Redden v. Clear Creek Skiing Corp.

• Decision Date: 31 December 2020
• Docket Number: Court of Appeals No. 19CA0512
• Citation: 490 P.3d 1063
• Court: Colorado Court of Appeals
• Parties: Charlotte REDDEN, Plaintiff-Appellant, v. CLEAR CREEK SKIING CORPORATION, Defendant-Appellee.

490 P.3d 1063

Charlotte REDDEN, Plaintiff-Appellant,

v.CLEAR CREEK SKIING CORPORATION, Defendant-Appellee.

Court of Appeals No. 19CA0512

Colorado Court of Appeals, Division I.

Announced December 31, 2020

Levin Sitcoff, P.C., Bradley A. Levin, Nelson A. Waneka, Susan S. Minamizono, Denver, Colorado, for Plaintiff-Appellant

The Rietz Law Firm, L.L.C., Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado, for Defendant-Appellee

Leventhal Puga Braley, P.C., Timothy J. Luetkemeyer, Bruce L. Braley, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association

Opinion by JUDGE DAILEY

¶ 1 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) for skiers. But it is also a common source of injury.

¶ 2 In this case, we address whether ski area operators can, by using exculpatory agreements, protect themselves from personal injury lawsuits arising from the alleged negligence of their employees. Because we determine that they may protect themselves in this manner, we affirm the district court's entry of summary judgment in favor of defendant, Clear Creek Skiing Corporation (Clear Creek), and against plaintiff, Charlotte Redden.

I. Background

¶ 3 Clear Creek owns the Ptarmigan ski lift at, and has operational responsibility for, the Loveland Ski Area.¹ Redden, an experienced skier living in Colorado, was hurt as she attempted to get off that lift. Unbeknownst to her, a skier on the chair ahead of her had fallen while getting off the lift. When Redden tried to get off her chair by standing up at the top of the exit ramp, she saw — but had no way of navigating around — the fallen skier. Because the employee operating the lift did not slow or stop the lift, Redden's chair knocked her down, injuring her.

¶ 4 Redden brought the present action against Clear Creek, asserting claims for negligence and negligence per se under, as pertinent here, the Colorado Passenger Tramway Safety Act (the PTSA), sections 12-150-101 to - 120, C.R.S. 2020, and the Ski Safety Act of 1979 (the SSA), sections 33-44-101 to - 114, C.R.S. 2020.²

¶ 5 Clear Creek moved for summary judgment based on two exculpatory agreements: one Redden signed nearly a year before the incident when she purchased a pair of ski boots and had her ski bindings adjusted at Clear Creek's ski shop (signed waiver), and another unsigned one consisting of a series of disclaimers listed on the back of her lift ticket (ticket waiver).³

¶ 6 The signed waiver was titled "RELEASE of LIABILITY, and INDEMNIFICATION AGREEMENT." In its first paragraph, the signed waiver defined a term it would use — "ACTIVITY" — as including "using ski area facilities, including the lifts." In accord with Colorado statutes, it advised the purchaser of equipment that, by law, a skier voluntarily assumes the risk of injury in connection with certain inherent dangers and risks of skiing. It then provided,

5. .... THE UNDERSIGNED acknowledge and understand that a skier ASSUMES THE RISKS of the inherent dangers and risks of skiing . THE UNDERSIGNED recognize that falls and collisions occur and injuries are a common and ordinary occurrence of the ACTIVITY. THE UNDERSIGNED hereby VOLUNTARILY ASSUME ALL RISKS associated with the PURCHASER'S participation in the ACTIVITY and use of this equipment.

6. Additionally, THE UNDERSIGNED HEREBY AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY Clear Creek Ski Corporation d/b/a Loveland Ski Areas, the equipment manufacturers and distributors, their successors in interest, their affiliated organizations and companies, and each of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders (each hereinafter a "RELEASED PARTY") for ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to property arising from the PURCHASER's use of this equipment, including those claims based on any RELEASED PARTY's alleged or actual NEGLIGENCE OR BREACH OF any express or implied WARRANTY .

7. THE UNDERSIGNED take full responsibility for any injury or loss to PURCHASER, including death, which PURCHASER may suffer, arising in whole or in part out of the ACTIVITY. By signing this release, THE UNDERSIGNED AGREE NOT TO SUE any RELEASED PARTY and agree they are releasing any right to make a claim or file a lawsuit against any RELEASED PARTY. THE UNDERSIGNED further AGREE TO DEFEND AND INDEMNIFY each RELEASED PARTY for any and all claims of THE UNDERSIGNED and/or a THIRD PARTY arising in whole or in part from the PURCHASER's use of this equipment and/or PURCHASER's participation in the ACTIVITY. THE UNDERSIGNED agree to pay all costs and attorney's fees incurred by any RELEASED PARTY in defending a claim or suit brought by or on behalf of THE UNDERSIGNED.

