McLean v. Winter Park Recreational Ass'n, 86CA1289

• Decision Date: 07 July 1988
• Docket Number: No. 86CA1289,86CA1289
• Citation: 762 P.2d 751
• Parties: Susan McLEAN and Kenneth McLean, Plaintiffs-Appellants, v. WINTER PARK RECREATIONAL ASSOCIATION, Defendant-Appellee. . IV
• Court: Colorado Court of Appeals

Page 751

762 P.2d 751

Susan McLEAN and Kenneth McLean, Plaintiffs-Appellants, v. WINTER PARK RECREATIONAL ASSOCIATION, Defendant-Appellee.

No. 86CA1289.

Colorado Court of Appeals,

Div. IV.

July 7, 1988.

Rehearing Denied Sept. 8, 1988.

Treece, Bahr & Arckey, James L. Treece, Littleton, for plaintiffs-appellants.

White and Steele, P.C., Stephen K. Gerdes, Peter W. Rietz, Denver, for defendant-appellee.

CRISWELL, Judge.

Plaintiffs, Susan and Kenneth McLean, appeal the trial court's summary judgment entered against them because they failed to file their complaint against defendant, Winter Park Recreational Association (Winter Park), within the three-year period of limitations contained within the Ski Safety Act of 1979, § 33-44-101, et seq., C.R.S. (1984 Repl.Vol. 14) (the Act). We reverse.

On June 30, 1986, plaintiffs filed their complaint against Winter Park, alleging that on February 23, 1983, while they were in a parking lot owned by Winter Park waiting for a shuttle bus operated by it, a sign affixed to a concrete block that was owned, maintained, and positioned by Winter Park fell on one of the plaintiffs, causing her serious personal injuries. Winter Park's answer to their complaint admitted that it was the "operator" of the parking lot, but generally denied the remaining allegations of the complaint. In addition, its answer affirmatively asserted that plaintiffs' claims were barred by the provisions of the Act.

Shortly thereafter, Winter Park filed a motion, requesting the entry of a judgment of dismissal, based upon the applicability of § 33-44-111, C.R.S. (1984 Repl.Vol. 14). This statute establishes a three-year period of limitations for actions against a "ski area operator" to recover damages for injuries arising out of the "maintenance, supervision, or operation of ... a ski area " (emphasis supplied).

A "ski area" consists of "ski slopes or trails and other places under the control of a ski area operator and administered as a single enterprise." Section 33-44-103(6), C.R.S. (1984 Repl.Vol. 14) (emphasis supplied). Thus, the question before the trial court, and before us, is whether the parking lot in which the plaintiffs were waiting was an "other place" under this statute and, therefore, a part of a "ski area," as contemplated by the Act.

In entering judgment for Winter Park as requested in its motion, the trial court held that the parking lot involved was one of the "other places" referred to by the Act. Thus, it concluded that the three-year statute of limitations in § 33-44-111 applied to plaintiffs' action.

Plaintiffs argue, however, that the term "other places" refers only to places used in conjunction with the skiing activity itself, such as the woods between ski slopes, and does not refer to other areas, such as shops, restaurants, and parking lots, not directly devoted to skiing activities. Thus, they assert that it was the general six-year statute of limitations that was then applicable to negligence actions, § 13-80-110, C.R.S., 1973, and not § 33-44-111, C.R.S. (1984 Repl.Vol. 14), that governed this action. We agree.

The Act was adopted in 1979 in order to establish "safety standards for the operation of ski areas and for the skiers using them" and to define the legal responsibilities of both ski area operators and skiers using "ski areas." Section 33-44-102, C.R.S. (1984 Repl.Vol. 14) (emphasis supplied). A "ski area operator" is an entity that owns, manages, or directs the operation of a passenger tramway under § 25-5-701, et seq., C.R.S. (1982 Repl.Vol. 11) and that has "operational responsibility for any ski areas." Section 33-44-103(7), C.R.S. (1984 Repl.Vol. 14).

To accomplish these purposes, the Act contains comprehensive requirements applicable to ski area operators. These provisions require the operator to post signs near the "loading point" of each passenger tramway, and in its interior, as well as at various locations on or near chair lifts and surface lifts to provide information and directions to passengers. Section 33-44-106, C.R.S. (1984 Repl.Vol. 14). In addition, the operator must install and maintain a sign near the "uphill loading point of each base area lift" to indicate the relative difficulty of each trail and slope maintained by the operator.

Likewise, signs must be erected and maintained to indicate "danger areas" and "closed trails or slopes." Signs are also required to mark man-made structures on slopes or trails, such as hydrants and water pipes. Section 33-44-107, C.R.S. (1984 Repl.Vol. 14). Further signs are required to be placed on motorized equipment moving "on or in the vicinity of a ski slope or trail" and at or near the top of the slope or trail when such equipment is maintaining or grooming the same. Section 33-44-108, C.R.S. (1984 Repl.Vol. 14).

Finally, except in "heavily wooded areas or other nonskiable terrain," an operator must "mark its ski area boundaries" in a manner that skiers may see. Property adjacent to a "ski area" that is closed to skiing must also be marked. When closed slopes and trails and adjacent property are marked as required, the operator has "no duty arising out of its status as a ski area operator to any skier skiing beyond the area boundaries." Sections 33-44-107 and 33-44-108 (emphasis added).

The Act regulates the activities of a "passenger" aboard a passenger tramway or other lift. Section 33-44-105, C.R.S. (1984 Repl.Vol. 14). It also regulates the activity of a skier, when skiing, by requiring the skier to ski within his or her ability, to maintain a proper lookout, to stay clear of vehicles and other equipment on the slopes, to heed all posted information, to use only proper equipment, and not to ski on closed trails or slopes or on adjoining lands not open to skiing. The violation of certain of these regulations constitutes a class 2 petty offense. Section 33-44-109, C.R.S. (1984 Repl.Vol. 14).

Significant to the Act's purpose of promulgating "safety standards" for "ski areas," its substantive provisions regulate the activities of the operator and the skier only to the extent that those activities are directly related to the safety of the skier, while skiing, or while in an area, such as a "base lift area," or on a tramway or other lift, which is used to engage in that activity. It does not purport to regulate either the conditions under which an operator must maintain its other facilities (such as restaurants,...