Colorado Ski Law
| Publication year | 1998 |
| Pages | 5 |
| Citation | Vol. 27 No. 2 Pg. 5 |
1998, February, Pg. 5. Colorado Ski Law
Vol. 27, No. 2, Pg. 5
The Colorado Lawyer
February 1998
Vol. 27, No. 2 [Page 5]
February 1998
Vol. 27, No. 2 [Page 5]
Articles
Colorado Ski Law
by James H. Chalat
Colorado Ski Law
by James H. Chalat
In 1996-1997, Colorado resorts drew about 11.35 million skier
visits. The Colorado ski industry is a leading economic force
in Colorado's $6 billion tourism trade. A ski industry
study completed in 1991 stated that skiing generated direct
and secondary sales attributable to skiing and associated
resort operations in excess of $2.5 billion. In 1992
Colorado's Gross State Product was approximately $85.4
billion.1 Based on these figures, skiing accounts for 3
percent of Colorado's Gross State Product. Moreover
skiing remains the Western Slope's largest industry
outstripping traditional industries such as agriculture,
mining, and petroleum. Operating profit for the ski areas in
the Central Rockies, as a percentage of gross fixed assets,
has been stated as high as 17.4 percent. "In terms of
dollars, the average ski resort in the Central Rockies is the
most profitable of any region in the country."2
Colorado ski law reflects the growth and complexity of the
industry. Colorado ski areas have been at the center of major
cases dealing with antiturst and environmental protection, as
well as ski safety. The legal principles at work in all types
of cases involving the industry, when viewed as a whole,
manifest the social, political, and economic interests
fostered by the remarkable growth and consolidation of the
ski industry in this state.
Ski cases are tort cases. Given the absolute volume of
injuries, and the economic significance of skiing, it is
almost certain that any Colorado lawyer whose practice
includes tort cases is certain to have a ski case come his or
her way.
The author last reviewed the subject of ski law in The
Colorado Lawyer in 1986, twelve years ago.3 This article
updates the practitioner on Colorado ski law since that time,
focusing first on the background of legislative changes and
case law. The article then discusses the types of skiing
accidents and how the law treats them. The article also
compares some out-of-state cases with Colorado's recent
case law. Finally, the article suggests some practical tips,
from a plaintiff attorney's viewpoint, to assist the
practitioner in handling a ski case.
BACKGROUND
Before 1985, courts relied on the Colorado Ski Safety Act of
1979 ("1979 Ski Act") and the case law interpreting
it when dealing with ski accident cases.4 The 1979 Ski Act
provided some protection to the ski area operator against
negligence claims.5 It established specific duties of skiers
and ski area operators. However, in 1985, the Colorado
Supreme Court narrowly construed the extent of that
protection by holding, in the case of Pizza v. Wolf Creek Ski
Develoment Corp., that the 1979 Ski Act gave ski area
operators a rebuttable, but not a conclusive presumption,
that a ski accident was the skier's fault.6 Pizza
essentially held that claims that were founded on a theory of
general negligence, rather than on a breach of a specific
statutory duty, could nevertheless be maintained, so long as
the jury was instructed on the presumption of skiers'
fault.
Then in 1987, in the case of Peer v. Aspen,7 a jury found
that the presumption in favor of the ski area had been
rebutted by the plaintiff and awarded the plaintiff $5
million, the largest verdict in the history of Colorado ski
law. In response to the Peer verdict, the ski industry
returned to the General Assembly in 1990 and lobbied for
Senate Bill ("S.B.") 90-80, which would have
amended the 1979 Ski Act to broaden a ski area's immunity
from liability for downhill skiing accidents that did not
arise from a breach of a specific statutory duty.
The General Assembly adopted S.B. 90-80 after numerous
amendments and, in doing so, amended the 1979 Act. The core
of the 1990 amendments ("1990 amendments" or
"Ski Act") were the "inherent danger"
