A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.
Posted: March 5, 2018 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: avalanche, Collision, Colorado Skier Safety Act, de novo review, deceleration, enlargement, exhaustive, feet, inherent dangers, Inherent Risks, lamp, man-made, Negligence per se, parked, recommendation, Respondeat Superior, right to appeal, Ski, Ski Areas, Ski Resort, ski run, Ski Safety Act, Skier, skiing, Slope, Snow, Snowmobile, Sport, statutory definition, Steamboat, Steamboat Ski Area, Terrain, Trail Leave a commentA 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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By Recreation Law Rec-law@recreation-law.com James H. Moss
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AMGA Terrain and Supervision Guidelines? Making more rules does not make things safer. Rarely does that work, look at the laws concerning our highways and the highway deaths. Making more rules does lead to more lawsuits. Again, look at our highways.
Posted: December 5, 2014 Filed under: Mountaineering | Tags: American Mountain Guides Association, AMGA, Bureau of Land Management, Guidelines, IFMGA, International Federation of Mountain Guides Associations, Mountaineering, National Park Service, National Wilderness Preservation System, Terrain, UIAGM, United States Congress, United States Department of the Interior, United States Fish and Wildlife Service, United States Forest Service 8 CommentsThe latest actions of AMGA hit a lot of nerves and rightfully so. As usual, the lack of understanding and the desire to create something (not sure what) labeled standards are going to create lawsuits. The new Terrain & Supervision Guidelines won’t solve any problems; they’ll only create new ones.
I’ve attached the new requirements here below, so you can review them yourself. If not, you can download your own set here: Terrain & Supervision Guidelines. I’m not sure why the AMGA has created the new requirements. I’ve been told it is a money thing, I’ve been told it is a safety thing, I’ve been told it is a back door into trying to get permits on NPS lands; I have no real idea. I do know it won’t accomplish any of those goals. I did not contact the AMGA to find out what or why.
Attorneys love to deal in fuzzy it gives them latitude to litigate. The only time they don’t like fuzzy is when something is solid and proves their case without having to work very hard. The new Terrain & Supervision Guidelines are the classic sharp line to help prove the defendant was wrong and everything else is fuzzy so no one really knows how to help the defendant.
Let me reminisce.
I quit providing pro bono legal work to the AMGA over fifteen years ago when another attorney said he could get the AMGA into national parks. I told the AMGA that would never happen. I moved on. Fifteen years later and at least two attorneys failing to pull AMGA guides into parks, the AMGA might be going around to the back door believing the back door will open.
Back doors meaning the NPS employees in individual parks who lead the rescues have to deal with the current concessionaires; who they don’t like (familiarity breed’s contempt). It is always easier to like someone who is sucking up in the belief; you can get them in a park to guide.
The problem is the door is not at any park; the door is in Washington DC no matter what the AMGA wants to believe. It doesn’t start at 1849 C St NW, Washington, DC 20240, the Department of the Interior address, either, but at Congress. Congress made the laws the NPS, and the USFS are enforcing on commercial guides on Federal lands. Until the AMGA can raise millions, probably $10 million dollars to lobby Congress, nothing will even look like it is going to change. And I suspect that the $10 million is not enough because the current companies that own permits and concessions will lobby against it, and they are bigger. Remember the big hotel concessions in the parks also run raft trips, trail rides and work with climbing guides.
However, I’ve also been told that the AMGA has backed off from the position that AMGA guides should be allowed to guide in National Parks.
I have found some legal disasters in the new Terrain & Supervision Guidelines.
The guidelines won’t apply to staff hired prior to 2008. An arbitrary number I guess, or probably the number when the last member of the committee became certified and was hired. I sat through board meetings when the first date of guides to be grandfathered under the UIAGM was determined. It was ugly, funny and basically a turf war. Trial attorneys will tear this up. (How come Guide X made it and Guide Y did not. Guide Y has thousands of year’s more recent experience, and Guide X has not been on a mountain since 08?)
The guidelines require that everything has to be documented “in the guide’s personnel file.” Thank heavens the AMGA has reviewed all HR laws in the US and knows this will not create problems. If personal files are paper, then you better get accordion files. To back this up, you’ll have to collect all the information supporting the requirements in the guidelines first, and then add the review of the supervising guides and the evaluations. Weather conditions, snow conditions, terrain maps, route maps, etc., can take a lot of space in a file folder.
