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Skiing: Courts define limits of season pass liability waivers

The extent of season pass liability waivers are being tested in Colorado courts. PHOTO BY BOB BERWYN.

Judges rule that waivers don’t exempt ski areas from meeting requirements of the Ski Safety Act

By Bob Berwyn

SUMMIT COUNTY —Judges in Colorado ski towns are starting to carve out a little bit of room for skiers to claim damages when ski areas are found to violate specific provisions of the Ski Safety Act.

At issue are the broad liability waivers that skiers and snowboarders sign when they purchase season passes. Daily lift tickets also include a waiver, but the season pass waivers have included an additional liability waiver under which pass holders give up their rights to sue for negligence.

Resorts have consistently used to waivers to counter lawsuits, asserting they are protected from most claims by boilerplate waiver language like this:

“The Undersigned expressly ASSUME ALL RISKS associated with Holder’s participation in the Activity, known or unknown, inherent or otherwise … “

It’s that added layer of legal insulation that’s being challenged in court, and on May 10, Pitkin County District Court Judge Denise Lynch ruled that the waiver doesn’t protect the Aspen Skiing Company from claims made by Ryan Bradley, who was injured Feb. 20, 2010 when he was hit by a jake table, installed on a chairlift to transport injured skiers.

In the Aspen case, Bradley alleged to the court that the lift operators were cooking hotdogs and not paying attention to the loading zone and brought claims of negligence per se against the ski area, alleging that the resort violated its statutory obligations under the Ski Safety Act.

The Aspen Skiing Company asked to have the case dismissed, claiming that the waiver language releases the resort from all claims, but the judge rejected the argument and set a Sept. 17 trial date.

Jim Chalat, a Colorado attorney with a national reputation for handling ski safety litigation, said it’s a “test tube case” that will influence ski law around the country. He emphasized that the rulings were written by well-respected jurists in ski communities, and that Colorado is looked at as the leading jurisdiction for determination of ski safety cases. As such, the recent cases may have a persuasive effect on litigation in other states, he added.

According to Chalat, the case has “exactly the right facts to posit the question of the relationship” between the requirements of the Ski Safety Act and the “new and pervasive waivers.”

Courts in the state have a long history of upholding waivers.

“There has been a long line of cases in Colorado enforcing waivers against consumers in a variety of recreational accidents. Customers at dude ranches, in rafting accident cases, and other situations have also been involved. Consistently, the consumers lose these cases unless it is shown that the provider acted with a reckless disregard or gross negligence,” Chalat said.

“However, the Ski Safety Act is different in that it imposes a strict per se negligence standard meaning that if a skier or a ski area operator violates an express provision of the SSA and causes injury, then the wrongdoer is responsible for damages.

“It is a simple formula: What happened?  Look at the SSA. Do the facts fall within the express provisions of the SSA?  Apply the Act.  The SSA states that it is the controlling authority for determining responsibility for ski accident cases,” Chalat explained.

The Bradley case may show that “the waivers are ineffective against the minimum safety standards set out by the ski safety act,” he said. “The court is simply saying that the Legislature has enacted minimum safety standards … that the ski areas have to comply with. It’s pretty simple: Signage, marking closures … ski areas cannot simply avoid those duties with a waiver,” he explained.

In a previous case involving a collision between a skier and a resort employee on a snowmobile, Summit County District Court Judge Terry Ruckriegle ruled in Dec. 2009 that Vail Resorts couldn’t waive its liability for its employees negligence per se.

In the Keystone case, the court was also asked to address the issue of how far the waivers go in absolving resorts of liability. Ruckriegle ruled that the the Colorado Snowmobile Act — similar to the Ski Safety Act, “imposes duties upon individuals,” and that those duties cannot be contractually waived; and that, further, “it would be against public policy to allow an employer to contractually avoid liability for an employee’s negligence per se.”

The case was ultimately settled out of court, and Chalat wasn’t able to discuss specifics of the case, but he said the two decisions will help “carve out … an area for … safe skiing” in Colorado.

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