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Ski area liability waivers aren’t foolproof, Colorado Supreme Court rules

Case involves a then-16-year-old girl who was paralyzed in 2022
The Paradise Express high-speed quad was built by Poma and installed at Crested Butte Mountain Resort in 1994. (Jason Blevins/The Colorado Sun file)

Liability waivers – standard click-through agreements that are a common part of buying a ski pass in Colorado – cannot be used to shield ski resorts from all negligence claims, a divided Colorado Supreme Court ruled in a landmark decision Monday.

The court majority said waivers could protect ski areas from some types of liability claims. But it said negligence claims related to chairlift accidents and specific provisions of two Colorado laws – the Colorado Ski Safety Act and the Passenger Tramway Safety Act – cannot be waived away. It’s the first time the state’s highest court has ruled against liability waivers in a skiing case, and it marks a rare instance when a Colorado court has allowed a liability lawsuit against a ski area to go forward.

“We have not previously addressed this question, and, in our view, it presents a matter of significant public importance, given the broad use of liability releases in the ski industry in Colorado,” the court’s opinion, written by Justice Richard Gabriel, says.

Two justices on the seven-member court – Monica Márquez and Melissa Hart – dissented and said they believe the liability waivers in the case block the negligence claims.

The case had been closely watched and not just by the ski industry. Representatives from youth camps and rafting outfitters joined the ski industry in arguing that a Supreme Court ruling against the use of liability waivers could impact youth access to organized recreation.

Though the case turns on a fine point of legal interpretation, it is rooted in tragedy. In 2022, a then-16-year-old girl named Annie Miller fell approximately 30 feet from a lift at Crested Butte while on a ski trip with her father, Mike. She landed on hard-packed snow and broke her back, leaving her quadriplegic.

Mike Miller said he and others screamed for a lift attendant to stop the lift when Annie had difficulty getting seated but none did. He later filed a lawsuit alleging three different types of negligence on Crested Butte’s part. The resort countered that Miller had waived such claims when he agreed to a liability waiver as part of buying his and Annie’s ski passes.

A lower court mostly agreed with Crested Butte, dismissing two of the three negligence claims. Miller appealed that order to the state Supreme Court.

Different types of negligence

In making its ruling, the Supreme Court majority drew a distinction between the two types of negligence claims the lower court dismissed: negligence per se and a form known as highest duty of care.

In the latter type, the court majority concluded that the liability waivers validly protected Crested Butte. The majority said the waivers were clear about the risks of skiing, noting that they covered “misloading, entanglements, or falls from ski lifts.”

Flags outside the Colorado Supreme Court in Denver. (David Zalubowski/Associated Press file)

Because the court majority decided that the waivers were enforceable, it upheld the lower court’s decision to dismiss that negligence claim.

But it reinstated the claim for negligence per se, which the majority opinion said occurs when “a defendant violates a statute adopted for the public’s safety.”

Protections for ski areas

The statutes at issue are two heavyweights of Colorado’s ski industry regulations: the Colorado Ski Safety Act and the Passenger Tramway Safety Act, which govern the operation of ski resorts and chairlifts. The Ski Safety Act, in particular, has a long history of protecting ski areas from liability claims.

The ski industry says the law’s protections are crucial for resorts to survive without being bankrupted by lawsuits over ski injuries. But the protections apply mostly to what the law calls “the inherent dangers and risks of skiing” – i.e., sliding downhill at high speeds.

In its ruling Monday, the Supreme Court noted one thing that is not included in the definition of the inherent risks: chairlift accidents.

“Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts,” the law says.

Ski racers ride the Excelerator chairlift toward the top of the training course at Copper Mountain on Nov. 15, 2023, near Frisco. (Hugh Carey/The Colorado Sun)

The court majority concluded the Ski Safety Act and the Passenger Tramway Safety Act create a legal framework intended “to protect against the types of injuries, damages, and losses that Annie suffered.” Because of that, the court majority found that Crested Butte was trying to waive away the kind of potential negligence that the Legislature wanted ski areas to be held accountable for.

“We conclude that Crested Butte may not absolve itself, by way of private release agreements, of liability for violations of the statutory and regulatory duties,” the majority wrote in its opinion.

‘Nothing magical or unique’

The dissent, written by Márquez and joined by Hart, argues that there’s no meaningful distinction between the two kinds of negligence.

“There is nothing … magical or unique about a claim premised on the theory of negligence per se,” Márquez wrote.

In other words, if the waivers block one type of negligence claim, they should also block the other. Because Márquez and Hart believe that the waivers are valid, they argued that both negligence claims should be dismissed.

Case still undecided

The Supreme Court’s ruling Monday does not conclude the Millers’ lawsuit or decide whether Crested Butte is to blame for Annie’s injuries. It simply settles the legal questions around what parts of the lawsuit can move forward toward trial.

“We express no view as to the ultimate merits of the claim,” the court majority wrote.

The case now goes back to the lower court – in Broomfield County, where Crested Butte’s owner, Vail Resorts, is based. It could still be months or years before it is concluded.

Citing the ongoing litigation, a spokeswoman for Vail Resorts declined to comment.

The Colorado Sun’s Jason Blevins contributed to this report.

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.