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Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.

The Federal District Court in this case used the language of the lift ticket to support the defendant ski area’s motion for summary judgment. The decision  also says the release is valid for lift accidents in Colorado closing one of the last gaps in suits against ski areas in Colorado.

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

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Sally Rumpf & Louis Rumpf

Defendant: Sunlight, Inc.

Plaintiff Claims: negligence, negligence per se, and loss of consortium

Defendant Defenses: (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf
was negligent per se under the Ski Safety Act. 

Holding: for the Defendant 

Year: 2016 

The plaintiff traveled to Glenwood Springs, Colorado to visit family and ski. She rented equipment from the
defendant ski area, Ski Sunlight and purchased a lift ticket. As required to rent the ski equipment, the plaintiff signed a release. 

While attempting to board a chair lift, the plaintiff injured her shoulder. The defendant filed a motion for summary judgment which the court granted with this decision. 

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

In the statement of the facts, the court quoted from the language on the lift ticket.

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

What is interesting is the Colorado Skier Safety Act, C.R.S. §§ 33-44-107(8)(b) requires specific language to be on the lift ticket.

WARNING

Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.

It is unclear from the decision, and I do not have a copy of the Ski Sunlight lift ticket, to know if the required language is on the lift ticket. However, the language that was on the lift ticket was important and used by the court to make its decision.

The language required by the Colorado Skier Safety Act speaks to the risks assumed by a skier while skiing and does not speak to any risks of a chair lift. This creates an obvious conflict in the law for a ski area. Do you use the language required by the statute or use different language that a federal judge has said was  instructive in stopping the claims of a plaintiff. 

The court found the plaintiff had read and understood the release and knew she was bound by it. The plaintiff’s argument centered on the theory that the release did not cover lift accidents based on a prior case, Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998). That case held that a ski area owes the highest degree of care to skiers on the lift. 

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

The Bayer decision changed the liability issues for Colorado Ski Areas. It also created the only gap in  protection for Colorado Ski Areas between the Colorado Skier Safety Act and release law. However, this was significantly modified by Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662, reviewed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

The court then reviewed the requirements under Colorado law for releases to be valid. 

Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Additionally, the  terms of exculpatory agreements must be strictly construed against the drafter. 

The court reiterated several times that it was the intent of the parties within the language of the release that was the important aspect of the release, more than the specific language of the release. This intent was  supported by the language on the lift ticket. Colorado has a 4 factor test to determine the validity of a release. 

…in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. 

Skiing in Colorado is recreational and not a service, so there is no public duty that would void a release. Because it is a service, and the plaintiff is free to go ski else where there is no adhesion so the agreement was entered into by the parties fairly. 

Adhesion was defined by the court in Colorado as:

…Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary  service on a take it or leave it basis.” However, printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract.

For the plaintiff to win her argument, the plaintiff must show “, “that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.”

The court then applied contract law to determine if the agreement was ambiguous.

“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

The court in reviewing the release found the release to clearly and unambiguously set forth the party’s intent to release the ski area from liability.

The court again backed up its decision by referring to the language on the lift ticket. 

Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.” 

As such the release was valid and stopped the claims of the plaintiff and her spouse.

So Now What?

Although the basics of the decision are familiar under Colorado law, the court’s reference to the language on the lift ticket is a departure from Colorado law and the law of most other states. See Lift tickets are not contracts and rarely work as a release in most states

Whether or not a lift ticket standing by itself is enough to stop a claim is still in the air and probably will be. The language on this lift ticket may have been different than the language required by law, which basically states the skier assumes the risk of skiing. The required statutory language does not cover any issues with loading, unloading or riding chair lifts. 

This creates a major conflict for ski areas. What do you put on the lift ticket. The statute requires specific language; however, there are no penalties for failing to put the language on the lift ticket. However, it is negligence to violate any part of the statute, if that negligence caused an injury. 

C.R.S. §§ 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.

(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.

Failing to put the language on the lift ticket by itself could not cause an injury. The language required on the lift ticket is the same language required to be posted where ever lift tickets are sold and posted at the bottom of all base area lifts. Base area lifts are the lifts used to get up the mountain. Lifts that start further up the mountain, which require a lift right to reach don’t need the warning signs. 

My advice is to include the statutory language and much of the language of this decision on lift tickets. You just don’t want to walk into a courtroom and be accused of failing to follow the law. You might be right, but you will look bad and looking bad is the first step in writing a check. The biggest limitation is going to be the size of the lift ticket and print size.

This case, although decided before Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard? and was quoted in this decision, it adds another block into what is now an almost impregnable wall against claims from skiers in Colorado.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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

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

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

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

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 3, 2016, Decided

August 3, 2016, Filed

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

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

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

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

OPINION BY: Wiley Y. Daniel

OPINION

ORDER

I. INTRODUCTION AND RELEVANT FACTUAL BACKGROUND

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

II. STANDARD OF REVIEW

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

III. ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. CONCLUSION

Accordingly, it is

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

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

Dated: August 3, 2016

BY THE COURT:

/s/ Wiley Y. Daniel

Wiley Y. Daniel

Senior United States District Judge


Plaintiff tries to hold ski area liable for exceeding the state ski statute, however the court sees the flaws in the argument.

The New Hampshire Ski Area Safety Act only requires a ski area to post as a sign to close a run. The plaintiff tried to claim that a rope closing the run created greater liability rather more protection for skiers and boarders. A voluntarily assumed duty negligently performed is something always created in many outdoor recreation programs or businesses. However, it is not the change that is the legal issue. It is whether or not you increased the risk of harm to your guests that is controlling.

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Plaintiff: Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do

Defendant: Loon Mountain Corporation, d/b/a Loon Mountain Ski Area

Plaintiff Claims: violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

Defendant Defenses: New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

Holding: for the defendant ski area

In this case, two people died and one person was injured on an icy ski slope. The first victim standing above the closed trail slipped and slid under the rope 900 feet to his death. The next two victims took off their skis and tried to hike down to the first victim. Both eventually fell sliding down the slope.

The survivors and the estates sued claiming violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act and common law negligence claims. The lower court dismissed all but two of the claims on the defendant’s motion to dismiss. Those two claims were eventually dismissed after discovery had occurred, and the defendant filed a motion for summary judgment.

The plaintiff’s appealed the dismissal.

Summary of the case

The trail the plaintiff’s fell down had been closed because it was icy. The New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act required that a notice be placed on signs at the base of the lift, on trail-boards, and a sign posted at designated access points.

The plaintiff argued that the trail had to be closed not only at the main access point to the trail, but all possible access points to the closed trail from other trail. The court looked at a trail map of the area and realized that the signage alone to mark a trail closed would be enormous.

The second argument was the most disturbing. The statute did not require that a rope be used to close a trail. Only a sign was needed to close a trail. By placing the rope across the trail the rope “could lure a skier closer to the icy entrance than one would go otherwise.” The plaintiff then argued that by a duty, voluntarily assumed but negligently performed was not protected by the ski statute.

There are situations where a voluntary act increases the risk of harm to someone creating negligence.

…but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care.

The district court rejected this argument.

[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.

