Ski Law in Colorado: the Timorous No Longer Stay at Home

• Publication year: 2002
• Pages: 9

31 Colo.Law. 9 Colorado Lawyer 2002.

2002, February, Pg. 9. Ski Law in Colorado: The Timorous No Longer Stay at Home

Vol. 31, No. 1, Pg. 9

The Colorado Lawyer
February 2002
Vol. 31, No. 2 [Page 9]

Articles

Ski Law in Colorado: The Timorous No Longer Stay at Home
by James H. Chalat, Eric Samler, Chris Koupal
2002 Chalat Law Offices, P.C

In Colorado, skiing represents the largest component of the tourism industry and is therefore critical to Colorado's economy. This article provides a current overview of ski law as it pertains to legal economics, legislation, and ski accident case law. It also compares ski law in other states and offers the Colorado lawyer some practice tips

James H. Chalat, Denver, is a principal with Chalat Law Offices, P.C.—(303) 861-1042 jchalat@chalatlaw.com. This is his fifth article for The Colorado Lawyer on the subject of ski law. Eric Samler, Evergreen, is a Colorado appellate lawyer: esamler@ colorado-appeals.com. Chris Koupal is a second-year law student at the University of Denver College of Law: ckoupal@student.law.du.edu. James Chalat is counsel for amicus curiae, Colorado Trial Lawyers Assoc., in the case of Cooper v. Aspen Skiing Co. et al. and was amicus curiae in the case of People v. Hall, both of which are discussed in this article.

American skiing traces its beginning to the 1932 Lake Placid Winter Games. In 2002, for the first time in its history, the Winter Olympic Games are being held in the Rocky Mountains—the part of America where the ski industry has flourished most. In Colorado, skiing (or snow-riding, as the sport is becoming known in deference to snowboarding's tremendous popularity) is the largest component of the tourism industry.1 Tourism is a critical component of Colorado's annual gross domestic product.2

Although it has maintained its significance to the Colorado economy, skiing's growth in the state has not kept pace with the overall economic growth of Colorado. The Colorado ski industry reported a record 11.5 million skier visits in 1997-98. Even though the past decade saw an economic boom, approximately the same numbers were reported in 2000-2001. Moreover, the events of September 11, 2001, coupled with a weakened economy, are predicted to result in a significant downturn for the 2001-2002 ski season.3 Over the past decade, the ski business's annual growth rate of only 2 percent evidences a flat skier market,4 which has led to a period of consolidation and competition among ski areas.

Despite the ups and downs of the economy, skiing will continue to have great economic significance in Colorado; 20 percent of all skier days in the United States take place in Colorado, and skiing has become elemental to this state's culture, ethic, and lifestyle. Once a sport of a few wealthy, risk-taking adventurers, skiing has now become widely practiced across our entire society, including the young, the elderly, the fit, and the handicapped. The timorous no longer stay at home.5 As a result, any Colorado lawyer whose practice includes the defense or prosecution of personal injury cases (ski accident cases are tort cases) is certain to have a ski case come his or her way.

This article updates The Colorado Lawyer article published in 1998,6 focusing first on the legal economics of ski law, legislative changes, and case law. The article then addresses the types of ski accidents and how Colorado law treats each variant of ski case, noting several out-of-state cases for comparison. Finally, the article provides practice tips for the Colorado lawyer.

LEGAL ECONOMICS
OF SKI LAW

Compared with other states, Colorado ski law has had the effect of making skiing comparatively safe. It has achieved this by carefully balancing protective concerns for the industry against a thoughtful risk- and responsibility-sharing scheme. Skiers must maintain a lookout, ski within their abilities, avoid collisions with others and objects, exercise common-sense safety practices, and accept the inherent risks of the sport.7 When on the lifts, skiers have the duties to learn the fundamentals of the use of the lift and to obey written and verbal instructions.8 Skiers injured by the negligent acts of other skiers do have recourse against those skiers.9

Concomitantly, ski areas do not enjoy absolute immunity from tort liability.10 Ski area operators have statutory duties regarding signage and the operation of equipment on the slopes.11 Ski lift operators owe the highest duty of care to passengers on the lift.12 In addition, the composition of the Colorado Passenger Tramway Safety Board, which oversees enforcement of the Colorado Passenger Tramway Safety Act ("Tramway Safety Act"),13 has changed. Formerly, a representative of the tramway manufacturing and design industry sat on the Board. That representative has now been replaced with a licensed professional engineer not employed by a ski area or other related industry, removing any potential conflict.

