DENVER (Legal Newsline) - A Colorado appeals court recently upheld blanket liability protection for one of the state’s most important industries, dismissing the lawsuit of a woman who claimed she was unfairly forced to sign a waiver that barred her from suing over an accident involving a ski lift.
Charlotte Redden, described as “an experienced skier living in Colorado,” was injured at the Loveland Ski Area after she failed to navigate around a skier who had fallen after exiting the chair in front of her. Redden sued Clear Creek Skiing Corp., claiming the ski lift operator violated state law by failing to halt the lift when the first skier fell.
A trial court dismissed her claim, citing liability waivers she had signed both when she bought lift tickets and when she bought ski boots and had her bindings adjusted. The Colorado Court of Appeals agreed, ruling that state law clearly allows ski area operators to enforce waivers that state in “clear and unambiguous language” that skiers assume the risk of injury when they hit the slopes.
The waiver she signed stated in capital letters: “HOLDER AGREES AND UNDERSTANDS THAT SKIING, SNOWBOARDING, AND USING LOVELAND SKI AREA, INCLUDING ITS LIFTS, FOR ANY PURPOSE CAN BE HAZARDOUS.”
Redden argued such waivers violated public policy and were inherently unfair. One waiver was in fine print on the back of a non-refundable lift ticket, she complained, and her boots were “held hostage” until she signed the other. But the Court of Appeals, in a Dec. 31 decision, said the waiver was legible and the fact the ticket was non-refundable didn’t amount to the sort of coercion that usually nullifies liability waivers. The fact she might waste money on lift tickets didn’t mean she was forced to go skiing.
“Because recreational activities like skiing are not essential activities, Clear Creek did not possess a decisive advantage of bargaining strength that put participants `at the mercy’ of any negligence committed by it,” the three-judge panel ruled in a decision written by Judge John Dailey.
The Colorado legislature had clearly intended to protect the ski industry against lawsuits over all types of accidents and could have set limits on liability waivers if it wanted to, as it has done in other context such as employment and residential real estate, the court ruled.
Judge Mike Davidson concurred in part but dissented with the two other judges on the question of whether Redden could sue the ski area over the negligence of its employees. He agreed the legislature hadn’t revised the law to outlaw waivers against common-law negligence claims.
“Thus, to the extent the majority interprets legislative inaction as approval of the use of exculpatory agreements to bar plaintiff’s common law negligence claim here, I reluctantly agree,” the judge wrote. But Redden cited specific violations of state law governing ski lift operators, the judge went on, and the legislature didn’t mean to allow skiers to waive their right to sue over those.
The appeals court decision examined the lengthy history behind Colorado’s effort to regulate the skiing industry while also protecting it against injury lawsuits. Waivers “stand at the crossroads of two competing principles—freedom of contract and responsibility for damages caused by a party’s negligent acts,” the appeals court said.
Colorado passed a law regulating ski lifts in 1965 and in 1990 gave ski area operators broad exemption from liability for injuries associated with the sport. Redden’s lawyers tried to get around the latter by claiming lift operators violated the 1965 law, but the appeals court said it wouldn’t make sense for plaintiffs to be able to succeed by claiming negligence in a different way.
While the 1965 law requires ski lift operators to assist skiers in getting on and off, and stop the lift in an emergency, the court held that public policy doesn’t prevent skiers from contracting away their right to sue over ordinary accidents even if they involve a lift.