Because the first person to fall slipped on an ice patch, which was an inherent risk assumed by the skier under the statute, the plaintiff could not argue the risk was increased. The risk was there, and the rope did not change or increase the risk.

The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.

The next two plaintiffs obviously assumed the risk and by taking off their skis, probably increased the risks themselves.

The remaining claims of the plaintiff were dealt with quickly. The first was the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act violated the New Hampshire Constitution. However, the New Hampshire Supreme Court had already ruled it did not. The final two were procedural in nature. Whether the question on appeal had been certified and whether the plaintiff’s request to amend their complaint had been improperly denied.

So Now What?

Cases like this scare outdoor recreation programs into not doing the next thing to make a program better because of fear of creating more problems. Do not allow the threat of a lawsuit from making your program better or safer.

Do make your changes or upgrades such that the changes do not place your guests in a place of increased risk or such that you have placed your guests in a position where they may be confused.

Any risk can be assumed by your guests, clients or skiers. You need to make sure that any changes in your program, operation or business results in a change in the information and education your clients receive about the risk.

Here the risk had not changed to the plaintiff so that the change, the actions above those required by the statute, did not increase the risk to the plaintiff’s. The icy spot was there whether or not the rope was placed closing the trail or where the rope was placed.

Do the right thing and continue with an education of your guests to make sure they know what you are doing and why and what those risks are.

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Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do, Plaintiffs, Appellants, v. Loon Mountain Corporation, d/b/a Loon Mountain Ski Area, Defendant, Appellee.

No. 03-1047

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

350 F.3d 212; 2003 U.S. App. LEXIS 23995

November 25, 2003, Decided

SUBSEQUENT HISTORY: As Amended December 2, 3003.

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.

Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 9092 (D.N.H., 2002)

Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 24625 (D.N.H., 2002)

DISPOSITION: Affirmed.

COUNSEL: Kevin M. Leach with whom Nixon, Raiche, Manning, Casinghino & Leach, P.C. was on brief for appellants.

Thomas Quarles, Jr. with whom Margaret O’Brien, Matthew R. Johnson and Devine, Millimet & Branch, P.A. were on brief for appellee.

JUDGES: Before Boudin, Chief Judge, Siler, * Senior Circuit Judge, and Lynch, Circuit Judge.

* Of the Sixth Circuit, sitting by designation.

OPINION BY: BOUDIN

OPINION

[*214] BOUDIN, Chief Judge. In this tragic case, two individuals were killed and a third badly injured in a skiing accident in New Hampshire. The details are set forth in two very able opinions by the district court. Thus, we confine ourselves to an abbreviated description focused on the two primary issues raised on this appeal: one is an important question of statutory construction and the other a narrower issue turning upon the pleadings.

Howard and Eileen Gwyn, their daughter Margaret Do, and Margaret’s fiance Mark Goss went on a ski vacation in Lincoln, New Hampshire. On January 25, 1999, they spent the morning together skiing down [**2] easy trails at Loon Mountain Ski Area (“Loon”). Shortly before lunch, Howard, Margaret, and Mark–all very experienced skiers–left Eileen and rode the chairlift up to the Summit Lodge to ski down some more difficult trails. Unbeknownst to them, Loon had closed one of the trails (named “Triple Trouble”) the night before because of icy conditions, a closure noted on the trail board at the bottom of the mountain.

[*215] From the summit, it was possible to ski directly down a trail named Big Dipper from which, part way down, Triple Trouble branched off to the skier’s right. Or, from the summit, one could head right on a trail called Haulback, then take a left fork onto Cant Dog, and enter Big Dipper just above the point where Triple Trouble branched off to the right. At this branching off point from Big Dipper to Triple Trouble, Loon had posted a sign warning that Triple Trouble was closed. It had also placed a rope across the entrance to Triple Trouble.

From the summit, Howard led the group to the right down Haulback and then took a left turn onto Cant Dog. At the intersection of Cant Dog and Big Dipper–right above the closed Triple Trouble trail–Howard slipped on ice, slid under the rope [**3] blocking off Triple Trouble, and tumbled nine hundred feet down the icy slope. He suffered severe injuries resulting in his death a few days later. Margaret Do and Mark Goss saw Howard Gwyn fall, removed their skis, and attempted to walk down the closed trail to rescue him. Both fell, sliding hundreds of feet down Triple Trouble trail. Goss died. Margaret Do suffered severe injuries and frostbite but was rescued several hours later. In this diversity suit, Margaret Do and Eileen Gwyn (as executrix of Howard Gwyn’s estate and on her own behalf) sued Loon for breach of multiple common law and statutory duties. The district court granted Loon’s motion to dismiss the majority of claims under New Hampshire’s “Skiers, Ski Area, and Passenger Tramway Safety Act,” N.H. Rev. Stat. Ann § 225-A:23 (2002) (“ski statute”). Two claims survived the motion to dismiss, but after discovery the district court granted summary judgment to Loon on both counts. Plaintiffs appealed, focusing attention on one statutory claim and one claim of common law negligence.

At the crux of this appeal is New Hampshire’s ski statute, N.H. Rev. Stat. Ann § 225-A. In this [**4] statute several duties are placed on ski operators–maintaining trail boards, marking the difficulty of various slopes, making trail maps available to all skiers–and operators can be sued for violations of these statutory duties. § 225-A:23; Nutbrown v. Mt. Cranmore, Inc., 140 N.H. 675, 671 A.2d 548, 553 (N.H. 1996). At the same time, the statute places the risk of injury from dangers inherent in the sport of skiing on the skiers themselves, and bars all actions against ski operators for injuries caused by these dangers. 1 § 225-A:24; Nutbrown, 671 A.2d at 553. New Hampshire case law is slowly filling in the gaps but uncertainties remain.

1 [HN1] The statute provides that “each person who participates in the sport of skiing accepts as a matter of law[] the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards.” § 225-A:24; see also Nutbrown, 671 A.2d at 553 (“By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.”).

[**5] Here, most of the counts and theories pressed by plaintiffs at the start are no longer in issue, but two major claims remain open on this appeal. The first is that Loon did not comply with a statutory duty relating to marking closed trails. Under the ski statute, operators are not required to close a trail because of hazardous conditions, but if they do close a trail they must mark “the beginning of, and designated access points to” the closed trail with a sign, § 225-A:23 (III)(b), and note the closure on a permanent trail board at the base of the mountain, § 225-A:23 (II)(a). Here, it is undisputed that Loon properly [*216] noted the closure on the trail board and properly marked “the beginning” of Triple Trouble at the point that it branched off Big Dipper.

Nevertheless, the plaintiffs say that a closed sign for Triple Trouble was also required by the statute at the uphill juncture where Cant Dog forked off Haulback–a point where a sign pointed the way to Big Dipper and Triple Trouble. This, they say, was itself an “access point” to Triple Trouble. Their causation theory is less clear: the implication is that such an early warning of a closed trail further downhill might have made [**6] Howard Gwyn decide to lead the group straight down Haulback instead of taking Cant Dog so they could avoid the entire region around the closed trail.

