A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.Posted: March 5, 2018
A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Linda Schlumbrecht-Muniz, M.D.
Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT
Plaintiff Claims: negligence, negligence per se, and respondeat superior
Defendant Defenses: Colorado Skier Safety Act
Holding: for the Defendant
The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.
The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.
The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements necessary to properly plead a claim.
“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”
This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.
The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…”
Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:
Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.
The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.
Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.
The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:
…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.
In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.
I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.
The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”
The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.
Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”
Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.
Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”
The final claim was based on respondeat superior.
Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)
Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.
So Now What?
This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.
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For 10 years, I kept track of fatalities while skiing/boarding inbounds at resorts. Lately several news agencies have been doing the same but with what I consider an evil intent, to create liability for the ski areas or the NSAA.
I’ve never wanted to track this information with the intent of placing blame. People die skiing. People die in the bathroom, getting ready to go skiing, and more than anything, people die driving to and from the ski area. However, these news agencies seem to believe that dying with a pair of skis on or a snowboard requires special reaction from the ski area or the National Ski Area Association (NSAA).
Even funnier, they seem to get upset when the NSAA does nothing when someone dies out of bounds. The name is Ski Area association?
I wanted to know why people died skiing. I wanted to be able to talk with my students at Colorado Mountain College (CMC) in the Ski Area Operations (SAO) program about deaths. I thought if I looked at these deaths, I might learn something. I did. Dying at a ski area is more bad luck than anything else that I can track or understand.
If you don’t want to die at a ski area:
Don’t ski near trees (tress attack skiers!)
Never ski alone (because if you get ill, there is no one to help)
Never ski out of control.
Other than that nothing else seems to make a difference. Definitely, as I’ve always said, wearing a helmet is not going to keep you alive skiing. Helmets were designs to protect your head from minor injuries, nothing more. More people are dying these days wearing a helmet than not wearing a helmet. Maybe Risk Homeostasis is a thing.
The one thing I have learned is there is very little if anything a ski area can do to prevent fatalities while skiing or boarding. Ten years of looking at reports in the media from fatalities and the liability of a ski area does not pop out as a cause of the death.
Several news organizations have been collecting similar data and publicizing it with an obvious intent to create liability for a ski area or kick the NSAA for whatever reason. I don’t want to be associated with those organizations.
I represent several trade associations and am a member of several. The American Bar Association does not track how many lawyers die at work. However, several news organizations, some in ski area country, now believe that is a requirement of the NSAA, and they are not doing their job if they don’t.
I never see reports from the Association of Alternative Weeklies about how many journalists died last week. Should journalists know, probably? Should students know how risky their profession might be, probably? However, you don’t see articles condemning the association when they don’t write up stories about a writer found dead on his keyboard; coffee spilled over his notes and a burnt out joint in the ash tray. (I’m talking Colorado here.)
Nor do these news reporting businesses look at other outside activities. They don’t track mountain biking, road biking, scuba diving, or anything else with any interest. They certainly don’t start a headline about a fatality with the number of deaths in that sport this year or season. Maybe because skiing has such a big economic impact, it gets the special treatment? But then all their reporting is going to do is decrease the amount of money coming into the state.
People die every day all sorts of ways. Some at ski areas, some because they were thinking about skiing I suspect. People die going to and from the ski areas, but I don’t see headlines about how and why the Colorado Department of Transportation is not reporting these deaths. Another person dies on I-70 coming home from a great day of skiing.
I just don’t want to be associated with that group. So last week’s report will also be the last one.
What do you think? Leave a comment.
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Colorado Resorts Offering a Flurry of Early Season Ski Deals
Skiers can save with special offers on multi-day lift tickets, lessons, rentals, lodging, and a snow guarantee
DENVER, Colo. – November 9, 2012 – As the 2012/13 ski season gets underway in Colorado, Colorado Ski Country USA (CSCUSA) resorts are rolling out early season deals and incentives that underscore Colorado as a very attainable and affordable winter ski destination.
With the variety of discounted products recently released, savvy skiers will find that doing a little research can pay big dividends. “Guests have learned that by taking advantage of early season deals and booking their ski vacation early, they will yield the biggest savings and end up with a ski trip that fits their budget and needs,” explained Melanie Mills, president and CEO, Colorado Ski Country USA. “Resorts are able to leverage their partners in lodging, ski school and equipment rentals and put together some very creative and attractive packages.”
