Chapter 11 - § 11.7 IN SOME WRONGFUL DEATH ACTIONS, OTHER STATUTORY CAP PROVISIONS, NOT THE STATUTORY CAPS IN THE WRONGFUL DEATH ACT, MAY LIMIT THE AMOUNT OF RECOVERABLE DAMAGES

• Jurisdiction: Colorado

§ 11.7 IN SOME WRONGFUL DEATH ACTIONS, OTHER STATUTORY CAP PROVISIONS, NOT THE STATUTORY CAPS IN THE WRONGFUL DEATH ACT, MAY LIMIT THE AMOUNT OF RECOVERABLE DAMAGES

In Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007), the court addressed the issue of whether the damages cap contained in Colorado's Ski Safety Act (SSA), rather than the Wrongful Death Act's damages cap provisions, limited recovery of damages in a wrongful death action against a ski area operator. Aaron and Kelly Stamp brought a wrongful death action against Vail Corporation and Mark Chard, an employee who operated a snowmobile, after their daughter, Ashley, a ski racer, died in a collision with the snowmobile. The Stamps alleged that Chard was driving the snowmobile at an excessive rate of speed over a blind knoll and that his reckless actions constituted a felonious killing. Under the Stamps' theory, if their daughter died as a result of a felonious killing, then the $250,000 damages limitation contained in the WDA, § 13-21-203(1)(a), would not apply, and they would be entitled to recover unlimited damages. However, Vail argued that the damages cap limitation contained in C.R.S. § 33-44-114, part of the Ski Safety Act, governed the case. Under that statute, the Stamps' damages would be limited to $250,000, the maximum amount recoverable for derivative claims. Vail filed a motion for determination of question of law, and the trial court ruled that the SSA's damages cap applied. The trial court also denied the Stamps' motion to amend the complaint to add a claim for exemplary damages based on an allegation that the defendants' conduct was willful and wanton. The Stamps filed a petition for review of the trial court's rulings under C.A.R. 21. The supreme court agreed with the trial court that the damages cap contained in the SSA applied, but reversed the trial court's order denying the Stamps' motion to amend their complaint to add a claim for exemplary damages.

The damages cap provision in § 33-44-114 states that the total amount of damages that may be recovered from a ski area operator by a skier who is injured shall not exceed $1 million. It also limits any derivative claim, including any claim for non-economic loss or injury, to $250,000. The Stamps asserted that because the statute only uses the term "injured," its application is limited to cases of injury, not injury or death. However, in reviewing the statutory purpose of the SSA, the supreme court concluded that the term "injured" must...