Colorado ski law, therefore, has supported the early growth and present stability of the industry.14 The Colorado Ski Safety and Liability Act ("Ski Act" or "Act") was enacted during the period of "tort reform" legislation of the 1970s and 1980s, purportedly out of concern for the economic health of the industry.15 In general, Colorado's Ski Act balances the safety responsibilities and risks of the sport between skiers and ski area operators, depending on the specific situation at hand. Central to the Ski Act is the listing of "inherent risks," which arguably can act as a bar to a plaintiff's claim if the injury stems from one of the risks. In 1998, the Colorado Supreme Court bolstered the health and safety of the industry in the case of Bayer v. Crested Butte Mountain Resort, Inc.16 In Bayer, the Court reaffirmed that the ski area operator owed passengers the highest duty of care in the operation of its lifts. In doing so, the Court commented on its view of policy—that safe practices are to be reinforced, while unsafe conduct should be deterred:

Adoption of Crested Butte's argument that the Tramway Act and Ski Safety Act preempt common law liability would entail no responsibility on the part of ski operators to ensure safe design, other than to comply with the Board's regulations. This notion is contrary to the legislature's intent in assigning the primary responsibility for design to the operators, as well as contrary to a fundamental precept of tort law—that conduct adverse to evolving safety norms should not be rewarded.17 (Emphasis added.)

Wisely, the industry has recognized that families constitute its key customer base and that family vacation destination choices are often driven by safety considerations, along with other factors. As a result, the industry has responded with strong marketing and training campaigns to emphasize and enhance skier and employee safety.18 Because Colorado is a relatively safe place to ski, the ski industry is better able to promote and protect itself in a competitive national tourist market, holding itself out as not only having better powder, but safer slopes as well.

However, safety is not certain. Despite advances and improvements in ski equipment and the recent industry emphasis on safety, skiing and snowboarding continue to produce a substantial number of injuries that entail considerable medical cost.19 Current statistics indicate that the overall injury rate has decreased to 2.3 accidents per 1,000 skier visits.20 Nevertheless, from the overall injury rate, one study concludes that 66 percent of those individuals involved in accidents require treatment either by a physician or in a hospital.21 Considering these statistics, and that approximately eleven million skier visits take place in Colorado per year, about 16,500 injuries will occur annually at Colorado ski areas.22

COLORADO SKI LAW
AND CASES

The Ski Act23 imposes statutory duties on ski area operators: a ski area operator must mark its trails and boundaries and the difficulty level of its trails and slopes.24 Moreover, manmade objects not readily visible from 100 feet away under conditions of ordinary visibility must be padded.25 The Ski Act imposes correlative duties on the skier. These duties include the duty to ski in control; within the skier's ability; to maintain a lookout; and to abide by the signs, warnings, and instructions placed by the ski area operator. The Act places the primary duty on the uphill skier to avoid the downhill skier and places on all skiers the duty to stay clear of snow-grooming equipment, vehicles, lift towers, and signs, as well as other equipment on the slope. Skiers assume the risk of the inherent dangers and risks of skiing.26

The Ski Act additionally imposes on skiers certain duties when they are "passengers" of ski lifts.27 Passengers must have the dexterity, ability and knowledge to negotiate and safely use lifts, and if they do not know, they must ask. Passengers must load and unload only at designated areas (for example, they cannot jump from a lift) and otherwise must refrain from any dangerous activity, such as jumping on closed lifts or dropping anything from lifts. The statute creates a tort remedy for the breach of any duty by imposing a per se liability standard on the skier, passenger, or ski area operator for the violation of any requirement of the Act.28

The Ski Act also limits damage awards in downhill skiing cases and provides that there is no duty to protect skiers from dangers inherent in the sport.29 Inherent dangers are generally defined as weather, snow, surface, and subsurface conditions; collisions with natural and man-made objects skier collisions; and the failure of skiers to ski within their ability.30 In Graven v....