Court Dismisses Claim of Skier, Who Collided with Snowmobile

Jul 3, 2009

The incident in question occurred on February 24, 2006 when Chris Robinette was snowboarding at Snowmass Ski Resort, a property owned and operated by Aspen Skiing Company.
As Robinette approached a small incline on the trail, he prepared to perform a jump. Unbeknownst to Robinette, an Aspen employee, Eric Hill, was driving a snowmobile uphill on the other side of the incline. Robinette and Hill collided. Robinette sustained serious injuries, and subsequently sued, alleging negligence on the part of Aspen.
Aspen moved for summary judgment, arguing that Robinette’s claim is within the terms of a pre-accident exculpatory release, which he signed when he purchased a season ski pass from Aspen. In the alternative, Aspen asked the court to find that Robinette was “presumptively negligent” by failing to comply with portions of the Colorado Ski Safety Act, C.R.S. § 33-44-109(2), (4).
Robinette countered that “(i) C.R.S. § 33-14-116 creates a public duty for operators of snowmobiles to behave in a safe manner and that such duties cannot be waived by means of a private release agreement; and (ii) that the terms of the release signed by Mr. Robinette are ambiguous and do not clearly address the type of accident presented in this case.” He also opposed Aspen’s alternative request, arguing that no presumption of negligence arises under the Ski Safety Act where Aspen was in breach of the public duty created by C.R.S. § 33-14-116.
In considering the motion, the court first looked at the exculpatory release.
“To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d at 467; see also Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (reciting slightly different elements). Aspen concedes that it (must prove) each of these elements.
“Aspen has come forward with evidence sufficient to establish the first and third elements, and Mr. Robinette does not challenge Aspen’s ability to prove these elements. Therefore the Court finds that Aspen has carried its burden with regard to the first and third elements. The Court’s analysis thus focuses on whether the agreement is clear and unambiguous in its terms and whether it violates public policy.
“Turning first to the clarity of the release language, the operative portion of the release reads as follows: In consideration of the issuance of a season’s pass to me, I agree to waive, release, indemnify, defend, and hold harmless [Aspen] and their officers and employees from and against any and all claims of any sort whatsoever arising out of or related to my use of the facilities, ski area and lifts at Snowmass . . . I hereby assume all risks of skiing/riding.”
The court went on to note that the language used in the release “is similar to that found by the Colorado Supreme Court in Chadwick to be a clear and unambiguous release.” It went on to find that the language of the release “clearly and unambiguously encompasses the risk of an on-trail collision with a resort-operated snowmobile.”
Turning to Robinette’s argument that the release is invalid because it conflicts with public policy, the court noted that in the instant case “the contractual release is directed to civil tort liability for injuries caused by a variety of events — among other things, from the allegedly unsafe operation of the snowmobile. The release affects Mr. Robinette’s private right to sue and recover an award of damages. In contrast, C.R.S. § 33-14-116 creates public rights enforced by state officials through imposition of criminal penalties for the unsafe operation of snowmobiles. The release and the statute are not inconsistent in their express provisions, purposes, or in practical implementation. The statute does not address civil tort liability; the release does not address criminal accountability. Enforcement of the release of Aspen from civil tort liability does not impair the enforcement of the criminal statute.
“Put differently, even if Mr. Robinette’s waiver prevents him from recovering damages from Aspen, the state of Colorado can still implement its public policy under C.R.S. §33-14-116 by prosecuting and punishing any person or persons who carelessly or imprudently operated the snowmobile. Because the release and the statute are not inconsistent, enforcement of the release does not undermine public policy as expressed in C.R.S. § 33-14-116.
“Accordingly, the Court finds that Aspen has carried its burden of establishing all of the elements necessary to permit enforcement of the release as a matter of law.”
Chris Robinette v. Aspen Skiing Company, L.L.C.; D.Colo.; Civil Action No. 08-cv-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873; 4/23/09
Attorneys of Record: (for plaintiff) Scott R. Larson, LEAD ATTORNEY, Scott R. Larson, P.C., Denver, CO. (for defendant) Michael S. Beaver, Rachel Ann Yates, Holland & Hart, LLP-Greenwood Village, Greenwood Village, CO.


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