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Ski resorts’ long history of immunity threatened by Colorado Supreme Court case

Case involves a teen who was paralyzed after a fall from a chairlift
Wolf Creek Ski Area in Southwest Colorado, seen here in 2018. (Courtesy of Scott DW Smith via Wolf Creek Ski Area/file)

Annie Miller’s family wants the ski industry to share responsibility for injuries she suffered when she fell from a Crested Butte Mountain Resort chairlift. Whether that happens depends on the seven justices of the Colorado Supreme Court, who, in the coming months, will issue a ruling on how much protection liability waivers can provide ski areas.

The high court’s decision could have sweeping impacts on Colorado’s signature industry and the long-standing Ski Safety Act that has protected ski resorts for several decades. If the Colorado Supreme Court rules that parents cannot sign liability waivers for their kids, recreation providers like camps, rafting companies and ski resorts argue insurance costs will climb and they will be unable to provide opportunities for children.

Miller’s lawyers on Tuesday asked the Colorado Supreme Court to reverse a lower court’s decision that pointed to liability waivers signed by Miller’s dad when he bought lift tickets in its dismissal of the family’s negligence claims against Crested Butte ski area and its owner Vail Resorts. It’s the first time the state’s highest court has considered the now-ubiquitous use of liability waivers by ski resorts.

“Crested Butte and the ski industry as a whole is attempting to get complete contractual immunity to overcome any duty to the highest care and any duty based upon a regulatory statute,” argued Bruce Braley, the attorney representing the Miller family. “So if you can waive any negligence claim, including any claim based on the highest duty of care, any claim based on statutory duty, and if you don’t have a right to recover for gross negligence under Colorado law, even though the parental waiver statute specifically carves out an exception for gross negligence and recklessness claims, what’s left?”

Annie Miller was 16 when she fell from the Paradise Express chairlift, at Crested Butte Mountain Resort in March 2022. The 30-foot fall left her paralyzed. The family of the Oklahoma teen sued the ski area and its owner Vail Resorts in December 2022, arguing the lift operators were negligent because they did not stop the chairlift when Miller was unable to load the chair properly.

The family also argues the liability waiver Miller’s father signed to get Annie’s lift ticket should not relieve resort operators of their duty to “the highest standard of care” while operating chairlifts, as required by state law.

A Broomfield County District Court last year dismissed the family’s negligence claims, pointing to that liability waiver signed by Annie’s father. The family appealed that decision to the Colorado Supreme Court, hoping to get the easier-to-prove simple and ordinary negligence claims back in their lawsuit.

Changes to lift operator safety rules

The American National Standards Institute in 2011 amended the safety rules for lift operators – which were adopted by the Colorado Tramway Safety Board – that allowed lift attendants to choose “an appropriate action” when responding to unusual conditions, which “may include” stopping the lift. That was a shift from earlier standards requiring attendants to stop the lift when dealing with something out of the ordinary.

“Now just because they watered down the mandatory language does not mean they repealed the requirement that if you see an endangered passenger, you should stop the chairlift,” said Braley, a lawyer with the Denver firm Leventhal Puga Braley.

Justice Maria E. Berkenkotter asked Braley: “Isn’t that a significant amendment? I mean it changed from a ‘shall’ or a ‘must’ to a ‘may.’”

What about waivers?

The Miller family also urged the justices to closely examine a 2003 law approved by the Colorado legislature that allowed parents to sign liability waivers for their kids participating in recreational activities. Providers of recreation “need a measure of protection against lawsuits” and without that protection “these entities may be unwilling or unable to provide these activities,” reads the 2003 Senate Bill 253. The legislation rejected a Colorado Supreme Court decision in 2002 involving a ski racer who was injured in a crash and sued a local Aspen ski club. The high court in that case ruled that a parent may not sign away a minor’s ability to sue for negligence. Lawmakers in 2003 crafted the parental liability legislation to say the court’s decision in 2002 “does not reflect the intent of the general assembly or the public policy of this state.”

