Questions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[fn10] Section 33-44-113 provides:

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

(Emphasis added.)

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

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

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

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

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

[61] JUSTICE KOURLIS dissenting

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

I.

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

II.

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

III.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V.

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

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

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

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

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

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

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

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

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

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

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

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


Nevada Skier Safety Act

Nevada Skier Safety Act

1.1 NEVADA REVISED STATUTES ANNOTATED

TITLE 40. Public Health And Safety.

CHAPTER 455A. Safety of Participants in Outdoor Sports.

Skiers and Snowboarders

GO TO NEVADA STATUTES ARCHIVE DIRECTORY

Nev. Rev. Stat. Ann. § 455A.023 (2012)

Table of Contents

Nevada Skier Safety Act 1

Table of Contents. 1

455A.010. Short title. 2

455A.020. Definitions. 2

455A.023. “Chair lift” defined. 3

455A.027. “Operator” defined. 3

455A.030. “Passenger” defined. 3

455A.035. “Patrol” defined. 3

455A.040. Transferred. 4

455A.050. Transferred. 4

455A.060. Transferred. 4

455A.070. “Skier” defined. 4

455A.075. “Skiing” defined. 4

455A.080. Transferred. 4

455A.083. “Snow recreation area” defined. 4

455A.085. “Snowboarder” defined. 5

455A.087. “Snowboarding” defined. 5

455A.090. “Surface lift” defined. 5

455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited. 5

455A.110. Duties of skiers and snowboarders. 6

455A.120. Prohibited acts. 7

455A.130. Signs at chair lifts: Requirements; inspection. 7

455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light. 8

455A.150. Illumination of signs at night. 8

455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers. 9

455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty. 9

455A.180. Revocation of license or privilege to engage in skiing or snowboarding. 10

455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter. 10

455A.010. Short title.

NRS 455A.010 to 455A.190, inclusive, may be cited as the Skier and Snowboarder Safety Act.

455A.020. Definitions.

As used in NRS 455A.010 to 455A.190, inclusive, unless the context otherwise requires, the words and terms defined in NRS 455A.023 to 455A.090, inclusive, have the meanings ascribed to them in those sections.

455A.023. “Chair lift” defined.

“Chair lift” means a device, except for an elevator, that carries, pulls or pushes a person along a level or inclined path to, from or within a snow recreation area by means of a rope, cable or other flexible element that is driven by an essentially stationary source of power.

455A.027. “Operator” defined.

“Operator” means a person, or a governmental agency or political subdivision of this State, who controls or operates an area where persons engage in skiing or snowboarding.

455A.030. “Passenger” defined.

“Passenger” means a person who utilizes a chair lift for transportation.

455A.035. “Patrol” defined.

“Patrol” means agents or employees of an operator who patrol the snow recreation area.

455A.040. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.083.

455A.050. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.023.

455A.060. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.035.

455A.070. “Skier” defined.

“Skier” means a person who engages in skiing in a snow recreation area.

455A.075. “Skiing” defined.

“Skiing” means the act of using skis to move across snow-covered ground.

455A.080. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.027.

455A.083. “Snow recreation area” defined.

“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports.

455A.085. “Snowboarder” defined.

“Snowboarder” means a person who engages in snowboarding in a snow recreation area.

455A.087. “Snowboarding” defined.

“Snowboarding” means the act of using a snowboard to move across snow-covered ground.

455A.090. “Surface lift” defined.

“Surface lift” means a chair lift designed for skiers or snowboarders to remain in contact with the ground or snowy surface during transportation.

455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited.

A skier or snowboarder shall not:

1. Embark upon a chair lift:

(a) When the skier or snowboarder knows that he or she has insufficient knowledge or physical ability to use the chair lift safely; or

(b) That is posted as closed or not in operation;

2. Purposefully embark upon or disembark from a chair lift except at an area designated for such a purpose or at the direction and under the direct supervision of an authorized agent or employee of an operator;

3. Toss, throw or cast or intentionally drop, expel or eject an object from a chair lift;

4. Toss, throw or cast an object in the direction of a chair lift;

5. Fail or refuse to comply with:

(a) Reasonable instructions given to the skier or snowboarder by an authorized agent or employee of an operator regarding the use of a chair lift; or

(b) A sign posted pursuant to NRS 455A.130 or 455A.140;

6. Place any object in the uphill path of a surface lift;

7. Conduct himself or herself in a manner that interferes with the safe operation of a chair lift or with the safety of a passenger, skier or snowboarder; or

8. Engage in skiing or snowboarding in an area within the snow recreation area which is posted, as provided in NRS 207.200, as closed.

