Survey of Ski Law in the United States
by James H. Chalat
To read cases specific to a particular state, click the state name, above.
COLORADO - 2006
Colorado's "Ski Safety Act," located at Colo. Rev. Stat. Ann. §§ 33-44-101 to -114 provides for skier assumption of inherent dangers, and creates statutory duties for skiers and operators. Skiers, inclusive of sledders and snowboarders, have duties to ski within their abilities, with uphill skiers having a primary duty to avoid collision. Breach of skier duties constitutes negligence. No distinction is drawn between young children and adults in application of the Act, such that the common law, particularly that young children can not commit negligence nor assume a risk, has been arguably abrogated. In a 2003 statutory amendment, parents were expressly permitted to waive or release a child's claim in negligence. Colo. Rev. Stat. Ann. §§ 13-22-107, as added by Laws 2003, Ch. 262, § 1, eff. May 14, 2003 (reversing the conclusion of Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002) that such a waiver violated public policy and created an unacceptable conflict between parent and child). In actions arising from skier/skier collisions, such a collision is considered neither an inherent or assumed risk. Id. at § 33-44-109(1). Ski area operators have specific duties to mark trails and provide some other warnings. There is no duty to pad lift towers. Operator breach of a statutory duty constitutes negligence, and is not considered an inherent danger to which liability limitations apply. Id. at §§ 33-44-103(3.5), 33-44-104(2). Limitations are imposed on damages collectible against ski area operators for downhill skiing accidents, but no such limitation on damages exists for lift accidents. A tramway board is separately formed by Colo. Rev. Stat. Ann. §§ 24-34-101 et seq, and tramways are otherwise regulated under the "Passenger Tramway Safety Act," Colo. Rev. Stat. Ann. §§ 25-5-701 et seq. Volunteer ski patrol members are granted civil immunity for acts or omissions in the provision of emergency services or assistance, so long as members act in good faith. Colo. Rev. Stat. Ann. § 13-21-108(3). Snowmobile use is subject to the duties enumerated in Colo. Rev. Stat. Ann. §§ 33-14-101 to -116, the breach of which is handled as negligence per se. The Ski Safety Act was amended in 2004 in several significant respects. Laws 2004, Ch. 341, § 3, eff. May 28, 2004. Skiers continue to assume the "inherent dangers and risks of skiing." However, where such dangers and conditions were once only those that were an "integral part" of the sport, the 2004 amendments have modified the language to include all those that are "a part" of the sport. Colo. Rev. Stat Ann. § 33-44-103(3.5), as amended. Arguably, the omission of the word "integral" could be read broadly to mean without regard to the negligence or lack of care by an operator assumption of practically all hazards. Under Colo. Rev. Stat. Ann. § 33-44-108(2), as amended, the operator's duty to post a sign warning of maintenance equipment on an open slope or trail was narrowed to exclude maintenance equipment en route to or from a grooming project. The Amendments eliminate the ski area operator's prior duty to mark "danger areas", and includes cliffs and other unmarked dangers as one of the "inherent dangers" of the sport. Additionally, ski area operator immunities have been expanded to include all ski area property, not just those areas designated for skiing or competition.
Cases
Violation of a skier, ski area operator, or tramway operator duty established by statute constitutes negligence per se. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998) (unconscious skier injured in fall from lift that had no passenger restraints). Doering ex. rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202 (10th Cir. 2001) found prejudicial error in instructing jury that a finding of inherent danger precluded recovery; an inquiry into operator's violation of Ski Safety Act should have been performed first, as such a breach is excluded from the definition of inherent danger. The Doering children were sledding when they collided with an inadequately marked sno-cat; the 2004 amendments would require the court to determine whether the sno-cat was actively engaging in grooming activities, for which the operator could be held negligent for failing to mark it properly, or merely in transit, where no such duty is now owed. In an unpublished case that distinguished Doering, the court in Gifford v. Vail Resorts, Inc., 37 Fed. Appx. 486 (10th Cir. 2002) noted that while the jury was instructed improperly as in Doering, such was not prejudicial because the operator's breach was bound up together with an inherent risk. Under the 2004 amendments, the breach alleged in Gifford, that of failure to mark a gully in which skier asphyxiated in deep snow as a "danger" would be nonexistent. Similarly, the conclusion of Graven v. Vail Associates, Inc., 909 P.2d 514 (Colo. 1995) that "not all dangers encountered on the ski slopes, however, are inherent and integral to the sport, and this determination cannot always be made as a matter of law," is now in question. That case involved an unmarked, deep ravine adjacent to a ski slope. Not only does an operator no longer have a duty to mark such a "danger area," but the ravine is likely now an inherent danger, and operator liability protection extends beyond the slopes to the entire ski area. In skier/skier or skier/snowboarder collisions, ordinary duties of care apply. Ulissey v. Shvartsman, 61 F.3d 805 (10th Cir. 1995) determined that the duties created for all skiers and snowboarders under the Ski Safety Act established a presumption that the uphill skier has the last clear chance to avoid, and thus the primary duty to avoid collision; this case also established that amendments to the Act in 1990 explicitly abolished an inherent risk defense based on being hit by an out of control or unobservant skier. Reckless skiing causing severe injury or death may result in a criminal felony prosecution. People v. Hall, 999 P.2d 207 (Colo. 2000). As to lift accidents, the Colorado Supreme Court has held that the ski area and tramway operator owes the "highest degree of care commiserate with its practical application." Summit County Dev. Corp. v. Bagnoli, 441 P.2d 658 (Colo. 1968) (citing Lewis v. Buckskin Joe's, Inc., 396 P.2d 933 (Colo. 1964)). This doctrine of highest duty was reaffirmed in Bayer, above (holding that common law negligence claims against lift operator were not subrogated by tramway or ski safety Acts). In lift cases, proof that an operator complied with a safety statute is considered; however, it is only weighed against other factors, and is not, by itself, conclusive on the issue of due care or negligence. United Blood Serv. v. Quintana, 827 P.2d 509 (Colo. 1992). Once a rescue is initiated, ordinary care is required in the conduct of the rescue and the provision of care, notwithstanding how the skier first came to need care. See generally Spence v. Aspen Ski Co., 820 F.Supp. 542 (D. Colo. 1993) (jury instruction as to comparative negligence was improper absent proof of causation in case where skier's negligent maintenance of a hypoglycemic condition was raised as a defense to an IV poorly-administered by ski patrol). Operators owe skiers a duty of reasonable care, but not the highest degree of care, in protecting them from avalanches. Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64 (Colo. Ct. App. 1983) (upholding reasonable care instruction in case where out-of-bounds skier and friends were responsible for causing avalanche). Under the FTCA, whether to allow and maintain skier access to the national forests and whether to warn of avalanche dangers, are decisions subject to the discretionary function exception precluding suit. Marquez v. United States of America, 1996 WL 588918 (D. Colo. 1996) (skier killed by avalanche in Arapahoe National Forest after accessing it from adjacent ski area).
