In Re: Michael Miller v. Crested Butte, LLC
2024 CO 30 (2024)
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Rule of Law:
A ski area operator cannot use private release agreements to absolve itself of liability for violations of statutory and regulatory duties imposed by the Ski Safety Act and Passenger Tramway Safety Act, which establish a negligence per se claim. However, such agreements can bar common law negligence claims (not based on statutory duties) if they meet the four-factor enforceability test.
Facts:
- Crested Butte, LLC, operating as Crested Butte Mountain Resort, sells ski passes requiring customers to agree to a release of liability online.
- In November 2021, Michael D. Miller purchased three-day Epic ski passes for himself and his minor daughter, Annalea Jane Miller (Annie), assenting to a Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement on Annie’s behalf.
- This agreement covered risks including skiing, lift use, misloading, entanglements, or falls from ski lifts, and the negligence of ski area employees or other guests.
- The Epic Pass itself also contained similar release language, stating the holder assumes risks and agrees not to sue for claims to person or property.
- On March 16, 2022, while skiing at Crested Butte, Annie attempted to board a chair lift but was unable to get seated, grabbing the chair to prevent falling.
- Michael Miller, who had gotten seated, grabbed Annie, and both he and another person on the lift, along with people in the lift line, began yelling for someone to slow or stop the lift, but the lift continued to ascend without intervention.
- No lift attendant or operator was present at the load line who could slow or stop the lift before Annie fell.
- Annie, unable to hold on, fell approximately thirty feet to the ground and landed on her back, sustaining severe spinal compression fractures, spinal cord damage, pulmonary contusions, and a liver laceration, leaving her quadriplegic.
Procedural Posture:
- Michael D. Miller, as parent and guardian of Annalea Jane Miller, sued Crested Butte, LLC in the Broomfield County District Court (trial court/court of first instance).
- Miller alleged three causes of action: (1) negligence-highest duty of care of ski lift operator; (2) negligence per se based on violations of the SSA, PTSA, and specific regulations; and (3) gross negligence.
- Crested Butte, LLC filed a motion to dismiss, arguing the negligence per se claim failed to state a claim and that both negligence claims were barred by the release of liability agreements Miller had signed.
- The district court granted Crested Butte’s motion to dismiss as to Miller’s negligence-highest duty of care and negligence per se claims, but denied the motion as to the gross negligence claim.
- Miller, as petitioner, then sought C.A.R. 21 relief in the Colorado Supreme Court, which issued a rule to show cause to Crested Butte, LLC, as respondent.
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Issue:
Does a ski area operator, through private release agreements, absolve itself of statutory and regulatory duties imposed by the Ski Safety Act and Passenger Tramway Safety Act, thereby barring a negligence per se claim, and did the district court properly apply the Jones v. Dressel factors to uphold release agreements barring a common law negligence claim?
Opinions:
Majority - Justice Gabriel
No, a ski area operator may not absolve itself of liability for violations of statutory and regulatory duties that form the basis of a negligence per se claim through private release agreements. Yes, the district court properly applied the Jones factors to uphold the release agreements, barring Miller’s common law "negligence-highest duty of care" claim. The court determined that the Ski Safety Act (SSA) and Passenger Tramway Safety Act (PTSA), when read with Colorado case law, establish that violations of these acts or rules promulgated thereunder constitute negligence per se. Specifically, Rule 3.3.2.3.3 of the ANSI B77.1-2017 standards (adopted by Department of Regulatory Agencies regulations) requires lift attendants to monitor passengers, advise and assist them, and respond to unusual occurrences (e.g., slowing or stopping the lift). These are specific, delineated duties that exceed a general duty of reasonable care. Precedent from this court (Peterman v. State Farm Mut. Auto. Ins. Co., Gonzales v. Indus. Comm’n) establishes that a party cannot discharge its obligation to perform a statutory duty via an exculpatory agreement. The court rejected the argument that § 13-22-107(3), which generally allows parental waivers of prospective negligence claims for children, supersedes the SSA's statutory duties, noting that its legislative intent was to overturn Cooper v. Aspen Skiing Co. for ordinary negligence, not to eradicate specific statutory and regulatory duties. Allowing waivers for negligence per se claims would undermine the legislative policies of the SSA and PTSA. However, regarding the common law negligence claim, the court affirmed the district court’s application of the four Jones v. Dressel factors for exculpatory agreements. It found that ski services are not an essential public service, Miller voluntarily signed the waivers for a non-essential recreational activity without an obvious bargaining disadvantage, and the release language clearly expressed the intention to cover risks related to lift use and employee negligence. Therefore, the release barred the common law negligence claim.
Concurring in part and dissenting in part - Justice Márquez
Yes, the district court properly enforced the waiver barring the common law negligence claim. No, the district court also properly dismissed Miller's negligence per se claim because it is merely a theory of negligence that can be waived under § 13-22-107. Justice Márquez agreed with the majority that the waiver barred the common law negligence claim. However, she argued that "negligence per se" is not a distinct cause of action but simply an evidentiary presumption used to establish a breach of duty within a standard negligence claim. She contended that Rule 3.3.2.3.3, requiring attendants to "choose an appropriate action," amounts to no more than a general duty of "reasonable care," which is the common law standard and does not require a specific prohibitive or affirmative action to establish a negligence per se claim. Furthermore, she asserted that § 13-22-107(3) explicitly permits parents to waive children's prospective negligence claims. Since § 33-44-104(2) states that SSA/PTSA violations constitute negligence, negligence per se claims based on these statutes fall under the general term "negligence" and are therefore waivable. The absence of "negligence per se" from the list of non-waivable claims in § 13-22-107(4) (willful, wanton, reckless, or gross negligence) further implies it is waivable. She concluded that the SSA's provision that it controls over inconsistent law (section 33-44-114) does not create an inconsistency here because the SSA defines violations as "negligence," which § 13-22-107 allows to be waived.
Analysis:
This case significantly clarifies the interplay between statutory duties in high-risk recreational activities and the enforceability of liability waivers, particularly concerning minors. It carves out a crucial exception to the broad parental waiver authority granted by § 13-22-107, reaffirming that waivers cannot abrogate statutorily imposed duties designed for public safety. The decision strengthens consumer protection in regulated industries like ski resorts and underscores the continued vitality of negligence per se claims as distinct from general negligence for waiver purposes when specific statutory duties are at play. This means ski resorts cannot contract away liability for failing to meet specific, safety-mandated operational standards.