A sampling of resort early season deals is below and more can be found on www.ColoradoSki.com/deals.
Passes & Lift Tickets
Arapahoe Basin offers The Legend’s 4 Pass which is valid for four days of skiing or riding at Arapahoe Basin. The cost is $158 and the pass is non-transferable (this is a hard-card product that requires a photo) and available for purchase until December 14, 2012. Valid all season with no blackout dates, guests can purchase The Legend’s 4 online at Arapahoebasin.com or via phone by calling 888-ARAPAHOE.
Colorado Gems Card
The Colorado Gems Card is a discount card for use at the eight Colorado Gem resorts (Arapahoe Basin, Eldora, Loveland, Monarch, Powderhorn, Ski cooper, Ski Granby Ranch, and Sunlight). It offers deals and discounts that appeal to skiers and riders of all ages and abilities. In addition to the resorts’ upgraded season-long deals, there is a new component to this year’s Gems Card: Flash Deals. Flash Deals are special promotions and ways to save that are unique to each Gem resort and will be announced last minute throughout the season. CSCUSA will announce Flash Deals in the Gems newsletter, on social media, and on the Gems website www.ColoradoSki.com/gems. Only Colorado Gems Card holders will be able to take advantage of Flash Deals.
The Powderhorn P-Card is neither a season pass nor a lift ticket, but still offers flexibility and savings. The P-Card is a $69 product that allows the purchaser one free day of skiing or snowboarding and additional days at 20 percent off a regular single day adult lift ticket for the rest of the season. Complementary to the P-Card is the Deca Card. The Deca Card can be used for gifts, families, groups, and friends. The Deca Card is $170 and allows the holder to purchase 10 half-price lift tickets, one at a time, all in one day, or any combination in between. It is transferable with no blackout dates. Details and more information can be found at www.Powderhorn.com.
New this season is Ski Cooper’s XP 4 Day Pass for $99. Providing direct-to-lift access (pass will be scanned at the lift), no blackout dates or restrictions, and the flexibility to not be used on consecutive days, this deal breaks down to skiing or riding for less than $25 a day. The XP 4 Pass is non-transferable. The $99 purchase price is good until opening day (November 22 as conditions permit) and then the pass can be purchased for $119 while supplies last. For details and more information please visit www.SkiCooper.com.
Guests are invited to spend the early season in Ski Town USA with the Boat Launch pass that offers three days of skiing and riding from November 22 – December 14. The pass is $129, but with snow in the forecast, Steamboat is offering discounted passes for the next week. For details and more information please visit www.steamboat.com/boatlaunch.
Sunlight offers a free lift ticket to Powderhorn passholders until December 20, 2012. Skiers and riders need to show their Powderhorn season pass at the Sunlight ticket window to receive a lift ticket for the day. This offer is valid for all ages and available from opening day at Sunlight (scheduled for Dec. 7) until December 20, 2012. For details and more information please visit www.Sunlightmtn.com.
Lift & Lodging Packages
This year the Limelight Hotel in Aspen, where dogs are welcome, offers deals such as its Ski Free package* where guests can receive up to two lift tickets per day with a three night minimum stay, based on availability, and some blackout dates apply. Details and more information can be found at www.limelighthotel.com.
*Lift tickets do not have a dollar value and are non-refundable. Lift tickets are good at all four Aspen/Snowmass ski areas, including Aspen Mountain, Aspen Highlands, Buttermilk and Snowmass.
Copper Mountain’s Powder to the Pillow deal gives guests overnight stays in their back pocket to use at any point in time. Guests can pre-purchase three to six nights of lodging and reserve the rooms throughout the season. Visit www.CopperColorado.com for more information.
A destination known for their past ski free promotions, Crested Butte Mountain Resort offers free skiing for everyone on Opening Day of the 2012-2013 winter season. On November 21, 2012, everyone skis for free, no strings attached. If guests want to stay longer and still receive free skiing, they can book the Ski Free with Lodging package with Crested Butte Vacations at www.skicb.com or call 800-600-2803. Stay one night and receive a free day of skiing for each person on the reservation. This package is available November 21 – December 19, 2012.
Skiers and riders can escape to the scenic Colorado Rocky Mountains for $95 per person/per night with Purgatory’s Rocky Mountain Getaway. The package includes two days of lift tickets and two nights lodging at Durango Mountain Resort. For more information and to book, guests can call 800-525-0892 and mention the “Rocky Mountain Getaway.” Details and more information can be found at www.DurangoMountainResort.com.
