Sneak Peek of the Week
What’s next after Colorado Supreme Court rules ski areas cannot use liability waivers to escape all negligence claims?
When the Colorado Supreme Court in February heard arguments for and against the ubiquitous use of liability waivers by ski resorts, the warnings of a decision that weakened waivers were dire.
The state’s ski industry said a decision against waivers “will decrease or eliminate altogether the availability of many recreational options for children, while simultaneously raising the costs of the remaining options.” The rafting industry and a network of youth camps warned that any decision that weakened liability releases “will result in insurance becoming completely unaffordable or unavailable” for providers.
“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,” read the joint-filing by Colorado Ski Country, the Colorado River Outfitters Association and the Colorado Camps Network earlier this year urging the Colorado Supreme Court to protect the widespread use of liability waivers to limit lawsuits filed by injured parties.
So what’s ahead after the Colorado Supreme Court last week ruled that ski areas can’t use liability waivers to get out of negligence claims involving alleged violations of state laws governing the operation of chairlifts? Could children be banned from organized recreation? Will costs climb?
The decision by the Colorado Supreme Court in the case of Annie Miller, a teenager who was paralyzed after a fall from a Crested Butte Mountain Resort chairlift in 2022, marked the first-ever decision against liability waivers following years of federal and district court support for the releases. There will be ramifications as resorts lose a defense that for more than a decade has worked to dismiss most skier lawsuits. But what those impacts will look like are unknown.
“Things like this take a little while to percolate,” said David Costlow, the longtime head of the 50-member Colorado River Outfitters Association.
The Colorado Trial Lawyers Association argued in the Miller case that liability waivers that insulate resort operators from negligent operation of chairlifts conflicted with the Ski Safety Act and “violate the public policy of our state and are unenforceable under Colorado law.”
Kari Jones Dulin with the lawyers association said the Colorado Supreme Court agreed that no entity can use a contract to avoid Colorado laws governing safety.
“What the Supreme Court is saying is that those statutes are in place for a reason; to protect Coloradans and people who are visiting Colorado and you cannot contract away your statutory duty when it comes to safety. If we start to allow companies to contract those standards away, we will see more cases like Annie’s.”
Jones Dulin expects the resort industry will work with lawmakers next year “to legislate around this opinion.”
“I anticipate this will be an issue next year,” she said.
Utah, like most ski states, has a state law that protects resort operators from lawsuits filed by skiers with injuries resulting from the inherent risks of skiing. Following a Utah Supreme Court decision that scrutinized the validity of liability waivers, Utah lawmakers in 2020 added a provision that authorized resort operators to obtain waivers from skiers that released resorts from some claims brought by injured skiers.
Jim Chalat, a Denver attorney who has represented injured skiers for decades, expects Colorado lawmakers soon will consider a waiver enforcement provision similar to Utah’s added to the Colorado Ski Safety Act.
“The battle in the courts is over,” Chalat said. “The battle in the state legislature is about to begin.”
>> Click over to The Sun next week to read this story
Welcome to The Outsider, the outdoors and mountain newsletter from The Colorado Sun. Keep reading for more exclusive news on the industry from the inside out.
If you’re reading this newsletter but not signed up for it, here’s how to get it sent directly to your inbox.
Send feedback and tips to jason@coloradosun.com.
Breaking Trail
Hiking is cancer-fighting medicine for 6-year-old Bellamy Korn
It’s been a little more than two years since Bellamy Korn was diagnosed with leukemia. She was 5 and her mom, Sarah Bailey, hatched a recovery plan that stretched beyond the chemo. She would do 100 hikes over the course of nearly three years of chemo treatments.
The first was a walk to the mailbox, barely a tenth of a mile, which Bellamy barely made. Now, Bailey and her 6-year-old are hiking 7 miles at a time, climbing up mountains, embracing the “movement is medicine” mantra.
Mom and daughter have about one more year of treatment and about 40 more hikes to reach their goal. Bellamy lost her hair but the hiking has given her strength and she’s responding well to the chemo.
“We know the more active you are the more mentally strong and physically strong you are,” said Amanda Honeyman, who helps kids cope with long hospital visits at Children’s Hospital Colorado. “We focus on their coping skills, and being outside and being alive and active is a great coping skill for Bellamy.”
In the next year, Bailey and Bellamy are planning to hike a 14er, maybe to mark their 100th hike. Bailey hopes to soon launch a nonprofit that helps kids with cancer get outside with their families, maybe using free park passes.
“This seems like a very easy thing to get done,” Bailey told Sun freelancer Dan England, “and it’s not just about the kid. It’s about the parents and the caregivers.”
