Gary Bell, Jr. and Brad Pollock
It’s the start of ski season in Colorado, and Colorado ski safety laws are probably the last thing on your mind when you head up to the slopes. But you might be surprised to find out that the Ski Safety Act is there to protect the ski area operators, not skiers. We want you to be knowledgeable about your rights and obligations as a skier while skiing, and this article aims to provide you with as much information as possible about the Colorado Ski Safety Act so you know when you’re protected and when you’re not.
I. The Ski Safety Act of 1979
The Ski Safety Act of 1979 – located at C.R.S. §§ 33-44-100 et seq. – was put into place to establish “reasonable safety standards for the operation of ski areas and for the skiers using them.” The statute shields “ski area operators”—defined as any person, partnership, corporation or other commercial entity having operational responsibility for any ski areas—from liability when injury or death occurs due to “inherent dangers and risks of skiing.” Those inherent dangers and risks are defined in the statute as those dangers or conditions that are part of the sport of skiing, followed by a non-exhaustive list of such dangers, including changing weather conditions, surface or subsurface conditions, variations in steepness or terrain, and collisions with other skiers. The definition specifically excludes from protection the negligence of ski area operators and liability for injury caused by the use or operation of ski lifts. The statute also holds liable for negligence any person, including ski area operators, who violates any provision in the statute that leads to injury to a person or damage to property.
a. Duty of ski area operators
The duties of ski area operators contained in the statute are limited. Operators have a duty to maintain a sign system with regard to the passenger tramways, which includes placing a sign on each tramway at the loading point and in the interior of each car, and at the boarding area of all lifts. However, this provision only requires that the signs say things like “prepare to unload,” “keep ski tips up,” and “check for loose clothing and equipment.”
Operators additionally have a duty to maintain a sign and marking system regarding the difficulty of trails and slopes, whether trails or slopes are closed to the public, where the ski area boundaries are, and where man-made structures are located. The signs are required to be placed where skiers going to the uphill loading point of each base area lift can see them. When a trail or slope is closed to the public, the operator must place a sign at EACH identified entrance of each portion of the trail or slope involved notifying the public of its closure, or close the portion of the trail or slope with ropes or fences.
The operators must also mark ski area boundaries in a way that is readily visible to skiers under conditions of ordinary visibility, but the requirement does not apply in heavily wooded areas or other non-skiable terrain. In marking man-made structures that are on slopes or trails, only those structures not readily visible to skiers under conditions of ordinary visibility from a distance of at least one hundred feet are required to be marked. Variations in steepness or terrain, no matter if they’re natural or not, including roads and catwalks, are not considered man-made structures under this provision.
Finally, operators are required to place a sign containing the warning notice at the area where ski tickets and lessons are sold and on the tickets themselves. This warning notifies skiers that they are assuming the risk of injury resulting from the inherent dangers and risks of skiing and that they will not recover for any said injury from the operator.
In addition to the sign requirements, operators have a duty to equip snow-grooming vehicles with a light visible at any time it is moving or in the vicinity of a slope or trail. During that time, the operator must place a notice stating the equipment is being employed at the top of that slope or trail. However, this section of the statute also clearly states that the operator has NO DUTY to any skier skiing beyond the marked area boundaries. And while the operator may revoke skiing privileges from a person skiing in a careless and reckless manner, the statute should NOT be construed to create an affirmative duty on the operator to protect skiers from their own or another skier’s carelessness or recklessness.
b. Duty of skiers and passengers
The statute prohibits passengers from boarding passenger tramways if the passenger does not have sufficient physical dexterity, ability, and knowledge to negotiate or use such facility safely. The statute additionally holds each skier responsible for knowing his or her own ability to negotiate any slope or trail and ski within the limits of such ability. Each skier also “expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing.” But a skier may sue another skier for any injury resulting from the other skier’s acts or omissions.
Skiers have a duty not to ski on slopes marked closed, and to stay clear of snow-grooming equipment. Skiers have a duty to heed all posted information and warnings, and are presumed to have seen and understood all information posted near base area lifts. Importantly, when under conditions of decreased visibility, the skier has the duty to locate and ascertain the meaning of all signs posted in accordance with the requirement explained above. Lastly, skiers involved in a collision with another skier where injury results have a duty to give his or her name and address to an employee of the operator before leaving the vicinity of the collision.
