Historically, Colorado courts have protected ski resorts from liability for ski lift related incidents. However, this protection could all be coming to an end. On May 20, 2024, the Colorado Supreme Court issued a landmark decision in Miller v. Crested Butte which opened the door to sue a ski resort for negligent conduct by ski lift operators. The decision will have wide reaching effects on many businesses that are engaged in recreational activities, such as amusement parks or whitewater rafting outfitters. At Bowman Law, our recreational activities lawyers understand the complexities of personal injury law and have a proven track record of advocating for the rights of injury vicitms.
Colorado’s Recreational Revolution: Shifting Liability in Outdoor Adventures
So many people move to or visit Colorado to enjoy the countless outdoors activities available. Afterall, Colorado is one of the leading states in outdoor recreational activities due to its mountains, lakes, and beautiful weather. While many people are drawn to Colorado to participate in these activities, some people experience injuries in accidents that involve skiing, snowboarding, boating, and other outdoor sports activities. When a person is injured in Colorado while engaging in a recreational activity, it is important to research the concept of liability.
Simply because a person is engaging in a recreational activity does not mean they should put their safety at risk. Companies that operate recreational facilities and activities have a responsibility to provide a safe, hazard-free environment for the public. Some of the most common recreational activities in Colorado include:
Liability Waivers Prior to Miller v. Crested Butte
Prior to May 20, 2024, ski resorts in Colorado enjoyed complete immunity from lawsuit for ski lift incidents because of waivers. When you purchase a ski pass and agree to the terms and conditions, you agree to waive liability. The waivers contain certain clauses that prohibit passholders from suing the ski resort for the negligence of resort employees. This is known as an exculpatory clause. For example, Vail’s Epic Pass contains the following exculpatory clause:
Under the law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the ski area operator and its employees for any injury resulting from any of the inherent dangers and risks of skiing…Other risks include…misloading, entanglements, or falls from ski lifts and the negligence of ski area employees…HOLDER AGREES TO ASSUME ALL RISKS, inherent or otherwise. HOLDER AGREES NOT TO SUE and to hold the ski area and its employees harmless for claims to person or property.
Before Miller v. Crested Butte, exculpatory clauses protected ski resorts and amusement parks from liability for negligence. Unfortunately, Colorado Courts in the past considered exculpatory clauses bulletproof in the context of recreational activities. Prior to May of 2024, if you signed a liability waiver for a recreational activity, you were essentially signing your life away. Indeed, Colorado had some of the toughest standards in the United States for invalidating liability waivers.
Perhaps Colorado Courts were hesitant to strike down liability waivers to the large economic presence of the ski industry in Colorado. According to RRC Associates, Colorado’s ski industry “generates $4.8 billion in annual economic output, supports more than 46,000 year-round equivalent jobs, and generates $1.9 billion per year in labor income.” Given the economic importance of the ski industry, and other tourism related recreational activities (rafting, mountain biking, summer camps, amusement parks, or even sky diving perhaps), it makes sense why our state has been hesitant to open the door to lawsuits against ski resorts for negligence.
How Miller v. Crested Butte Impacted Liability Waivers
In Miller v. Crested Butte, a 16-year-old girl named Annie Miller boarded a ski lift at Crested Butte. Unfortunately, she could not sit down because there were too many people. Annie’s father, Mike, grabbed her to prevent her from falling. Mike screamed for the lift attendants to stop but the chairlift continued to ascend with Annie hanging on for her life. Tragically, Annie fell 30 feet and broke her neck, rendering her a quadriplegic. Mike later testified there were no lift attendance present to slow or stop the lift.
Annie filed suit against Crested Butte.The most important claim was the negligence per se claim, which automatically deems someone negligent if they violated a law or regulation. For example, if someone was speeding and caused a car accident, the injured party could bring a negligence per se claim based on the violation of speeding. The elements of negligence per se are as follows:
Violation of the law.
The victim suffered harm.
The harm caused was the type of harm the law was intended to prevent.
The victim is a member of the class of people the law was intended to protect.
In the above example, the defendant is liable for negligence per se because (1) the defendant broke the law by speeding; (2) the defendant’s speeding directly caused the accident and associated injuries; (3) the law prohibiting speeding was intended to prevent injuries; and (4) the law prohibiting speeding was intended to protect motorists.
In Miller v. Crested Butte the negligence per se claim was rooted in violations of rules created by the Colorado Passenger Tramway Safety Board (“CPTSB”) which is the agency in charge of regulating tramways used in recreational settings, like ski resorts. Keep in mind, the CPTSB rules are considered regulations and the specific CPTSB rule referenced in Miller v. Crested Butte states lift attendants are required:
to monitor the passengers’ use of the aerial lift; including observing, advising and assisting them while they are in the attendant’s work area as they embark on or disembark from the aerial lift; and to respond to unusual occurrences or conditions, as noted. The attendant should respond by choosing an appropriate action, which may include any of the following:
assisting the passenger;
slowing the aerial lift (if applicable);
stopping the aerial lift;
continuing operation and observation.
