Brigance v. Vail Summit Resorts, Inc. , 883 F.3d 1243 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 8, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
TERESA BRIGANCE,
Plaintiff - Appellant,
v. No. 17-1035
VAIL SUMMIT RESORTS, INC.,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01394-WJM-NYW)
_________________________________
Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC,
Denver, Colorado, for Plaintiff - Appellant.
Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant - Appellee.
_________________________________
Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
During a ski lesson at Keystone Mountain Resort (“Keystone”), Doctor Teresa
Brigance’s ski boot became wedged between the ground and the chairlift. She was unable
to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance
filed suit against Vail Summit Resorts, Inc. (“VSRI”), raising claims of (1) negligence,
(2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat
superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act
(the “PLA”), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s
negligence and negligence per se claims at the motion to dismiss stage. After discovery,
the district court granted VSRI’s motion for summary judgment on the remaining claims,
concluding the waiver Dr. Brigance signed before participating in her ski lesson, as well
as the waiver contained on the back of her lift ticket, are enforceable and bar her claims
against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
Keystone is a ski resort located in Colorado that is operated by VSRI. In
March 2015, Dr. Brigance visited Keystone with her family and participated in a ski
lesson. At the time, ski lesson participants, including Dr. Brigance, were required to
sign a liability waiver (the “Ski School Waiver”) before beginning their lessons. The
Ski School Waiver signed1 by Dr. Brigance contained, among other things, the
following provisions:
1
Although VSRI did not produce an original or copy of the Ski School Waiver
signed by Dr. Brigance, it provided evidence that all adults participating in ski
lessons at Keystone are required to sign a waiver and that the Ski School Waiver was
the only waiver form used by VSRI for adult ski lessons during the 2014-15 ski
season. Before it was clear that VSRI could not locate its copy of the signed waiver,
Dr. Brigance indicated in discovery responses and deposition testimony that she
signed a waiver before beginning ski lessons. See Brigance v. Vail Summit Resorts,
Inc. (“Brigance II”), No. 15-cv-1394-WJM-NYW, 2017 WL 131797, at *3–4 (D.
Colo. Jan. 13, 2017). Based on this evidence and Dr. Brigance’s failure to argue “that
2
RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL
WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY &
INDEMNITY AGREEMENT
a genuine question remains for trial as to whether she did in fact sign the Ski School
Waiver in the form produced or whether she agreed to its terms,” id. at *4, the district
court treated her assent to the Ski School Waiver as conceded and concluded that
“there is no genuine dispute as to whether [Dr. Brigance] consented to the terms of
the Ski School Waiver,” id.
On appeal, Dr. Brigance offers no argument and points to no evidence
suggesting that the district court’s conclusion was erroneous in light of the evidence
and arguments before it. Instead, she merely denies having signed the Ski School
Waiver and reiterates that VSRI has yet to produce a signed copy of the waiver. But
in response to questioning at oral argument, counsel for Dr. Brigance conceded that
this court could proceed with the understanding that Dr. Brigance signed the Ski
School Waiver. Oral Argument at 0:41–1:23, Brigance v. Vail Summit Resorts, Inc.,
No. 17-1035 (10th Cir. Nov. 13, 2017). Three days later, counsel for Dr. Brigance
filed a notice with the court effectively revoking that concession.
Dr. Brigance’s assertion that she did not execute the Ski School Waiver is
forfeited because she failed to adequately raise it as an issue below. Avenue Capital
Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016); see also Brigance II,
2017 WL 131797, at *4 (“[N]otwithstanding the absence of a signed copy of the [Ski
School Waiver], [Dr. Brigance] does not argue that this issue presents a genuine
dispute requiring trial.”). But even if we were to entertain the argument, it would fail
to defeat summary judgment. Despite her obfuscation, VSRI’s inability to produce
the signed Ski School Waiver and Dr. Brigance’s assertions that she did not sign the
waiver—which contradict her discovery responses and deposition testimony—are
insufficient to establish that the district court erred in concluding that no genuine
dispute exists as to whether Dr. Brigance agreed to the terms of the waiver.
“Although the burden of showing the absence of a genuine issue of material fact”
rests with the movant at summary judgment, “the nonmovant must do more than
simply show that there is some metaphysical doubt as to the material facts.”
Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006)
(internal quotation marks omitted). Indeed, the
party asserting that a fact . . . is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . . ;
or (B) showing that the materials cited do not establish the absence . . .
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)–(B). Dr. Brigance made no such showing below, nor does
she attempt to do so on appeal.
3
THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN
LEGAL RIGHTS.
...
2. I understand the dangers and risks of the Activity and that the
Participant ASSUMES ALL INHERENT DANGERS AND RISKS of
the Activity, including those of a “skier” (as may be defined by statute
or other applicable law).
3. I expressly acknowledge and assume all additional risks and
dangers that may result in . . . physical injury and/or death above
and beyond the inherent dangers and risks of the Activity, including
but not limited to: Falling; free skiing; following the direction of an
instructor or guide; . . . equipment malfunction, failure or damage;
improper use or maintenance of equipment; . . . the negligence of
Participant, Ski Area employees, an instructor . . . or others; . . . lift
loading, unloading, and riding; . . . . I UNDERSTAND THAT THE
DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT
COMPLETE AND VOLUNTARILY CHOOSE FOR
PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY
ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY,
WHETHER OR NOT DESCRIBED HERE, KNOWN OR
UNKNOWN, INHERENT OR OTHERWISE.
4. Participant assumes the responsibility . . . for reading, understanding
and complying with all signage, including instructions on the use of
lifts. Participant must have the physical dexterity and knowledge to
safely load, ride and unload the lifts. . . .
...
6. Additionally, in consideration for allowing the Participant to
participate in the Activity, I AGREE TO HOLD HARMLESS,
RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY
. . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH,
WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE
OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN
THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE
CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL
NEGLIGENCE . . . .
Aplt. App’x at 117 (emphasis in original).
4
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride
the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used
it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver
(the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
HOLDER AGREES AND UNDERSTANDS THAT SKIING . . .
AND USING A SKI AREA, INCLUDING LIFTS, CAN BE
HAZARDOUS.
WARNING
Under state law, the Holder of this pass 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 the ski area operator for any injury
resulting from any of the inherent dangers and risks of skiing. Other
risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder
is responsible for having the physical dexterity to safely load, ride and
unload the lifts and must control speed and course at all times. . . .
Holder agrees to ASSUME ALL RISKS, inherent or otherwise. Holder
agrees to hold the ski area harmless for claims to person or property. . . .