The district court ruled as a matter of law that “access points” as used in the New Hampshire statute referred to points of direct entry onto a trail, and did not include points above the start of the closed trail. Thus, the start of Cant Dog might conceivably be treated as an access point to Big Dipper since the former merged into the latter; once on Cant Dog, entry onto Big Dipper was inevitable. By contrast, nothing compelled one who took the fork to Big Dipper necessarily to take the fork from Big Dipper onto Triple Trouble.

We agree readily with the district court’s reading of the statute. True, as a matter of dictionary definition a remote fork to an intermediate trail that can lead eventually to the closed trail could be described as a way to “access” the later trail; but on this theory the summit itself would be an access point to every connected trail on the mountain below. Indeed, on plaintiffs’ reading, warning signs might have to be posted at a variety of different points wherever existing trail signs indicated that [**7] the closed trail could be reached somewhere downhill. Conceivably, plaintiffs’ position could also require ski operators to construct such directional signs even if they did not already exist in order to mark every downhill closure.

It would not be literally impossible to comply with such requirements–apparently some ski slopes do so mark their closed trails, at least where existing signs mention the trails–but it could involve fairly complex compliance measures. In fact, the Loon trail map indicates that from some trails one could reach nearly 30 different trails below–some of them through open intermediate trails branching off into other open forks. The simplicity of the statute’s requirements argues against an interpretation requiring ski operators to mark every one of those possibilities, and this interpretation is unnecessary to carry out what we perceive to be the rationale of the warning requirement.

In our view, the statute aims to give the skier warning of a trail closure at any point where the skier might otherwise commit himself to traverse the closed trail. This is a complete scheme of protection giving the skier both a comprehensive overview of all closures on the [**8] base trailboard, and specific notice of each closure at any point on the mountain where the skier has a last chance to avoid the closed trail.

This reading may leave some open issues, but it forecloses plaintiffs’ central claim in this case. Here, the plaintiffs argue that a sign should have been placed at the Haulback-Cant Dog junction, since Cant Dog led onto Big Dipper which in turn led onto Triple Trouble. But a skier does not commit himself to taking Triple Trouble merely by turning left onto Cant Dog. Big Dipper was an open trail which a skier could continue down without branching off onto Triple Trouble, so no warning sign as to Triple Trouble was required by [*217] the statute at the Haulback- Cant Dog fork, even though one could have been voluntarily provided.

The second claim on appeal is that the district court should not have rejected an alternative theory of the plaintiffs having nothing to do with notice. The plaintiffs said that the defendant had placed the rope across Triple Trouble somewhat below the entrance itself and that the placement was negligent because it could lure a skier closer to the icy entrance than one would go otherwise. Admittedly, there was no duty to [**9] use any closing rope at all (the statute made the signs sufficient) but the plaintiffs argue that a voluntarily assumed duty negligently performed is not immunized by the statute.

There are obvious risks in penalizing efforts to provide help or care beyond an existing duty, but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care. Restatement (Second) of Torts § 323 (1965); see also Prosser & Keaton on Torts 378-82 (5th ed. 1984). The New Hampshire Supreme Court has not decided how far this doctrine may apply in the face of the state statute providing protection to ski operators. See Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 776 A.2d 1265, 1269 (N.H. 2001).

The district court did not attempt to answer this question. It rested its rejection of such a claim in this case on the fact that the plaintiffs had not articulated any plausible causal connection between the placement of the rope and Howard Gwyn’s fall. As the district court [**10] said:

[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.

We have read the plaintiffs’ appellate briefs with care and no persuasive answer to this summary appears.

The problem for the plaintiffs is that Howard Gwyn evidently slipped on an ice patch on Big Dipper, and [HN2] an icy and dangerous open slope is an inherent risk of skiing that the plaintiffs assumed as a matter of law. N.H. Rev. Stat. Ann § 225-A:24(I); Nutbrown, 671 A.2d at 553-54 (citing Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 1995 Mass. App. Div. LEXIS 30, No. 94WAD16, 1995 WL 263916, at *2 (Mass. Dist. Ct. May 1, 1995) (slipping on ice is an inherent risk of skiing)). The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than [**11] they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.

Three remaining claims can be dealt with more swiftly. First, plaintiffs say that as read by the district court (and now by this court), the New Hampshire statute violates two provisions of the New Hampshire Constitution: the right to a remedy and the equal protection of the laws. N.H. Const. part I, arts. 2, 12, 14. The claim is that the district court’s interpretation deprives the plaintiffs of their constitutionally guaranteed rights without giving them a sufficient quid pro quo of a prior warning of the danger. This argument may be forfeited since not raised [*218] below. Brigham v. Sun Life of Canada, 317 F.3d 72, 85 (1st Cir. 2003).

In any event the New Hampshire Supreme Court has already concluded that the obligations that the ski statute places on ski operators provide a sufficient quid pro quo for the statutory restriction on skiers’ legal remedies. Nutbrown, 671 A.2d at 552. While the “access points” issue was not considered in Nutbrown, this slight wrinkle would [**12] not be likely to alter the New Hampshire Supreme Court’s assessment. No further argument based on New Hampshire constitutional law is sufficiently developed to merit consideration. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 43 (1st Cir. 1998).

Second, plaintiffs say that the statutory reading of the access points language and the voluntary assumption issue present open questions of New Hampshire law that should be certified to the state court. No such request was made in the district court, which is ordinarily conclusive save in rare circumstances such as public policy concerns, e.g., Pyle v. S. Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995). In any event, the access points issue is too straightforward to deserve certification and the voluntary assumption claim has been resolved not on the basis of statutory preemption but simply on the pleadings and facts of this case.

Third, plaintiffs say that the district court erred by denying them the chance to amend their complaint for the second time (one earlier amendment had been made) two months after the deadline set by the district court’s scheduling order. The motion [**13] to amend was denied by the district court for failure to make any effort to satisfy the good cause requirement for amendments after the scheduling order deadline, Fed. R. Civ. P. 16(b)(1), and also the disregard of Local Rule 15.1’s further requirements (e.g., attaching all relevant documents and explaining why the change had not been made before). D.N.H. R. 15.1.

On appeal, the plaintiffs say only that the district court erred by applying federal standards for amending pleadings instead of the supposedly more liberal amendment rules applicable in New Hampshire state courts. [HN3] But if anything comprises “procedural” rules exempt from the Erie doctrine, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), it is the standards for such routine issues as the granting or denial of extensions of time, leave to amend, and similar housekeeping concerns. [HN4] The outcome determinative test relied upon by plaintiffs has been limited, see Hanna v. Plumer, 380 U.S. 460, 471, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), and has no application to a clearly procedural matter governed by explicit federal procedural rules.

[**14] This is a sad case but, despite the ingenuity and energy of plaintiffs’ counsel, it is not a close one, given the limitations imposed by state policy. It was handled with care and competence by the district court, and we might have said less but for a desire to make clear that plaintiffs’ arguments have been considered with respect.

Affirmed.

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Attractive Nuisance cases are rare, even rarer when it involves a ski area and ski lessons, let alone a collision case

This is an early collision case and shows the development of alpine ski collision cases. This case also examines how courts review the Colorado Ski Safety Act and whether it conflicted with Colorado’s Premise Liability Statute.

