Rowan v. Vail Holdings, Inc.
| Citation | 31 F.Supp.2d 889 |
| Decision Date | 24 December 1998 |
| Docket Number | Civil Action No. 96-D-2761. |
| Parties | Paul and Joyce ROWAN, Plaintiffs, v. VAIL HOLDINGS, INC., a Colorado corporation, d/b/a Vail Associates, Inc., Vail Associates, Inc., a Colorado corporation; Beaver Creek Associates, Inc., a Colorado corporation d/b/a Beaver Creek Ski Area, and Salomon S.A., a French corporation, Defendants. |
| Court | U.S. District Court — District of Colorado |
Ross B.H. Buchanan, Buchanan, Jurdem & Zulauf, Denver, CO, for Plaintiffs.
Peter W. Rietz, Keith R. Ollvera, White & Steele, P.C., Mark R. Davis, Wood, Ris & Hames, P.C., William R. White, Jr., Byrne, Kiely & White, Denver, CO, for Defendants.
This case arises out of a fatal ski accident on December 1, 1994, at Beaver Creek wherein the Plaintiffs' son, Perry Rowan ("Rowan") was killed when he ran into a picnic or observation deck (referred to herein as "picnic deck") located near the base of a race course while glide testing skis for Salomon, S.A. ("SSA"). SSA is the parent company of Rowan's employer, Salomon North America, Inc. ("SNA"). Plaintiffs' action is a wrongful death action asserting the following claims: negligence/negligence per se against Vail; (2) breach of contract/third party beneficiary against Vail; and (3) negligence against Defendant SSA.
This matter is before the Court in connection with two pending motions for summary judgment. Vail Holdings, Inc., Vail Associates, Inc. and Beaver Creek Associates, Inc. (referred to collectively as "Vail") filed a Motion for Summary Judgment on November 21, 1997, which was accepted for filing on December 5, 1997. Defendant SSA filed a Motion for Summary Judgment on February 3, 1998. The Court held a hearing on these motions on November 25, 1998.
Construing the facts in the light most favorable to Plaintiffs, as I must for these summary judgment motions, Rowan was an employee of SNA but was working for SSA's glide unit at the time of the accident at the request of his supervisor, Jim Schaffner ("Schaffner"). Rowan was a national caliber racer with international racing experience, but had not raced for a number of years. Glide testing determines which ski waxes and structures of the ski bottom run the fastest on the snow located at the venue where the testing is being determined. The purpose of the glide testing at issue herein was to test World Cup downhill skis for the World Cup Downhill that would take place shortly thereafter in Vail. The results of the testing show that Rowan attained speeds in excess of 120 kilometers per hour on the first two days of testing.
The course being used by Rowan for the glide testing was located in an area that was roped off and closed to the general public. The glide testing took place over a three day period. Rowan was killed on the third day. That morning, Rowan and another tester, Jennifer Brown ("Brown"), had been asked to sign, and signed, liability releases. The release signed by Rowan, attached as Exhibit D to Vail's Memorandum Brief in Support of Summary Judgment, is summarized below.
Beneath the space to print the name, date and place of the event, are bold and capital letters stating, Following this language, the release stated in pertinent part:
1. I acknowledge that participation in ski racing (the "Event"), described above, or training in connection with such Event, is HAZARDOUS and involves a great risk of physical injury. I expressly assume all risk associated with participating in or training for the Event, including, without limitations, using ski lifts. I understand that I have the opportunity to inspect the race course and area prior to training for or participating in the Event and I assume the risk of all course conditions.
2. WARNING — Under Colorado law, a skier 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 natural abilities.
3. In consideration of receiving permission to take place in the Event, I agree to release and hold harmless Vail Associates, Inc., its subsidiaries and affiliates ... from any and claims I might state as a result of physical injury, including death, ... including those claims based on negligence or breach of warranty.
. . . . . .
5. This agreement is binding on my estate, heirs, administrators and assigns and shall be governed by the laws of Colorado....
