Patterson v. PowderMonarch, LLC, 18-1008

• Decision Date: 10 June 2019
• Docket Number: No. 18-1008,18-1008
• Citation: 926 F.3d 633
• Parties: Brenda M. PATTERSON; Timothy Welker, Plaintiffs - Appellants, v. POWDERMONARCH, LLC, a Colorado limited liability company, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

926 F.3d 633

Brenda M. PATTERSON; Timothy Welker, Plaintiffs - Appellants,

v.POWDERMONARCH, LLC, a Colorado limited liability company, Defendant - Appellee.

No. 18-1008

United States Court of Appeals, Tenth Circuit.

FILED June 10, 2019

Douglas P. Dowd of Dowd & Dowd, P.C., St. Louis, Missouri, for Plaintiffs-Appellants.

Brian A. Birenbach (Kimberly A. Viergever with him on the brief) of The Rietz Law Firm, L.L.C., Dillon, Colorado, for Defendant-Appellee.

Before HOLMES, McKAY, and MORITZ, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff Brenda Patterson and her husband, Plaintiff Timothy Welker, appeal from the district court’s entry of summary judgment in favor of Defendant PowderMonarch, LLC, on their claims of negligence and loss of consortium based on injuries Ms. Patterson allegedly sustained at Defendant’s ski resort. Because the district court correctly held that these claims are barred by an exculpatory agreement included on Ms. Patterson’s ski lift ticket, we affirm.

I.

On March 18, 2014, Ms. Patterson made an online payment of $ 57.00 for a ski lift ticket to use at Monarch Mountain, a ski resort owned and operated by Defendant PowderMonarch. A lift ticket is required for any non-season pass holder at Monarch Mountain to use the resort’s ski facilities, such as trails and lifts. After paying for her lift ticket, Ms. Patterson received an email confirmation, which thanked her for her "reservation" and informed her that there would be "NO REFUNDS for any cancellations under 48 hours." (Appellants’ App. at 106–07.) Ms. Patterson testified that she could not print her lift ticket at home, but "had to pick it up when [she] got there." (Id. at 116.)

On March 20, 2014, Ms. Patterson went to Monarch Mountain with her husband and other family members. At the resort, either she or her husband physically picked up the ticket she had paid for two days earlier. The front of this lift ticket contained an adhesive sticker, designed to be removed and adhered to a wicket on the ticket holder’s clothing, on which Ms. Patterson’s name, the ticket type, and a bar code were printed. The back of the lift ticket, like all lift tickets issued by Monarch Mountain on March 20, 2014, contained the word "WARNING," followed by seven paragraphs printed in a small font. (Id. at 81.) The first and fourth paragraphs read as follows:

Under Colorado law, a skier¹ 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 any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.

....

In consideration and exchange for allowing Holder to use the ski area facilities, Holder agrees to ASSUME ALL RISKS , whether or not described above, known or unknown, inherent or otherwise, associated with the Holder’s participation in the ACTIVITY. Additionally, Holder agrees NOT TO SUE Monarch Mountain, PowderMonarch LLC, its affiliated organizations and companies, the United States Forest Service, and all of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders (each hereinafter a "RELEASED PARTY"). Holder agrees to HOLD HARMLESS AND RELEASE any RELEASED PARTY from ANY AND ALL liability and/or claims for injury or death to persons or damage to property arising from Holder’s engagement in the ACTIVITY, including those claims based on any RELEASED PARTY’s alleged or actual NEGLIGENCE or BREACH of any express or implied WARRANTY.

(Id. )

Monarch Mountain’s lift tickets are designed so the ticket holder must interact with this "WARNING" side by peeling it away from the adhesive front of the ticket before the ticket may be used to access the resort’s ski facilities. Ms. Patterson testified that she placed the lift ticket on her person, but she did not read the tear-away back of the ticket before or after doing so.

During the course of that day’s activities, Ms. Patterson and her son fell as they were unloading from a chairlift. While Ms. Patterson was still lying on the ground, a skier from the next chairlift unloaded from the lift and then collided with Ms. Patterson. Her ski boot hit Ms. Patterson’s leg, causing an injury to Ms. Patterson’s saphenous nerve that has required extensive medical treatment.