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

Plaintiff: James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs

Defendant: Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants

Plaintiff Claims:

Defendant Ski Area: negligent maintenance of the premises; C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers; and,

Under an attractive nuisance theory.

Defendant Ski School is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson; and,

For negligent supervision and instruction of Michael while enrolled in the ski school.

Defendant Defenses: Colorado Skier Safety Act

Holding: partially for the plaintiff and for the defendant

This case was filed in federal district court gave rise to this decision based on motions to dismiss filed by the defendants’ ski area and ski school. The motions were an attempt to dismiss the majority of the plaintiff’s claims, to weaken their position and their case.

The defendant was skiing at Snowmass Mountain Resort when the defendant allegedly collided with the plaintiff. At the time of the collision, the plaintiff was enrolled in a ski lesson with the defendant ski school. The defendant skier was “lured” to a roll or jump on the slope which he went over colliding with the plaintiff. It was this roll that was defined as the property creating the attractive nuisance.

This was a different approach to attractive nuisance. Attractive nuisance is normally used to recover from a landowner when something on the land attracted the minor on to the land resulting in the minor being injured. Here the minor who was attracted to land, was legally on the land and caused injury to another.

The court classified the plaintiff as an invited guest and customer of Snowmass. This definition took in both statutes the court was going to have to decide in this case, the Colorado Ski Safety Act and the Colorado’s Premises Liability Statute’

Summary of the case

The court first looked at the plaintiff’s allegations that the Colorado Ski Safety Act violated Colorado’s Premises Liability Statute and as such was unconstitutional. Under the Premises Liability Statute, the duty owed to the plaintiff would be as a business invitee which is the highest degree of care owed to someone on your land and a much higher degree of care than required under the ski safety act. The premise’s liability statute defines the liability of a business invitee as:

If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers, which are not ordinarily present on property of the type involved and of which he actually knew.

The court found the statutes did not conflict because statutes were directed at different types of “dangerous activities and conditions.”

The court then reviewed the plaintiff’s argument that the defendant ski area failed to protect the plaintiff from dangers it should have known. The claim was based on a statute that requires actual knowledge. In this case, it means the defendant would have to have known the defendant skier was going to collide with the plaintiff. The knowledge required was more than foreseeable; it had to be actual to create liability.

The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas.

In contrast, the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.”

Not to hold this way, the court stated, it would subject ski area operators to greater liability than other landowners. Because the plaintiff failed to make any claims under the Ski Safety Act, only claims under the Premises Liability Act the plaintiff was out on his negligence claims. Without the Premises Liability Act to support the claims, the claims failed when the Premises Liability Act was held not to supersede the Ski Area Safety Act.

However, the court reasoned the plaintiff’s claims of negligent supervision were not based on the premise’s liability statute those claims were allowed to continue. “Instructing people in the sport of skiing is not inherently related to the land.”

The attractive nuisance claims were also dismissed.

The purpose of the doctrine is to protect children from hazards, which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premise’s liability statute, the Legislature evidenced an intent to give children under the age of fourteen protections beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee.

The doctrine only applies to features on the land that are unnatural and unusual.

The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions, which are present on their property of which children should reasonably recognize the associated dangers.

Because the roll was natural and not unusual, the roll was not an attractive nuisance.

A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to  them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger.  Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.

The court dismissed the claims based on conditions of the land, but not those based on general negligence that were not based on the land.

So Now What?

This case has little direction for ski areas. However, it is a fundamental building block in Colorado law for the ski industry. The case also shows how a court determines which of two statutes will be controlling and how that decision is made by the courts.

The legal doctrine of attractive nuisance is also fading and not used much anymore. However, this case is a good analysis of the attractive nuisance doctrine. Here you can see that unnatural things on your land, which attract minors, under the age of 14, that causes injury to the minor can hold the landowner liable. Normally, a landowner would not be liable in this situation to a trespasser.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs, v. Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants

Civil Action No. 88-A-766

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

March 22, 1989, Decided

March 22, 1989, Filed

COUNSEL: [**1] Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, Colorado, Attorney for Plaintiffs.

Thomas E. Hames, Esq., Inman, Erickson & Flynn, P.C., Denver, Colorado, Attorney for Defendants Fischers.

Paul D. Nelson, Esq., Hancock, Rothert & Bunshoft, San Francisco, California, Scott S. Barker, Esq., Mary D. Metzger, Esq., Perry L. Glantz, Esq., Holland & Hart, Englewood, Colorado, Attorneys for Defendants Aspen Skiing Co. and Jennifer Catherine Lang.

JUDGES: Alfred A. Arraj, United States District Judge.

OPINION BY: ARRAJ

OPINION

[*1013] MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS

ALFRED A. ARRAJ, UNITED STATES DISTRICT JUDGE.

This matter is before the court on defendants Aspen Skiing Company’s (“ASC”) and Jennifer Catherine Lang’s (“Lang”) Motion to dismiss the Third, Fifth, Sixth, Seventh and Portions of the Fourth Claim For Relief Contained in Plaintiffs’ Second Amended Complaint. This is the second motion to dismiss filed in this case.

In order to understand the procedural posture of this motion, it is helpful to first set out the factual events upon which plaintiffs’ claims arose. According to plaintiffs, defendant Kevin Fischer, minor son of defendant Robert Fischer, collided with plaintiff Michael Giebink (“Michael”) in a skiing accident at Snowmass Ski Area on or about March 29, 1988. As a result, Michael was seriously injured. At [**2] the time of the accident it is alleged that Michael was an invited guest and customer at Snowmass Mountain Resort which is owned by ASC.

Plaintiffs’ Third Claim in its Second Amended Complaint is based upon ASC’s alleged negligent maintenance of the premises. Plaintiffs’ Fourth Claim is apparently pled under C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.” Second Amended Complaint para. 3 at 4. Plaintiffs’ Seventh Claim is also based upon the condition [*1014] of ASC’s premises under an attractive nuisance theory.

Plaintiffs further claim that Michael was enrolled in the Snowmass Ski School at the time of his accident. Defendant Jennifer Lang, an employee of ASC, was the skiing instructor. Plaintiffs’ Fifth Claim asserts that ASC is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson. Plaintiffs’ Sixth Claim is against Lang, individually, for negligent supervision [**3] and instruction of Michael while enrolled in the ski school.

In its first motion to dismiss, defendant ASC moved to dismiss those of plaintiffs’ claims which were pled under theories of common law negligence. Defendant argued that C.R.S. § 13-21-115, the Colorado premises liability statute, abrogated common law claims and that the statute was plaintiffs’ exclusive means of remedy. Plaintiffs opposed dismissal on several grounds, including their contention that C.R.S. § 13-21-115 was unconstitutional. At a hearing held on July 15, 1988, this court denied ASC’s first motion without prejudice. Certification of the constitutional questions raised by plaintiffs was made to the Colorado Supreme Court on November 1, 1988. The Supreme Court declined to answer the certified questions on December 12, 1988.

