Bayer v. Crested Butte Mountain Resort, Inc.

• Decision Date: 18 May 1998
• Docket Number: No. 97SA145,97SA145
• Citation: 960 P.2d 70
• Parties: 98 CJ C.A.R. 2416 Eric BAYER, Plaintiff-Appellant, v. CRESTED BUTTE MOUNTAIN RESORT, INC., Defendant-Appellee.
• Court: Colorado Supreme Court

Page 70

960 P.2d 70

98 CJ C.A.R. 2416

Eric BAYER, Plaintiff-Appellant, v. CRESTED BUTTE MOUNTAIN RESORT, INC., Defendant-Appellee.

No. 97SA145.

Supreme Court of Colorado,

En Banc.

May 18, 1998.

As Modified on Denial of Rehearing June 22, 1998.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Purvis, Gray, Schuetze & Gordon, Robert A. Schuetze, Glen F. Gordon, Boulder, for Plaintiff-Appellant.

White & Steele, P.C., Glendon L. Laird, John M. Lebsack, Peter W. Rietz, Denver, for Defendant-Appellee.

Justice HOBBS delivered the Opinion of the Court.

Pursuant to C.A.R. 21.1, we agreed to answer the following questions certified to us by the United States Court of Appeals for the Tenth Circuit:

What standard of care governs the duty owed by ski lift operators in Colorado to users of those lifts in the winter season?

Separately, and more particularly, does the Colorado Passenger Tramway Safety Act and/or the Colorado Ski Safety and Liability Act preempt or otherwise supersede the pre-existing Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season?

These questions arise in connection with Eric Bayer's negligence suit against Crested Butte Mountain Resort, Inc. (Crested Butte) involving serious injuries he sustained after falling approximately 30 feet from a ski lift at the Crested Butte ski area.

The federal district court concluded that the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act) have substituted a lesser degree of care for ski lift operators than the highest degree of care, thus superseding our holding in Summit County Development v. Bagnoli, 166 Colo. 27, 40, 441 P.2d 658, 664 (1968). Based on its ruling that a standard of ordinary care applies, the district court granted summary judgment and dismissed the case.

In answering the certified questions, we reaffirm our holding in Bagnoli. A ski lift operator must exercise the highest degree of care commensurate with the lift's practical operation, regardless of the season.

I.

Eric Bayer, a 19-year-old college student and resident of Florida, was skiing at the Crested Butte ski area on December 31, 1992. He boarded the Paradise Lift, a double-chair, center pole lift, with a person whom he did not know. This lift was not equipped with restraining devices on the chairs. Bayer rode the Paradise Lift for about 100 yards, lost consciousness, slumped in his chair, and slid feet first to the ground below. He suffered serious and permanent head injuries from the fall. The cause of his unconsciousness remains unknown.

The Passenger Tramway Safety Board (Board), which regulates ski lifts in Colorado, requires the use of restraining devices during summer lift operation but has no companion requirement for winter operation. Bayer does not dispute that Crested Butte complied with applicable Board regulations.

The existence and scope of a legal duty of care is a question of law. See United Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo.1992). In Bagnoli, we determined that a ski lift operator must exercise the highest degree of care commensurate with practical operation of a lift. Bagnoli, 166 Colo. at 40, 441 P.2d at 664. In answering the certified questions, we must determine whether the Tramway Act or the Ski Safety Act, or the two in combination, have modified or preempted our holding in Bagnoli. ¹

II.

We hold that the Tramway Act and the Ski Safety Act, alone or in combination, have not preempted or superseded the common law standard requiring a ski lift operator to exercise the highest degree of care commensurate with the practical operation of the ski lift. The General Assembly did not intend by either act to substitute a standard of care lesser than the highest degree.

Under the Tramway Act, the primary responsibility for the design and operation of ski lifts, consistent with our holding in Bagnoli, rests with the operators; the Board is to adopt reasonable standards for the industry, but these are not intended to preclude common law negligence actions or the duty to exercise the highest degree of care. The Ski Safety Act establishes the relative duties of skiers and ski area operators on the ski slopes, limits damage awards, and precludes liability claims resulting from the inherent dangers and risks of skiing, while expressly excluding ski lift accidents from these limitations.