¶ 7 The ticket waiver provided, "HOLDER AGREES AND UNDERSTANDS THAT SKIING, SNOWBOARDING, AND USING LOVELAND SKI AREA, INCLUDING ITS LIFTS, FOR ANY PURPOSE CAN BE HAZARDOUS." Then, after warning the ticket holder that, by law, "a skier assumes the risks of any injury ... resulting from any of the listed inherent risks of skiing,"⁴ the ticket waiver provided:

Holder understands that he/she is responsible for using the ski area safely and for having physical dexterity to safely load, ride, and unload the lifts .... In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS Loveland Ski Area and its representatives for all claims to injury to person or property.

¶ 8 In her response to Clear Creek's motion for summary judgment, Redden asserted that the two exculpatory agreements were unenforceable because (1) the signed waiver was not fairly entered into; (2) the two agreements did not clearly and unequivocally evidence an intent to waive a claim of negligence against Clear Creek; and (3) they were contrary to the public policy expressed in the SSA and PTSA.

¶ 9 In a written order, the district court rejected Redden's arguments and granted summary judgment for Clear Creek.

¶ 10 Redden now appeals.

II. The District Court Properly Granted Summary Judgment for Clear Creek

¶ 11 Redden contends the district court erred by entering summary judgment for Clear Creek. We disagree.

¶ 12 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and judgment should be entered as a matter of law. C.R.C.P. 56(c) ; Stone v. Life Time Fitness, Inc. , 2016 COA 189M, ¶ 8, 411 P.3d 225. We review a summary judgment ruling de novo. Hamill v. Cheley Colo. Camps, Inc. , 262 P.3d 945, 948 (Colo. App. 2011).

¶ 13 Here, the court granted summary judgment based solely on the exculpatory agreements, the validity of which is a question of law that we review de novo. Id. ; see Wycoff v. Grace Cmty. Church of Assemblies of God , 251 P.3d 1260, 1264 (Colo. App. 2010).

¶ 14 Exculpatory agreements purporting to shield a party from liability for its own simple negligence are disfavored. Heil Valley Ranch, Inc. v. Simkin , 784 P.2d 781, 783 (Colo. 1989). However, they are not necessarily void. Boles v. Sun Ergoline, Inc. , 223 P.3d 724, 726 (Colo. 2010) ; Chadwick v. Colt Ross Outfitters, Inc. , 100 P.3d 465, 467 (Colo. 2004). They stand at the crossroads of two competing principles — freedom of contract and responsibility for damages caused by a party's negligent acts. Heil , 784 P.2d at 784.

¶ 15 On appeal, Redden contends that the exculpatory agreements were invalid (1) under Jones v. Dressel , 623 P.2d 370, 373 (Colo. 1981) and (2) because they undermine public policies underlying the PTSA and SSA. We address — and reject — these contentions in turn.

A. The Exculpatory Agreements are Valid under Jones v. Dressel

¶ 16 Exculpatory agreements are closely scrutinized under four factors (the Jones factors) to determine whether they are valid: "(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language." Jones , 623 P.2d at 376.

¶ 17 The first two factors focus on public policy questions, asking whether the service provided is of "great importance to the public" or is a matter of "practical necessity," as opposed to (among other things) a recreational one. Id. at 376-77 (citation omitted). The latter two factors focus, respectively, on the agreement's fairness and clarity.

1. The First Two Jones Factors

¶ 18 For good reason Redden does not contest the district court's conclusion that the exculpatory agreements were not objectionable based on the first two Jones factors: "Although skiing is a recreational activity enjoyed by many, by definition and common sense, it is neither a matter of great public importance nor a matter of practical necessity." Bauer v. Aspen Highlands Skiing Corp. , 788 F. Supp. 472, 474 (D. Colo. 1992) (applying Jones ); accord Patterson v. PowderMonarch, LLC , 926 F.3d 633, 639 (10th Cir. 2019) (concluding skiing satisfies the first two Jones factors); Brigance v. Vail Summit Resorts, Inc. , 883 F.3d 1243, 1250-53 (10th Cir. 2018) (same); Raup v. Vail Summit Resorts, Inc. , 734 F. App'x 543, 546 (10th Cir. 2018) (same); Rumpf v. Sunlight, Inc. , No. 14-CV-03328-WYD-KLM, 2016 WL 4275386, at *1-4 (D. Colo. Aug. 3, 2016) (unpublished opinion) (applying Jones ); Squires v. Goodwin , 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing "is a recreational service, not an essential service"), aff'd sub nom. Squires v. Breckenridge Outdoor Educ. Ctr. , 715 F.3d 867 (10th Cir. 2013).

2. The Third Jones Factor

¶ 19 "With respect to the third factor, a contract is fairly entered into if one party is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the...