Imagine that you own a road. It is a beautiful, scenic road with lots of cliffs and trees, and people like to drive on it just for fun. The law says you have to maintain your road and keep it safe, but that’s hard work and expensive, too.
So instead of maintaining the road, you set up an automatic gate at the entrance to the road and print up a pile of waivers, in 6 point font, that excuse you from liability for damages caused by pretty much anything, including potholes, erosion and failed traffic signals. When people sign the waiver and scan it in, the gate opens. Genius, right? Now people can use the road, you can ignore that pesky maintenance law, and you can’t get sued!
And if people get hurt well, that’s too bad but it’s not your fault. They signed the waiver, they took the risk.
Colorado, we ask you. Is that fair?
The Colorado Court of Appeals Ruling
You might be surprised to know that according to a recent Colorado Court of Appeals case, Redden v. Clear Creek Skiing Corporation, basically yes, it is fair. In Redden, the plaintiff alleged she was struck by a chair lift at Loveland Ski Area, which broke her hip in two places, because the operator failed to stop the lift when another passenger fell. An investigation revealed that the operation and installation of the chairlift violated several rules of the Passenger Tramway Safety Act (PTSA) which is a law designed to protect skiers from dangers that are not inherent to the risks of skiing. However, the defense argued that the plaintiff had signed two waivers which essentially excused Loveland from its duty to obey the PTSA. One waiver was signed eleven months before the accident, when the plaintiff bought a pair of ski boots. This waiver released the shop, manufacturer, and distributors from liability for claims arising from “the purchaser’s use of the equipment.” The second waiver was printed on the back of the plaintiff’s lift ticket. It stated that the skier understands that “using Loveland Ski Area, including its lifts, for any purpose can be hazardous” and the skier “assumes all risks.”
The court upheld the waivers.
Important Legal Questions
The case, which may now go to the Colorado Supreme Court, presents several important legal questions: Can the duty to obey the law be negated by a waiver? Is an entity permitted to indemnify itself from its own negligence? Do ski areas really need blanket immunity protections greater than even the government itself enjoys?
And more broadly: What is the point of having carefully crafted laws to keep people safe, like the PTSA and the Ski Safety Act, if those laws can be legally ignored and invalidated by a waiver?
The Redden opinion is not shy about the basis for its decision. The opening paragraph states: “skiing is one of our state’s biggest tourist activities and supports not only the ski area operators but also businesses that provide services (e.g., food, lodging, entertainment).” However, other states including Alaska and Vermont have ruled that waivers for risks beyond the inherent risks of skiing are unenforceable. Ski areas in those states still survive. In Colorado, when a skier is able to successfully sue a ski resort, the damages are already capped and insurable. How much protection do you need?
A “Money Sport”
Skiing is a money sport. Most people who come here to ski have the option to go elsewhere. We suspect that if they really understood the power of Colorado’s ubiquitous waivers, they just might. Ski areas would do well to consider that travelers consider safety when choosing where to vacation. A safe and responsible resort is an attractive resort.
Redden spotlights important issues for ski accident victims that can no longer be ignored. The Colorado legislature has the power to restrict waivers, but it has not yet done so. In this legislative session, we hope the General Assembly will consider whether ski areas can use waivers to negate the Ski Safety Act and PTSA, and whether the risks of a badly-installed chairlift are most appropriately borne by its victims.
Article by Molly Fuscher, Paralegal