Chapter 5 - CHAPTER 5 ASSUMPTION OF RISK

• Jurisdiction: Colorado

Chapter 5 ASSUMPTION OF RISK

A defense often raised in negligence claims involving skiing accidents is that the injured skier assumed the risk, either expressly or implicitly. A defendant may claim that an injured plaintiff implicitly assumed a risk where a plaintiff knowingly chose to engage in an activity that was obviously dangerous. See Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 903-04 (D. Colo. 1998) (citing Smith v. City and County of Denver, 726 P.2d 1125 (Colo. 1986); Burchinal v. Gregory, 586 P.2d 1012 (Colo. App. 1978)). Implied assumption of risk does not necessarily amount to a total defense in a negligence action. Id. at 904; Del Bosco v. United States Ski Ass'n, 839 F. Supp. 1470, 1476 (D. Colo. 1993). Rather, a plaintiff's implicit assumption of risk becomes relevant in apportioning negligence between parties; if a plaintiff unreasonably assumed a risk, the assumption of risk may reduce the amount of damages available. Rowan, 31 F. Supp. 2d at 903-04.

Section 109 of the Ski Safety Act establishes an express assumption of risk in certain ski injury cases. C.R.S. § 33-44-109(1). It provides, "[e]ach skier expressly accepts and assumes the risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing." This section does not preclude one skier from suing another skier.

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