The Crested Butte News Serving the Gunnison Valley since 1999
Should liability waivers absolve ski resorts from statutory duty of care?
By Kendra Walker
An upcoming decision by the Colorado Supreme Court on how much protection liability waivers can provide ski areas originated from an accident that occurred on Crested Butte Mountain Resort’s (CBMR) very own Paradise Lift. Last week, the Colorado Supreme Court began considering a case that could have major impacts on the ski industry regarding accident liabilities.
In March 2022, then 16-year-old Annalea (Annie) Miller struggled to get seated on the Paradise Lift, fell 30 feet onto hard-packed snow and suffered a spinal cord injury that left her paralyzed.
According to her family’s legal team, “she struggled to get seated and was left hanging for her life 30 feet above the hard-packed snow below by Crested Butte employees. Instead of stopping the lift when it was clear that she was experiencing difficulties, Crested Butte continued as if nothing was wrong. Annie eventually lost her grip and fell to the hard ground below, and is paralyzed today because of her injuries. Crested Butte did not initiate any emergency evacuation procedure, nor did it stop the lift for Annie despite knowing she never boarded the lift.”
As reported by the Colorado Sun, Miller shattered her C7 vertebrae, bruised her heart, lacerated her liver, injured her lungs and will not walk again.
The Miller family filed a lawsuit in December 2022 in Broomfield County District Court, accusing CBMR and owner Vail Resorts of violations of duty of care, negligence and gross negligence. From the Colorado Sun, “The Miller family claims the lift operators were not standing at the lift controls and ‘consciously and recklessly disregarded the safety of Annie’ when they failed to stop the Paradise chair.”
However, the district court judge dismissed two of the claims for violations of duty of care and negligence in April 2023, leaving intact only the third claim for gross negligence. The judge based his dismissals on the liability waiver Annie’s father, Michael, signed on her behalf. The waiver Michael signed when buying the ski pass acknowledges the risks that come with skiing and releases CBMR from liability if his daughter were in an accident.
The Miller family appealed the Broomfield decision to the Colorado Supreme Court, arguing the waiver should not cancel the ski area’s duty under the Ski Safety Act and the Passenger Safety Tramway Act to protect skiers riding chairlifts. The decision now before the Colorado Supreme Court is whether Vail Resorts can be held liable for negligence for the lift accident, or whether to uphold the lower court’s dismissal of negligence claims. The gross negligence claim in the Broomfield District Court is on hold pending the outcome of the appeal.
The Millers are asking the Colorado Supreme Court “to consider whether a ski area in Colorado can create contractual immunity from statutory duty of care in a contract that is part of a ski lift pass,” reported the Colorado Sun.
The Miller family’s lawyer, Bruce Braley, argued statutory duties under the Colorado Skier Safety Act and Colorado Passenger Tramway Safety Act outweigh the enforceability of a liability waiver. The argument is that while skiers and boarders acknowledge the inherent risks by signing a waiver, negligence by a lift operator doesn’t fall into that category.
“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,” said Braley. “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?”
The Colorado Trial Lawyers Association has joined the Miller family in arguing against the use of liability waivers by ski areas to avoid responsibility for chairlift accidents.
CBMR and Vail Resorts attorney Michael Hoffman argued that people willingly take on skiing or snowboarding pursuits knowing the risks involved. “I think it’s important to keep this in mind, this is a voluntary recreational activity,” he said. “And this court has always said that for activities like that, we allow the waiver defense. Because no one is required to ski…You’re talking about a voluntary activity.”
The Crested Butte News reached out to CBMR for comment this week, and heard back from Vail Resorts senior director of communications Lindsay Hogan that they do not comment on litigation.
The National Ski Areas Association, Colorado Ski Country USA, Colorado Camps Network and Colorado River Outfitters Association have joined the case in support of CBMR and Vail Resorts. The groups argue that liability releases “are essential to providing children with the ability to participate” with recreation providers like camps, rafting companies and ski resorts. Without releases, they will be unable to provide opportunities for children. They also argue that without the protection of waivers, insurance costs will rise and they may have to increase prices.
Colorado Supreme Court Justice Carlos A. Samour Jr. last week noted the contradiction the court faces with its pending decision. “There is this idea that if you’re going to ride the lift, you have to sign a waiver,” he said. “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,’ and yet 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.”
The case is currently slated for a September jury trial on the final claim of gross negligence, according to Courthouse News Service.
Information sourced from the Colorado Sun, Aspen Daily News and Courthouse News Service.
