It was toward the end of the first day of a ski vacation with their church in March 2022 when Mike Miller and his daughter Annie skied up to the Paradise Express lift at Crested Butte Mountain Resort.
The chair spun around and Annie couldn’t settle into the seat. Mike grabbed her. The chair kept climbing out of the lift terminal. He screamed for the lift operator to stop the chair. So did people in the line. The chair kept moving.
Annie tried to hold on to the chair. Mike tried to hold his 16-year-old daughter. The fall from 30 feet onto hard-packed snow shattered her C7 vertebrae, bruised her heart, lacerated her liver and injured her lungs. She will not walk again.
The Miller family claims the lift operators were not standing at the lift controls and “consciously and recklessly disregarded the safety of Annie” when they failed to stop the Paradise chair. In a lawsuit the family filed in December 2022 in Broomfield County District Court, they accused Crested Butte Mountain Resort and its owner, Broomfield-based Vail Resorts, of gross negligence and “willful and wanton conduct.”
The Colorado Ski Safety Act gives ski areas a broad range of protection from lawsuits filed by injured skiers, limiting the most a suing skier can win from a ski area to $250,000 and asking skiers to assume responsibility for the wide-ranging “inherent dangers and risks of skiing.” But the venerable legislation limits protections for resorts if a skier can prove gross negligence or reckless, willful misbehavior.
The Colorado Ski Safety Act has been tested in dozens of lawsuits over the past several decades by injured skiers or the families of skiers who died at resorts. None of the lawsuits has weakened the legislation’s protections or reduced the strength of fine-print contracts that are part of most lift ticket and season pass sales and waive a skier’s right to sue a ski resort. Federal and state courts have repeatedly ruled that the use of liability waivers as part of the sale of every lift ticket and season pass also protects ski areas from lawsuits filed by injured skiers.
In September 2021, the Colorado Supreme Court declined to hear an appeal by a woman who was injured in a chairlift accident at Loveland Ski Area after a district court and the Colorado Court of Appeals ruled that the waivers she signed when she bought a lift ticket and ski boots at the resort’s shop dismissed her right to sue the ski area. The 10th U.S. Circuit Court of Appeals in 2018 ruled that a woman injured by a chairlift at Keystone could not sue because of the waiver she signed to get a lift ticket.
The Miller family is hoping to be the first to prevail against liability waiver protections and the Colorado Ski Safety Act and they have pushed their fight to the Colorado Supreme Court. The state’s high court will hear arguments next week by the Miller family’s lawyers and a robust entourage of resort industry attorneys.
Skiers must have the “physical dexterity” to load, unload lifts
The decision by the Colorado Supreme Court could have broad ramifications if the court reverses the decision of the lower court last year. The Broomfield District Court judge ruled that the ski area’s liability waivers that were included in the Oklahoma family’s purchase of three-day Epic Passes barred them from suing for negligence.
The Epic Pass sale document included a warning about using chairlifts — saying that skiers need to “have the physical dexterity and knowledge to safely load, ride and unload lifts.” The pass agreement, which is part of every purchase of every lift ticket and ski pass, also waived “any and all claims against and to hold harmless, release, indemnify and agree to not to sue” Vail Resorts.
The district court’s April 2023 decision to dismiss the negligence claims by the family due to the liability waiver signed by a parent has been appealed to the Colorado Supreme Court, with the Miller family arguing the waiver improperly cancels the ski area’s duty under the Ski Safety Act to protect skiers riding chairlifts.
They are asking the state Supreme Court “to consider whether a ski area in Colorado can create contractual immunity from statutory duty of care in a contract that is part of a ski lift pass.”
The Millers’ gross-negligence claim remains in the Broomfield District Court but has been paused pending the outcome of the appeal to the state’s highest court.
“The issues in this appeal directly impact the duties of Colorado ski resorts and the rights of millions of Colorado skiers,” reads the Miller family’s petition to the Colorado Supreme Court.