My favorite rule is one that requires a guide who has not made the qualifications yet, must be under the direct supervision of a guide who has met the qualifications. Unless the guide, who has met the qualifications, has to take guests down the mountain, then the two guides can be in radio contact. The rules allow the least experienced guide to remain up high, alone.
Direct Supervision: Direct supervision implies side by side guiding such as two rope teams traveling near by on a glacier or on nearby multi-pitch routes, daily briefings and debriefings about route selection, strategy, and client care. Side by side guiding and meetings should be documented in the guide’s personnel file. It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability. It is allowable for the mentored guide to be in radio or phone contact when turning around with clients to descend.
What if the guide who has been certified, leaves to summit with a group of clients, can the one who hasn’t been certified stay with the clients who don’t/can’t summit. They’ll be in radio contact?
So you make a rule, then you make an exception to the rule. On Denali in a few years, this will be a disaster. The new concession requirements for climbing concessions are going to reduce the number of guides with a commercial group. Rescues will be done without commercial guides because a guide won’t be able to leave the group and work the rescue with these guidelines. (Rescues in the future on Denali are going to be a mess with the latest version of the commercial rules anyway, that is a whole other article.)
The languages of the guidelines are full of legal land mines. Here are some of my favorites.
…who are appropriately trained, tenured or certified
It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability.
Certified supervisors
…is not of wilderness in nature
My favorite are the terms applied to different people.
Apprentice Guide
Assistant Guide
Aspirant Mountain Guide
Certified Guide
So does that mean you are a patrol leader or a star scout? More importantly do you get a badge?
Here are some more phrases that seem innocuous but don’t make sense.
The stated goal of the new accreditation standard is to have all field staff, except those meeting the 2008 exemption, be trained by the AMGA for the terrain they work on.
So guides who met the requirements prior to 2008 cannot have a lick of training, sense or experience now and not be up to date on the requirements.
How is this going to happen? So I have a concession to guide on Denali. Am I supposed to bring you on one of my trips to tell me that you can train me on this terrain? What about the NPS on this issue and their current regulations. I guess you can come, go sign up and pay the fee, and I’ll take you where I am permitted to go.
AMGA courses are considered the baseline technical training for specific terrain types and are not a substitute for in-house training.
Yet above, they said this is the best you can get? What is this going to mean in court? The AMGA is just the baseline, yet the states the IFMGA (UIAGM) are now the baseline.
(The IFMGA (UIAGM) was founded to allow guides in Europe to guide everywhere and is the International Organization the AMGA must follow.)
I doubt that this has been run by the IFMGA (UIAGM).
Do Something
What’s going to happen? The big concessionaire members of the AMGA are either going to leave and financially sink the AMGA or revolt. No one will be happy either way. They don’t need greater chances of being sued. People die on mountains, and I would guess these new guidelines are not going to change that. They know the terrain and have in place, with NPS approval a way of guiding customers and training staff.
I have not taken the time to compare these guidelines with current NPS regulations for various mountains. I suspect there may be some conflicts. What is a concessionaire supposed to do, not follow the NPS and lose their permit or not follow these. Let’s see I pay money to the AMGA I make money with my NPS permit. Who am I going to follow?
These guidelines, like all standards for people, will only create a checklist for the attorney representing an injured client to sue. The guidelines will be taken and incorporated in interrogatories about each member of the guiding team. One misstep on the mountain or in discovery and these guidelines will change the lawsuit from what we can defend to how much we have to pay.
Don’t get me wrong. The American Mountain Guides Association has some of the greatest people I know as members and as an organization has accomplished tons. However, it is faced with an impossible job with no money to accomplish the job: the promise the AMGA made to the IFMGA in 1993 is never going to come through.
However, making standards, guidelines for people do not stop lawsuits; they only help the plaintiff’s win lawsuits.
Click on the link to download your own copy of the Terrain & Supervision Guidelines.
See the following articles where association guidelines were used to sue the association member:
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp http://rec-law.us/zmKgoi
Great article about the risks of an organization creating standards for members of the industry – and I did not write it http://rec-law.us/1rk8oHR
If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not http://rec-law.us/1gOLpju
Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp http://rec-law.us/y7QlJ3
Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release http://rec-law.us/1dqBdxo
Plaintiff uses standards of ACCT to cost defendant $4.7 million http://rec-law.us/11UdbEn
So if you write standards, you can, then use them to make money when someone sues your competitors http://rec-law.us/1gCGce8
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent http://rec-law.us/wszt7N
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
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