The present motion to dismiss was filed January 24, 1989. In it, defendants move for dismissal of the Third, Fifth, Sixth and Seventh Claims and portions of the Fourth claim as contained in plaintiffs’ Second Amended Complaint. Defendants renew their argument that C.R.S. § 13-21-115 is plaintiffs’ exclusive remedy. They conclude that because § 13-21-115 abrogates common law claims against [**4] landowners, that plaintiffs’ Third, Fifth, and Sixth Claims, founded on common law negligence theories, fail to state a claim upon which relief can be granted. Defendants also urge this court to dismiss the Seventh Claim because it is admitted that Michael was not a trespasser, and, according to defendants, the doctrine of attractive nuisance only applies to trespassers. Finally, defendants argue that the Fourth Claim should be dismissed to the extent that, contrary to § 13-21-115, the complaint implies that liability may be imposed against a landowner for failure to exercise reasonable care to protect an invited plaintiff against dangers of which it “should have known.”

ANALYSIS

I) “Conflict” between the Colorado Ski Safety Act and Premises Liability Statute.

It is plaintiffs’ position that the premises liability statute, C.R.S. § 13-21-115, does not apply to this case involving a skiing accident because the Colorado Ski Safety Act (“Ski Safety Act”), C.R.S. §§ 33-44-101 to -111, is a specific statute which applies to ski areas and prevails over the general premises liability statute which applies to “any civil action brought against a landowner.” § 13-21-115(2). Plaintiffs contend [**5] that the Ski Safety Act authorizes negligence actions, and to the extent that § 13-21-115 abrogates common law negligence claims there is a conflict. Consequently, plaintiffs conclude that the specific statute prevails and that their negligence claims are viable under the Ski Safety Act.

My analysis begins with [HN1] C.R.S. § 2-4-205, which provides in full:

“If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”

It is the court’s duty to construe statutes to avoid inconsistency if it is reasonably possible. Marshall v. City of Golden, 147 Colo. 521, 363 P.2d 650, 652 (1961). In the instant case the two statutes may reasonably be interpreted to avoid conflict. They apply to different activities and conditions.

The Ski Safety Act has an express purpose “to further define the legal responsibilities [*1015] of ski area operators 1 and their agents and employees; to define [**6] the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.” C.R.S. § 33-44-102. [HN2] The only responsibilities imposed upon operators by the Ski Safety Act relate to posting signs, §§ 33-44-106, 33-44-107, and providing lighting and other conspicuous markings for snow-grooming vehicles and snowmobiles. C.R.S. § 33-44-108. “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 25-5-710(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.” C.R.S. § 33-44-104(2). Thus, the duties imposed upon ski operators by the Ski Safety Act, a breach of which constitutes actionable negligence, concern a very limited number of specifically identified activities and conditions.

1 “‘Ski area operator’ means ‘operator’ as defined in section 25-5-702(3), C.R.S., and any person, partnership, corporation, or other commercial entity having operational responsibility for any ski areas, including an agency of this state or a political subdivision thereof.” C.R.S. § 33-44-103(7).

[**7] The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. See Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 678 (Colo. 1985) (“the legislature has attempted to identify those dangers which can reasonably be eliminated or controlled by the ski area operator.”). In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas. 2

2 Conceivably, a conflict could exist between the two statutes, as in a case where a ski operator fails to mark a man-made structure as required by § 33-44-107(7). If the structure was one not ordinarily present at a ski area, a conflict would exist. However, the instant case does not present the court with this situation.

In contrast, [HN3] the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. C.R.S. § 13-21-115(2). “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover [**8] for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.” C.R.S. § 13-21-115(3)(c) (emphasis added). 3 Thus, it is clear that the statutes are directed at two different types of dangerous activities and conditions, ordinary and out of the ordinary.

3 It is the judge’s duty to determine which subsection of § 13-21-115(3) is applicable in each action. § 13-21-115(4). The parties do not dispute that if the premises liability statute does indeed control, that § 13-21-115(3)(c) is the applicable subsection.

In Calvert v. Aspen Skiing Company, 700 F. Supp. 520 (D. Colo. 1988), the court held that the two statutes did conflict and that the specific Ski Safety Act prevailed. Accordingly, the court denied the defendant’s motion to dismiss plaintiff’s negligence claims. The conflict, according to the court, was that the premises liability statute abrogates all common law claims for negligence while the Ski Safety Act does not. Id. at 522. However, the two statutes may be interpreted consistently in light of the different scope [**9] of activities and conditions addressed by each.

It would be contrary to the Legislature’s intent to expose ski operators to greater liability than other landowners. To sustain plaintiffs’ claims founded on negligence would have exactly that effect. The Colorado Supreme Court has addressed at least one of the Legislature’s purposes in enacting the Ski Safety Act, stating:

Indisputably, the ski industry is an important part of the Colorado economy. . . . The legislative history indicates that one of the purposes underlying the [presumption provided in § 33-44-109(2) which imposes a presumption that the [*1016] responsibility for collisions by skiers with any person, natural object, or man-made structure marked in accordance with the Act is solely that of the skier and not the ski area operator] is to reduce the number of frivolous lawsuits and, accordingly, the rapidly rising cost of liability insurance accruing to ski area operators.

Pizza, 711 P.2d at 679 (citation omitted). The Legislature intended to protect ski operators from the increasing burden of litigation by passing the Ski Safety Act. There is no reason to believe that it intended to single out ski operators as a subgroup [**10] of landowners who would be held to a higher standard of care.

While the Ski Safety Act does not abrogate common law causes of action for negligence, neither does it expressly or implicitly create a general negligence action for all injuries sustained at ski areas. In the present case plaintiffs have not alleged any facts that would be actionable as a violation of the specific duties imposed upon ski operators by the Ski Safety Act. Their common law negligence claims, therefore, cannot be sustained under the umbrella of the Act. 4

4 Defendants pose a second argument which leads to the same conclusion. The premises liability statute was adopted subsequent to the Ski Safety Act and contains the “manifest intent” to apply to “any civil action.” C.R.S. § 13-21-115(2) (emphasis added). Accordingly, the premises liability statute, which expressly abrogates common law claims, would prevail even if the two statutes did conflict. C.R.S. § 2-4-205.

II) Premises Liability Statute

I must now consider to what extent the premises liability statute applies to plaintiffs’ claims. The language of the statute appears to embrace a broad range of conditions and activities that exist or are [**11] conducted on a landowner’s property. C.R.S. § 13-21-115(2). However, the court in Geringer v. Wildhorn Ranch, Inc., 706 F. Supp. 1442 (D. Colo. 1988), noted that [HN4] “the statutory classification ‘activities conducted or circumstances existing on such property’ must be read narrowly with careful regard for the intent of the legislature to re-establish common law distinctions in the law of premises liability.” Id. at 1446.

In Geringer, the plaintiff brought a wrongful death action for the death of her husband and son in a drowning accident which occurred at the defendant’s guest ranch. The two drowned during a boating accident involving a peddleboat supplied by the defendant corporation. The court struck plaintiff’s claims founded on the premises liability statute. Following a jury verdict in favor of the plaintiff, the defendants made motions for judgment notwithstanding the verdict, for new trial, and for amended judgment. Defendants contended that they were prejudiced by the trial court’s failure to instruct the jury in accordance with the premises liability statute which provides a more difficult standard for plaintiffs to overcome. Defendants argued that the [**12] premises liability statute was plaintiff’s exclusive remedy. The court disagreed:

Traditionally, the activities for which a defendant is liable as a landowner are inherently related to the land — construction, landscaping or other activities treating the land. . . .