>> Click over to The Sun next week to read Dan’s story
The Playground
After back-to-back visitation records, U.S. resort industry marks 2023-24 as the 5th busiest season on record
60.4 million
Skier visits to U.S. ski areas in 2023-24, down from the record-high 65.4 million in 2022-23
Ski resorts count snowfall like dollars. But the proliferation of season passes has weaned the resort industry from a sole reliance on fickle flakes. To wit: U.S. ski hills hosted 60.4 million visits in 2023-24, a year with below-average snowfall. While a decline from the all-time high mark of 65.4 million set in 2022-23, the 2023-24 season is the fifth busiest on record and bolsters hopes that the pandemic-fueled boom in outdoor recreation was not an anomaly.
The National Ski Areas Association last week announced the preliminary skier visit numbers at its annual conference in Texas. The group does not break out state traffic numbers, but divides its assessment across six regions. All six regions saw declines in 2023-24 compared to the previous season. The association’s six-state Rocky Mountain region, which includes the most-skied state in the union, Colorado, reported 26.7 million visits, down from the record 28.2 million in 2022-23. The decline marks the first downturn for the Rocky Mountain region since 2019.
Visits are no longer the best barometer for the health of the ski resort industry, as use shifts with the growing number of season passes. A decade ago, about 38% of visits were by skiers using season passes. For a second year in a row, more than 50% of all visits are by season-pass holders.
A better measure of resort industry health is investment. Since 2021, resorts have been pumping record amounts into new lifts, infrastructure, terrain expansions and on-mountain facilities. In 2022-23, U.S. resort operators invested an all-time high of $754 million, including $238 million on 99 new or upgraded chairlifts.
The 2024-25 investment is expected to top $500 million, including plans for 71 new or improved lifts.
Colorado ski areas will announce statewide visits in the coming weeks. But with Vail Resorts reporting an 8% decline in visits across its 37 North American ski area for 2023-24 – and the company’s Vail, Breckenridge, Keystone, Beaver Creek and Crested Butte ski areas accounting for at least one-third of the state’s visits – it is unlikely that Colorado skier traffic will top last year’s record 14.8 million visits.
The Guide
Eldora withdraws objections to ski patroller unionization election
Eldora Mountain Resort has withdrawn its objections to the April vote by ski area patrollers that approved union representation.
Eldora, which is owned by Powdr, originally objected to the vote because all volunteer ski patrollers were not included. The resort’s patrollers in April voted 29-3 to join the United Professional Ski Patrols of America union, which has grown in recent years as a surge of ski patrollers and lift mechanics unionize in hopes that collective bargaining would improve pay and benefits for workers in pricey mountain communities.
In a letter to ski patrollers, Eldora president and general manager Brent Tregaskis on Wednesday said he hopes the withdrawal of the election objections marks a move towards “good faith” bargaining over a new patrol contract.
“You represent a critical part of our resort operations, and we are committed to providing everyone who wears an Eldora uniform a fair, supportive, and collaborative work environment,” Tregaskis wrote.
In a letter to Isabel Aries with the Communication Workers of America, Local 7781, Tregaskis said the resort’s administrators “stand by the underlying merit” of the objections, but “we are withdrawing its opposition “to focus on what is important: our patrollers.”
“We are a family at Eldora that will always support one another through the good times, tough times, and despite any differences,” Tregaskis wrote to Aries.
Park Service collects 10,000 pages of comments on draft plan for managing climbing bolts in wilderness
12,000
Public comments filed with the National Park Service over its draft guidance for approving fixed climbing anchors in wilderness areas
The National Park Service has fielded more than 12,000 comments on its overhaul of how the agency reviews and approves climbing anchors in wilderness areas.
The agency has compiled all the comments online, which include both support and opposition to the use and installation of climbing anchors in wilderness areas that restrict many uses as a way to protect both wild ecosystems and experiences.
The National Park Service review of climbing management policies has galvanized climbers — who see potential bolting bans as one outcome of the review — as well as wilderness advocates who are troubled by proposed processes that allow land managers to more efficiently approve anchors on wilderness climbing routes.
The Park Service is quick to note that the proposed guidance for park managers does not ban climbing or even the use of fixed anchors in wilderness areas, where climbers have spent decades hand-drilling bolts to adhere to wilderness policies preventing motorized machines.
Meanwhile the U.S. House last month approved the largest-ever package of bill supporting outdoor recreation, including the Protect America’s Rock Climbing Act, or PARC Act, which directs federal land managers to create a uniform policy that specifically allows climbers to use, place and maintain fixed anchors.
It’s unclear how the Park Service plan for bolts in wilderness areas might change if the U.S. Senate approves the same package of legislation.
The Park Service is studying each of the comments, organizing them into categories and formulating responses to the public input with a final draft of the proposed climbing management guidance expected later this year.
— j
Corrections & Clarifications
Notice something wrong? The Colorado Sun has an ethical responsibility to fix all factual errors. Request a correction by emailing corrections@coloradosun.com.