A division of the Colorado Court of Appeals ruled Dec. 31 that ski area operators may use liability waivers to protect themselves from lawsuits arising from the negligence of ski lift operators. But personal injury lawyers worry the ruling erodes statutory protections for skiers and chair lift passengers under Colorado law.
Plaintiff Charlotte Redden was injured while getting off a ski lift at Loveland Ski Area. A skier on the chair ahead of Redden had fallen while getting off the lift and, she claims, the lift operator did not slow or stop the lift to allow the fallen skier to leave the unloading ramp. As a result, Redden couldn’t navigate around the fallen skier and was injured when her chair knocked her down.
Redden sued Clear Creek Skiing Corporation, the operator of the ski area, for negligence and negligence per se under the Colorado Passenger Tramway Safety Act and the Ski Safety Act of 1979.
Clear Creek argued it was immune from liability because of two waivers — one Redden had signed when purchasing ski boots and having her bindings adjusted at its ski shop, and another printed on the back of her ski pass. Clear Creek moved for summary judgment, and the district court dismissed the case.
PASSING THE TEST
On appeal, Redden argued the waivers failed to meet a set of criteria, known as the Jones factors, required for exculpatory agreements to be considered valid in Colorado. Specifically, Redden said the waivers failed the Jones test because they weren’t entered into fairly, as she was forced to sign the waiver in order to retrieve her new boots, and she was not able to review the ski lift disclaimers until after she had paid for an expensive ski pass. She also claimed the language of the waivers was ambiguous — another disqualifier under Jones.
“Nothing in the fine print of the ticket advised the purchaser to the idea that use of it to access the ski area’s lifts would constitute a total waiver of claims for injuries arising from negligent operation of those lifts,” Redden states in her opening brief.
However, the majority rejected Redden’s arguments, noting she had failed to show evidence her boots had been “held hostage” by the ski shop until she signed the waiver or that she had tried to reverse the ski shop transaction. Citing a 10th Circuit opinion from 2019, the majority concluded the ski pass waiver satisfied the Jones test, even if a ski pass customer who opts out of skiing loses money.
PUBLIC POLICY CONCERNS
Redden also argued the waivers violate the public policy behind the SSA and PTSA, making them invalid regardless of the Jones test. The statutes spell out the responsibilities of ski area and chair lift operators as well as skiers and ski lift passengers. When taken together, Redden argued, the SSA and PTSA “demonstrate an unmistakable intent to bar ski area immunity for lift-related injuries.”
The SSA was amended in 1990 to limit ski area operator liability for injuries arising from the “inherent dangers and risks” of skiing, which include collisions with other skiers, changing weather conditions, variations in terrain and surface conditions and the failure of skiers to ski within their abilities. But the amendments didn’t limit liability for injuries related to chair lift operations.
Since the General Assembly declined to extend immunity for ski lift operators, Redden argued, liability waivers that do so violate the policy behind the laws. “No reasonable reading of the PTSA and SSA leads to the conclusion that the Legislature somehow intended for ski areas to be able to procure by contract what they were refused by statute,” Redden’s brief states.
However, the appellate court was unconvinced. Although the amended SSA doesn’t limit negligence claims against ski lift operators, the division wrote in its majority opinion, it also doesn’t say anything about whether parties can privately agree to waive such claims.
Turning again to the 10th Circuit for guidance, the majority noted that in another recent decision, the federal court rejected an argument similar to Redden’s claiming liability waivers in the skiing context violate the policy behind the SSA and PTSA.
However, Senior Judge Janice Davidson was at least somewhat swayed by Redden’s arguments about the ski resort’s duties under the SSA and PTSA. “[B]ecause ski lift operators cannot be immunized by private contract from their explicit statutory duties as set forth in the SSA and PTSA,” Davidson wrote in a partial dissent, “I disagree with the majority that the exculpatory agreements also barred plaintiff’s statutory negligence per se claim.”
NOT THE END OF THE TRAIL
Plaintiffs’ attorneys say the court’s decision in Redden allows ski pass waivers to do away with duties the legislature was careful to define and impose on ski resort operators and tramway operators through the PTSA, SSA and related amendments and regulations over the past 50 years.
Bruce Braley, an attorney at Leventhal Puga Braley, filed an amicus brief on behalf of the Colorado Trial Lawyers Association in support of Redden. He said there have been increased efforts by ski resorts to expand the scope of immunity “way beyond the compromise that was reached” in the SSA, in which the General Assembly clearly defined the activities that fall within the “inherent risks” of skiing, and into highly regulated activities such as ski lift and gondola operations that require the highest duty of care.
“What the Court of Appeals decision is basically saying is you can get people to voluntarily give up their rights, sometimes not even knowing it, because a lot of these passes are purchased through third-party vendors where these disclosures are not made,” Braley added.
Loveland Ski Area isn’t unique in adopting broad liability waivers. Levin Sitcoff attorney Nelson Waneka, who represented Redden in the case, said the issue is “ubiquitous,” and similar disclaimers are printed on the back of lift tickets for ski areas across the state.
Another attorney for Redden, Brad Levin, also of Levin Sitcoff, said that while federal courts have ruled on similar cases dealing with exculpatory agreements and ski lift operator liability before, he believes Redden’s case is the first time a state appellate court has weighed in on the issue.
Waneka said the decision not only allows ski resorts to immunize themselves against liability when it comes to ski lift operations, but also for liability related to other statutory duties the legislature has placed on ski areas, such as their responsibility to mark trails and requirements for operating grooming machines and snowmobiles.
“There’s just no liability anymore because of the waivers,” Waneka said. “The waiver ‘swallows’ the Ski Safety Act in its entirety.”
“It begs the question of what utility the Ski Safety Act and the Passenger Tramway Safety Act [have],” he added. “In everyday practice, it doesn’t matter anymore.”
Levin and Waneka said they plan to ask the Colorado Supreme Court to hear the case. “It’s an important case,” Levin said. “And we feel pretty confident that the Colorado Supreme Court is going to need to weigh in on it for just that reason, because it is precedent-setting.”
“But it’s also something that needs to be addressed by our legislature,” Waneka added.