The causation evidence in this case focused on defendants’ maintenance of the peddleboats and on defendants’ knowledge of their condition following purported repairs. The duty litigated in this case was that of a supplier of chattel to provide its user with chattel that was not defective. . . . The statute does not reflect an intention to extend the application of premises liability doctrine to the negligent supply of chattel by a landowner.

Id. at 1446. The distinction between activities “inherently related to the land” and other activities which do not fall within the scope of the premises liability statute logically follows from the court’s conclusion that “the statute does not establish a feudal realm of absolute protection from liability for simple negligence based only on a defendant’s status as a landowner.” [*1017] Id. at 1446. 5

5 To hold otherwise would shield all types of negligent activities from the negligence standard, such as in a case where a doctor negligently treats a patient at his privately owned clinic. This result could not have been intended by the Legislature.

[**13] In the present case plaintiff’s Fifth and Sixth Claims are based upon the alleged negligent supervision of Michael during the course of his skiing instruction. Instructing people in the sport of skiing is not inherently related to the land. Therefore, plaintiffs’ Fifth and Sixth Claims should not be dismissed.

On the other hand, plaintiffs’ Third Claim is founded on defendant’s negligent maintenance of conditions at the ski area. Conditions of property clearly fall within the scope of the premises liability statute. C.R.S. § 13-21-115(2). Therefore, the Third Claim must be dismissed for failure to state a claim upon which relief can be granted.

III) Constitutionality of the Premises Liability Statute

Plaintiffs contest the constitutionality of C.R.S. § 13-21-115 on several grounds. [HN5] Statutes are presumed constitutional and the plaintiff, as the party attacking the statute, must prove the statute unconstitutional beyond a reasonable doubt. Bedford Motors, Inc. v. Harris, 714 P.2d 489, 491 (Colo. 1986).

Plaintiffs argue that the phrase “deliberate failure to exercise reasonable care,” as provided in C.R.S. § 13-21-115(3)(c), is unconstitutionally vague. It is plaintiffs’ position [**14] that the terms “deliberate” and “reasonable care” are contradictory. I disagree.

The premises liability statute is basically an economic regulation, designed to limit the liability of landowners. Therefore, the vagueness standard which must be applied in this case is less exacting than in a case involving a penal statute or laws regulating first amendment rights. Pizza, 711 P.2d at 676.

“Deliberate” is a common word used frequently in every-day experience and readily understood. [HN6] “The probable legislative intent in using such a word may be determined by resorting to a standard dictionary.” Pizza, at 676. Webster’s New World Dictionary (2nd ed. 1972) defines “deliberate” as “carefully thought out and formed, or done on purpose; premeditated; careful in considering, judging, or deciding; not rash or hasty.” [HN7] “Reasonable care” is obviously a common tort standard associated with negligence which requires a degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. See Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337, 339 (1975). Thus, in order to incur liability under § 13-21-115(3)(c), a landowner must purposely fail to act [**15] as an ordinarily prudent person would in a like situation.

Plaintiffs also argue that the statute denies them a right to a remedy for injury as guaranteed by [HN8] Article II, Section 6 of the Colorado Constitution. Article II, Section 6 provides:

Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

As noted in Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698, 702 (1967), this provision is a mandate to the judiciary, not the legislature. “The power of the legislature to abolish substantive common law rights including those vouch-safed by the common law of England, in order to attain a permissible legislative object, has already been decided by this court. . . .” Id. at 470. Thus, the Legislature’s enactment of § 13-21-115 does not violate the Colorado Constitution.

Next plaintiffs argue that the statute violates [HN9] Article V, Section 25 of the Colorado Constitution which prohibits the general assembly from passing special laws for the benefit of any corporation, association or individuals. The constitutional inhibition against class legislation [**16] arises “when the effect of the law is to prohibit a carrying on of a legitimate business [*1018] or occupation while allowing other businesses or occupations not reasonably to be distinguished from those prohibited to be carried on freely.” Dunbar v. Hoffman, 171 Colo. 481, 468 P.2d 742, 745 (1970). However, a statute is not special when “it is general and uniform in its operation upon all in like situation.” McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691, 693 (1962). The premises liability statute applies uniformly to all landowners to limit liability for injuries resulting from conditions and activities which are inherently related to ownership of property. It is, therefore, not a special law.

Plaintiffs’ equal protection challenge also fails. [HN10] The statutory classification need only be reasonably related to a legitimate state objective in order to pass constitutional muster because no fundamental right or suspect class is involved. Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827 (Colo. 1982). In this case the Legislature could have reasonably enacted the premises liability statute as a means of reducing liability of landowners for certain injuries occurring on their property. The Colorado [**17] Supreme Court has recognized that the Legislature has a legitimate interest in protecting the state economy. Pizza, 711 P.2d at 679. Providing limited protection to landowners is reasonably related to that end.

IV) Plaintiffs’ Fourth Claim

Defendants argue that plaintiffs’ Fourth Claim should be dismissed to the extent that it alleges that defendant ASC is liable for failure to exercise reasonable care to protect Michael against dangers of which it “should have known.” 6 Plaintiffs’ Fourth Claim is based on § 13-21-115(3)(c), which, by its express terms, requires actual knowledge. Plaintiffs’ Fourth Claim is dismissed to the extent that it seeks to impose liability for dangers of which ASC should have known.

6 Plaintiffs’ Fourth Claim alleges that ASC is liable because it “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.”

V) Attractive Nuisance

Finally, defendants move to dismiss plaintiffs’ Seventh Claim which is founded upon the doctrine of attractive [**18] nuisance, 7 arguing that it only applies to situations involving trespassers, and that according to plaintiffs’ allegations Michael was not a trespasser. 8 In an attempt to strike a reasonable compromise between the conflicting interests between the freedom of land use and the protection of children, courts have recognized the attractive nuisance doctrine. [HN11] The doctrine imposes a higher standard of care on landowners toward children than would otherwise be owed to a trespasser. 9

7 In their Seventh Claim, plaintiffs accuse defendant ASC of maintaining an unreasonably dangerous and hazardous condition in the form of a roll jump. The roll jump is made entirely of earth. Skiers use it to perform aerial maneuvers.

8 The Colorado Legislature clearly provided that attractive nuisance, as it applies to persons under fourteen years of age, is not abrogated by the premises liability statute. C.R.S. § 13-21-115(2).

9 Prior to the Colorado Supreme Court’s decision in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), landowners generally owed no duty to make or keep property safe for trespassers. See Staley v. Security Athletic Association, 152 Colo. 19, 380 P.2d 53, 54 (1963).

[**19] The purpose of the doctrine is to protect children from hazards which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premises liability statute, the Legislature evidenced an intent to give children under the age of fourteen protection beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee. See W. Prosser & W. Keeton, Prosser and Keeton on Torts, § 59 at 402 (5th ed. 1984) (“In any case where the child could recover if he were a trespasser, he can recover at least as well when he is a licensee or an invitee [*1019] on the premises.”); Restatement (Second) of Torts § 343B (1977) (“In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.”); State v. Juengel, 15 Ariz. App. 495, 489 P.2d 869, 873 (1971). See also CJI-Civ. 2d 12:6A (Supp. 1988).