A. The Highest Degree of Care

A basic proposition of tort law is that the amount of care demanded by the standard of reasonable conduct must be in proportion to the risk; the greater the danger, the higher is the degree of caution which the person owing the duty must exercise. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 208-09 (5th ed.1984). As we said in Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587 (Colo.1984), "It is axiomatic in the law of negligence that the greater the risk, the greater the amount of care required to avoid injury to others."

Our holding in Bagnoli squarely placed on lift operators the duty to exercise the highest degree of care consistent with the practical operation of the ski lift because (1) passengers give up their freedom of action and movement, surrendering themselves to the care and custody of the ski lift operator, (2) there is usually nothing passengers can do to cause or prevent the accident, and (3) the operator has exclusive possession and control of the ski lift. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664. We derived these factors directly from our prior decision in Lewis v. Buckskin Joe's, Inc., 156 Colo. 46 56, 396 P.2d 933, 938-39 (1964), wherein we held that amusement ride operators must "exercise the highest degree of care commensurate with the practical operation" of the ride. ²

Underlying our adoption in Bagnoli of the Lewis factors is that ski lifts are operated at considerable height from the ground over rough, elevated, often precipitous Colorado terrain. A fall from the lift can be calamitous. Passengers entrust their safety to the lift operators. Operation of a ski lift thus entails both greater danger and greater responsibility than circumstances involving ordinary care.

In addressing the federal district court's conclusion that the Tramway Act and the Ski Safety Act supersede Bagnoli, we first discuss the legislative design and purposes of the two acts.

B. The Tramway Act And The Ski Safety Act

The statutory canons of construction require us to give effect to the plain meaning of statutory enactments; we must employ rules of grammar and common usage and accord to technical terms and legislative definitions their particular meaning. See § 2-4-101, 1 C.R.S. (1997).

The Colorado General Assembly initially addressed ski safety in Colorado through the 1965 Tramway Act. The act's purpose is to assist in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways. ³ See § 25-5-701, 8 C.R.S. (1997). The act establishes a Board "to prevent unnecessary mechanical hazards" and to "assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of, passenger tramways." § 25-5-701, 8 C.R.S. (1997). The General Assembly has confirmed that, notwithstanding the powers and duties of the Tramway Board, "[t]he primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators " of passenger tramway devices. § 25-5-705, 8 C.R.S. (1997) (emphasis added).

The legislature has empowered the Board ⁴ with rulemaking and enforcement authority to carry out its functions. The Board is authorized, but not required, to utilize the standards adopted by the American National Standards Institute (ANSI), see § 25-5-704, 8 C.R.S. (1997), and has authority to conduct investigations and inspections, to discipline ski area operators, to issue licenses, to order emergency shut downs, and to engage in other functions related to the purpose of the Tramway Act, see §§ 25-5-704 to -716, 8 C.R.S. (1997). ⁵ The Board by regulation has adopted the ANSI 1992 standards, with some additions, revisions, and deletions. See Rule 0.1, 3 C.C.R. 718-1 at 1.

Building on the construct of the Tramway Act, the General Assembly followed with the Ski Safety Act in 1979. This act supplements the Tramway Act's focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes. See § 33-44-102, 9 C.R.S. (1997). In 1990 amendments to the Ski Safety Act, the legislature limited the liability of ski area operators for accidents on the slopes involving the "inherent dangers and risks of skiing." See ch. 256, sec. 7, § 33-44-112, 1990 Colo. Sess. Laws, 1543; see also ch. 256, sec. 1, Legislative Declaration, 1990 Colo. Sess. Laws, 1540; Graven v. Vail Assocs., 909 P.2d 514, 517-18 (Colo.1995).

Included within the inherent risks of skiing are dangers or conditions that are an "integral part of the sport of skiing," such as weather, snow conditions, collisions with natural and man-made objects, and terrain variations. See § 33-44-103(3.5), 9 C.R.S. (1997). The skier must know the range of his or her ability, ski in control, maintain a proper lookout while skiing, avoid collisions with other skiers, and not use a ski slope or trail or passenger tramway while impaired by alcohol or other controlled substances. See § 33-44-109, 9 C.R.S. (1997). The statute provides that "no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing." § 33-44-112, 9 C.R.S. (1997). See also Graven, 909 P.2d at 518-21.

For their part, ski area operators must maintain a sign system, including...