The Development of the Standard of Care in Colorado Ski Cases
| Publication year | 1986 |
| Pages | 373 |
| Citation | Vol. 15 No. 3 Pg. 373 |
1986, March, Pg. 373. The Development of the Standard of Care in Colorado Ski Cases
At the beginning of the 1985-1986 ski season, practicing lawyers and the general public had already focused their attention on the Colorado ski industry. This was the result of a debate concerning the litigiousness of our society; the increasing growth rate of Colorado's ski industry; and the renewed concern of the industry over increasing insurance costs and more restrictive coverage.(fn1) Moreover, the tragic Teller lift incident at the Keystone Ski Resort on December 14, 1985, brought to the forefront of public discussion concerns relating to safety in skiing. The tragedy has spawned a series of lawsuits and legislative efforts which will draw the public's attention long after this ski season ends.
Reported cases arising from ski accidents date back nearly to the founding of the National Ski Patrol.(fn2) These cases can be categorized into six types: fall, lift, collision, equipment, teaching and rescue cases. In "fall cases" a skier is injured while skiing downhill and alleges that the area operator is at fault for failing to meet a standard of care as to grooming, marking or designing a slope. In "lift cases," a skier is injured while boarding, riding or alighting from a lift. "Collision cases" involve a crash between two skiers, one or each of whom blames the other and sues. "Equipment cases" concern injuries blamed on faulty, defective or negligently adjusted skiing equipment---generally, the release bindings which connect the skier's boot to the ski. Teaching cases concern alleged negligence of a ski instructor. Finally, rescue cases concern a late or negligent rescue of an injured skier.(fn3)
This article reviews the history of the development of the duty of due care applicable in ski cases.(fn4) Recently, the Colorado Supreme Court has published its first decision concerning the Colorado Ski Safety Act of 1979 ("Ski Act").(fn5) This case, Pizza v. Wolf Creek Development Corp.,(fn6) represents the current state of the law with regard to the Ski Act. This article also discusses proposed amendments to the Passenger Tramway Safety Board Act,(fn7) made as a response to the Keystone lift accident, and reviews the status of the law in collision and equipment cases.
The development of the duty of due care owed by ski area operators to skiers has followed the economic development of the sport. In the mid-1930s, skiing developed into a recreational sport in which the public participated. Skiing then was viewed as an unusual activity involving serious risk of significant injury. Nevertheless, in the earliest ski cases, courts recognized that operators of winter sports facilities could, in the exercise of reasonable care, eliminate some unnecessary risks.(fn8) Although often not recognized for this proposition, even the 1951 case of Wright v. Mt. Mansfield implied that certain things were not inherent dangers to the sport:
In this skiing case, there is no evidence of any dangers existing which reasonable prudence on the parts of the defendants would have foreseen and corrected. It isn't as though a tractor was parked on a ski trail around a corner or bend without warning to skiers coming down. It isn't as though on a trail that was open work was in progress of which the skier was unwarned. It isn't as though a telephone wire had fallen across the ski trail of which the defendant knew or ought to have known and the plaintiff did not know.(fn9)
Wright is most often viewed as the landmark decision holding that skiers could not recover for injuries caused by the "inherent dangers" of the sport. The inherent danger rule essentially was an application of the "primary assumption of risk doctrine."
The law of ski injury liability has long been governed by the tort doctrine of assumption of the risk. Often used imprecisely, "assumption of the risk" actually embodies two discrete concepts. "Primary" assumption of risk entails an individual's recognition that a danger exists despite the use of reasonable care by others and his express or implied consent to assume any risk of injury due to the danger. Primary assumption of risk involves no fault because it refers to dangers that are "inherent" in a given activity---dangers that cannot be alleviated by reasonable care. It sometimes is said that the defendant in primary assumption of risk cases either did not owe, or did not breach, any duty to the plaintiff.
