Brigance v. Vail Summit Resorts, Inc.

• Decision Date: 08 January 2018
• Docket Number: No. 17-1035,17-1035
• Citation: 883 F.3d 1243
• Parties: Teresa BRIGANCE, Plaintiff-Appellant, v. VAIL SUMMIT RESORTS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

883 F.3d 1243

Teresa BRIGANCE, Plaintiff-Appellant,

v.VAIL SUMMIT RESORTS, INC., Defendant-Appellee.

No. 17-1035

United States Court of Appeals, Tenth Circuit.

FILED January 8, 2018

Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff-Appellant.

Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant-Appellee.

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

During a ski lesson at Keystone Mountain Resort ("Keystone"), Doctor Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance filed suit against Vail Summit Resorts, Inc. ("VSRI"), raising claims of (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the "PLA"), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted VSRI’s motion for summary judgment on the remaining claims, concluding the waiver Dr. Brigance signed before participating in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

Keystone is a ski resort located in Colorado that is operated by VSRI. In March 2015, Dr. Brigance visited Keystone with her family and participated in a ski lesson. At the time, ski lesson participants, including Dr. Brigance, were required to sign a liability waiver (the "Ski School Waiver") before beginning their lessons. The Ski School Waiver signed¹ by Dr. Brigance contained, among other things, the following provisions:

RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT

THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.

...

2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a "skier" (as may be defined by statute or other applicable law).

3. I expressly acknowledge and assume all additional risks and dangers that may result in ... physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to : Falling; free skiing; following the direction of an instructor or guide; ... equipment malfunction, failure or damage; improper use or maintenance of equipment; ... the negligence of Participant, Ski Area employees, an instructor ... or others; ... lift loading, unloading, and riding; .... I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE .

4. Participant assumes the responsibility ... for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts....

...

6. Additionally, in consideration for allowing the Participant to participate in the Activity, I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI ] FOR ANY ... INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL NEGLIGENCE ....

Aplt. App’x at 117 (emphasis in original).

In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the "Lift Ticket Waiver") on its back side, which provides in pertinent part:

HOLDER AGREES AND UNDERSTANDS THAT SKIING ... AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.

WARNING

Under state law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the ski area operator for any injury resulting from any of the inherent dangers and risks of skiing. Other risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder is responsible for having the physical dexterity to safely load, ride and unload the lifts and must control speed and course at all times.... Holder agrees to ASSUME ALL RISKS , inherent or otherwise. Holder agrees to hold the ski area harmless for claims to person or property....

...

NO REFUNDS. NOT TRANSFERABLE. NO RESALE.

Id. at 121 (emphasis in original).

After receiving some instruction during her ski lesson on how to load and unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed Dr. Brigance forward, fracturing her femur.

B. Procedural Background

Dr. Brigance filed suit against VSRI in the United States District Court for the District of Colorado as a result of the injuries she sustained while attempting to unload from the Discovery Lift.² In her amended complaint Dr. Brigance alleged that the short distance between the ground and the Discovery Lift at the unloading point—coupled with the inadequate instruction provided by her ski instructor, the chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and supervision of employees—caused her injuries. She consequently asserted the following six claims against VSRI: (1) negligence; (2) negligence per se; (3) negligent supervision and training; (4) negligence (respondeat superior); (5) negligent hiring; and (6) liability under the PLA.

VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of her respondeat superior and PLA claims. The district court granted in part and denied in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. ("Brigance I "), No. 15-cv-1394-WJM-NYM, 2016 WL 931261, at *1–5 (D. Colo. Mar. 11, 2016). It dismissed Dr. Brigance’s negligence claim as preempted by the PLA. Id. at *3–4. It also dismissed her negligence per se claim, concluding that she "fail[ed] to identify any requirement" of the Colorado Ski Safety Act of 1979 (the "SSA"), Colo. Rev. Stat. §§ 33-44-101 to - 114, that VSRI had allegedly violated. Brigance I , 2016 WL 931261, at *2. In dismissing this claim, the district court also held that the provisions of the Passenger Tramway Safety Act (the "PTSA"), Colo. Rev. Stat. §§ 25-5-701 to - 721, relied upon by Dr. Brigance "do[ ] not provide a statutory standard of care which is adequate to support [a] claim for negligence per se." Brigance I , 2016 WL 931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr. Brigance’s claims regarding negligent supervision and training and negligent hiring. Id. at *4–5.

Upon completion of discovery, VSRI moved for summary judgment on the basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr. Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA claim and (2) her common-law negligence claims are preempted by the PLA and otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in part that the waivers are unenforceable under the SSA and the four-factor test established by the Colorado Supreme Court in Jones v. Dressel , 623 P.2d 370 (Colo. 1981). Dr. Brigance also asserted that her common-law negligence claims are not preempted by the PLA and that she presented sufficient evidence to allow her claims to be heard by a jury.

The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. ("Brigance II "), No. 15-cv-1394-WJM-NYW, 2017 WL 131797, at *10 (D. Colo. Jan. 13, 2017). It determined that the Ski School Waiver and Lift Ticket Waiver are enforceable under the factors established by the Colorado Supreme Court in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. Id. at *5–9. It then determined that all of Dr. Brigance’s remaining claims fall within the broad scope of the waivers and are therefore barred. Id. at *10. This appeal followed.

II. DISCUSSION

Dr. Brigance challenges the district court’s enforcement of both the Ski School Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and negligence per se claims. "[B]ecause the district court’s jurisdiction was based on diversity of citizenship, [Colorado] substantive law governs" our analysis of the underlying claims and enforceability of the waivers. Sylvia v. Wisler , 875 F.3d 1307, 1312 (10th Cir. 2017) (internal quotation marks omitted). We "must therefore ascertain and apply [Colorado] law with the objective that the result obtained in the federal court should be the result that would be reached in [a Colorado] court." Id. (internal quotation marks omitted). In doing so, "we must defer to the most recent decisions of the state’s highest court," although "stare decisis requires that we be bound by our own interpretations of state law unless an intervening decision of the state’s highest court has resolved the issue." Id. (internal quotation marks omitted).

Although the substantive law of Colorado governs our analysis of the waivers and underlying claims, federal law...