Based on the above regulatory rule, the Colorado Supreme Court found Annie established a valid negligence per se claim as the rule was designed to protect skiers from the type of harm Annie suffered (i.e. falling from a ski lift and suffering injuries), and the violation of the rule (i.e. failing to monitor passengers’ use of the lift) caused her injuries.
Crested Butte asserted that it was not liable for negligence per se because of the waiver contained when the Epic Pass was purchased. The waiver contained the following exculpatory clause:
I AGREE, to the greatest extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE Vail Resorts, Inc…each of [its] affiliated companies and subsidiaries, the resort owner/operator inclusive of any partner resort owner/operator…and all their…FOR ANY INJURY, INCLUDING DEATH, LOSS, PROPERTY DAMAGE OR EXPENSE, WHICH I OR PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANTS [sic] PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTYS [sic] ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE….I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF ANY RELEASED PARTY TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF THE ACTIVITY
In response to Crested Butte’s argument, the Colorado Supreme Court held “a party cannot discharge its obligation to perform a statutory duty by way of an exculpatory agreement.” Id. Thus, the court found that Crested Butte could not waive its obligation to perform rules set by the CPTSB through a liability waiver.
This case marked the first time the Colorado Supreme Court ruled against liability waivers in a skiing case. The findings open the door for personal injury lawsuits against not only the ski industry, but any recreational industry that is regulated by statute. Thus, anytime an injured plaintiff can show a recreational company violated a rule set forth by a regulatory agency, the plaintiff may be able to recover damages under a negligence per se claim regardless of if the plaintiff signed a liability waiver agreeing to not sue for negligence or negligence per se.
Liability Waivers and Simple Negligence
It is worth noting the Supreme Court in Miller v. Crested Butte also held liability waivers can still prevent a Plaintiff from suing for simple negligence. In order for a court to determine if a liability waiver for simple negligence is valid, the court must consider the following factors:
Existence of duty to the public. Courts will weigh in favor of invalidating a liability waiver if the party seeking to waive liability is involved in an industry generally thought suitable for public regulation, such as the airline industry.
Nature of the Service Performed. This factor involves businesses that are involved in performing a service of great importance to the public, which is often a matter of practical necessity. If the business is involved in rendering essential services then this weighs in favor of not enforcing a liability waiver. Businesses engaged in recreational activities would not satisfy this factor.
Whether the contract was fairly entered into. With this factor courts consider whether one party has an obvious disadvantage in bargaining power. An example of an obvious disadvantage in bargaining power would be an electrical company that is the only electrical company available, thereby forcing someone who wants electricity to contract with the only company available.
Whether the intention of the parties is expressed in clear and unambiguous language. In other words, did the liability waiver clearly state that the party was waiving his right to sue for negligence.
The Colorado Supreme Court has never deemed a liability waiver for a recreational activity unenforceable due to the factors laid out above. This is likely due to the “nature of the service performed” factor. Thus, if you agree to a liability waiver for negligence involving a recreational activity then the Colorado Courts will almost certainly find the liability waiver is valid, thereby preventing you from suing for simple negligence. However, if you were harmed due to the violation of a law then you could get around the liability waiver with a negligence per se claim because of Miller v. Crested Butte.
Liability Waivers and Willful and Wanton Negligence
Furthermore, it is well established in Colorado that a liability waiver is not enforceable for willful and wanton negligence, also known as gross negligence. However willful and wanton negligence is much more difficult to prove than simple negligence. The difference between simple negligence and willful and wanton negligence is that with willful and wanton negligence the actor was fully aware of the danger and should have realized its probable consequences, yet deliberately avoided all precaution to prevent disaster. A failure to act in prevention of accident is but simple negligence; a mentally active restraint from such action is willful and wanton negligence. Omitting to weigh consequences is simple negligence; refusing to weigh them is willful and wanton negligence. The problem with establishing willful and wanton negligence is that it is very difficult to prove.
Contact our Recreational Activities Lawyers Today
Businesses involved in recreational activities will no longer be able to avoid being sued for negligence per se with a liability waiver. This will have a major impact because, prior to Miller v. Crested Butte, a plaintiff seeking to invalidate a liability waiver would have to either overcome the factors set forth in Dressel v. Jones, which has never been done for waivers regarding recreational activities in Colorado, or prove willful and wanton negligence, which is extremely difficult to prove compared to simple negligence or negligence per se. Businesses in Colorado involved in the recreation industry now have much more liability exposure if the recreational activities provided by the business are subject to statutory regulation.
If you or your child has been injured in a recreational activity in Colorado, it is crucial to understand your legal options. Consulting with our Colorado personal injury attorneys can provide clarity on the best course of action and help you navigate the complex legal recourse. The recreational activities lawyers at Bowman Law are here to answer your questions and discuss your case. Contact us, call, or email us for a free consultation. Our law firm is located in Denver and serves individuals throughout the Front Range, including Colorado Springs, Boulder, Fort Collins, Westminster, Lakewood, and Aurora.
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