However, plaintiffs’ Seventh Claim fails for several other reasons. Plaintiffs’ counsel made [**20] it clear at the March 17, 1989 hearing that it was not Michael that was lured to the accident scene by the roll jump; it was Kevin Fischer, the other youth allegedly involved in the collision, who was drawn to the location by the roll jump. The doctrine of attractive nuisance simply does not apply under these facts.

A second, related argument, also leads me to the conclusion that the doctrine should not be applied in this case. [HN12] The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions which are present on their property of which children should reasonably recognize the associated dangers. See Esquibel v. City and County of Denver, 112 Colo. 546, 151 P.2d 757, 759 (1944) (attractive nuisance doctrine did not apply where child was injured while climbing on automobile bodies piled in an unstable heap). The Esquibel court cited the Restatement of Torts § 339 Comment on Clause (c):

A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to [**21] them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.

Other conditions which have been held to be common and obvious include an artificial pond, Phipps v. Mitze, 116 Colo. 288, 180 P.2d 233 (1947), an icy slope used for sledding, Ostroski v. Mount Prospect Shop-Rite, Inc., 94 N.J. Super. 374, 228 A.2d 545 (1967), a sand pile, Knight v. Kaiser Co., 48 Cal. 2d 778, 312 P.2d 1089 (1957), and a steep bluff, Zagar v. Union Pacific R. Co., [**22] 113 Kan. 240, 214 P. 107 (1923).

Defendants in this case had a right to expect youngsters who were actively participating in the sport of skiing to understand the dangers of conditions such as the roll jump. The dangers associated with the roll jump are apparent, not latent. It is not an “unusual condition.” Therefore, the doctrine of attractive nuisance is not available to the plaintiffs.

CONCLUSION

Accordingly,

IT IS ORDERED that plaintiffs’ Third and Seventh Claims be, and the same hereby are, DISMISSED with prejudice.

IT IS FURTHER ORDERED that plaintiffs’ Fourth Claim, to the extent that it seeks to impose liability for dangers of which ASC ‘should have known,’ be, and the same hereby is, DISMISSED with prejudice.

IT IS FURTHER ORDERED that defendants’ motion to dismiss to the extent that it requests dismissal of plaintiffs’ Fifth and Sixth Claims be, and the same hereby is, DENIED.

DATED at Denver, Colorado this 22nd day of March, 1989.

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State Ski Safe Acts

30 States have created statutes that affect regulate skiing. Two states have recreational statutes that apply to skiing.

Those state statutes are listed below along with significant portions of the act.

State

Statute

Ski Area Defined

Lists Inherent Risks of Skiing

Misc.

AK

Alaska Ski Safety Act of 1994, Alaska Stat. §§ 05.45.010 et seq.

“ski area” means all downhill ski slopes or trails and other places under the control of a downhill ski area operator; “ski area” does not include a cross-country ski trail;

changing weather conditions; snow conditions as they exist or may change, including ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streams, streambeds, and trees, or other natural objects, and collisions with natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, 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 roads and catwalks or other terrain modifications; collision with other skiers; and the failure of skiers to ski within their own abilities

Sec. 05.45.120.  Use of liability releases

Releases are void

A ski area operator shall prepare a plan of operation for each ski season and shall implement the plan throughout the ski season. A plan of operation must include written provisions for ski patrol, avalanche control, avalanche rescue, grooming procedures, tramway evacuation, hazard marking, missing person procedures, and first aid.

AZ

Ski Safety Act, Ariz. Rev. Stat. Ann. §§ 5-701 to 5-707.

“Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state.

(a)      Changing weather conditions.

(b)      Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.

(c)      Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.

(d)      Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.

(e)      Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.

(f)      Collisions with other skiers.

(g)      The failure of skiers to ski within their own abilities.

§ 5-706. Release of liability

In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.

CO

C.R.S. 33-44-102 (2012)

“Ski area” means all ski slopes or trails and all other places within the ski area boundary, marked in accordance with section 33-44-107 (6), under the control of a ski area operator and administered as a single enterprise within this state.

“Inherent dangers and risks of skiing” means 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.

Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.

CT

Conn. Gen. Stat. Ann. §§ 29-201 to 29-213

“Ski area operator” means a person who owns or controls the operation of a ski area and such person’s agents and employees.

(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

 

GA

O.C.G.A. § 43-43A-1

(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state.

(8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area.

(9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator.

(A) Changing weather conditions;

(B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;

(C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;

(D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;

(E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and

 (F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter.

 

ID

Idaho Code §§ 6-1101 to -1109

(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho.

(4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway.

(5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway.

variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code.

 

ME

Me. Rev. Stat. Ann. tit. 32, §§ 15217, 15218

§ 15202.  Definitions 15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State.

§ 15217. (1)(A)…existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.

 

MA

Mass. Gen. Laws Ann. ch. 143, §§ 71I to 71S

“Ski area”, all of the slopes and trails under the control of the ski area operator, including cross-country ski areas, slopes and trails, and any recreational tramway in operation on any such slopes or trails administered or operated as a single enterprise but shall not include base lodges, motor vehicle parking lots and other portions of ski areas used by skiers when not actually engaged in the sport of skiing.

…know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots

No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury.

MI

Ski Area Safety Act of 1962, Mich. Comp. Laws Ann. §§ 408.321 to 408.344

“Ski area” means an area used for skiing and served by 1 or more ski lifts.

…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.

 

MT

Mont. Code Ann §§ 23-2-731 to 23-2-736

“Ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for skiing.

(2)  “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including:

(a)  changing weather conditions;

(b)  snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow;

(c)  avalanches, except on open, designated ski trails;

(d)  collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(e)  collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components;

(f)  variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications;

(g)  collisions with clearly visible or plainly marked equipment, including but not limited to lift equipment, snowmaking equipment, snow grooming equipment, trail maintenance equipment, and snowmobiles, whether or not the equipment is moving;

(h)  collisions with other skiers;

(i)  the failure of a skier to ski within that skier’s ability;

(j)  skiing in a closed area or skiing outside the ski area boundary as designated on the ski area trail map; and

(k)  restricted visibility caused by snow, wind, fog, sun, or darkness.

 

NC

N.C. Gen. Stat. §§ 99C-1 to 99C-5

All winter sports slopes, alpine and Nordic ski trails, freestyle terrain and passenger tramways, that are administered or operated as a ski area enterprise within this State.

variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris;

 

ND

Skiing Responsibility Act N.D. Cent. Code §§ 53-09-01 to 53-09-10

3. “Ski area” means property owned or leased and under the control of the ski area operator and administered as a single enterprise within the state of North Dakota.

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, or other forms of forest growth or debris, lift towers and components thereof; pole lines; and snowmaking equipment which are plainly visible or are plainly marked in accordance with the provisions of section 53-09-03.

53-09-10.  Effect of modified comparative fault.

