Ski at your own risk. And if you are hurt because the ski lift operator screws up, you probably have no remedy. That's the message delivered on the last day of 2020 by a panel of the Colorado Court of Appeals in Redden v. Clear Creek Skiing Corporation. The same Court, through judicial feat, in my opinion, also rendered virtually meaningless a state statutory provision aimed at holding ski companies responsible for negligent ski lift operation.
Good day for insurance companies, bad day for public safety at our state's hugely popular ski areas.
In Redden, the plaintiff was injured when she attempted to exit a ski lift at Loveland Ski Area. A passenger in the chair in front of her had fallen while getting off the lift. When Redden then tried to exit the lift, she was blocked by the fallen skier and could not get away from her chair, which knocked her down causing injury. The chair lift operator failed to slow or stop the lift in time to avoid the accident. Redden brought several claims including common law negligence. She also asserted negligence per se under the Colorado Passenger Tramway Safety Act.
BOOTS AND BINDINGS, SIGN HERE
The defendant, Clear Creek Skiing Corporation (hereinafter “Clear Creek”), prevailed on summary judgment based on two waivers of liability. The first was a waiver of liability signed by Redden a year earlier when she purchased ski boots and had the bindings adjusted at a ski shop owned by Clear Creek. The waiver was titled “Release of Liability and Indemnification Agreement.” It contained broad release language including the following:
THE UNDERSIGNED acknowledge and understand that a skier ASSUMES THE RISKS of the inherent dangers and risks of skiing. THE UNDERSIGNED recognize that falls and collisions occur and injuries are a common and ordinary occurrence of the ACTIVITY. THE UNDERSIGNED hereby VOLUNTARILY ASSUME ALL RISKS associated with the PURCHASER'S participation in the ACTIVITY and use of this equipment.
Additionally, THE UNDERSIGNED HEREBY AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY Clear Creek Ski Corporation d/b/a Loveland Ski Areas, the equipment manufacturers and distributors, their successors in interest, their affiliated organizations and companies, and each of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders (each hereinafter a “RELEASED PARTY”) for ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to property arising from the PURCHASER'S use of this equipment, including those claims based on any RELEASED PARTY's alleged or actual NEGLIGENCE OR BREACH OF any express or implied WARRANTY.
THE UNDERSIGNED take full responsibility for any injury of loss to PURCHASER, including death, which PURCHASER may suffer, arising in whole or in part out of the ACTIVITY. By signing this release, THE UNDERSIGNED AGREE NOT TO SUE any RELEASED PARTY and agree they are releasing any right to make a claim or file a lawsuit against any RELEASED PARTY. THE UNDERSIGNED further AGREE TO DEFEND AND INDEMNIFY each RELEASED PARTY for any and all claims of THE UNDERSIGNED and/or a THIRD PARTY arising in whole or in part from the PURCHASER's use of this equipment and/or PURCHASER's participation in the ACTIVITY. THE UNDERSIGNED agree to pay all costs and attorney's fees incurred by any RELEASED PARTY in defending a claim or suit brough by or on behalf of THE UNDERSIGNED.
My thoughts: that's a hell of lot of risk to waive just to buy a pair of ski boots. Nevertheless, it appears Redden signed the waiver so she could get back the property she had paid for.
Redden argued the signed waiver was not fairly entered into because it is unfair to hold a person's property hostage until they sign a waiver. The appellate panel dismissed this argument because Redden had apparently not developed it enough. The opinion remarked that “[s]he neither cites any authority nor attempts to develop any cogent argument on this point.” Concluding that the argument was asserted in a perfunctory manner, the court appears to have deemed it waived. The opinion also found persuasive defense arguments that Redden provided no evidence that her boots were held hostage or that she ever attempted to reverse the boot transaction based on her disagreement with the waiver.
SKI LIFT TICKET, NO SIGNATURE REQUIRED
The Court of Appeals upheld the following liability waiver contained on the ski lift ticket Redden was using on the date of her injury:
HOLDER AGREES AND UNDERSTANDS THAT SKIING, SNOWBOARDING, AND USING LOVELAND SKI AREA, INCLUDING ITS LIFTS, FOR ANY PURPOSE CAN BE HAZARDOUS.