*Price is per person, per night, based on double occupancy, minimum two-night stay. Packages may be further customized. Not valid 12/24/2012 – 1/4/2013. Other restrictions may apply.
Steamboat believes that the early bird gets the worm through early rewards package. Travelers can save 20 percent on lifts and lodging for four nights and three days, as low as $394 per adult. A minimum four nights’ lodging and three day lift ticket is required for all guests. Additional savings can be found with Steamboat’s Airfare Sale, with flights as low as $150 into Steamboat’s Hayden Airport. United, Delta and American Airlines have deals from locations including Atlanta, New York, Chicago, Los Angeles, Orlando and more. Travelers need to book by November 30, 2012 for the best savings. For details and more information please visit http://www.steamboat.com/plan-your-trip/deals-and-packages/early-rewards.aspx.
Guest can book five flexible nights of lodging for $169 per night at The Vintage Hotel and they will receive a free Winter Park Season Pass. The season pass allows unrestricted access to Winter Park’s cruisers and Mary Jane’s famous mogul runs all season long. Lodging must book buy December 12, 2012.
New this year, Winter Park is offering a Snow Guarantee. With the guarantee, previously booked vacations can be rescheduled for later in the season if snow conditions are not up to guest’s standards. Trips must be booked for arrival/departure between November 14 – December, 20 2012. Notification of rescheduling must be made 48 hours prior to arrival (by 4 p.m., two days prior to arrival) and will be on a space available basis. Rescheduled trip must be used by April 21, 2013. The cost of the early season vacation will be applied to the later dates and any difference in cost will be paid by the guest and no refund will be offered.
This season Winter Park is offering 25 percent off nightly lodging at the resort. The discount applies to Winter Park Resort properties including Zephyr Mountain Lodge, Fraser Crossing, Founders Point, and Vintage Hotel. Offer is not valid December 26 – 31, 2012 and March 10 – 14, 2013 and must be booked by December 12, 2012. Details and more information can be found at www.WinterParkResort.com.
Aspen/Snowmass invites guest who are new to the sports of skiing and snowboarding to take advantage of a lift and lesson package and get on the slopes in the early season. Right now, guests can buy 2, get 3 on lift tickets, equipment rentals, and group lessons (all kids group lessons ages 5 – 17 and adult group lessons level 4 and up). Packages must be booked by November 19, 2012 and are valid November 22 – December 20, 2012. To book this package and get more information please visit www.stayaspensnowmass.com.
Loveland has a deal for those who have never tried skiing or riding before but always wanted to. With Loveland’s 3-Class Pass, guests can learn a new sport and receive an Unrestricted Loveland Season Pass to enjoy and practice turns all season long. Guests can simply sign up for three ski or snowboard full lesson packages, which include lesson, all day lift ticket and equipment rental. Once they complete the third lesson, they will receive a season pass. Additional charges apply for novice and low intermediate adults. Prices and more information can be found at http://www.skiloveland.com/skischool/3_class_pass.aspx
Ski Granby Ranch
Ski Granby Ranch (formerly SolVista Basin) offers the Get On the Snow (GOTS) program for never-ever-before skiers or riders. With Ski Granby Ranch’s GOTS Program, guests can learn a new sport and receive a season pass to practice everything they learned. The program includes two full days of lessons and equipment rentals. Once the second lesson has been completed, guests will receive a season pass. For more information, please visit http://www.granbyranch.com/colorado-skiing-snowboarding-ski-resorts-ski-and-ride-school.html.
The Beginner Package at Wolf Creek Ski Area offers never-ever skiers and snowboarders a combination lift and group lesson ticket to keep it easy on the first day. The $56 price includes four hours in a group ski lesson and access to the beginner Nova double chairlift. For $66 the same deal can be used for snowboarders. This package is offered to adult skiers/boarders, as well as children ages nine and up. For details and more information please visit www.WolfCreekSki.com
Copper Mountain welcomes its 40th season in the skiing business December 7 – 9 with throwback deals. All weekend long, Copper is offering anniversary themed specials; $40 lift tickets, $.72 beer at Endo’s, $40 equipment rental for two and $40 Ski & Ride School and Woodward at Copper packages and much more. Retro snow suits are requested but not required; visit www.CopperColorado.com for more details.