Squires v. Goodwin

• Decision Date: 08 November 2011
• Docket Number: Civil Action No. 10–cv–00309–CBS–BNB.
• Citation: 829 F.Supp.2d 1062
• Parties: Kimberly N. SQUIRES, by and through her Guardian and Natural Parent, Lyle K. SQUIRES, Plaintiff, v. James Michael GOODWIN, an individual, Breckenridge Outdoor Education Center, a Colorado corporation, and Mountain Man, Inc., a Montana corporation, Defendants.
• Court: U.S. District Court — District of Colorado

829 F.Supp.2d 1062

Kimberly N. SQUIRES, by and through her Guardian and Natural Parent, Lyle K. SQUIRES, Plaintiff,

v.James Michael GOODWIN, an individual, Breckenridge Outdoor Education Center, a Colorado corporation, and Mountain Man, Inc., a Montana corporation, Defendants.

Civil Action No. 10–cv–00309–CBS–BNB.

United States District Court, D. Colorado.

Nov. 8, 2011.

Colleen M. Parsley, Gregory A. Gold, The Gold Law Firm, L.L.C., Greenwood Village, CO, Richard Waldron Bryans, Jr., The Bryans Law Office, Denver, CO, for Plaintiff.

Gary L. Palumbo, Bayer & Carey, P.C., Deana R. Dagner, Joan S. Allgaier, John W. Grund, Grund Dagner, P.C., Denver, CO, Timothy A. Meinert, Meinert & Parmley, L.L.C., Dillon, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

CRAIG B. SHAFFER, United States Magistrate Judge.

This civil action comes before the court on Defendant Breckenridge Outdoor Education Center's (BOEC's) Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52). On September 16, 2010, the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73, and D.C. COLO. LCivR 72.2. ( See Doc. # 42). The court has reviewed the Motion, Ms. Squires' Response (filed January 6, 2011) (Doc. # 56), BOEC's Reply (filed January 24, 2011) (Doc. # 61), BOEC's Notice of Supplemental Authority (filed April 18, 2011) (Doc. # 76), Ms. Squires' Response to BOEC's Notice of Supplemental Authority (filed May 12, 2011) (Doc. # 81), Ms. Squires' Reply Memorandum Brief Regarding Misrepresentation (filed May 30, 2011) (Doc. # 84), BOEC's Surreply Brief regarding Misrepresentation (filed June 6, 20110) (Doc. # 89), the affidavit, the exhibits, the arguments presented at the hearing held on July 20, 2011, and the entire case file and is sufficiently advised in the premises.

I. Statement of the Case

Ms. Squires' claim against BOEC arises out of a ski accident (“the Accident”) that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. BOEC is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. ( See SAC (Doc. # 13) at 2–3, ¶ 6; Scheduling Order (“SO”) (Doc. # 40) at 7 of 15 (Undisputed Facts)). At all relevant times, Ms. Squires was 17 years old, legally blind, cognitively delayed, and physically limited by cerebral palsy. ( See SAC at 1–2, ¶ 2).

BOEC employed Jennifer Phillips as a para-ski instructor at the time of the Accident. ( See SO at 7 of 15). On the morning of the Accident, Ms. Squires was paired with Ms. Phillips and placed in a bi-ski. ( See id.). The bi-ski was manufactured by Defendant Mountain Man. ( See id.). Ms. Phillips and Ms. Squires went to Peak 9 at Breckenridge Ski Resort. ( See id.). Ms. Phillips utilized tethers as a means to control the bi-ski. ( See SAC at 5 of 13, ¶ 16). On their second run, Ms. Squires and Ms. Phillips skied down Cashier trail. ( See SO at 7 of 15). Defendant Goodwin was also skiing down Cashier trail. ( See id.). Defendant Goodwin lost control and skied into the tethers between Ms. Squires and Ms. Phillips. (See Goodwin Deposition, Exhibit B to Motion (Doc. # 52–2), at 2, 3 of 3). Due to the force of the collision with Defendant Goodwin, Ms. Phillips lost control of the tethers and the bi-ski containing Ms. Squires continued down Cashier trail unrestrained until it collided with a tree. ( See SAC at 5 of 13, ¶ 19; BOEC's Answer to SAC (Doc. # 27) at 2–3 of 8, ¶ 12). Ms. Squires was injured when the bi-ski collided with a tree. ( See SO at 7 of 15).

