When the Colorado Supreme Court heard arguments for and against the ubiquitous use of liability waivers by ski resorts in February, the warnings about a fall out from a decision that weakened waivers were dire.
The state’s ski industry said a decision against waivers “will decrease or eliminate altogether the availability of many recreational options for children, while simultaneously raising the costs of the remaining options.” The rafting industry and a network of youths camps warned that any decision that diminished liability releases “will result in insurance becoming completely unaffordable or unavailable” for providers.
“Without the protection of releases, many smaller and low-cost providers will not be able to provide their services to children. For many larger providers, without the protection of releases, they will have to increase prices,” reads the brief filed by Colorado Ski Country, the Colorado River Outfitters Association and the Colorado Camps Network earlier this year urging the Colorado Supreme Court to protect the widespread use of liability waivers to limit lawsuits filed by injured parties.
So what’s ahead now that the Colorado Supreme Court has ruled that ski areas can’t use liability waivers to shield themselves from negligence claims involving alleged violations of state laws governing the operation of chairlifts? Could children be banned from organized recreation? Will costs climb?
The decision by the Colorado Supreme Court in the case of Annie Miller, a teenager who was paralyzed after a fall from a Crested Butte Mountain Resort chairlift in 2022, marked the first-ever decision against liability waivers following years of federal and district court support for the releases. There will be ramifications as resorts lose a defense that has worked to stave off most skier lawsuits for more than a decade. But what those impacts will look like are unknown.
“Things like this take a little while to percolate,” said David Costlow, the longtime head of the 50-member Colorado River Outfitters Association.
Costlow has not heard his members discussing any need, yet, to adjust the wording in liability waivers. Outfitters are busy. The high court’s decision came down just as rafting companies ramp up for the river season.
“If this was September we probably would have had a meeting and had discussions, but it’s all we can do right now to get this season rolling,” Costlow said. “Just know, this does not impact anything about how we handle safety. It does not change how we do bookings or run our operations. It just introduces some ambiguity here and there that we would prefer not to see.”
Waivers in Colorado have never protected companies from claims involving intentional or reckless misconduct, which are legally defined as gross negligence. But for years recreational providers have used liability waivers to dismiss claims filed by injured parties that involve lower levels of negligence. The Colorado Supreme Court decision this month ruled that negligence claims involving chairlift accidents and claims involving a resort not following the laws of the Colorado Ski Safety Act or the Passenger Tramway Safety Act cannot be waived just because an injured party signed a waiver.
The use of liability waivers in the rafting industry was weighed by the federal 10th Circuit Court of Appeals in 2016. Sue Ann Apolinar drowned on the Arkansas River when her commercial raft flipped in a rapid below Brown’s Canyon in 2011. Her family sued the outfitter and a district court ruled that a liability waiver she had signed before the rafting trip protected the outfitter from damages.
The family argued that the release should not trump state statutes that make it a misdemeanor for rafting companies to operate rafts in a “careless or imprudent manner without due regard for river conditions.”
The 10th Circuit Court of Appeals in 2016 affirmed the lower court’s decision and the use of the liability waiver to dismiss the lawsuit. But 10th Circuit Judge Neil Gorsuch – who was nominated to the U.S. Supreme Court in 2017 by President Donald Trump – wrote that the federal appellate court decision “do(es) not mean to suggest that some future statute could not – or even that some other current statute might not – preclude the enforcement of releases like the one here.”
The Colorado Trial Lawyers Association argued in the Miller case that liability waivers that insulate resort operators from negligent operation of chairlifts conflicted with the Ski Safety Act and “violate the public policy of our state and are unenforceable under Colorado law.”
Kari Jones Dulin with the lawyers association said the Colorado Supreme Court agreed that no entity can use a contract to avoid Colorado laws governing safety.
“What the Supreme Court is saying is that those statutes are in place for a reason: to protect Coloradans and people who are visiting Colorado and you cannot contract away your statutory duty when it comes to safety,” she said. “If we start to allow companies to contract those standards away, we will see more cases like Annie’s.”
Jones Dulin expects the resort industry will work with lawmakers next year “to legislate around this opinion.”
“I anticipate this will be an issue next year,” she said.
And she expects most recreation providers will be carefully scrutinizing existing liability waivers.
“The ski industry will be looking at their waivers and like-minded industries will be doing the same thing,” she said. “They are not going to let a claim slip by because they don’t have updated language.”
Utah, like most ski states, has a law that protects resort operators from lawsuits filed by skiers with injuries resulting from the inherent risks of skiing. Following a Utah Supreme Court decision that scrutinized the validity of liability waivers, Utah lawmakers in 2020 added a provision that authorized resort operators to obtain waivers that released resorts from some claims that might be brought by injured skiers.
Jim Chalat, a Denver attorney who has represented injured skiers for decades, expects Colorado lawmakers soon will consider a waiver enforcement provision similar to Utah’s added to the Colorado Ski Safety Act.
“The battle in the courts is over,” Chalat said. “The battle in the state Legislature is about to begin.”
Melanie Mills, with the resort trade group Colorado Ski Country, said Colorado resorts have not yet gathered to discuss next steps or “whether any legislative clarification is needed after Miller.” That could happen this summer, she said.
Peter Burg represented the family of Jason Varnish, the 46-year-old New Jersey father who died in February 2020 after becoming entangled in a Vail ski area chairlift that swung around to load him with a raised seat, in a lawsuit against the ski area that raised arguments similar to the Miller case. Burg, with the Burg Simpson law firm in Denver, argued that Vail did not adequately train its chairlift workers and the resort countered that the waiver signed by Varnish for his ski pass and rental gear prevented his family from suing.
Burg settled the family’s claim against Vail in March 2023. In a statement announcing the settlement, Burg said it was “time for the legislature and courts to stop allowing the ski industry to feel fully insulated from any liability through the use of waivers.”
Burg, who has long argued for improved training and regulations for chairlift workers, said he’s optimistic the Miller ruling “will be good for the ski industry because with accountability comes greater safety.”
“I think Miller is important. Will it be applied as broadly as we all hope down the road? I don’t know,” he said. “But I’m optimistic that the ski industry will embrace it and understand that we have these regulations and statutes for how to deal with complex machinery and highly dangerous sets of circumstances, and that you have to at least, at a minimum, follow basic standards for safety and you cannot escape that duty based on the fact that someone signed one of these onerous releases.”