...
NO REFUNDS. NOT TRANSFERABLE. NO RESALE.
Id. at 121 (emphasis in original).
After receiving some instruction during her ski lesson on how to load and
unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance
attempted to unload from the lift, her left ski boot became wedged between the
ground and the lift. Although she was able to stand up, she could not disengage the
lift because her boot remained squeezed between the ground and the lift. Eventually,
the motion of the lift pushed Dr. Brigance forward, fracturing her femur.
5
B. Procedural Background
Dr. Brigance filed suit against VSRI in the United States District Court for the
District of Colorado as a result of the injuries she sustained while attempting to
unload from the Discovery Lift.2 In her amended complaint Dr. Brigance alleged that
the short distance between the ground and the Discovery Lift at the unloading
point—coupled with the inadequate instruction provided by her ski instructor, the
chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and
supervision of employees—caused her injuries. She consequently asserted the
following six claims against VSRI: (1) negligence; (2) negligence per se; (3)
negligent supervision and training; (4) negligence (respondeat superior); (5)
negligent hiring; and (6) liability under the PLA.
VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of
her respondeat superior and PLA claims. The district court granted in part and denied
in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance I”), No. 15-
cv-1394-WJM-NYM, 2016 WL 931261, at *1–5 (D. Colo. Mar. 11, 2016). It
dismissed Dr. Brigance’s negligence claim as preempted by the PLA. Id. at *3–4. It
also dismissed her negligence per se claim, concluding that she “fail[ed] to identify
any requirement” of the Colorado Ski Safety Act of 1979 (the “SSA”), Colo. Rev.
Stat. §§ 33-44-101 to -114, that VSRI had allegedly violated. Brigance I, 2016 WL
2
The district court properly invoked diversity jurisdiction because Dr.
Brigance is a citizen of Florida and VSRI is a Colorado corporation with its principal
place of business in Colorado, and the amount in controversy exceeds $75,000. See
28 U.S.C. §§ 1332(a), (c)(1)(B)–(C).
6
931261, at *2. In dismissing this claim, the district court also held that the provisions
of the Passenger Tramway Safety Act (the “PTSA”), Colo. Rev. Stat. §§ 25-5-701 to
-721, relied upon by Dr. Brigance “do[ ] not provide a statutory standard of care
which is adequate to support [a] claim for negligence per se.” Brigance I, 2016 WL
931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr.
Brigance’s claims regarding negligent supervision and training and negligent hiring.
Id. at *4–5.
Upon completion of discovery, VSRI moved for summary judgment on the
basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr.
Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment
was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA
claim and (2) her common-law negligence claims are preempted by the PLA and
otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in
part that the waivers are unenforceable under the SSA and the four-factor test
established by the Colorado Supreme Court in Jones v. Dressel, 623 P.2d 370 (Colo.
1981). Dr. Brigance also asserted that her common-law negligence claims are not
preempted by the PLA and that she presented sufficient evidence to allow her claims
to be heard by a jury.
The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts,
Inc. (“Brigance II”), No. 15-cv-1394-WJM-NYW, 2017 WL 131797, at *10 (D.
Colo. Jan. 13, 2017). It determined that the Ski School Waiver and Lift Ticket
Waiver are enforceable under the factors established by the Colorado Supreme Court
7
in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. Id. at
*5–9. It then determined that all of Dr. Brigance’s remaining claims fall within the
broad scope of the waivers and are therefore barred. Id. at *10. This appeal followed.
II. DISCUSSION
Dr. Brigance challenges the district court’s enforcement of both the Ski School
Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and
negligence per se claims. “[B]ecause the district court’s jurisdiction was based on
diversity of citizenship, [Colorado] substantive law governs” our analysis of the
underlying claims and enforceability of the waivers. Sylvia v. Wisler, --- F.3d ---,
2017 WL 5622916, at *3 (10th Cir. 2017) (internal quotation marks omitted). We
“must therefore ascertain and apply [Colorado] law with the objective that the result
obtained in the federal court should be the result that would be reached in [a
Colorado] court.” Id. (internal quotation marks omitted). In doing so, “we must defer
to the most recent decisions of the state’s highest court,” although “stare decisis
requires that we be bound by our own interpretations of state law unless an
intervening decision of the state’s highest court has resolved the issue.” Id. (internal
quotation marks omitted).
Although the substantive law of Colorado governs our analysis of the waivers
and underlying claims, federal law controls the appropriateness of a district court’s
grant of summary judgment and dismissal of claims under Federal Rule of Civil
Procedure 12(b)(6). See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070,
1076 (10th Cir. 2007). We therefore review the district court’s grant of summary
8
judgment and dismissal of claims pursuant to Rule 12(b)(6) de novo, applying the
same standards as the district court. Id.; see also Sylvia, 2017 WL 5622916, at *4, 16.
“However, we may affirm [the] district court’s decision[s] on any grounds for which
there is a record sufficient to permit conclusions of law, even grounds not relied upon
by the district court.” Stickley, 505 F.3d at 1076 (internal quotation marks omitted).
“Summary judgment should be granted if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Sylvia, 2017 WL 5622916, at *16 (internal quotation marks omitted). Because it is
undisputed that all of Dr. Brigance’s claims—including those dismissed pursuant to
Rule 12(b)(6)—fall within the broad scope of either waiver if they are deemed
enforceable under Colorado law, the first, and ultimately only, question we must
address is whether the Ski School Waiver and Lift Ticket Waiver are enforceable.
Under Colorado law, “exculpatory agreements have long been disfavored,” B
& B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established
that such agreements cannot “shield against a claim for willful and wanton conduct,
regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc.,
223 P.3d 724, 726 (Colo. 2010). See also Espinoza v. Ark. Valley Adventures, LLC,
809 F.3d 1150, 1152 (10th Cir. 2016) (“Under Colorado common law, it’s long
settled that courts will not give effect to contracts purporting to release claims for
intentional, knowing, or reckless misconduct.”). “But claims of negligence are a
different matter. Colorado common law does not categorically prohibit the
9
enforcement of contracts seeking to release claims of negligence.” Espinoza, 809
F.3d at 1152; accord Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo.
2004). Neither does it always preclude exculpatory agreements as to claims of
negligence per se. Espinoza, 809 F.3d at 1154–55.
