The Colorado Supreme Court will not consider a case that questions ski areas’ use of waivers to protect themselves from lawsuits filed by injured skiers. Attorneys fighting for skier safety fear the end of legal challenges to now-ubiquitous resort liability waivers may mean the death of the venerable Ski Safety Act.
The state’s highest court on Tuesday announced it would not hear the appeal filed by Charlotte Redden, who was hit by a chairlift at Loveland ski area in March 2017. Redden argued the lift attendant violated regulations in the 1979 Ski Safety Act and the 1964 Colorado Passenger Tramway Safety Act when a chair hit her and broke her pelvis as she slowed to avoid a skier who had fallen getting off the lift in front of her.
Clear Creek Skiing Corp., the owner of Loveland ski area, argued that Redden had waived her right to sue when she purchased ski boots and had her bindings adjusted in the resort’s shop in 2016. In that transaction, Redden signed a waiver promising to “assume all risks” when skiing at the resort and “agree to hold harmless, please, defend and indemnify” the ski area “for any and all liability” in claims for injury or death. A lift ticket she purchased had the same small-print waiver on the back.
Redden lost her case at the district court level and in January, the Colorado Court of Appeals sided with the resort and rejected her case. The Supreme Court decision to not hear her final appeal “is bad news for the state and for skiers,” said attorney Jim Chalat, who has argued against ski resorts’ waivers for decades, saying the waivers eliminate resort responsibilities outlined in the Ski Safety Act.
That legislation, which details both resort and skier responsibilities, “is now officially dead letter,” Chalat said, describing a law that is in effect but cannot be enforced.
“I think this is a tragedy for ski safety in Colorado,” Chalat said. “All of the protections the industry sought in the 1979 Ski Safety Act are not adequate and instead resorts now are insisting on total immunity. No other industry in the state has that privilege. I really expected the Supreme Court to uphold the policies articulated by the General Assembly when they legislated the Ski Safety Act.”
The decision, which does not affect lawsuits involving skier-on-skier collisions, jibes with a federal appeals court decision in 2018 that affirmed the use of waivers on Vail Resorts’ lift tickets. That case involved a lawsuit filed by a woman who was injured skiing off a chairlift at Keystone in 2015. The 10th U.S. Circuit Court of Appeals said in that ruling that Colorado’s “relatively permissive public policy toward recreational releases … no doubt means some losses go uncompensated.”
Judge Janice B. Davidson, the Colorado Court of Appeals judge who dissented in the Redden opinion, warned that waivers immunizing resort operators from liability for injuries alter the responsibilities assigned to resorts by the Ski Safety Act and Passenger Tramway Safety Board.
“The ski lift operator suffers no financial consequence for negligent violation of those duties with which it is otherwise required, by law, to comply,” Davidson wrote in her dissenting opinion, saying that waivers should not stop skiers from suing resorts for violating the Ski Safety Act and tramway board regulations.
The Ski Safety Act has been amended several times since 1979 and does not automatically protect resorts from lawsuits resulting from injuries sustained on chairlifts. It requires resorts to do several things, like mark trails and closures and follow dozens of rules set by the Colorado Tramway Board. The Ski Safety Act assigns most responsibilities for safety to skiers, requiring them to follow a responsibility guide created in 1966. The legislation does allow skiers to sue resorts over injuries or deaths involving a ski area’s negligent or reckless actions, like chairlift malfunctions.
The family of a skier killed in a chairlift malfunction in December 2016 at Granby Ranch ski area has accused the resort of negligence and that wrongful death lawsuit has continued despite the Redden decisions regarding waivers. William Huber, the San Antonio husband of Kelly Huber and father of Ashley and Taylor, who were thrown from the lift and severely injured when the Granby Ranch lift malfunctioned, will have his case heard at the end of this month in Grand County.
Bruce Braley, an attorney with Denver’s Levinthal Puga Braley law firm who is representing Huber, said he does not expect the state Supreme Court’s denial of the Redden case to impact the Granby Ranch trial. The resort’s lawyers already unsuccessfully asked Grand County District Court Judge Mary Hoak to reconsider her refusal to dismiss allegations following the Court of Appeals decision in Redden.
In June, Hoak ruled the two cases are different, even though both Redden and Kelly Huber signed waivers when they purchased lift tickets.
“The waiver certainly encompasses the riding and loading and unloading of lifts, but the court does not believe Ms. Huber understood that language to mean she could be thrown to her death by a mechanical malfunction of the lift from high in the air,” Hoak’s June decision reads.
Braley said the Redden decision raises “the more troubling question” of ski resort operators expanding waiver language to provide “complete immunity from any responsibility.”
“That is far beyond the trade-off made when the Ski Safety Act was passed and amended,” Braley said. “That is the much broader public policy argument that needs to be addressed by the legislature.”
Some states, like Alaska, Montana and Utah, have laws and legislation that prevent waivers from protecting resorts from lawsuits that involve gross negligence. Colorado lawmakers would need to once again amend the Colorado Ski Safety Act to limit blanket immunity for resorts through waivers.
“They should but I don’t see that,” Chalat said. “This just speaks to the special interest power of the ski industry operators, which now reaches the Supreme Court.”