Colorado Supreme Court Considers Whether a Release Could Be Used to Stop a Claim for Negligence Per Se

Jun 14, 2024

By James Moss, Senior Writer

If you want a legal opinion, ask a lawyer. If you want to be entertained about the law, watch the news.

A recent decision by the Colorado Supreme Court generated hundreds of articles about the possible outcome of this case. The decision changed nothing, so now the media is providing worse opinions and making up facts to support their original bad reporting. It is quite entertaining.

Worse, there is no instant replay in skiing.

A young girl did not load a chairlift and was hanging on to the lift when she fell. She was rendered a quadriplegic upon hitting the ground after a 30’ fall. The plaintiff and her father sued the defendant ski area claiming negligence and negligence per se on the part of the ski area. The trial court dismissed all the claims based on the release signed by the plaintiff’s father.

Skiing is a big sport in Colorado generating the most money of any industry during the winter. Colorado has a Skier Safety Act § C.R.S. 33-44-101 et seq. and a legislatively created Tramway Safety Board that issues rules for and oversees the operation of chair lifts in Colorado; C.R.S. § 12-150-101 et seq.

Consequently, any violation of the statute or a rule promulgated by the tramway safety board is negligence per se. The issue in this case was whether or not a release; a private contract between the parties, could be used to stop a claim for negligence per se.

The final decision of the Supremes was a release could stop the negligence claims of the plaintiff but could not stop the negligence per se claims of the plaintiff, as prior case law in Colorado and most other states had decided. There was nothing new in this decision, and this decision did not overrule a single prior decision.

However, it did garner tons of media attention. Prompted by whom I have not been able to determine and why the answer I receive is, “Well, it looked interesting.” The word “looked” means other media outlets wrote about it so it must be important.

Crested Butte ski areas, like a lot of ski areas nowadays, require you to purchase your lift ticket online to ski. This process requires everyone to sign a release as part of the purchase process. Ticket windows are now of a bygone era. This process is cheaper and allows a release to be signed, which could not be done at a ticket window. You can purchase your lift tickets anywhere in the world for a date anytime in the future. You will not stand in line to purchase a lift ticket again unless your minor child is involved in a duel to the death on the computer before you get online. It also provides better tracking of people. If an unconscious person arrives in the ski patrol hut you can now identify the person within seconds rather than looking for anything on the victim who might help discover who they are.

The trial court dismissed all the claims of the plaintiff, negligence, and negligence per se. The plaintiff appealed, finally landing at the Colorado Supreme Court. The court in a sixteen-page analysis, including two opinions that concurred in part and dissented in part. After three years of speculation, simply put it backed up prior case law and changed nothing.

Under Colorado law, there is a four-part test to determine if a release is valid.

(1) the existence of a duty to the public;

(2) the nature of the service performed;

(3) whether the contract was fairly entered into;

(4) whether the intention of the parties is expressed in clear and unambiguous language

The first two parts of the test are eliminated in most states and in Colorado if the services being offered are recreational. Recreation, as much as we might argue is needed for part of life has not achieved that status in the law. The law has never recognized recreational activities as being important enough to be a necessity. A necessity means something that is required for a person to live. Food, shelter, and utilities are all necessities. Thus, the first two requirements are met when the activity being protected by the release is skiing.

The third test is also met when skiing or any other recreational activity is the purpose of the contract. In this case, the plaintiff argued the release was not clear enough to exculpate the defendant; however, the court found the language in the release covered problems loading a chair lift, and that was enough. Fairness is not a tightly balanced scale when the services are recreational.

The second argument is simple. Could the parties understand what they were signing? The plaintiff took off on a tangent arguing the language of the release was not clear enough to explain the possible dangers of loading a chair lift. However, the court ignored this and brought the argument back to do the parties understood what they were signing and whether the release was clear enough to meet that test. The court found it was.

The release signed online by the plaintiff’s father defeated their negligence claims.

The negligence per se claims the court took more time addressing, even though one of the prior decisions the court quoted clearly stated that violations of the Colorado Skier Safety Act or rules of the Passenger Tramway Safety Board were negligence per se.

The Colorado Skier Safety Act had a clause that stated that claims brought for lift accidents were not covered by the Colorado Skier Safety Act. So, there was no protection afforded to ski areas for lift accidents.

There was a conflict between the Colorado Skier Safety Act and C.R.S. § 13-22-107, a statute that allows a parent to sign a release on behalf of their minor children. In Colorado, and several other states, a parent can sign away a minor’s right to sue. However, the Colorado Skier Safety Act in the last section states in 33-44-114. Inconsistent law or statute. Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls. This part of the statute was inserted to make sure other statutes did not provide a way to sue ski areas. In an ironic twist of fate, a section inserted into a statute to protect a possible defendant did the opposite and prevented the release from protecting the ski area.

The facts in this case are horrendous. The plaintiff a young girl was left a quadriplegic by the accident. She was unable to get seated on the chairlift when she loaded, and she held on with the help of her father, and another person seated on the lift until she fell thirty feet. At no time during this series of events did anyone stop the lift.

At the same time, what is always left out of any of these proceedings is chair lifts do not stop on a dime. Fixed grip lifts move along at 5.5 miles per hour, the maximum speed allowed under the rules of the Tramway Safety Board. Detachable lifts move at 14 miles per hour, again per the rules of the Tramway Safety Board. The rules of the tramway safety board require the lifts to decelerate over a specific time and distance when the emergency stop button is pressed. Why? If you were traveling in your car without a seat belt at 14 mph and the car stopped suddenly your impact would be substantial. Take that same impact and place yourself thirty feet above the ground. You would not have time to grab something and you would fly off the lift with or without a comfort bar. (Ski lift manufacturers do not call the bar that lowers on chair lifts safety bars because they do not provide any safety. They provide mental comfort for the riders. And at some resorts, a space to sell advertising also.)

At ski resorts, we would try and calculate the arc a person would achieve and the possible landing area if the lift stopped suddenly at certain points along its route. In one calculation we found someone could fly 35’ away from the chair before impacting the ground.

Ski lift accidents are always a mess because of the skiing public misunderstanding of how lifts work and the laws and regulations that control lift operations. Add to that the trauma that a person riding the lift could suffer from an accident on or off the lift and they generate a lot of press, in this case, wrong, and speculative.

This decision changed nothing. Unless the ski area violates a statute or regulation designed to protect skiers, it is difficult if not impossible to sue ski areas in Colorado.

Miller v. Crested Butte, LLC, 2024 CO 30, 23SA186 (Colo. May 20, 2024)

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