Irony? A screenshot of Aspen's homepage showing a hotdog-costumed pond skimmer
The Aspen Daily News is reporting that Pitkin County District Court Judge Denise Lynch has ruled that a negligence lawsuit against Aspen Skiing Co. can proceed. The source of Aspen's potential liability? A hot dog.
Before I discuss the case, I should note that I fancy myself something of a hot dog law expert since during law school I successfully defended a Cornell undergrad charged with the equivalent of reckless endangerment for tossing a hot dog at a fellow student during a tailgate. Clearly the Cornell Police had a lot of important things to do that day.
Switching back to skiing, the plaintiff in the lawsuit - a Mr. Ryan Bradley- will get a chance to convince a jury that a hot dog was to blame his injuries. According to the article, Aspen's tradition of having its lift attendants serve hot dogs to skiers on Wednesdays distracted lift attendants who failed to notice that the chair Bradley was about to board still contained a metal apparatus used by ski patrol for transporting toboggans. Bradley claims he was injured as a result and filed suit against the resort.
As I have mentioned in previous articles, ski resorts are shielded from liability by two things: statutes and contracts. Many states, including Colorado, afford broad statutory protections to ski resort operators. These laws (often "Ski Safety Acts") essentially make skiers assume the risk of participating in the sport. Public policy favors allowing individuals to participate in snowsports, but lawmakers recognized that absent statutory protections, resorts' insurance premiums would be unaffordable. Skiing would virtually cease to exist.
Resorts augment statutory protections with releases and waivers. Generally these are found on the back of lift tickets or contained in a season pass agreement. Between the two sources of protection, it is normally quite difficult to successfully sue a ski resort. In fact, Aspen sought to defend Bradley's claim using this tried and true defense, alleging that his suit was barred by his season pass agreement in which he agreed to "waive, release, indemnify, defend and hold harmless” Aspen from “any and all claims of any sort whatsoever arising out of or related to [the] use of the facilities, ski area and lifts.”
However, the same ski safety acts that protects resorts also impose certain duties. All Colorado resorts must operate their aerial tramways and chairlifts in conformance with standards set forth in the Colorado Passenger Tramway Safety Act. Bradley claims that by having its lift attendants serve hot dogs instead of focusing on loading chairs, the resort violated the act. Aspen disagreed. Judge Lynch's ruling paves the way for a jury to decide the question of fact.
The reason it is important to determine whether the resort violated the Passenger Tramway Safety Act is that a violation of the act is one of the narrow instances where a plaintiff can recover against a resort. While lawmakers may have been willing to make skiers assume the risks associated with the sport, they did not want to allow resorts to operate complex and potentially dangerous machinery in a negligent manner without consequence. The specter of lawsuits incentivizes resorts to maintain a proper standard of care. Additionally, resorts cannot get around the requirements of the Passenger Tramway Safety Act by having skiers waive its requirements or release the resort for violations. As Judge Lynch put it, “[p]arties may not privately contract to abrogate statutory requirements.”
As the article correctly notes, "an injury-causing violation by the ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board constitutes negligence [per se]" (internal quotations omitted). Consequently, the distinction between negligence and negligence per se becomes critical. Negligence claims against the resort are generally barred by the Ski Safety Act (or contracted away), while negligence per se claims are permitted where the resort has violated the Passenger Tramway Safety Act: a small distinction, with a huge difference.
Resorts augment statutory protections with releases and waivers. Generally these are found on the back of lift tickets or contained in a season pass agreement. Between the two sources of protection, it is normally quite difficult to successfully sue a ski resort. In fact, Aspen sought to defend Bradley's claim using this tried and true defense, alleging that his suit was barred by his season pass agreement in which he agreed to "waive, release, indemnify, defend and hold harmless” Aspen from “any and all claims of any sort whatsoever arising out of or related to [the] use of the facilities, ski area and lifts.”
However, the same ski safety acts that protects resorts also impose certain duties. All Colorado resorts must operate their aerial tramways and chairlifts in conformance with standards set forth in the Colorado Passenger Tramway Safety Act. Bradley claims that by having its lift attendants serve hot dogs instead of focusing on loading chairs, the resort violated the act. Aspen disagreed. Judge Lynch's ruling paves the way for a jury to decide the question of fact.
The reason it is important to determine whether the resort violated the Passenger Tramway Safety Act is that a violation of the act is one of the narrow instances where a plaintiff can recover against a resort. While lawmakers may have been willing to make skiers assume the risks associated with the sport, they did not want to allow resorts to operate complex and potentially dangerous machinery in a negligent manner without consequence. The specter of lawsuits incentivizes resorts to maintain a proper standard of care. Additionally, resorts cannot get around the requirements of the Passenger Tramway Safety Act by having skiers waive its requirements or release the resort for violations. As Judge Lynch put it, “[p]arties may not privately contract to abrogate statutory requirements.”
As the article correctly notes, "an injury-causing violation by the ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board constitutes negligence [per se]" (internal quotations omitted). Consequently, the distinction between negligence and negligence per se becomes critical. Negligence claims against the resort are generally barred by the Ski Safety Act (or contracted away), while negligence per se claims are permitted where the resort has violated the Passenger Tramway Safety Act: a small distinction, with a huge difference.