  Notwithstanding section 32-03.2-02, any person is, consistent with the provisions of this chapter, barred from recovery for loss or damage resulting from a risk inherent in the sport of skiing and like-wise is so barred when it is established that a person has knowingly exposed oneself to the real or po-tential hazards of a situation.

NH

N.H. Rev. Stat. Ann. §§ 225-A et seq.

“Ski areas” means all passenger tramways and all designated alpine and nordic trails, slopes, freestyle terrain, tubing terrain, and nordic ski jumps under the control of the alpine and nordic ski area operator and any other areas under the operator’s control open to the public for winter sports recreation or competition.

variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.

 

NJ

New Jersey Ski Statute, N.J. Stat. Ann. §§ 5-13 et seq.

“Ski area” includes all of the real and personal property, under the control of the operator or on the premises of the operator which are being occupied, by license, lease, fee simple or otherwise, including but not limited to all passenger tramways, designated trails, slopes and other areas utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.

A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions.

As a precondition to bringing any suit in connection with a skiing injury against an operator, a skier shall report in writing to the ski area operator all the details of any accident as soon as possible, but in no event longer than 90 days from the time of the incident giving rise to the suit.

NM

Ski Safety Act N.M. Stat. Ann. §§ 24-15-1 to -14

“ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state;

variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7

 

NV

Ski Safety Act, Nev. Rev. Stat. Ann. §§ 455A.060 to 455A.190

“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.

 

28-2-702  Contracts that violate policy of law — exemption from responsibility.
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

NY

Safety in Skiing Code N.Y. Gen. Oblig. §§ 18-101 et seq.

4.       “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state.

(1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state;

 

OH

Ohio Rev. Code Ann. §§ 4169.01 to 4169.99

(D)     “Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state.

(A)     (1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifi-cations; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles.

(5)      If the skier is utilizing a tubing park, to assume the risk of collision with others on the course.

OR

Skiing Activities law, OR. Rev. Stat. §§ 30.970 to 30.990

(4)      “Ski area” means any area designated and maintained by a ski area operator for skiing.

“Inherent risks of skiing” includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier’s failure to ski within the skier’s own ability.

(1)      A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury.

PA

42 Pa.C.S. §7102 Skier’s Responsibility Act

 

 

 

RI

R.I. Gen. Laws §§ 41-8-1 to 41-8-4

 

 

 

TN

Ski Area Safety & Liability Act, Tenn. Code Ann. §§ 68-114-101 et seq.

(4)      “Ski area” means all the ski slopes and ski trails and passenger tramways administered or op-erated as a single enterprise within this state;

Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing.

 

UT

Utah Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to 78-27-54

(4)      “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, free-style, or other type of ski jumping, and snowboarding.

…certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

(1)      “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to:

(a)      changing weather conditions;

(b)      snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

(c)      surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(d)      variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;

(e)      impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;

(f)      collisions with other skiers;

(g)      participation in, or practicing or training for, competitions or special events; and

(h)      the failure of a skier to ski within the skier’s own ability.

 

VA

Va. Code Ann. § 8.01-227.11  (2013)

“Winter sports area” means all the real and personal property under control of the operator or on the premises of such property that is being occupied by the operator by fee simple, lease, license, easement, permission, or otherwise, including but not limited to any and all trails, freestyle terrain, competition terrain, passenger tramways, or other areas of real property. “Winter sports area” does not include a tubing park except for any passenger tramway serving a tubing park and the immediate vicinity of such a passenger tramway in which individuals embark upon or disembark from the passenger tramway.

1. Existing and changing weather conditions and visibility;

2. Hazards associated with varying surface or subsurface conditions on a single trail or from one trail to another, including but not limited to hazards such as participant use, snow in any condition and changing snow conditions, man-made snow, synthetic snow, ice, synthetic ice, snow or ice falling from a tree or natural or man-made structure, crust, slush, soft spots, ridges, rollers, knobs, holes, grooves, tracks from winter sports area vehicles, bare spots, rocks, boulders, stumps, logs, and brush or other forest growth or debris, or piles thereof;

3. Variations in difficulty of terrain, whether natural or as a result of slope use, slope design, or both;

4. Trails that have, or fall away or drop off toward, natural or man-made obstacles or hazards, including but not limited to sharp corners, ridges, jumps, bumps, rollers, moguls, valleys, dips, compressions, cliffs, ravines, drop-offs, streams, rivers, ponds, lakes, stream beds, open water or water with thin ice, holes, steep, flat, and uphill sections, and all variants and combinations thereof;

5. The potential for collision with other participants or other individuals, including with winter sports area personnel, whether or not those personnel are on duty or off duty; with wild or domestic animals; or with equipment or objects such as winter sports area infrastructure, snowmaking equipment, buildings and posts, and stationary and moving lit or flagged winter sports area vehicles;

6. The potential for a participant to act in a negligent or reckless manner that may cause or contribute to the injury or death of the participant or other individuals or damage to property;

7. The location, construction, design, layout, configuration, and condition of trails, freestyle terrain, and competition terrain;

8. The fact that use of trails, freestyle terrain, and competition terrain and participation in or being near races or other competitions or events, including but not limited to as a participant, employee at a winter sports area, spectator, or observer, involves the risk of serious injury or death or damage to property;

9. The fact that a helmet may not afford protection in all instances and that failure to wear a helmet that is properly sized, fitted, and secured may increase the risk of injury or death or the risk of more severe injury; and

10. The fact that the use of passenger tramways may be hazardous to passengers, including but not limited to risks resulting from loading or unloading a tramway and the potential for a passenger to fall from a tramway.

Each operator, upon request, shall provide to a participant a trail map of all trails located in the operator’s winter sports area. The maps shall be available at each ticket sales office and at other locations at the winter sports area such that the maps are easily accessible to participants. All trail maps shall indicate the skill-level designation for each trail at the winter sports area as designated in subsection C of § 8.01-227.12.

Each winter sports participant, or the parent or legal guardian of, or adult acting in a supervisory position over, a participant under the age of 18, shall be responsible for determining whether the participant will wear a helmet and whether the helmet is sufficiently protective and properly sized, fitted, and secured.

Nothing herein shall prevent a participant or passenger from offering evidence that he did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk.

VT

Vt. St. Ann. tit. 12, § 1037

 

Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.

 

WA

Wash. Rev. Code Ann. §§ 79A.45.010 to 79A.45.060

 

 

 

WV

Skiing Responsibility Act, W. Va. Code Ann. §§ 20-3A-1 to 20-3A-8

“Ski area” means any property owned or leased and under the control of the ski area operator or operators within West Virginia.

Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three [§ 20-3A-3] of this article.

When no certified ambulance service is available in the vicinity, have on duty at or near the skiing area, during all times that skiing areas are open for skiing, at least one trained and currently certified emergency medical technician.

WY

Wyo. Stat. § 6-9-201  (2012)

 

 

 

 

Recreational Statutes that Include Skiing

State

Statute

 

 

WI

Wis. Stat. Ann. § 895.525

 

 

WY

Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123

 

 

Always contact local legal counsel to determine the latest version of any state statute affecting your business.

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