Colorado is well-known for its skiing. As one of the top ski destinations in the world, skiing generates over $4.5 billion dollars in economic output, supports more than 45,000 jobs, and provides $1.9 billion in labor income. It’s really big business in Colorado.
But what happens when an individual skier is injured on the slopes of one of these large corporations? Everyone knows skiing can be dangerous and comes with risks. Each year, skiers are injured on Colorado’s slopes. These injuries can range from blown knees to concussions to death.
Legislature Aimed at Improved Safety and Accountability
The Colorado legislature sought to protect skiers from injuries suffered due to ski operator negligence in 1979 by passing the Colorado Ski Safety Act (SSA), CRS § 33-44-101, et. seq. The SSA set forth specific safety standards that operators must follow, such as marking closed trails, identifying the difficulty level of trails, marking hazards, and ensuring lifts are safe and marked clearly. When they failed to maintain these basic safety precautions and someone got injured as a result, the skier had a statutory avenue to recover for their losses.
Reddon v. Clear Creek Skiing Corp.
Soon after the SSA was enacted, the skiing industry responded. In order to ski, skiers were required to sign a waiver of liability for injuries sustained on the slopes. For years these waivers of responsibility were contested in court.
However, in 2020, a Colorado Court of Appeals adopted the industry’s position and upheld waivers of liability. In Reddon v. Clear Creek Skiing Corp., 2020 COA 176, the court addressed the question of “whether ski area operators can, by using exculpatory agreements, protect themselves from personal injury lawsuits arising from alleged negligence of the employees.”
In Reddon, Ms. Reddon was injured when she tried to exit a lift chair after the person in front of her fell and blocked Ms. Reddon’s ability to exit the chair. The lift operator did not slow or stop the lift as Ms. Reddon came upon the downed skier. Clear Creek moved to dismiss the case, relying on two waivers of liability.
The first waiver was issued the previous year when Ms. Reddon purchased a pair of ski boots from the Clear Creek ski shop. It stated that Ms. Reddon assumed the inherent dangers and risks of skiing including all risks associated with the use of the boots when skiing. It further stated that she released Clear Creek, DBA Loveland Ski Area of any and all liability for injuries or death from the use of the boots.
The second waiver was issued when she bought her lift ticket online. It provided for similar waivers of liability for injuries while skiing at Loveland. The waiver was on the back of an electronically issued lift ticket that came with a nonrefundable clause.
The court examined whether or not it should allow the exculpatory contracts to prevent Ms. Reddon from recovering damages from the ski area. The court looked at four factors:
- Whether the ski area had a duty to the public;
- The nature of the service provided;
- Whether the contract was entered into fairly; and
- Whether the intention of the parties was clearly stated.
Regarding the first two factors, the court found that skiing was “neither a matter of great public importance nor a matter of practical necessity”—two losses for Ms. Reddon.
On the third factor, the court found that since “skiing is not an essential activity, Clear Creek did not possess a decisive advantage of bargaining strength that put [Ms. Reddon] “at the mercy” of any negligence committed by it.” Reddon argued that it was patently unfair to hold someone’s property “hostage” until they signed a waiver and to sell tickets to citizens who only learn of the waiver on the back of the ticket after its nonrefundable purchase. She further argued that “sneak[ing]” a waiver into an agreement centered around the purchase of boots and adjustment of bindings was not a fair negotiation of a contract. The court, however, rejected her arguments.
The court also rejected her fourth argument, finding the intention of the parties was clear. Ms. Reddon argued that a reasonable person could have interpreted the boot waiver to limit liability against the ski shop and the inherent dangers of skiing, not negligent acts by lift operators. However, the court disagreed and determined that a ski operator can rely on waivers to exclude them from liability for violating the SSA. Ms. Reddon had lost her statutory negligence case.
Judge Davidson, however, dissented from his colleagues. He argued that the SSA clearly instructed ski operators to “reasonably comply with the duties [in the SSA] and defined a violation of its provisions as negligence.” He argued that allowing waivers to protect operators effectively means that “a ski lift operator suffers no financial consequence for negligent violation of [legislatively mandated] duties with which it is otherwise required by law to comply.” He argued that “it is axiomatic that the General Assembly intended [the SSA] to have effect.” His colleagues disagreed.
The SSA creates statutory obligations for operators to follow. While a waiver does not waive gross negligence or common law negligence, the court has allowed a waiver to prevent injured skiers from claiming statutory negligence as defined by the legislature.
The Bottom Line
So, the next time you go skiing, read that waiver. Understand what you are giving up. While you may still retain a common law negligence claim or a claim for willful and wanton conduct, you will not have a statutory negligence claim if you sign that waiver.
If you have suffered a serious injury due to gross negligence or common law negligence while skiing in Colorado, you may have a legal claim for compensation. Contact a Colorado Springs personal injury attorney at The Bussey Law Firm, P.C. at (719) 475-2555 to learn more about your rights and how we may be able to help.