455A.110. Duties of skiers and snowboarders.

A skier or snowboarder shall, to the extent that the matter is within his or her control:

1. Locate and ascertain the meaning of signs in the vicinity of the skier or snowboarder posted pursuant to NRS 455A.130 and 455A.140;

2. Heed warnings and other information posted by an operator;

3. Remain a safe distance from vehicles, signs and equipment for grooming snow or for transportation;

4. Avoid skiers or snowboarders in motion when entering a slope, run or trail, and when commencing to engage in skiing or snowboarding from a stationary position;

5. Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and

6. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area.

455A.120. Prohibited acts.

A skier or snowboarder shall not:

1. Use a ski or snowboard unless it is attached to the skier or snowboarder by a strap or equipped with a device capable of stopping the movement of the ski or snowboard when not attached to the skier or snowboarder;

2. Cross the uphill path of a surface lift except at locations designated by an operator; or

3. Willfully stop where the skier or snowboarder obstructs a slope, run or trail, or where he or she is not safely visible to uphill skiers or snowboarders.

455A.130. Signs at chair lifts: Requirements; inspection.

1. An operator shall prominently post and maintain signs in simple and concise language:

(a) By each chair lift, with information for the protection and instruction of passengers; and

(b) At or near the points where passengers are loaded on a chair lift, directing persons who are not familiar with the operation of the chair lift to ask an authorized agent or employee of the operator for assistance and instruction.

2. An operator shall prominently post and maintain signs with the following inscriptions at all chair lifts in the locations indicated:

(a) “Remove pole straps from wrists” at an area for loading skiers;

(b) “Safety gate” where applicable;

(c) “Stay on tracks” where applicable;

(d) “Keep ski tips or snowboard up” ahead of any point where a ski or snowboard can regain contact with the ground or snowy surface after a passenger departs from an area for loading skiers or snowboarders;

(e) “Prepare to unload” and “check for loose clothing and equipment” not less than 50 feet from an area for unloading skiers or snowboarders; and

(f) “Unload here” at an area for unloading skiers or snowboarders.

3. An operator shall inspect a snow recreation area for the presence and visibility of the signs required to be posted by this section each day before opening the snow recreation area for business.

455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light.

1. An operator shall post and maintain a system of signs:

(a) At the entrances to an established slope, run or trail to indicate:

(1) Whether any portion of the slope, run or trail is closed; and

(2) The relative degree of difficulty of the slope, run or trail;

(b) To indicate the boundary of the snow recreation area, except in heavily wooded areas or other terrain that cannot be skied or snowboarded readily; and

(c) To warn of each area within the boundary of the snow recreation area where there is a danger of avalanche by posting signs stating “Warning: Avalanche Danger Area.”

2. An operator shall equip vehicles it uses on or in the vicinity of a slope, run or trail with a light visible to skiers or snowboarders when the vehicle is in motion.

455A.150. Illumination of signs at night.

A sign required to be posted pursuant to NRS 455A.130; and 455A.140 must be adequately illuminated at night, if the snow recreation area is open to the public at night, and be readable and recognizable under ordinary conditions of visibility.

455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers.

1. A skier or snowboarder who sustains a personal injury shall notify the operator or a member of the patrol of the injury as soon as reasonably possible after discovery of the injury.

2. An operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area.

3. An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.

455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty.

1. A skier or snowboarder shall not engage in skiing or snowboarding, or embark on a chair lift that is proceeding predominantly uphill, while intoxicated or under the influence of a controlled substance as defined in chapter 453 of NRS unless in accordance with a lawfully issued prescription.

2. A skier or snowboarder who is involved in a collision in which another person is injured shall provide his or her name and current address to the injured person, the operator or a member of the patrol:

(a) Before the skier or snowboarder leaves the vicinity of the collision; or

(b) As soon as reasonably possible after leaving the vicinity of the collision to secure aid for the injured person.

3. A person who violates a provision of this section is guilty of a misdemeanor.

455A.180. Revocation of license or privilege to engage in skiing or snowboarding.

An operator may revoke the license or privilege of a person to engage in skiing or snowboarding in a snow recreation area if the person violates any provision of NRS 455A.100, 455A.110, 455A.120 or 455A.170.

455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter.

The provisions of NRS 455A.010 to 455A.190, inclusive, do not prohibit a county, city or unincorporated town from enacting an ordinance, not in conflict with the provisions of NRS 455A.010 to 455A.190, inclusive, regulating skiers, snowboarders or operators.