Accordingly, the Colorado Supreme Court has instructed courts to consider the
following four factors when determining the enforceability of an exculpatory
agreement: “(1) the existence of a duty to the public; (2) the nature of the service
performed; (3) whether the contract was fairly entered into; and (4) whether the
intention of the parties is expressed in clear and unambiguous language.” Jones, 623
P.2d at 376. It appears that if an exculpatory agreement satisfies any of the four
factors, it must be deemed unenforceable. Although consideration of these factors is
generally sufficient to determine the enforceability of exculpatory agreements, the
Colorado Supreme Court has clarified that “other public policy considerations” not
necessarily encompassed in the Jones factors may invalidate exculpatory agreements.
See Boles, 223 P.3d at 726 (“[M]ore recently, we have identified other public policy
considerations invalidating exculpatory agreements, without regard to the Jones
factors.”); see, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232–37 (Colo.
2002), superseded by statute, Colo. Rev. Stat. § 13-22-107.
The district court examined each of the Jones factors and concluded that none
of them preclude enforcement of the Ski School Waiver or Lift Ticket Waiver.
Brigance II, 2017 WL 131797, at *5–8. It also determined that the provisions of the
10
SSA and PTSA “have no effect on the enforceability” of the waivers. Id. at 9. We
agree.
A. The Jones Factors
1. Existence of a Duty to the Public
The first Jones factor requires us to examine whether there is an “existence of
a duty to the public,” Jones, 623 P.2d at 376, or, described another way, “whether the
service provided involves a duty to the public,” Mincin v. Vail Holdings, Inc., 308
F.3d 1105, 1109 (10th Cir. 2002). The Colorado Supreme Court has not specified the
precise circumstances under which an exculpatory agreement will be barred under
this factor, but it has explained that unenforceable exculpatory agreements
generally involve businesses suitable for public regulation; that are
engaged in performing a public service of great importance, or even of
practical necessity; that offer a service that is generally available to any
members of the public who seek it; and that possess a decisive
advantage of bargaining strength, enabling them to confront the public
with a standardized adhesion contract of exculpation.
Chadwick, 100 P.3d at 467. The Colorado Supreme Court has expressly
“distinguished businesses engaged in recreational activities” from the foregoing class
of businesses because recreational activities “are not practically necessary” and
therefore “the provider[s of such activities] owe[ ] no special duty to the public.” Id.;
see also Espinoza, 809 F.3d at 1153 (“Though some businesses perform essential
public services and owe special duties to the public, the [Colorado Supreme] [C]ourt
has held that ‘businesses engaged in recreational activities’ generally do not.”
(quoting Chadwick, 100 P.3d at 467)).
11
And, indeed, Colorado courts examining exculpatory agreements involving
recreational activities under Colorado law have almost uniformly concluded that the
first Jones factor does not invalidate or render unenforceable the relevant agreement.
See, e.g., Chadwick, 100 P.3d at 467–69; Jones, 623 P.2d at 376–78; Stone v. Life
Time Fitness, Inc., No. 15CA0598, 2016 WL 7473806, at *3 (Colo. App. Dec. 29,
2016) (unpublished) (“The supreme court has specified that no public duty is
implicated if a business provides recreational services.”), cert. denied, No. 17SC82,
2017 WL 2772252 (Colo. Jun. 26, 2017); Hamill v. Cheley Colo. Camps, Inc., 262
P.3d 945, 949 (Colo. App. 2011) (“Our supreme court has held that businesses
engaged in recreational activities that are not practically necessary, such as equine
activities, do not perform services implicating a public duty.”); see also Espinoza,
809 F.3d at 1153–56; Mincin, 308 F.3d at 1110–11; Patterson v. Powdermonarch,
L.L.C., No. 16-cv-00411-WYD-NYW, 2017 WL 4158487, at *5 (D. Colo. July 5,
2017) (“Businesses engaged in recreational activities like [defendant’s ski services]
have been held not to owe special duties to the public or to perform essential public
services.”); Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996)
(“Providing snowmobile tours to the public does not fall within” the first Jones
factor.); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (holding
white-water rafting is recreational in nature and is therefore “neither a matter of great
public importance nor a matter of practical necessity” (internal quotation marks
omitted)), aff’d sub nom., Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th
Cir. 1997).
12
The relevant services provided by VSRI—skiing and ski lessons—are clearly
recreational in nature. Like horseback riding and skydiving services, see Chadwick,
100 P.3d at 467; Jones, 623 P.2d at 377, skiing and ski lessons are not of great public
importance or “matter[s] of practical necessity for even some members of the
public,” Jones, 623 P.2d at 377. They therefore do not implicate the type of duty to
the public contemplated in the first Jones factor. Although it appears the Colorado
Supreme Court and Colorado Court of Appeals have yet to address the first Jones
factor within the context of skiing or ski lesson services, the few courts that have
considered similar issues have reached the unsurprising conclusion that ski-related
services are recreational activities and do not involve a duty to the public. See, e.g.,
Rumpf v. Sunlight, Inc., No. 14-cv-03328-WYD-KLM, 2016 WL 4275386, at *3 (D.
Colo. Aug. 3, 2016); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409
(D. Colo. 1994); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D.
Colo. 1992).
Dr. Brigance fails to address the principle “that businesses engaged in
recreational activities that are not practically necessary . . . do not perform services
implicating a public duty.” Hamill, 262 P.3d at 949. Instead, she contends VSRI owes
a duty to the public because the ski and ski lesson services provided by VSRI
implicate a number of additional factors the California Supreme Court relied upon in
Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 444–46 (Cal. 1963), to determine
whether an exculpatory agreement should be deemed invalid as affecting public
13
interest.3 Specifically, Dr. Brigance contends VSRI owes a duty to the public because
the Colorado ski industry is subject to express regulation under the SSA and PTSA,
VSRI is willing to perform its services for any member of the public who seeks them,
VSRI maintains an advantage in bargaining strength, and skiers are placed under the
complete control of VSRI when riding their lifts.
The Colorado Supreme Court has cited Tunkl and noted its relevance in
determining whether a business owes a duty to the public. Jones, 623 P.2d at 376–77.
But when analyzing the first Jones factor, particularly within the context of
recreational services, courts applying Colorado law focus on and give greatest weight
to whether the party seeking to enforce an exculpatory agreement is engaged in
providing services that are of great public importance or practical necessity for at
least some members of the public. See, e.g., Espinoza, 809 F.3d at 1153–54; Rowan
v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 896–97 (D. Colo. 1998); Potter, 849 F.