The Colorado Trial Lawyers Association has asked the Colorado Supreme Court to let it join the Miller family in arguing against the use of liability waivers by ski areas to avoid responsibility for chairlift accidents. Since 1973, 342 million people have ridden chairlifts in Colorado and “the court’s decision will have wide-ranging implications for the millions of people who visit Colorado ski areas every year,” the trial lawyers association brief reads. The trial lawyers are urging the court to rule that liability waivers “that insulate ski area operators from liability for the negligent operation of a chairlift” are in conflict with the Colorado Ski Safety Act and “violate the public policy of our state and are unenforceable under Colorado law.”
The National Ski Areas Association, the Colorado Ski Country USA trade group, the Colorado Camps Network and the Colorado River Outfitters Association have joined the case in defense of Crested Butte Mountain Resort and Vail Resorts.
The National Ski Areas Association, in its brief to the Colorado Supreme Court, argues that the lift attendant at Crested Butte Mountain Resort did not violate industry standards by not immediately stopping the lift. The resort trade group serves on the Accredited Standards Committee B77 for Aerial Passenger Ropeways, or the B77 Committee, which develops standards for design, manufacture, installation, maintenance and operation of chairlifts.
The B77 Committee revises its standards every five years and prior to 2011 the standards required a lift attendant to stop the chair immediately should “a condition develop in which continued operation might endanger a passenger.”
Revisions to the standards in 2011 gave the attendant a list of options for unusual occurrences, including assisting the passenger, slowing the lift or stopping the lift. The lawsuit claims the operators at the bottom of the Paradise lift terminal “consciously and recklessly disregarded Annie’s safety, knowing that not stopping the lift could result in a fall that could be calamitous to Annie resulting in serious permanent injury or death.”
32 chairlift fatalities since 1973
The National Ski Areas Association began collecting reports on chairlift deaths in 1973 and in the past 50 years has counted 32 fatalities involving skiers riding chairlifts. There were zero fatalities between 1993 and 2015 and three since 2016: the Texas mother, Kelly Huber, who thrown from a malfunctioning chairlift at Ski Granby Ranch in 2016; a New Jersey father, 46-year Jason Varnish, who died of positional asphyxiation in 2020 when he was left hanging from his jacket snagged on a Vail chairlift that scooped him with its seat raised; and a Park City Mountain Resort ski patroller who was thrown from a chairlift when a tree hit the cable in January 2023. Ski Granby Ranch settled with the Huber family in 2022 and Vail Resorts settled with the family of Varnish in 2023.
The ski association said skiers took 18.3 billion chairlift rides between 1973 and 2020 traveling 9.2 billion miles. That equates to 0.142 deaths for every 100 million miles traveled on chairlifts. That’s about 10 times safer than traveling in a car, the ski association argued in the brief, which is “even more remarkable when considering the weather.”
“Unlike all other forms of transportation, chairlifts are the only form of transportation where a person loads that transportation while it is moving, in slippery, cold and wintry environments,” the ski area association’s brief reads.
Colorado Ski Country, which represents 21 of the state’s 28 ski hills, in its brief argues that if the Colorado Supreme Court weakens the enforceability of liability waivers, it “will decrease or eliminate altogether the availability of many recreational options for children, while simultaneously raising the costs of the remaining options.”
The ski resort trade group brief includes support from the Colorado Camps Network, which represents more than 30 kids’ camps in the state, and the Colorado River Outfitters Association, which represents 40 river rafting outfitters. The groups argue that liability releases “are essential to providing children with the ability to participate” in organized recreation.
The groups argue that weakening liability waivers for kids “will result in insurance becoming completely unaffordable or unavailable” for providers.
“While providers work tirelessly to reduce risks and dangers that are part of recreational activities, those risks and dangers cannot be eliminated altogether,” reads the brief from the recreational trade groups. “Without the protection of releases, many smaller and low-cost providers will not be able to provide their services to children. For many larger providers, without the protection of releases, they will have to increase prices.”