Continuing Changes in Colorado Ski Law
| Publication year | 1984 |
| Pages | 407 |
| Citation | Vol. 13 No. 3 Pg. 407 |
1984, March, Pg. 407. Continuing Changes in Colorado Ski Law
Colorado ski law has continued to change since the subject was last reviewed in this publication in 1981.(fn1) To update the practitioner, this article discusses two recent ski law decisions by Colorado courts(fn2) and two important ski cases at the trial level.(fn3)
Ski law should be viewed in relation to its regulatory and economic environment. Concerning its regulatory aspects, this article reviews a dramatic report by the Colorado Department of Regulatory Agencies on the Passenger Tramway Safety Board ("PTSB") and the progress the PTSB has made since the report. The PTSB regulates trams, lifts and tows. The ski industry is its principal subject of regulation.(fn4)
The increasing economic importance of skiing to Colorado's economy results directly in an increase in the importance of ski law to Colorado's lawyers. Thus, this article also notes a study commissioned by Colorado Ski Country U.S.A. (a trade association to which most Colorado ski area operators belong), concerning the growing impact of skiing on the Colorado economy.(fn5)
Legal precedent in U.S. ski law began with the case of Wright v. Mt. Mansfield Lift, Inc. in 1951.(fn6) Florine Wright, an intermediate skier, was skiing at Stowe, Vermont, when her ski struck an unmarked snow-covered stump, causing her to fall and break her leg. Wright sued on the basis that the stump should have been removed or marked or, in the alternative, that the trail should have been closed.
The Vermont Supreme Court set a precedent by affirming a directed verdict against Wright. The court ruled that the doctrine of volenti nonfit injuria prohibited recovery, which literally translates into, "The volunteer suffers no harm." As applied, the doctrine means that a participant accepts those obvious and necessary dangers which are inherent in the activity. The court reasoned that an injury caused by collision with a snow-covered stump was a risk inherent in skiing.(fn7)
The Wright precedent has eroded during the past few years. In 1971, the Michigan Supreme Court ignored the Wright rule in Marietta v. Cliff's Ridge, Inc.(fn8) In Marietta, the skier was a slalom racer who was impaled on a thick, sharpened maple sapling used to form a gate on a race course. In court, Marietta proved that racers often crash into slalom gates or catch their skis on the slalom gate poles. Marietta further proved that because of this danger, bamboo, fiberglass or other flexible materials were customarily used for slalom gate poles, rather than inflexible or sharp materials. The Michigan court held that ski area operators are subject to traditional principles of negligence. Thus, Michigan ski area operators were obligated to exercise a prudent standard of care in order to prevent or warn of a reasonably foreseeable injury.(fn9)
A few years later, the Tenth Circuit Court followed the same reasoning as the Michigan court, although it did not refer to Marietta. In Rosen v. LTV Recreation Development, Inc.,(fn10) Rosen collided with another skier and was catapulted into an unpadded metal pole set in the snow at a busy intersection. The jury returned a verdict for Rosen. On appeal, the ski area operator asked the court to consider whether the evidence was sufficient to affirm the verdict. The Tenth Circuit held that a ski area operator was to act "as a responsible, prudent person in maintaining the premises in a reasonably safe condition considering the probability or foreseeability of any injury to others."(fn11) The court noted that the jury could consider the location of the pole and that it was unpadded and unmarked.(fn12)
In Vermont that same year, the case of Sunday v. Stratton(fn13) marked the end of the common law rule of the inherent danger test and the beginning of legislative interference in the development of ski law.
James Sunday was a novice, skiing on a beginner's run, when his ski became entangled in a bush causing him to fall. Sunday was rendered a quadriplegic. He alleged that the ski area operator failed to groom its beginner's run in accordance with the standards of the industry or with the representations it made as to the quality of the "cover" on its slopes and trails. The jury's verdict against the ski area operator in the amount of $1.5 million was affirmed.
The Vermont Supreme Court specifically held that not every fall is a danger inherent in the sport. The court not only applied traditional principles of negligence, but also discarded the inherent danger test.(fn14)
The ruling in Sunday v. Stratton galvanized the National Ski Area Association and its insurors into an intense, national lobbying effort to set specific standards of care for skiers and ski area operators.(fn15)
In Colorado, the legislature passed the Ski Safety Act of 1979 ("Ski Act"),(fn16) which set out the duties and responsibilities of skiers and ski area operators. The Colorado Ski Act was a direct response
to the Sunday and Rosen cases. It reflected the desire of ski area operators, their insurors and trade associations to limit the growth of...
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