At the bottom, before the date and signature, the release states in capital and bold letters, "
After signing the release, Rowan completed approximately 10 runs. On his next run, Rowan lost control near the finish line of the race course, fell and slid into one of the unpadded wood support beams of the picnic deck, sustaining fatal injuries. Allegedly, on the day before the accident, a conversation occurred between Rowan, Brown, and Nick Scales ("Scales"), an employee with Vail. Vail claims that Scales asked Brown and Rowan if they thought the course was safe. They stated in response that they did not feel it was necessary to add any padding to the course. Plaintiffs admit that Scales has testified to such a conversation, but assert that Brown did tell Scales at one point that she thought the course was dangerous, and that the existence of the deck played a role in that assessment because it was an obstacle. Plaintiffs contend that because of Scales' concerns and a few close calls that the testers had with the deck, Scales had Rowan and Brown sign the releases on the day of the fatality.
In summary of the Plaintiffs' claims, they contend that Vail was negligent in the placement of the deck and in not padding it; that the deck had been padded at one point but the padding was negligently removed; that other obstacles in the ski area were padded and that the deck could easily have been padded; that padding was installed after Rowan's death; that there had been other close calls the first two days because the construction of the course required the skiers to make a hard left turn at the end of the course to avoid the deck; that another tester, Tal Klein, seriously injured her knee when she found herself headed toward the deck at high speed; and that there was another course adjacent to the one being used that could have been set up for the testers, but Vail had made the decision not to groom that course.
As to the release, Plaintiffs contend that it was a standard printed form, that there were no discussions about the release, that when it was presented to Rowan and Brown they were told that they "needed to sign these releases before we could get going for the day", and that no additional consideration was provided for the release that had not been provided the first two days. Although Vail claims that it is standard procedure to have glide testers sign releases, and that its employees had simply forgotten to have Rowan and Brown sign one the first two days of testing, there is no such procedure in any of Vail's documents, and Vail was unable to produce any other releases that glide testers had signed. Further, none of the three participants in previous glide testing episodes conducted in Vail or Beaver Creek recalled signing a release.
As to SSA, Plaintiffs contend that it had a duty to exercise reasonable care in its set-up and conduct of the testing of its ski racing products, so as to avoid the creation of an unreasonable risk of injury. Plaintiffs argue that SSA breached its duty in: (1) failing to make an adequate inspection of the course and recognizing and remedying the hazard which the picnic deck represented; (2) requesting or requiring that Vail make modifications to the course which were designed to maximize the speed of racers as they crossed the finish line, despite knowledge of the danger represented by the location of the picnic deck; (3) failing to require the placement of pads or other shock-absorbent materials on the deck, especially following instances in which testers very nearly collided with the picnic deck; and (4) failing to properly instruct and supervise the testers in connection with the glide testing.
There are several issues raised by this Motion. For the reasons stated below, I DENY Vail's motion for summary judgment.1
Before determining whether the release is valid, the first issue that I examine is Plaintiffs' argument that an exculpatory agreement cannot bar individuals who were not parties to the release (in this case, Perry Rowan's parents) from bringing an action to which they are individually entitled. In support of this argument, Plaintiffs rely on Barker v. Colorado Region-Sports Car Club of America Inc., 35 Colo.App. 73, 532 P.2d 372 (Colo.App.1974); Brooks v. Timberline Tours, Inc., 127 F.3d 1273 (10th Cir.1997); Scroggs v. Coast Community College Dist., 193 Cal.App.3d 1399, 239 Cal.Rptr. 916 (4 Dist.1987); Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal.Rptr. 299 (2 Dist.), opinion modified (1988); and Dettman-Brunsfeld v. Szanto, 267 Ill.App.3d 1050, 204 Ill.Dec. 908, 642 N.E.2d 809 (1 Dist.1994), judgment vac'd, 164 Ill.2d 561, 212 Ill.Dec. 979, 658 N.E.2d 461 (1995).
Plaintiffs assert correctly that their wrongful...
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