Ski Areas Can’t Use Liability Waivers to Get Out of All Negligence Lawsuits, Colorado Supreme Court Rules

Liability waivers — standard click-through agreements that are a common part of purchasing a ski pass in Colorado — cannot be used to protect ski resorts from all negligence lawsuits, a divided Colorado Supreme Court ruled. a historic decision on Monday.

The court majority said the exemptions could protect ski areas from some types of liability claims. But he said negligence claims related to chairlift accidents and specific provisions of two Colorado laws (the Colorado Ski Safety Act and the Passenger Tram Safety Act) cannot be ignored. It’s the first time the state’s highest court has ruled against liability waivers in a ski case, and marks a rare case in which a Colorado court has allowed a liability lawsuit against an area to go forward. ski.

“We have not addressed this issue previously and, in our opinion, it presents an issue of great public importance, given the extensive use of liability waivers in the ski industry in Colorado,” states the court’s opinion, written by Judge Richard Gabriel . .

Two justices on the seven-member court, Monica Marquez and Melissa Hart, dissented and said they believe the disclaimers in the case block negligence claims.

The case was followed closely and not only by the ski industry. Representatives of youth camps and rafting companies joined the ski industry to argue that a Supreme Court ruling against the use of liability waivers could affect youth access to organized recreation.

Although the case turns on a delicate point of legal interpretation, it has its roots in a tragedy. In 2022, a 16-year-old girl named Annie Miller fell approximately 30 feet from a ski lift in Crested Butte while she was on a ski trip with her father, Mike. She landed on hard snow and broke her back, leaving her quadriplegic.

Mike Miller said he and others yelled for an elevator attendant to stop him when Annie had difficulty sitting down, but none did. He subsequently filed a lawsuit alleging three different types of negligence on the part of Crested Butte. The resort responded that Miller had waived such claims when he accepted a liability waiver as part of the purchase of his and Annie’s ski passes.

A lower court largely agreed with Crested Butte and dismissed two of the three negligence claims. Miller appealed that order to the state Supreme Court.

Different types of negligence

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

In the latter type, the court majority concluded that the liability waivers validly protected Crested Butte. Most said the exemptions were clear about the risks of skiing, noting they covered “improper unloading, entanglement or falls from lifts.”

The Colorado Supreme Court on Tuesday, January 17, 2023 in Denver. (AP Photo/David Zalubowski)

Because the court’s majority decided 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 according to the majority opinion occurs when “a defendant violates a statute adopted for the public safety.”

Protections for ski areas

The statutes in question are two heavyweights of Colorado ski industry regulations: the Colorado Ski Safety Act and the Passenger Tram Safety Act, which govern the operation of ski resorts. and the 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 ruined by ski injury lawsuits. But the protections apply primarily to what the law calls “the dangers and risks inherent in skiing,” meaning sliding downhill at high speeds.

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

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

Three skiers in spandex suits ride a chairlift with snowless mountains in the background
Ski racers ride the Excelerator chairlift toward the top of the training course at Copper Mountain, Nov. 15, 2023, near Frisco. (Hugh Carey, The Colorado Sun)

The court majority concluded that the Ski Safety Act and the Passenger Tram 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 rule out the kind of potential negligence for which the legislature wanted ski areas to be held accountable.

“We conclude that Crested Butte cannot exempt itself, through private release agreements, from liability for violations of legal and regulatory obligations,” the majority wrote in its opinion.

“Nothing magical or unique”

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

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

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

Case still undecided

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

“We express no opinion on the ultimate merits of the claim,” the court majority wrote.

The case now returns to lower court, in Broomfield County, where Crested Butte owner Vail Resorts is based. It could still be months or years before it concludes.

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

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