Supp. at 1409; Jones, 623 P.2d at 376–77; Stone, 2016 WL 7473806, at *3; Hamill,
262 P.3d at 949. And the additional factors listed by Dr. Brigance are insufficient to
establish that the recreational services offered by VSRI are of great public
importance or practically necessary. An activity does not satisfy the first Jones factor
simply because it is subject to state regulation. As we have explained, the first Jones
factor does not
3
Dr. Brigance separately argues that the waivers are invalid under the
provisions and public policies contained within the SSA, PTSA, and PLA. Although
she incorporates these arguments in her analysis of the first Jones factor, we address
them separately in Section II.B, infra.
14
ask whether the activity in question is the subject of some sort of state
regulation. Instead, [it] ask[s] whether the service provided is of “great
importance to the public,” a matter of “practical necessity” as opposed
to (among other things) a “recreational one. [Jones,] 623 P.2d at 376–
77. And the distinction the Jones factors draw between essential and
recreational services would break down pretty quickly if the presence of
some state regulation were enough to convert an otherwise obviously
“recreational” service into a “practically necessary” one. After all, state
law imposes various rules and regulations on service providers in most
every field these days—including on service providers who operate in a
variety of clearly recreational fields.
Espinoza, 809 F.3d at 1154; see also Chadwick, 100 P.3d at 467–68. Furthermore,
Dr. Brigance’s argument regarding VSRI’s bargaining strength is more properly
addressed under the third Jones factor, and her remaining arguments concerning
VSRI’s willingness to provide services to the public and its control over skiers are
not sufficiently compelling to sway us from departing from the principle “that no
public duty is implicated if a business provides recreational services.” Stone, 2016
WL 7473806, at *3.
The district court therefore did not err in concluding that the first Jones factor
does not render the Ski School Waiver and the Lift Ticket Waiver unenforceable.
2. Nature of the Service Performed
Under the second Jones factor, we examine “the nature of the service
performed.” Jones, 623 P.2d at 376. Analysis of this factor is linked to and in many
respects overlaps the analysis conducted under the first Jones factor, as it calls for an
examination of whether the service provided is an “essential service” or a “matter of
practical necessity.” See Espinoza, 809 F.3d at 1153; Stone, 2016 WL 7473806, at
*3; Hamill, 262 P.3d at 949. As is evident from our discussion of the first Jones
15
factor, Colorado “courts have consistently deemed recreational services to be neither
essential nor a matter of practical necessity.” Stone, 2016 WL 7473806, at *3; see
also Chadwick, 100 P.3d at 467 (noting “recreational activities . . . are not practically
necessary”); Jones, 623 P.2d at 377–78 (holding the skydiving service provided by
defendants “was not an essential service”); Hamill, 262 P.3d at 949 (acknowledging
recreational camping and horseback riding services are not essential or matters of
practical necessity). And as previously established, the ski and ski lesson services
offered by VSRI are recreational in nature and therefore, like other recreational
activities examined by this and other courts, cannot be deemed essential or of
practical necessity. See, e.g., Mincin, 308 F.3d at 1111 (“[M]ountain biking is not an
essential activity.”); Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073
(D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational
service, not an essential service”); Rowan, 31 F. Supp. 2d at 897 (“[S]kiing is not an
essential service.”); Potter, 849 F. Supp. at 1410 (disagreeing with plaintiff’s
argument that “ski racing for handicapped skiers rises to the level of an essential
service [as] contemplated by Colorado law”); Bauer, 788 F. Supp. at 474 (noting
“free skiing[, equipment rentals, and ski lessons] for travel agents do[ ] not rise to the
level of essential service[s] contemplated by Colorado law.”).
Dr. Brigance raises no argument specific to this factor other than asserting that
“the ski industry is a significant revenue generator for the State of Colorado” and the
services provided by VSRI are “public [in] nature.” Aplt. Br. 47. Dr. Brigance cites
no authority suggesting that either factor would render the recreational services
16
provided by VSRI essential in nature. And given Colorado courts’ assertion that
“recreational services [are] neither essential nor . . . matter[s] of practical necessity,”
Stone, 2016 WL 7473806, at *3, we conclude the district court did not err in
determining that the second Jones factor also does not dictate that the waivers be
deemed unenforceable.
3. Whether the Waivers Were Fairly Entered Into
The third Jones factor requires us to examine “whether the contract was fairly
entered into.” Jones, 623 P.2d at 376. “A contract is fairly entered into if one party is
not so obviously disadvantaged with respect to bargaining power that the resulting
contract essentially places him at the mercy of the other party’s negligence.” Hamill,
262 P.3d at 949 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.
1989)). When engaging in this analysis, we examine the nature of the service
involved, Espinoza, 809 F.3d at 1156, the circumstances surrounding the formation
of the contract, id., and whether the services provided are available from a source
other than the party with which the plaintiff contracted, see Stone, 2016 WL
7473806, at *3; Hamill, 262 P.3d at 950.
The Colorado Court of Appeals has identified “[p]ossible examples of unfair
disparity in bargaining power [as] includ[ing] agreements between employers and
employees and between common carriers or public utilities and members of the
public.” Stone, 2016 WL 7473806, at *3. It has also expressly acknowledged an
unfair disparity in bargaining power in residential landlord-tenant relationships,
presumably based in part on its holding “that housing rental is a matter of practical
17
necessity to the public.” Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App.
1996). But the Colorado Court of Appeals has also held that “this type of unfair
disparity is generally not implicated when a person contracts with a business
providing recreational services.” Stone, 2016 WL 7473806, at *3. This is because
recreational activities are not essential services or practically necessary, and therefore
a person is not “at the mercy” of a business’s negligence when entering an
exculpatory agreement involving recreational activities. Hamill, 262 P.3d at 949–50.
As we have previously explained, “Colorado courts have repeatedly emphasized that
. . . because recreational businesses do not provide ‘essential’ services of ‘practical
necessity[,]’ individuals are generally free to walk away if they do not wish to
assume the risks described” in an exculpatory agreement. Espinoza, 809 F.3d at
1157; see also Mincin, 308 F.3d at 1111 (noting that a disparity of bargaining power
may be created by the “practical necessity” of a service, but that no such necessity
existed because “mountain biking is not an essential activity” and therefore the
plaintiff “did not enter into the contract from an inferior bargaining position”).
