Schafer v. Aspen Skiing Corp., No. 83-2578

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before McWILLIAMS, BREITENSTEIN and BARRETT; BREITENSTEIN
• Citation: 742 F.2d 580
• Parties: Stephen SCHAFER, Plaintiff-Appellant, v. ASPEN SKIING CORPORATION, et al., Defendants-Appellees.
• Decision Date: 29 August 1984
• Docket Number: No. 83-2578

Page 580

742 F.2d 580 Stephen SCHAFER, Plaintiff-Appellant,
v.
ASPEN SKIING CORPORATION, et al., Defendants-Appellees. No. 83-2578. United States Court of Appeals,
Tenth Circuit. Aug. 29, 1984.

Page 581

Robert C. Floyd, Denver, Colo., for plaintiff-appellant.

David G. Palmer and Elizabeth A. Phelan of Holland & Hart, Denver, Colo., for defendants-appellees.

Before McWILLIAMS, BREITENSTEIN and BARRETT, Circuit Judges.

BREITENSTEIN, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Cir., R. 10(e). The cause is therefore submitted without oral argument.

In this diversity action plaintiff-appellant sued to recover damages sustained in a skiing accident of February 28, 1980, on premises of defendants. The action was filed March 1, 1983. Pursuant to a motion to dismiss or for a summary judgment, filed by the defendants, the trial court dismissed the action as barred by the applicable Colorado statute of limitations. The plaintiff appeals. We affirm.

The Colorado Ski Safety Act of 1979 provides, C.R.S.Cum.Supp. 33-44-111:

"All actions against any ski area operator or its employees brought to recover damages for injury to person or property caused by the maintenance, supervision, or operation of a passenger tramway or a ski area shall be brought within three years after the claim for relief arises and not thereafter."

The legislative intent in the passage of the Act was declared, C.R.S. 33-44-102:

"... to further define the legal responsibilities of ski operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers."

Plaintiff says that his first claim for relief is based on common law negligence and is subject only to the six-year limitation for negligence claims. See C.R.S. 13-80-110.

Page 582

In Association of Owners, Satellite Apartment, Inc. v. Otte, 38 Colo.App. 12, 550 P.2d 894, an association of condominium owners sought an injunction requiring individual condominium owners to remove an enclosure built on a balcony contiguous to their residence. The trial court held the action to be barred by the one year statute of limitation for actions to enforce restrictions relating to real property. On appeal the Association urged that, because the action was based on the condominium agreement between it and its members, it was one on contract and the provisions of the one-year statute should not apply. The court of appeals rejected the argument. It held, supra, 550 P.2d at 896-897, that:

"It is the nature of the right sued upon and not the form of action or the relief demanded which determines the applicability of a particular statute of limitations.

....

[W]here a statute of limitations is specifically drafted to relate to special cases, it, rather than a general statute of limitations, controls."

The complaint asserts a right to recover damages for an injury to the plaintiff in a ski area. Regardless of whether the form of action is characterized as negligence, premises liability, or a breach of duty imposed by the Act, the nature of the right used on is the same. It is plainly within the language of Sec. 33-44-111. That statute is drafted specifically to cover claims such as plaintiff's. Accordingly, it governs rather than the general statute.

Plaintiff says that if Sec. 33-44-111 is given such an effect, the result will be the abolition of common law claims against ski operators. Section 33-44-111 does no more than limit the time period in which such claims must be brought. It does not alter or extinguish their substantive viability. The specific rather than the general statute applies.

Section 33-44-111 provides that suit "shall be brought within three years after the claim for relief arises and not thereafter." The accident occurred on February 28, 1980 and suit was brought March 1, 1983. Plaintiff argues that the first day should be excluded and, hence, the action was begun in time. Section 2-4-108, C.R.S., provides

"(1) In computing a period of days, the first day is excluded and the last day is included.

....

(3) If a number of months is to be computed by counting...