Plaintiffs filed suit in the U.S. District Court for the District of Colorado based on federal diversity jurisdiction. See 28 U.S.C. § 1332. In their complaint, Plaintiffs each raised one claim against Defendant PowderMonarch: Ms. Patterson brought a claim of negligence, and Mr. Welker brought a derivative claim of loss of consortium.

The district court held that Defendant was entitled to summary judgment for two separate reasons: (1) application of the release of liability from the back of the lift ticket, and (2) preemption under Colorado’s premises liability statute, Colo. Rev. Stat. § 13-21-115. Plaintiffs appeal, arguing both that the district court erred in granting summary judgment in favor of Defendant and that the court should have construed their complaint to raise a non-preempted statutory cause of action under the Ski Safety Act, Colo. Rev. Stat. § 33-44-101 et seq. , or Passenger Tramway Safety Act, Colo. Rev. Stat. § 25-5-701 et seq .

II.

We review the district court’s summary judgment decision de novo, applying the same standards as the district court. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc. , 431 F.3d 1241, 1255 (10th Cir. 2005). Because this is a diversity action, we apply the substantive law of Colorado to the legal questions at issue in this case. See id. In applying Colorado law, we "must follow the most recent decisions of the state’s highest court." Wade v. EMCASCO Ins. Co. , 483 F.3d 657, 665–66 (10th Cir. 2007). "Of course, by the principles of stare decisis, we are also bound by our own prior interpretations of state law." Kokins v. Teleflex, Inc. , 621 F.3d 1290, 1295 (10th Cir. 2010). "Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue." Wankier v. Crown Equip. Corp. , 353 F.3d 862, 866 (10th Cir. 2003). Where no controlling decision exists, we must attempt to predict what the Colorado Supreme Court would do, "seek[ing] guidance from decisions rendered by lower courts in the relevant state, appellate decisions in other states with similar legal principles, district court decisions interpreting the law of the state in question, and the general weight and trend of authority in the relevant area of law." Wade , 483 F.3d at 666 (internal quotation marks and citations omitted).

Plaintiffs argue that there are two reasons why the lift ticket’s exculpatory language should not bar their claims in this case: (1) the addition of a release of liability two days after Ms. Patterson paid for her ticket constituted a contract modification for which there was no additional consideration, and (2) the exculpatory agreement is invalid under Colorado law because it was neither fairly entered into nor expressed in clear and unambiguous language.² We consider each of these arguments in turn.

In Mincin v. Vail Holdings, Inc. , 308 F.3d 1105, 1109 (10th Cir. 2002), we considered the question of whether an exculpatory agreement that is received after an individual has already paid for a recreational activity should be considered a contract modification requiring additional consideration under Colorado law. In that case, the plaintiff purchased a gondola lift ticket and a bike rental coupon at the base of a mountain. Id. at 1107. After taking the gondola to the top of the mountain, he went to the bike rental area, where he received his bicycle and was presented with a rental agreement containing exculpatory language. Id. He signed this agreement without reading it completely, then was injured while riding the bicycle down the mountain. Id. at 1107–08. In his diversity suit against the recreational company, he argued that the signed rental agreement constituted a modification of the initial agreement, for which additional consideration was required, because he did not receive it until after he had already paid for the bicycle. Id. at 1109.

We rejected this argument in Mincin , holding that the rental agreement did not constitute a modification to the initial agreement and thus no additional consideration was required. Id. We noted that Colorado courts have characterized a change to an agreement as a contract modification "[w]here there is a sufficient time lapse," such as "several months," or "eight months." Id. (citing H & W Paving Co. v. Asphalt Paving Co. , 147 Colo. 506, 364 P.2d 185, 186 (1961) ; Hoagland v. Celebrity Homes, Inc. , 40 Colo.App. 215, 572 P.2d 493 (1977) ). In Mincin , however, "the two events were separated by a matter of minutes and [we]re better considered part of the same transaction." Id. To support this holding, we quoted the Minnesota Court of Appeals’ conclusion that "an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity." Id. (quoting Beehner v. Cragun Corp. , 636 N.W.2d 821, 829 (Minn. Ct. App. 2001) ); see also Beehner , 636 N.W.2d at 825, 829 (enforcing exculpatory agreement signed by plaintiff the day after she purchased ticket for horseback ride). We further cited to the Washington Court of Appeals’ holding that a "release signed by scuba diving student after...