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A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484

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

Plaintiff: Linda Schlumbrecht-Muniz, M.D.

Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT

Plaintiff Claims: negligence, negligence per se, and respondeat superior

Defendant Defenses: Colorado Skier Safety Act

Holding: for the Defendant

Year: 2015

The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.

The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.

The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.

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

The court first looked at the requirements necessary to properly plead a claim.

“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.

The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…

Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.

Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:

Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.

The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.

Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.

The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:

…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.

In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.

I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.

The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”

The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.

Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”

Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”

The final claim was based on respondeat superior.

Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)

Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.

So Now What?

This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.

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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.

What do you think? Leave a comment.

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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.

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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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