We reiterate, at the risk of redundancy, that the ski and ski lesson services
offered by VSRI are recreational in nature and do not constitute essential services or
matters of practical necessity. As a result, Dr. Brigance did not enter the Ski School
Waiver or Lift Ticket Waiver from an unfair bargaining position because she was
free to walk away if she did not wish to assume the risks or waive the right to bring
certain claims as described in the waivers. This conclusion is supported by a number
of cases involving similar recreational activities, including those we have previously
18
addressed under the first two Jones factors. See, Jones, 623 P.2d at 377–78 (holding
an exculpatory release related to skydiving services was not an unenforceable
adhesion contract “because the service provided . . . was not an essential service” and
therefore the defendant “did not possess a decisive advantage of bargaining strength
over” the plaintiff); see also Squires, 829 F. Supp. 2d at 1071 (“Where, as here, the
service provided is a recreational service and not an essential service, there is no
unfair bargaining advantage.”); Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294
(D. Colo. 1993) (“[T]he recreational services offered by [defendant] were not
essential and, therefore, [it] did not enjoy an unfair bargaining advantage.”); Bauer,
788 F. Supp. at 475 (“Here, defendants’ recreational services were not essential and,
therefore, they did not enjoy an unfair bargaining advantage.”).
Moreover, the circumstances surrounding Dr. Brigance’s entry into the
exculpatory agreements indicate she did so fairly. Dr. Brigance does not identify any
evidence in the record calling into question her competency, ability to comprehend
the terms of the agreements, or actual understanding of the agreements. Nor does she
point to anything in the record reflecting an intent or attempt by VSRI to fraudulently
induce her to enter the agreements or to conceal or misconstrue their contents. In
addition, there is nothing in the record to suggest Dr. Brigance’s agreement to the
terms of the Ski School Waiver was not voluntary. See Brigance II, 2017 WL
131797, at *3–4.
Notwithstanding the well-established law that exculpatory agreements
involving businesses providing recreational services do not implicate the third Jones
19
factor, Dr. Brigance argues her assent to the terms of the Lift Ticket Waiver was
obtained unfairly and that VSRI had an advantage in bargaining strength. This is so,
she contends, because she “did not have a chance to review the exculpatory language
contained on the back of the non-refundable [lift] ticket before she purchased it” and
that “[o]nce the ticket was purchased, she was forced to accept the exculpatory
language or lose the money she invested.” Aplt. Br. 47. Dr. Brigance’s argument fails
to account for her voluntary acceptance of the Ski School Waiver. And although Dr.
Brigance asserts she “did not have a chance to review” the Lift Ticket Waiver before
purchasing it, she does not identify any evidence that VSRI prevented her from
reviewing the Lift Ticket Waiver before she used it to ride the Discovery Lift, and
“Colorado courts have repeatedly emphasized that individuals engaged in
recreational activities are generally expected to read materials like these.” Espinoza,
809 F.3d at 1157. Most importantly, Dr. Brigance did not raise this argument below
and does not provide a compelling reason for us to address it on appeal.4 See Crow v.
Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not
consider arguments that were not presented to the district court.”).
4
In fact, the district court noted that Dr. Brigance “neither disputes the
relevant facts nor counters VSRI’s argument that she accepted the contractual terms
of the Lift Ticket Waiver by skiing and riding the lifts.” Brigance II, 2017 WL
131797, at *4. As a result, the district court concluded Dr. Brigance had agreed to the
terms of the Lift Ticket Waiver and would be bound to its terms to the extent it was
otherwise enforceable. Id.
20
For these reasons, the district court did not err in concluding that the third
Jones factor does not render the Ski School Waiver or the Lift Ticket Waiver
unenforceable.
4. Whether the Parties’ Intent Was Expressed Clearly and Unambiguously
The fourth and final Jones factor is “whether the intention of the parties is
expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. The inquiry
conducted under this factor “should be whether the intent of the parties was to
extinguish liability and whether this intent was clearly and unambiguously
expressed.” Heil Valley Ranch, 784 P.2d at 785. The Colorado Supreme Court has
explained that “[t]o determine whether the intent of the parties is clearly and
unambiguously expressed, we [may] examine[ ] the actual language of the agreement
for legal jargon, length and complication, and any likelihood of confusion or failure
of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d
at 467. We may also take into account a party’s subsequent acknowledgement that it
understood the provisions of the agreement. Id. In addition, it is well-established that
the term “negligence” is not invariably required for an exculpatory agreement to be
deemed an unambiguous waiver or release of claims arising from negligent conduct.
Id.
21
The Ski School Waiver contains approximately a page and a half of terms and
conditions in small, but not unreadable, font.5 It prominently identifies itself as,
among other things, a “RELEASE OF LIABILITY . . . AGREEMENT”—a fact that
is reiterated in the subtitle of the agreement by inclusion of the statement “THIS IS
A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.”
Aplt. App’x 117. The provisions of the waiver include the signer’s express
acknowledgment and assumption of “ALL INHERENT DANGERS AND RISKS of
the Activity, including those of a ‘skier’ (as may be identified by statute or other
applicable law),” as well as “all additional risks and dangers that may result in
. . . physical injury and/or death above and beyond the inherent dangers and
risks of the Activity, including but not limited to” a lengthy list of specific events
and circumstances that includes “lift loading, unloading, and riding.” Id. In addition
to this assumption-of-the-risk language, the Ski School Waiver provides that the
signer
AGREE[S] TO HOLD HARMLESS, RELEASE, INDEMNIFY,
AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO
PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT
MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF
PARTICIPANT’S PARTICIPATION IN THE ACTIVITY,
INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED
ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL
NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR
EXPRESS OR IMPLIED WARRANTY.
5
Although Dr. Brigance denies that she signed the Ski School Waiver, see
supra note 1, she has not made any arguments regarding the readability or font size
of the terms and conditions.
22
Id.
The Lift Ticket Waiver—approximately two paragraphs in length—is not as
detailed as the Ski School Waiver, but contains somewhat similar language regarding
the ticket holder’s assumption of risk and waiver of claims. After detailing some of
the inherent dangers and risks of skiing that the holder of the ticket assumes, as well
as identifying other risks and responsibilities, the Lift Ticket Waiver provides that
the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold
the ski area harmless for claims to person and property.” Id. at 121.
Neither waiver is unduly long nor complicated, unreadable, or overburdened
with legal jargon. Most importantly, the intent of the waivers is clear and
unambiguous. In addition to the language indicating Dr. Brigance’s assumption of all
risks of skiing, inherent or otherwise, both waivers contain clear language stating that
Dr. Brigance agreed to hold VSRI harmless for injuries to her person as a result of
skiing at Keystone. Moreover, the Ski School Waiver clearly and unambiguously
provides that Dr. Brigance agreed to “RELEASE, INDEMNIFY, AND NOT TO
SUE” VSRI for personal injuries arising in whole or in part from her participation in
ski lessons, including claims based on VSRI’s “ALLEGED OR ACTUAL
NEGLIGENCE.” Id. at 117. Dr. Brigance does not argue that any of the language
regarding her agreement to hold harmless, indemnify, release, or not to sue VSRI is
ambiguous or confusing. And like this and other courts’ examination of similarly
worded provisions, we conclude the relevant release language of the Ski School
Waiver and Lift Ticket Waiver cannot be reasonably understood as expressing
23
anything other than an intent to release or bar suit against VSRI from claims arising,
in whole or in part, as a result of Dr. Brigance’s decision to ski and participate in ski
lessons at Keystone, including claims based on VSRI’s negligence. See Espinoza,
809 F.3d at 1157–58; Mincin, 308 F.3d at 1112–13; Chadwick, 100 P.3d at 468–69; B
& B Livery, 960 P.2d at 137–38; Hamill, 262 P.3d at 950–51.