Ms. Squires filed her initial Complaint on February 12, 2010, alleging five claims for relief against Defendants Goodwin and BOEC based on diversity of citizenship jurisdiction. ( See Doc. # 1). She filed her First Amended Complaint (“FAC”) on April 15, 2010, alleging nine claims for relief against Defendants Goodwin, BOEC, and Mountain Man, Inc. (“Mountain Man”). ( See Doc. # 5). Ms. Squires refiled her First Amended Complaint on April 19, 2010 pursuant to a request from the Clerk of the Court. ( See Doc. # 11). Ms. Squires filed her Second Amended Complaint (“SAC”), the current operative pleading, on June 2, 2011, alleging nine claims against Defendants Goodwin, BOEC, and Mountain Man. ( See Doc. # 13). Ms. Squires' First, Second, Third, and Fourth Claims for Relief allege negligence per se under the Ski Safety Act, Colo. Rev. Stat. § 33–44–109(2) and common law negligence against Defendant Goodwin. ( See Doc. # 13 at 6–7 of 13). Ms. Squires' Fifth Claim for Relief alleges negligence, willful and wanton, reckless, and/or gross negligence against Defendant BOEC. ( See id. at 8–9 of 13). The court granted summary judgment in favor of Defendant Mountain Man on Ms. Squires' Sixth, Seventh, Eighth, and Ninth Claims for Relief for strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach of express warranty. ( See id. at 9–12 of 13; “Order on Pending Motions” (Doc. # 119)).

Defendant BOEC moves for summary judgment on the Fifth Claim for Relief in the SAC on the grounds that Ms. Squires is prevented from bringing the claim by a valid release of liability.

II. Standard of Review

“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the ... moving party is entitled to judgment as a matter of law.” Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F.Supp.2d 934, 939 (D.Colo.2009) (internal quotation marks and citations omitted). “When applying this standard, the court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Id. “All doubts must be resolved in favor of the existence of triable issues of fact.” Id. However, if a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, “the court may ... grant summary judgment if the motions and supporting materials—including the facts considered undisputed—show that the moving party is entitled to it.” Fed.R.Civ.P. 56(e).

III. Analysis

A. Release of Negligence Claim under Colo.Rev.Stat. § 13–22–107

Prior to the Accident, on January 13, 2008, Ms. Squires and her mother, Mrs. Squires, signed an “Acknowledgement [sic] of Risk and Release of Liability” (“Release”). In Colorado, the parent of a child may, on behalf of the child, release or waive the child's prospective claim for negligence. Colo.Rev.Stat. § 13–22–107. The statute requires that such a decision be “voluntary and informed.” Colo.Rev.Stat. § 13–22–107(1)(a)(V).

(1)(a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;

(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;

(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and

(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

...

(3) A parent of a child may, on behalf of the child, release or waive the child's prospective claim for negligence.

(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child's prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Colo.Rev.Stat. § 13–22–107.

“Because waiver is an affirmative defense, the Defendant has the burden to prove waiver.” Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo.App.2010) (Furman, J, dissenting) (citing C.R.C.P. 8(c)). Ms. Squires argues that BOEC is not entitled to summary judgment on the Fifth Claim for Relief based on the Release because her mother's decision to sign the Release was not informed.¹ Relying on Wycoff, 251 P.3d at 1260, Ms. Squires argues that the decision was not informed because the Release did not inform Mrs. Squires of the risks associated with BOEC's winter program, failing to “mention skiing, skis, ski slopes, ski lifts, or anything at all specific to skiing.” ( See Response (Doc. # 56) at 9 of 19).

In Wycoff, a 17–year old minor attending a church-sponsored event was injured when she was riding on an inner-tube towed by an ATV on a frozen lake. Wycoff, 251 P.3d at 1263. The minor and her mother had signed the registration and information form that contained a release. Id. While the minor was aware that riding on an inner-tube towed by an ATV on a frozen lake would be an...