Negligence requires a plaintiff to prove four elements, in short: duty, breach, causation, and damages. Making out a negligence claim can be difficult. It is a highly fact-specific inquiry. By comparison, negligence per se is a much easier claim to prove and thus is a favorite cause of action amongst plaintiffs' lawyers. Negligence per se generally requires that:
- The defendant violated a statute
- The statute was designed to protect health or safety
- The defendant’s breach of the statute caused the kind of harm the law aims to prevent
- The claimant is a member of the group of people that the safety law was created to protect.
Doing by best impression of a 1L taking a torts exam, the Passenger Tramway Safety Act is an act designed to protect health and safety, as evidenced by its title. It is designed to promote the safe operation of chairlifts. An injury like Bradley's resulting from unsafe operations is exactly the type of harm the law is designed to prevent. The class of persons the statute is designed to protect is chairlift passengers. Plaintiff was a chairlift passenger. Prongs (2), (3), and (4) are easily satisfied. The reason the case is headed to trial is the first prong. The case will hinge on whether a jury believes the resort violated the Passenger Tramway Safety Act by asking its lift attendants to serve patrons hot dogs. (The full Passenger Tramway Safety Board Rulebook can be found here.)
A heightened standard of care would tip the scales in Bradley's favor by requiring Aspen to prove it was not negligent. Based on the foregoing it appears Bradley might well prevail on a negligence per se claim.
A quick scan of Colorado case law shows some support for Bradley's claim even under common law negligence principles. In Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658
(1968), the court
required a higher degree of care in operating a ski tow, because the lift
operator was essentially in the position of a common carrier; a skier has
little or no control over his own movements while riding a chairlift or gondola
and must necessarily depend on the operator for his safe passage. While Bagnoli suggests an outcome favorable to Bradley, it should be noted that the case was decided under a slightly different statutory scheme. The current Ski Safety Act of 1979 was enacted 11 years after the decision.
A heightened standard of care would tip the scales in Bradley's favor by requiring Aspen to prove it was not negligent. Based on the foregoing it appears Bradley might well prevail on a negligence per se claim.
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Judge denies SkiCo dismissal motion in ex-instructor lawsuit
ReplyDeleteby Chad Abraham, Aspen Daily
An Aspen man whose lawsuit alleges that the Aspen Skiing Co. and its owners are violating his First Amendment rights scored a victory earlier this month when a judge denied the company’s motion to dismiss the filing.
Senior Judge Thomas Ossola of Pitkin County District Court upheld Lee Mulcahy’s lawsuit against SkiCo, citing greater free speech protections afforded under the Colorado Constitution compared to the U.S. Constitution.
Mulcahy, a former ski instructor who was fired in 2011 after he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza criticizing the ski school’s pay policies, sued the company and its owners, Paula and James Crown in February. He claims he was fired as retaliation for that move and for discussing instructor unionization.
In addition to firing Mulcahy — the SkiCo maintains he was dismissed for work-performance issues unrelated to the fliers and unionization discussion — the company banned him from all of its properties and from the four ski areas, land it leases from the U.S. Forest Service.
Mulcahy, who is representing himself and who also has an ongoing, separate libel lawsuit against SkiCo CEO Mike Kaplan, argued that the ban from public lands violates his right to free speech.
He wrote in the lawsuit that he and others similarly situated will be “chilled and burdened” in the exercise of First Amendment rights because of the continued threat of arrest on public property.
SkiCo’s attorney, Lila Bateman of Denver, had contended that the lawsuit should be dismissed because Mulcahy’s allegations were not supported by sufficient facts.
Bateman argued that claims under the First Amendment only apply to “state actors” and that SkiCo is not engaged in state action.
“To state a violation of the First Amendment, plaintiff must either allege that SkiCo is a state actor, or that its private property is nevertheless a designated public forum,” says Bateman’s motion to dismiss.
Ossola, though, disagreed, citing a case from the early 1990s involving a Front Range shopping mall.
“While [SkiCo] relies primarily on federal case law to support its position, Article II, Section 10 of the Colorado Constitution provides greater protections for free speech than does the First Amendment,” Ossola wrote in his Oct. 3 ruling.
Ossola cited Bock v. Westminster Mall Co., in which the state supreme court held that Section 10 applied to the privately owned shopping mall.
The case involved two members of a political association known as “The Pledge of Resistance” who sought and were denied permission to distribute their pamphlets and to solicit protest signatures in the mall’s common areas.
In ruling that the Colorado Constitution protected the Resistance members’ free-speech rights, the state high court “based its holding on the fact that there was governmental involvement with the mall’s operation and the mall also functioned as a ‘downtown business district,’” Ossola wrote.
Mulcahy’s lawsuit alleges that SkiCo holds much of its ski properties as a tenant of the federal government and that it also owns nearly 50 percent of the commercial property in and around downtown Aspen.
When these allegations are construed in a light most favorable to Mulcahy — as Ossola must do by law when deciding the merits of a motion to dismiss — the judge found that, if true, they “could support a free speech claim under Article II, Section 10 to the extent that [SkiCo] may qualify as a ‘downtown business district’ under Bock,” the ruling says. “It is also possible that the level of governmental involvement with [SkiCo’s] operations could further support a free speech claim under Bock.”
Bateman did not return a message about the ruling. Asked for comment, Mulcahy wrote in an email: “The Crowns do a tremendous amount for their kingdom but the problem is greed and abuse of power. Aspen is not Versailles nor is it their feudal kingdom.”
chad@aspendailynews.com