amendments8 and damage limitations. However, the ski
industry's proposals were limited in the legislative
process, and the intention of the General Assembly, as
interpreted by the Colorado Supreme Court, has been held to
modify but not discard the original liability scheme of the
1979 Ski Act.
Under the 1990 amendments, the skier (including snowboarders
and tobogganers) assumes the risks of the inherent dangers of
skiing.9 Inherent dangers include weather, snow, surface and
subsurface conditions, collisions with natural and manmade
objects, skier collisions, and the failure of skiers to ski
within their own ability.10 A ski area operator has specific
statutory duties to mark its trails, boundaries, and the
difficulty level of its trails and slopes.11 Manmade objects
not otherwise visible from 100 feet away must be padded.12
Limitations are imposed on damages collectible against ski
area operators for downhill skiing accidents,13 but there are
no limitations on damages for ski lift accidents.14 The
amendments specifically excluded lift-related accidents and
skier versus skier collisions from the inherent danger
scheme.15
The court's interpretation of the Ski Act's 1990
amendments appeared in its 4-3 decision in Graven v. Vail
Associates, Inc.16 In this case, the court found that the
"inherent danger" amendments did not extend full
immunity to ski area operators, but rather would allow some
cases to go the jury on the question of whether or not a
hazard was "inherent."
The cases following Graven manifest a trend toward
establishing standards of care for the different types of
skiing cases, reflecting the tension that exists when claims
of ski area immunity collide with claims that modern ski
areas can and should improve ski safey. This tension recently
was expressed by a trial judge who wrote:
Read in its plain language . . . the [inherent danger
amendments were] patently unfair and unjust and probably
violated the equal protection clause; i.e., [there was] no
rational relationship between the legitimate goal of
protecting ski area operators from frivolous lawsuits and a
ski area operator being protected from its own negligence
causing skier injury. However, in light of . . . Graven and
the requirement that courts now analyze whether an inherent
danger or risk is also integral, there is a rational
relationship between the legitimate legislative concerns and
[what is] accomplished through a reasonable scheme related to
the stated legislative purpose. . . . [T]he Supreme
Court's end result . . . is quite equitable and restores
balance to the Act while still allowing ski area operators
protection for "inherent dangers and risks."17
Due to these 1990 amendments and, particularly with regard to
the so-called Graven Rule, Colorado lawyers and judges have
changed the manner in which they evaluate and conduct
Colorado ski accident cases.
Graven v. Vail Associates, Inc.
In the Graven case,18 David Graven sued Vail Associates, Inc.
for injuries he suffered when he fell down a steeply pitched
ravine adjacent to the west side of the Lower Prima run at
Vail, at about the point where Lower Prima is intersected by
two catwalks (both rated easiest) named Flapjack (skiers
travel west) and Sundial (moving east).
The trial court entered summary judgment against Graven,
holding that, as a matter of law, the ravine into which he
fell was an "inherent danger" of skiing.19 Thus,
the court held that Vail had no duty to mark or warn under
CRS § 33-44-107 (2)(d), and recovery was barred.20 The Court
of Appeals affirmed,21 but the Colorado Supreme Court
reversed and remanded for trial. The Supreme Court held:
Skiing is a dangerous sport. Ordinary understanding tells us
so, and the legislature has recognized the dangers inherent
in the sport. . . . Not all dangers that may be encountered
on the ski slopes, however, are inherent and integral to the
sport, and this determination cannot always be made as a
matter of law.22
The court interpreted the language of the Ski Act defining
inherent dangers. The court reasoned that the inherent
dangers as set out in the statute were narrowly intended to
describe only those dangers that were an integral part of
skiing.
The Supreme Court drew support for its narrow construction of
the definition of inherent risks and dangers from the
statements made by legislators during hearings on the passage
of the 1990 amendments and from the necessity to reconcile
the Act's requirement that "danger" areas be
marked.23
Senator Tilman Bishop, who sponsored the amendments, stated
that they were not intended to "reduce the
responsibilities of the ski area operators," referring
to the Supreme Court's earlier ruling in Peer v. Aspen.
In that regard, Senator Bishop stated that even under the
inherent danger amendments, a four-foot drop-off such as that
implicated in the Peer accident would still cause ski area
operators to "give some indication of caution or of
where these are considered as a danger beyond that of what
would be considered inherent."24
Therefore, based on the explicit language of the Ski Act and
the legislative history of the amendments, the court
concluded that Graven's case must proceed to trial. The
court reasoned:
As a consequence of the conflicting descriptions of the
accident area and the necessity to resolve that conflict in
order to determine whether the plaintiff's injuries
resulted from the inherent dangers and risks of skiing, we
hold that a genuine issue of material fact exists. Summary
judgment was therefore inappropriate on this issue.25
The court's ruling presents two immediate questions for
attorneys and trial judges. First, which ski accidents are
actionable ski cases under the...
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