Dr. Brigance’s argument on appeal regarding the fourth Jones factor centers on
the assumption-of-the-risk language contained in both waivers. Specifically, Dr.
Brigance contends the intent of the waivers is ambiguous because the provisions
providing that she assumes all risks of skiing, “inherent or otherwise,” conflict with
the SSA because the statute’s provisions only bar a skier from recovering against a
ski area operator “for injury resulting from any of the inherent dangers and risks of
skiing.” Colo. Rev. Stat. § 33-44-112; see also id. at 33-44-103(3.5). Because of this
alleged conflict, Dr. Brigance asserts that she could not know whether she was
“releasing [VSRI] of all liability as indicated by the [waivers], or only for the
inherent risks of skiing as mandated by the SSA.” Aplt. Br. 50–51.
Dr. Brigance’s argument is unavailing for a number of reasons. First, it only
addresses the assumption-of-the-risk language contained in each waiver. But the
more pertinent provisions of the waivers are those regarding Dr. Brigance’s
agreement to hold harmless, release, indemnify, and not to sue VSRI. These
provisions appear independent from the assumption-of-the-risk language and
therefore their plain meaning is unaffected by any potential ambiguity in the
“inherent or otherwise” clauses. Dr. Brigance does not contest the clarity of the
24
release provisions and, as previously described, we believe those provisions
unambiguously reflect the parties’ intent to release VSRI from claims arising from
Dr. Brigance’s participation in ski lessons at Keystone.
Second, the Lift Ticket Waiver’s “assumes all risks, inherent or otherwise”
phrase, as well as a similar phrase contained in the Ski School Waiver, are not
ambiguous. Rather, their meanings are clear—the signer of the agreement or holder
of the ticket is to assume all risks of skiing, whether inherent to skiing or not. The
term “otherwise,” when “paired with an adjective or adverb to indicate its
contrary”—as is done in both waivers—is best understood to mean “NOT.”
Webster’s Third New Int’l Dictionary 1598 (2002). The plain language and meaning
of the phrases therefore reflect a clear intent to cover risks that are not inherent to
skiing. Dr. Brigance offers no alternative reading of the phrases and does not specify
how “inherent or otherwise” could be understood as only referring to the inherent
risks identified in the SSA. And while the Ski School Waiver contains a provision in
which the signer agrees to assume all inherent dangers and risks of skiing as may be
defined by statute or other applicable law, the next provision of the agreement clearly
expands that assumption of risk, stating that the signer “expressly acknowledge[s]
and assume[s] all additional risks and dangers that may result in . . . physical
injury and/or death above and beyond the inherent dangers and risks of the
Activity, including but not limited to” a rather extensive list of circumstances or
events that may occur while skiing, including “lift loading, unloading, and riding.”
Aplt. App’x at 117. That same provision continues, indicating that the signer
25
understands the description of risks in the agreement is “NOT COMPLETE,” but
that the signer nevertheless voluntarily chooses to “EXPRESSLY ASSUME ALL
RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT
DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR
OTHERWISE.” Id. Reading the “inherent or otherwise” phrase in context clearly
indicates that, at a minimum, the Ski School Waiver includes an assumption of risk
above and beyond the inherent risks and dangers of skiing as defined in the SSA. See
Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (“In
determining whether a provision in a contract is ambiguous, the instrument’s
language must be examined and construed in harmony with the plain and generally
accepted meanings of the words used, and reference must be made to all the
agreement’s provisions.”); Moland v. Indus. Claim Appeals Office of State, 111 P.3d
507, 510 (Colo. App. 2004) (“The meaning and effect of a contract is to be
determined from a review of the entire instrument, not merely from isolated clauses
or phrases.”).
Third, the Colorado Supreme Court rejected a similar argument in B & B
Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998). There, the Colorado Supreme Court
examined an exculpatory agreement that included a statutorily mandated warning that
equine professionals are not liable to others for the inherent risks associated with
participating in equine activities, “as well as a broader clause limiting liability from
non-inherent risks.” Id. at 137–38. It concluded that “the insertion of a broader clause
further limiting liability does not make the agreement ambiguous per se” and instead
26
“merely evinces an intent to extinguish liability above and beyond that provided” in
the statute. Id. at 137; see also Hamill, 262 P.3d at 951 (upholding enforcement of an
exculpatory agreement that purported to cover “inherent and other risks,” as well as
claims against “any legal liability,” and noting that “[t]o hold . . . that the release did
not provide greater protection than the release from liability of inherent risks
provided by the equine act . . . would render large portions of the agreement
meaningless”). Furthermore, the waivers do not conflict with the SSA merely
because they purport to cover a broader range of risks than those identified by the
statute as inherent to skiing. See Fullick v. Breckenridge Ski Corp., No. 90-1377,
1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (unpublished) (“If one could never
release liability to a greater degree than a release provided in a statute, then one
would never need to draft a release, in any context.”); Chadwick, 100 P.3d at 468
(“[T]his court has made clear that parties may, consistent with the [equine] statute,
contract separately to release sponsors even from negligent conduct, as long as the
intent of the parties is clearly expressed in the contract.”).
Finally, the single case relied upon by Dr. Brigance that applies Colorado law
is distinguishable. In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899–900 (D.