Any skier who violates the duties laid out in this section of the statute is guilty of a class 2 petty offense and shall be punished by a fine of no more than $1,000.
c. Limitations and SOL
The statute of limitations for bringing an action against a ski area operator to recover damages for injury caused by the maintenance, supervision, or operation of a passenger tramway or ski area must be brought within 2 years. No skier may make a claim against or recover from any ski area operator for injury resulting from the inherent dangers and risks of skiing. Additionally, the total damages recoverable from an operator shall not exceed $1 million, and noneconomic damages shall not exceed $250,000.
II. Pertinent Case Law
In a Colorado Court of Appeals case – Fleury v. IntraWest Winter Park Operations Corporation – the court held that an avalanche that killed a skier was an inherent danger or risk of skiing under the Ski Safety Act. The court also held that the operator was not required to close the run or post warning signs about possible avalanche danger, because an avalanche is an inherent risk of skiing and is not a man-made obstacle requiring signage under the statute. Lastly, the court stated that the General Assembly has increasingly broadened ski area operator’s immunity for skier injuries, and that if the Assembly wishes to hold ski areas accountable for avalanche-related injuries or deaths, it should amend the Act.
In federal court case – Bazarewski v. Vail Corporation – the plaintiff was injured when he was tubing down a slope and his tube hit a rubber mat intended to slow down tubes and overturned, injuring his head and neck. He argued that the tubes were not an inherent risk under the statute and thus he could sue for negligence, but the court held that collisions with man-made objects are protected under the statute. The court held that ski operators may be liable for injuries to patrons under one of two theories. First, a skier may recover if his injury did not result from an inherent danger or risk of skiing. Such a claim would fall outside the scope of the Colorado Ski Safety Act and would be governed by common-law negligence principals. Second, a ski area may be liable because it violated a provision of the Ski Safety Act and that violation resulted in injury.
In 2010, a Colorado Court of Appeals denied Vail Corporation’s motion for summary judgment in a case – Anderson v. Vail Corporation – where there was a dispute as to whether the resort’s boundary markings were readily visible as required by the statute. The court held that ski area operators do not simply have a duty to mark ski area boundaries in a fashion readily visible to skiers who are located in certain designated areas; but instead, they are required to mark boundaries in a fashion readily visible to any person skiing on a slope, trail, or adjoining skiable terrain. The court ignored Vail’s argument that this would be an impossible burden to meet in stating that skiing past boundary lines presents serious consequences, and that the General Assembly dictated that requirement in the statute. This case is one of few to side with skiers.
Finally, in 2001, the Tenth Circuit held – in Doering ex. rel. Barret v. Copper Mountain, Inc. – that the statute controlled when an inconsistency between it and Colorado common law was found, holding that children under the age of 7 could be capable of negligence under the statute.
III. Other Articles
In an article published in the Denver Post last year, the author stated that Colorado has one of the highest bars for plaintiffs to claim negligence on the part of the ski areas. And not only is the statute strict, but where the statute does not bar a claim, typically season passes include waivers that limit liability even further. The Colorado Supreme Court held that waivers requiring a parent to release a child’s negligence claims violated public policy, (Cooper v. Aspen Skiing Co.) the state legislature quickly passed a bill nullifying that holding (C.R.S.A. § 13-22-107). However, in Utah, the state supreme court held that ski operators could not use pre-injury releases to significantly pare back or eliminate the operator’s need to purchase liability insurance. No court in Colorado has found any of the waivers or statutes against public policy since Cooper and the following legislation.
IV. Skier vs. Skier Liability
In a collision between two skiers, the statute makes clear that the ski area operator is never liable because collisions are an inherent danger and risk of skiing. However, the statute expressly states that suits between skiers are not prohibited. Under Colorado law, when such a collision occurs there is a rebuttable presumption that the uphill skier is negligent because he had the better opportunity to avoid the collision. But because both skiers have a duty to keep a proper lookout and to ski in control—with a safe speed and course trajectory—a jury must determine the degree, if any, of comparative negligence.
V. Staying Safe
In order to make sure you stay safe and don’t end up with injuries that you will be responsible for paying for, follow these tips:
- Use proper ski equipment and make sure your boots fit property
- Wear a helmet and other protective gear like goggles
- Take ski lessons if you’re not an experienced skier
- Keep an eye on all posted signs; operators are required to post them so use that to your benefit and be knowledgeable about what is going on around you
- Only ski on trails at your ski level; signs should be posted letting you know the level of each trail, so pay attention to them
- People ahead of you have the right-of-way, so it is your responsibility to avoid them
- Always be aware of your surroundings, including other skiers, changes in the terrain, trail boundaries, and any object, man-made or not, that could create an obstacle