The ticket waiver also provided the following additional language: Holder understands that he/she is responsible for using the ski area safely and for having physical dexterity to safely load, ride, and unload the lifts … In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS Loveland Ski Area and its representatives for all claims to injury to person and property.
Redden argued that ski lift waiver was unfair because the ticket was sold through the mail without her being made aware of the waiver provisions. Moreover, it was an expensive nonrefundable, ticket in which the waiver language appears in tiny print on the back of the ticket. In short, Redden argued, the purchaser is forced to either waive their rights or forfeit their money. The appellate court ruled that Redden had made no argument to the trial court about the effect of the nonrefundable ticket and therefore the argument cannot be raised for the first time on appeal. Then, the court addresses the argument in dicta to conclude that exculpatory agreements are not unfair simply because payment under the agreement is nonrefundable. The opinion cited the 10th Circuit Court of Appeals in Patterson v. PowderMonarch, LLC, 926 F.3d 633 (10th Cir. 2019), which reasoned that “our cases have upheld exculpatory agreements for recreational activities even where the facts would suggest that the individual might well have lost money if she had chosen not to engage in the activity upon receipt of the exculpatory agreement.” The Tenth Circuit largely gets there by diminishing the importance of the plaintiff's rights because the contract relates to a non-essential recreational activity.
My thoughts: surprisingly, no one seems to be talking about whether the contract was a valid meeting of the minds to begin with. If the ski company added terms that were not initially agreed upon, and only disclosed those terms after the consumer paid for her ticket, it is difficult to see how this was a valid contract at the outset. Nevertheless, if the consumer became aware of the additional provisions and continued to perform on the contract, or exercise the benefits of the contract, the consumer can be construed as having waived any objection to the additional provisions.
The Ski Safety Act of 1979
The most interesting part of this case is the appellate panel's treatment of two safety statutes that facially appeared to provide remedies to the plaintiff: The Colorado Passenger Tramway Safety Act (the PTSA) and the Ski Safety Act of 1979 (the SSA). The majority relies heavily on 10th Circuit precedent that is not quite on-point to justify barring Redden's claims under the statutes.
As discussed by Judge Davidson in the dissent, “the SSA mandates that ski lift operators follow the provisions of the SSA, the PTSA, and the specific regulations adopted by the passenger tramway safety board … The SSA instructs that ski lift operators must reasonably comply with each of these duties, defines a violation of its provisions as negligence per se, and provides a civil remedy for an injury-causing breach.” The dissent explains that the effect of violating the SSA or PTSA is negligence per se.
Judge Davidson argues, convincingly in my opinion, that Redden should have been allowed to pursue her statutory claims:
“… plaintiff's amended complaint contained a detailed statutory claim, seeking damages for injuries caused by defendant's violations of explicit provisions of the PTSA and SSA. In my opinion, it should not have been dismissed as barred.
Relying on Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243 (10th Cir. 2018), defendant insists that the exculpatory agreements here were nevertheless enforceable to immunize it from plaintiff's statutory per se claim, suggesting that, like the claim in Brigance, plaintiff's claims were not sufficiently specific to effectively alter any statutory duties. But the record shows that, unlike in Brigance, plaintiff's amended complaint spelled out in detail which statutory and regulatory requirements were impacted, and how defendant allegedly violated each of them.
And, while it is generally true, as defendant asserts, that not every violation of a statutory duty supports a private civil remedy, the SSA explicitly provides for just that – a negligence per se claim for damages for victims of injury-causing violations of the PTSB regulations. Certainly, immunizing a ski lift operator by exculpatory agreement from the remedy explicitly provided for by the legislature, in the name of public safety, for injuries caused by a ski lift operator's violation of statutory duties, necessarily alters those duties; that is, the ski lift operator suffers no financial consequence for negligent violation of those duties with which it is otherwise required, by law, to comply.”
My thoughts: the dissent outlines a good argument for certiorari. This needs to be revisited, either by the Colorado Supreme Court or through legislative action.