Colo. 1998), the district court determined an exculpatory agreement was ambiguous
and therefore unenforceable in part because it first recited “the risks being assumed
in the broadest possible language,” expressly including risks associated with the use
of ski lifts, and then later addressed the assumption of risk in terms of the inherent
risks and dangers of skiing as defined in the SSA, which indicates the use of ski lifts
27
does not fall within its definition of inherent risks. The release therefore conflicted
with itself and the relevant statutory language. See Cunningham v. Jackson Hole
Mountain Resort Corp., 673 F. App’x 841, 847 (10th Cir. Dec. 20, 2016)
(unpublished). But unlike the waiver at issue in Rowan, the Ski School Waiver and
Lift Ticket Waiver do not define the inherent risks of skiing in a manner contrary to
the SSA. Nor do they contain conflicting provisions. The non-exhaustive list of
inherent risks identified in the Lift Ticket Waiver appears to be drawn directly from
the SSA, while the Ski School Waiver indicates inherent risks include those “as may
be defined by statute or other applicable law.” Aplt. App’x at 117, 121. In addition,
after referencing the inherent risks of skiing and providing that the signer of the
agreement assumes those risks, the Ski School Waiver goes on to identify other, non-
inherent risks associated with skiing and ski lessons and expressly provides that the
signer assumes those risks. Specifically, the waiver makes clear that the risks
assumed by Dr. Brigance include “all additional risks and dangers . . . above and
beyond the inherent dangers and risks” of skiing and ski lessons, whether
described in the waiver or not, known or unknown, or inherent or otherwise. Id. at
117. Unlike the provisions at issue in Rowan that provided conflicting statements
regarding the risks assumed, the waivers here unambiguously provide that Dr.
Brigance agreed to not only assume risks and dangers inherent to skiing, but also
those risks and dangers not inherent to skiing.
Accordingly, the district court did not err in concluding that the fourth Jones
factor does not invalidate the waivers.
28
***
Based on the foregoing analysis, we agree with the district court that
application of the Jones factors to the Ski School Waiver and Lift Ticket Waiver do
not render them unenforceable.
B. The SSA and PTSA
Although analysis of the Jones factors is often sufficient to determine the
validity of an exculpatory agreement, the Colorado Supreme Court has “identified
other public policy considerations invalidating exculpatory agreements, without
regard to the Jones factors.” Boles, 223 P.3d at 726. At various points on appeal,
either as standalone arguments or embedded within her analysis of the Jones factors,
Dr. Brigance contends the Ski School Waiver and the Lift Ticket Waiver are
unenforceable as contrary to Colorado public policy because they conflict with the
SSA, PTSA, and the public policies announced therein.6 The district court considered
these arguments and determined that the statutes do not affect the enforceability of
either waiver as to Dr. Brigance’s claims. We find no reason to disagree.
6
Dr. Brigance also argues that the PLA prohibits use of exculpatory
agreements as a defense to claims raised under its provisions and that the Ski School
Waiver and Lift Ticket Waiver conflict with the public policies set forth in its
provisions. But Dr. Brigance forfeited these arguments by failing to raise them in the
district court. Avenue Capital Mgmt. II, 843 F.3d at 884. Although we may consider
forfeited arguments under a plain-error standard, we decline to do so when, as here,
the appellant fails to argue plain error on appeal. Id. at 885; see also Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th Cir. 2011). We decline to address
Dr. Brigance’s argument that the waivers are unenforceable because their language is
broad enough to encompass willful and wanton behavior for the same reason.
29
In 1965, the Colorado General Assembly enacted the PTSA with the purpose
of assisting “in safeguarding life, health, property, and the welfare of the state in the
operation of passenger tramways.” Bayer v. Crested Butte Mountain Resort, Inc., 960
P.2d 70, 73 (Colo. 1998). The PTSA provides that “it is the policy of the state of
Colorado to establish a board empowered to prevent unnecessary mechanical hazards
in the operation of passenger tramways” and to assure that reasonable design and
construction, periodic inspections, and adequate devices and personnel are provided
with respect to passenger tramways. Colo. Rev. Stat. § 25-5-701. The General
Assembly empowered the board “with rulemaking and enforcement authority to carry
out its functions,” including the authority to “conduct investigations and inspections”
and “discipline ski area operators.” Bayer, 960 P.2d at 73–74; see also Colo. Rev.
Stat. §§ 25-5-703 to -704, -706 to -707. With its authority, the board adopted the
standards, with some alterations, utilized by the American National Standards
Institute for passenger tramways. Bayer, 960 P.2d at 73–74.
The General Assembly enacted the SSA fourteen years later. The SSA
“supplements the [PTSA]’s focus on ski lifts, but its principal function is to define
the duties of ski areas and skiers with regard to activities and features on the ski
slopes.” Id. at 74. The provisions of the SSA indicate that “it is in the interest of the
state of Colorado to establish reasonable safety standards for the operation of ski
areas and for the skiers using them” and that the SSA’s purpose is to supplement a
portion of the PTSA by “further defin[ing] the legal responsibilities of ski area
operators . . . and . . . the rights and liabilities existing between the skier and the ski
30
area operator.” Colo. Rev. Stat. § 33-44-102. In addition to the SSA’s provisions
defining various responsibilities and duties of skiers and ski area operators, the 1990
amendments to the SSA limited the liability of ski area operators by providing that
“no skier may make any claim against or recover from any ski area operator for
injury resulting from any of the inherent dangers and risks of skiing.” Id. at 33-44-
112. The SSA also provides that any violation of its provisions applicable to skiers
constitutes negligence on the part of the skier, while “[a] violation by a ski area
operator of any requirement of [the SSA] or any rule or regulation promulgated by
the passenger tramway safety board . . . shall . . . constitute negligence on the part of
such operator.” Id. at 33-44-104. “The effect of these statutory provisions is to make
violations of the [SSA] and [the rules and regulations promulgated by passenger
tramway safety board] negligence per se.” Bayer, 960 P.2d at 74. Ultimately, the
SSA and PTSA together “provide a comprehensive . . . framework which preserves
ski lift common law negligence actions, while at the same time limiting skier suits for
inherent dangers on the slopes and defining per se negligence for violation of
statutory and regulatory requirements.” Id. at 75.
Dr. Brigance contends the waivers conflict with the public policy objectives of
the SSA and PTSA because enforcing either waiver would allow VSRI to disregard
its statutorily defined responsibilities and duties. We find Dr. Brigance’s argument
unpersuasive.
At the outset, it is worth reiterating that under Colorado law exculpatory
agreements are not invalid as contrary to public policy simply because they involve
31
an activity subject to state regulation. Espinoza, 308 F.3d at 1154; see also id. at
1155 (acknowledging the Colorado Supreme Court has allowed enforcement of
exculpatory agreements with respect to equine activities despite the existence of a
statute limiting liability for equine professionals in certain circumstances, while still
allowing for liability in other circumstances); Mincin, 308 F.3d at 1111 (“The fact
that the Colorado legislature has limited landowner liability in the contexts of
horseback riding and skiing is relevant to the question of whether landowner liability
might be limited in other circumstances absent a contract.”). Similarly, exculpatory
agreements do not conflict with Colorado public policy merely because they release
liability to a greater extent than a release provided in a statute. See Fullick, 1992 WL
95421, at *3; Chadwick, 100 P.3d at 468; B & B Livery, 960 P.2d at 137–38.
