For most of us anyway, the season of sliding downhill is over. Those champagne days and robin's egg blue skies are behind us. At least until next fall anyway. Hopefully, it was a good one for you and you escaped with all your body parts intact.
However much fun riding certainly can be, as you may have noted, riding downhill at highway speeds on a board (or two) with knife edges can be sort of dangerous. Why else are evac sleds tucked about the mountain and is our outstanding professional ski patrol always at the ready?
Check out the ski liability waiver you are presumed to have read and understood when you bought your ski pass. It's a little shop of horrors. It says, among other things, that skiing/boarding is dangerous, that you assume all risks, that hazards of all kinds may exist, and that you release the ski company for any injuries you may sustain including death. Yikes! But we knew that when we signed up didn't we? You did read the waiver, did you not?
The release goes on to say that you agree that you will not file a claim against the ski company or anyone involved with the ski company and, if you do, you will "indemnify" the ski company and agree to reimburse it for all costs it may expend in defending your claim, including reimbursement of its attorney fees. To "indemnify" someone means to make them "whole," to protect them from loss. So, in indemnifying the ski company, you agree to pay it back for the cost and inconvenience of you suing them. The waiver and release goes on to say that skiing in a closed area is illegal and the operator can yank your pass it you don't follow the rules.
Well, what did you expect?
First of all, the ski company is a private company and they don't have to let you ride their very expensive equipment to get you up the hill. Second, yeah, skiing and snowboarding are dangerous; you knew that. Third, the ski company can't control every yahoo (not that you are among them) doing every yahoo thing you can imagine (and even some you can't). Too, you've got to take some responsibility for yourself, don't you? And last, skiing, however apocryphal the legend of the ski bum may be, is big business. It is a major engine of our state's tourism industry and our economy. And so ... some protections are afforded to the industry. Major protections as it turns out.
One quick aside, then on to the Ski Safety Act.
Last week, I wrote about "inherently dangerous instrumentalities," things that are dangerous by virtue of the thing itself. We compared a cumquat to a pile o' TNT, and reached the sensible conclusion that one of this unlikely pair was inherently dangerous and the other, not so much. I'll leave you to sort out for yourself which is which. Anyway ... we noted that those things that are inherently dangerous come with a different "instruction manual" imposing special duties and obligations of the owner. There is, in the ownership or control of inherently dangerous instrumentalities, a heightened risk of care that must be exercised.
So, we come to the "lady or the tiger" moment. If skiing/boarding are inherently dangerous and if the ski company operates the sliding hill (no, the ski company doesn't "own" the hill; the U.S. government is the landlord), how then can the ski company write off liability if you break your fool neck or otherwise end up in the ER begging our excellent corps of docs to put your Humpty Dumpty self back together again?
The answer is in two parts. Remember that waiver and release you signed? Most releases such as this are usually titled something like "Assumption of Risk, Release of Liability and Indemnification Agreement." Translating; first, this is a contract - the ski company will issue you a pass in exchange for both your dough and your agreement to the terms of the release. Second, what you have agreed to is that you will be responsible for the harms that may befall you, that you release the ski company from legal responsibility for the same, and, should you have the bad form to sue the ski company, you will pay it back its costs.
A bit draconian, no? But hey, you don't have to ski.
The second part of the answer lies in the warm-and-fuzzy sounding Colorado Ski Safety Act which makes for some pretty good reading. It runs about 17 pages in length. I'll wait while you peruse it. Done? OK, then let's discuss some highlights.
First, is the "legislative declaration" which is the legislature's explanation why they bothered to adopt the act. It says that the legislature wished to "define the legal responsibilities" of both ski area operators and skiers and goes on to say that the act intends to "define the rights and liabilities" between the two. The legislative declaration is the key to all that follows.
Some have argued that the act affords ski companies too many protections. Others, not enough. It depends on one's perspective, I suppose. What is unequivocal, though, is that the act shifts liabilities and responsibilities from what would otherwise be the case in the absence of the act. In other words, if not for the presence of the act, the law would enforce certain liabilities upon the ski companies that the act absolves. Whether that is good or bad is open to debate. Yes, the ski companies are major economic generators. But if you're hurt (or worse), shouldn't there be reasonable recourse?
There are, to be sure, certain duties imposed on ski facility operators under the act; posting adequate signage and the like, and there are duties imposed as well on skiers, for example the duty to yield to those downhill. The "biggie" though is probably Section 33-44-112, which holds that "Notwithstanding any judicial decision or any state law to the contrary ... 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."
Right or wrong, know this; when you strap 'em on, you're assuming personal responsibility and, if the worst happens, you may only have yourself to rely on.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com.