The statute is unclear as to the requirements that a ski area must enforce, so the patrons are at risk of an injury. Who is liable and what can a ski area do?Posted: May 2, 2018
C.R.S. §§ 33-44-109. Duties of skiers – penalties. States in section 6:
(6) Each ski or snowboard used by a skier while skiing shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard become unattached from the skier. This requirement shall not apply to cross country skis.
The Colorado Skier Safety Act above section C.R.S. §§ 33-44-109. Duties of skiers – penalties stated above requires skiers and snowboarders to have a retention device before skiing at a ski area.
Four of the 11 duties in section C.R.S. §§ 33-44-109 have criminal penalties if you violate those statutes.
(12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.
C.R.S. §§ 33-44-109. Duties of skiers – penalties.
(3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4).
(9) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug or while such person is under the influence of alcohol or any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug.
(10) No skier involved in a collision with another skier or person in which an injury results shall leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision; in which event the person so leaving the scene of the collision shall give his or her name and current address as required by this subsection (10) after securing such aid.
(11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6).
The criminal charges are petty offenses. However, riding a lift or skiing/boarding without a retention device does not have a criminal penalty.
The section (6), has no penalty if you fail to have a leash or brake on your board or skis.
On a side note, tickets written for violation of the law are written by law enforcement. Ski Patrollers or other ski area employees cannot write you a ticket for violating the law. They can, however, take your lift ticket or season pass.
The issue of riding without a brake or retention device is even further complicated by the manufacturers of ski and snowboard equipment. Skies come with brakes as part of the binding. Tele or backcountry equipment come with leashes. Snowboards or snowboard bindings do not come with leashes.
If you purchase a product should the product come with the required statutory safety requirements?
Snowboards fly down the mountain all the time because they get away from the snowboarders. They sit down, take off the board to work on it or rest and lean the board on one edge with the bindings down. Any hit to the board and the board is on the snow going downhill.
I once dealt with a twelve-year-old girl who walking in her ski boots and had a runaway snowboard hit her in the ski boot breaking her ankle.
The question then becomes, “If a snowboard or ski gets away from a boarder or skier and the runaway board or ski strikes someone and injures them who is liable?”
The snowboarder or skier is liable. No question there, those people with the lift ticket were required to follow the law and have a leash or retention device.
The statute requires them to have a leash or brake, and they did not. They are liable. If the boarder loses a snowboard because they did not have a leash on the snowboard, and it goes down the hill striking someone and injuring them, they are negligent per se. Negligence per se is liability for violation of a statute.
The border or skier is also liable because another section of the Colorado Skier Safety Act states that.
33-44-104. Negligence – civil actions.
(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.
Most people read this section of the statute and think this is how a ski area is held liable when they violate the statute. And it is. However, the statute is written in a way that the liability is not only that of the ski area, an individual who violates the statute can be civilly liable also.
Any violation of this article which causes an injury creates liability on the part of the person who violated the statute, and that is not limited to the ski area. Since no specific “person” is named, then any person who causes injury is liable.
What about the ski area?
No ski area checks to see if everyone riding the lift or skiing has a brake or a leash. If a ski area did, they would have to put in a permanent exit from the lift line so boarders could go buy leashes (or go home because they don’t have enough money for a leash).
However, the ski area is not liable if they allow someone on the ski hill without a leash or a brake. The statute is specific on when a ski area is liable and C.R.S. §§
C.R.S. §§ 33-44-109(6) is not on the list that creates liability to the resort.
But what about the manufacturers of the snowboard bindings that are sold without leashes? Is the manufacturer liable for selling a product that does not include a statutory safety item?
Probably not, because the liability is on the individual according to the statute. However, in some states, could that liability continue up the chain and hold the snowboard manufacturer or binding manufacturer liable.
Other state ski area statutes
Seventeen states have ski area safety statutes. (See State Ski Safe Acts.) Of those seventeen states eight have some requirement for “retention devices.” All eight require skiers (and boarders) to wear retention devices. Three of the statutes place a duty on the ski area to post notices about wearing the retention devices, CN, ID and ND. Not statute creates liability for the ski area for allowing people to ski or ride without brakes or leashes.
Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.
In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to:
(2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act;
Sec. 29-213. (Formerly Sec. 19-418m). Prohibited conduct by skiers.
No skier shall:
(7) fail to wear retention straps or other devices used to prevent runaway skis;
§ 6-1103. Duties of ski area operators with respect to ski areas
Every ski area operator shall have the following duties with respect to their operation of a skiing area:
(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;
§ 6-1106. Duties of skiers
No skier shall fail to wear retention straps or other devices to help prevent runaway skis.
§ 99C-2. Duties of ski area operators and skiers
(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;
53-09-03. DUTIES OF SKI OPERATORS WITH RESPECT TO SKI AREAS.
7. To post notice, at or near the boarding area for each aerial passenger tramway designed to transport passengers with skis attached to boots, of the requirements of this chapter concerning the use of ski retention devices. This obligation is the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.
53-09-05. DUTIES OF PASSENGERS.
Every passenger shall have the duty not to:
8. Wear skis without properly securing ski retention straps.
§ 18-105. DUTIES OF SKIERS
All skiers shall have the following duties:
12. To wear retention straps or other devices to prevent runaway skis;
30.985. Duties of skiers; effect of failure to comply.
(h)Skiers must wear retention straps or other devices to prevent runaway skis.
§ 8.01-227.17. Duties and responsibilities of winter sports participants and certain other individuals
g. Wearing retention straps, ski brakes, or other devices to prevent runaway equipment;
So, What Now?
If you lose a ski or board and that board hit someone or something and cause’s injury, you will be liable in eight states and probably liable in all states.
Possibly in some states, the manufacturer of the bindings who does not provide brakes or leashes (retention devices) could be liable.
Ski areas are not liable for failing to check for retention devices, and they are not liable if a ski or snowboard gets away from someone and injuries another guest.
Ski areas can stop you from skiing, riding or boarding a lift without brakes or leashes, but few if any do.
That leaves several unanswered questions.
What should the resorts do? Should they enforce the rule to require everyone to have a retention device?
What do you think? Leave a comment.
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