It is true that the SSA and PTSA identify various duties and responsibilities
that, if violated, may subject a ski area operator to liability. But the acts establish a
framework preserving common law negligence actions in the ski and ski lift context,
Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private
parties from contractually releasing potential common law negligence claims through
use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver
by contract for the contract provision to be invalid because it is contrary to public
policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance
does not identify a single provision in either the SSA or PTSA suggesting the
enforcement of exculpatory agreements in the ski and ski lift context is impermissible
or contrary to public policy. Moreover, “Colorado law has long permitted parties to
32
contract away negligence claims in the recreational context” and we “generally will
not assume that the General Assembly mean[t] to displace background common law
principles absent some clear legislative expression of that intent.” Espinoza, 809 F.3d
at 1154, 1155. This principle is particularly relevant in the context of exculpatory
agreements because “[t]he General Assembly . . . has shown that—when it wishes—it
well knows how to displace background common law norms and preclude the release
of civil claims.” Espinoza, 809 F.3d at 1154–55.
Our conclusion that the SSA and PTSA do not bar exculpatory agreements is
supported by the Colorado Supreme Court’s regular enforcement of exculpatory
agreements involving recreational activities, particularly in the context of equine
activities, as well as the General Assembly’s relatively recent pronouncements
regarding the public policy considerations involved in a parent’s ability to execute
exculpatory agreements on behalf of its child with respect to prospective negligence
claims. In 2002, the Colorado Supreme Court concluded that Colorado public policy
prohibits a parent or guardian from releasing a minor’s prospective claims for
negligence. See Cooper, 48 P.3d at 1237. The Colorado Supreme Court’s broad
holding appeared to apply even within the context of recreational activities, as the
relevant minor had injured himself while skiing. Id. at 1231–35. The following year,
the General Assembly enacted Colo. Rev. Stat. § 13-22-107, which expressly
declared that the General Assembly would not adopt the Colorado Supreme Court’s
holding in Cooper. Colo. Rev. Stat. § 13-22-107(1)(b). Instead, the General
Assembly explained that, among other things, it is the public policy of Colorado that
33
“[c]hildren . . . should have the maximum opportunity to participate in sporting,
recreational, educational, and other activities where certain risks may exist” and that
“[p]ublic, private, and non-profit entities providing these essential activities to
children in Colorado need a measure of protection against lawsuits.” Id. at 13-22-
107(1)(a)(I)-(II). Accordingly, the General Assembly established that “[a] parent of a
child may, on behalf of the child, release or waive the child’s prospective claim for
negligence.” Id. at 13-22-107(3). The General Assembly’s enactment of § 33-22-107
reaffirms Colorado’s permissive position on the use of exculpatory agreements in the
recreational context, and its authorization of parental releases and waivers suggests it
did not intend and would not interpret the SSA as barring such agreements for adults.
Notwithstanding the lack of any statutory suggestion that the SSA and PTSA
prohibit the enforcement of exculpatory agreements as a matter of public policy, Dr.
Brigance contends two Colorado Court of Appeals decisions support her assertion to
the contrary. In Stanley v. Creighton, the Colorado Court of Appeals analyzed an
exculpatory clause in a residential rental agreement under the Jones factors and
concluded that the agreement involved a public interest sufficient to invalidate the
exculpatory clause. 911 P.2d at 707–08. The Stanley court reached this conclusion
because, among other things, Colorado has long regulated the relationship between
landlords and tenants, the PLA “confirms that landowner negligence is an issue of
public concern,” and “a landlord’s services are generally held out to the public and
. . . housing rental is a matter of practical necessity to the public.” Id. Although the
Stanley court’s partial reliance on the existence of state regulations tends to support
34
Dr. Brigance’s assertion that the existence of the SSA and PTSA render the Ski
School Wavier and Lift Ticket Waiver either contrary to public policy or sufficient to
satisfy the first Jones factor, the circumstances here are readily distinguishable.
Unlike residential housing, skiing is not essential nor a matter of practical necessity.
Among other considerations not present here, the Stanley court “placed greater
emphasis on the essential nature of residential housing” and “alluded to a distinction
between residential and commercial leases, implying that an exculpatory clause
might well be valid in the context of a commercial lease.” Mincin, 308 F.3d at 1110.
Similarly, Dr. Brigance’s reliance on Phillips v. Monarch Recreation Corp.,
668 P.2d 982 (Colo. App. 1983), does not alter our conclusion. In Phillips, the
Colorado Court of Appeals stated that “[s]tatutory provisions may not be modified by
private agreement if doing so would violate the public policy expressed in the
statute.” Id. at 987. Applying this principle, the Phillips court concluded that because
the SSA “allocate[s] the parties’ respective duties with regard to the safety of those
around them, . . . the trial court correctly excluded a purported [exculpatory]
agreement intended to alter those duties.” Id. But apparently unlike the agreement at
issue in Phillips, the Ski School Waiver and Lift Ticket Waiver do not appear to alter
the duties placed upon VSRI under the SSA. See, Fullick, 1992 WL 95421, at *3.
And the court’s application of this principle to the SSA appears to be inconsistent
with the more recent pronouncements by the Colorado Supreme Court and General
Assembly regarding Colorado policies toward the enforceability of exculpatory
35
agreements in the context of recreational activities. Moreover, as detailed above, the
SSA and PTSA do not express a policy against exculpatory agreements.
“Given all this,” particularly the SSA’s and PTSA’s silence with respect to
exculpatory agreements, “we do not think it our place to adorn the General
Assembly’s handiwork with revisions to the [SSA, PTSA, and] common law that it
easily could have but declined to undertake for itself.” Espinoza, 809 F.3d at 1155.
In summary, Colorado’s “relatively permissive public policy toward
recreational releases” is one “that, no doubt, means some losses go uncompensated.”
Espinoza, 809 F.3d at 1153. And the Colorado Supreme Court and General Assembly
may someday “prefer a policy that shifts the burden of loss to the service provider,
ensuring compensation in cases like this.” Id. But “that decision is their decision to
make, not ours, and their current policy is clear.” Id. As a result, for the reasons
stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are
enforceable and accordingly bar Dr. Brigance’s claims.
III. CONCLUSION
We AFFIRM the district court’s grant of summary judgment in favor of VSRI
and, on this alternative basis, its partial grant of VSRI’s motion to dismiss.
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