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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