Braley emphasized that the lawmakers in 2003 did not include dismissals of previous Colorado Supreme Court decisions – including a lawsuit by a 19-year-old Florida skier critically injured after a 30-foot fall from the Paradise chairlift at Crested Butte Mountain Resort in 1992 – that ruled resort operators “must exercise the highest degree of care” when running chairlifts.

Justice Melissa Hart asked Braley to break down his fundamental argument, asking, “Can Crested Butte absolve itself of the statutory duty through private contract?”

“That is the fundamental legal issue,” said Braley, urging the justices to reinstate the easier-to-prove claims of lower negligence and expressing concern that the ski area operator will seek to dismiss the gross negligence claim in the Broomfield District Court.

‘It doesn’t make sense to say that area operators … are going to ignore their obligations’

Michael Hoffman, the attorney representing the Crested Butte ski area and Vail Resorts, asked the justices to see the Miller claim as not a violation of a statutory rule in the Colorado Ski Safety Act but a violation of a rule by the Colorado Passenger Tramway Safety Board.

“When you’re talking about rules of the tramway board, you will never have a circumstance where a ski area operator can absolve themselves of a duty,” Hoffman said. “If we do something wrong, the tramway board can suspend our license. Can shut us down on an emergency basis. Can revoke our license. If we violate one of their orders, we can be sent to jail for 364 days. These are serious, serious consequences, especially for corporate executives that don’t want to go to jail.”

So Hoffman said the 2003 state law that allows parents to dismiss their child’s right to sue for injury is not waiving a statutory duty. And children – just like anyone – can sue for gross negligence. That’s “one of the ironies” of the Miller argument, Hoffman said, that waivers allow resort operators to ignore laws protecting skiers.

“It doesn’t make sense to say that area operators, all area operators, are going to ignore their obligations, people will be hurt and we’ll be immune. We won’t be immune,” Hoffman said. “If there’s an intentional decision or a reckless decision made not to comply with the Ski Safety Act, not to comply with a tramway board regulation, we’re opening ourselves up to gross negligence.”

The National Ski Areas Association, Colorado Ski Country, the Colorado River Outfitters Association and the Colorado Camps Network have joined the case in support of the Crested Butte ski area, arguing liability releases “are essential to providing children with the ability to participate” in organized recreation.

“Without the protection of releases, many smaller and low-cost providers will not be able to provide their services to children,” reads a brief filed in the case by the recreational groups. “For many larger providers, without the protection of releases, they will have to increase prices.”

‘Something about that is wrong’

Justice Carlos A. Samour Jr. asked Hoffman, “So what’s the point of these statutes?”

“I mean, I feel like your position renders all these statutory provisions meaningless,” Samour said.

Samour said he was concerned with the idea that all chairlift riders at ski resorts must sign a waiver.

“And yet we have a situation where the legislature is saying: ‘Hey, ski industry, these are standards that we expect. That we are requiring you to keep,’” Samour said. “And the ski industry then turns around and says, ‘Well, that’s nice of you. Thank you. But we’ll just make people waive and be done with it.’ Something about that is wrong.”

Hoffman said the ski area and Vail Resorts will not return to the Broomfield District Court and argue that the Miller family cannot sue for gross negligence because they signed the waiver. Some justices pressed Braley to explain why a lawsuit claiming gross negligence was not enough for the Miller family. Why reinstate the claims of simple negligence?

Justice Monica Márquez said the “allegations of the complaint actually set out a pretty solid claim for gross negligence if, in fact, these allegations prove to be true. If no one was there, if no one was paying attention and the lift kept operating, that seems like gross negligence to me.”

But the gross negligence argument requires the Millers to argue for “a higher burden of proof,” Braley said.

And Braley was dubious that the ski area operator would not argue that the waiver signed by Annie Miller’s father, Mike Miller, dismisses all negligence claims.

“Look at their waiver language. Their waiver language is complete and absolute. A complete assumption of risk for anything that happens on our property, a waiver of liability for all claims,” Braley said. “If they truly believed that there were claims for gross negligence and recklessness, their release language … should tell prospective riders on a public tramway ‘This waiver does not release claims against us for gross negligence, recklessness or intentional acts.’”

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