Conversely, "secondary" assumption of risk arises when one party negligently creates a dangerous situation, and another party nevertheless knowingly and unreasonably subjects himself to risk of injury from the condition. Secondary assumption of risk is really a form of contributory negligence.(fn10)
Skiing became more popular over the years, and the number of participants grew exponentially. Ski area operators developed the technology and financial resources to refine the sport so that many risks and dangers formerly thought to be "inherent" could be eliminated or reduced with the exercise of reasonable care. For instance, dangers that could be eliminated have included rock outcroppings, heavy equipment moving on a catwalk, a maple sapling used as a slalom pole, and a bush or small piece of vegetation left on an otherwise groomed beginner's slope.(fn11)
In 1979, in Sunday v. Stratton,(fn12) the Vermont Supreme Court affirmed a $1.5 million verdict for James Sunday who was paralyzed when he tripped on a small bush on an otherwise groomed beginner's slope at Stratton Mountain in Vermont. The decision marked the transition from the primary assumption of risk doctrine to the doctrine of secondary assumption of risk. The doctrine of inherent danger yielded to a weighing of the comparative duties of skier and area operator.(fn13) However, the decision galvanized the ski industry into a nationwide effort to reduce exposure to suits arising out of injuries caused by dangers which ski area operators believed were traditionally "inherent" in the sport. This effort resulted in the passage of several state ski safety statutes intended to circumscribe ski area operators' duties.(fn14)
The Colorado General Assembly's Senate Judiciary Committee considered two days of testimony(fn15) advocating a ski safety act which would clearly define the duties, liabilities and responsibilities ski area operators have toward skiers. The statute, Senate Bill 203, was recommended and drafted by the National Ski Areas Association and drew support from representatives of insurance underwriters and ski area operators. From the testimony, it is fair to conclude that the proponents thought the Ski Act, as enacted,(fn16) would set forth a definitive list of operators' obligations and that, if complied with, would absolve the operators from further liability or responsibility for injuries.
However, this has not been the case. Since enactment of the Ski Act, Colorado courts have expanded, to a limited degree, the responsibilities of ski area operators while conscientiously applying the provisions of the Ski Act.(fn17) The comparative negligence doctrine has eliminated the defense of "assumption of risk," even though the preamble of the statute refers to the "inherent dangers" of skiing.(fn18) Nevertheless, the inherent danger rule still appears to be an effective silent defense of area operators, even though no instruction is traditionally given to juries concerning its role within the comparative negligence doctrine.(fn19)
The Colorado Supreme Court, in Pizza v. Wolf Creek Development Corp.,(fn20) has upheld the constitutionality of the Ski Act and, in so doing, has given attorneys practical guidance in its application. The case extends the duties specifically set forth in the Ski Act, thereby to some extent going against the legislative intent to define the duties of area operators. However, the court has still maintained a balance between the risks which the skier must assume and the reasonable care which the area operator must exercise.
Pizza was skiing an intermediate or "more difficult" slope at the Wolf Creek ski area. On the first run of the day, Pizza unexpectedly became airborne, fell and was paralyzed as a result. Apparently, he had skied off a headwall above a service road; the downhill edge of the service road is followed by a drop-off. Pizza was found seventy-five feet below the service road. His eyeglasses and ski poles were found twenty-five feet from the downhill side of the service road.
The trial was conducted in Mineral County. Pizza's theory at trial was that the slope was unreasonably dangerous and that Wolf Creek had failed to warn of its dangerous condition and to eliminate that condition. The jury found for Wolf Creek.(fn21)
Pizza challenged the constitutionality of the Ski Act's presumption that collisions by skiers with natural objects (in this case, the mountain) were the fault of the skier. The constitutionality of the presumption was challenged on the grounds that it was vague, had no rational evidentiary evidence and violated Pizza's right to equal protection under the law.(fn22)
The Colorado Supreme Court first had to define the constitutional classification of the presumption. The court found that "at most the presumption may be considered an economic regulation designed to limit the liability of ski area operators."(fn23)
The presumption was deemed to be an economic regulation. Therefore, the law requires only a "reasonable degree of certainty" rather than a more restrictive standard. From this vantage point, the court...
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