The Summit County Citizens Voice published an article today on the Aspen "hot dog" lawsuit discussed by Ski, Esq. back in May. The author, Bob Berwyn, makes an interesting observation. He notes that "[j]udges in Colorado ski towns are starting to carve out a little bit of
room for skiers to claim damages when ski areas are found to violate
specific provisions of the Ski Safety Act." He discusses case as one that will set the limits on the effectiveness of waivers.
Ski, Esq. described the case in slightly different terms. Rather than focusing on the effectiveness of the waiver, we instead focused on the difference between negligence and negligence per se. The former is clearly barred by statute (or by waiver), while the latter proceeds because parties cannot abrogate statutory requirements.
In my opinion, the case has less to do with the Ski Safety Act and more to do with the cause of action. A plaintiff could potentially recover against a resort that violated any number of statutes under a negligence per se theory. Mr. Berwyn frames the issue as something akin to loophole in the waiver. I might characterize it instead as something beyond the scope of the waiver entirely. Statutes trump contracts.
In my opinion, the case has less to do with the Ski Safety Act and more to do with the cause of action. A plaintiff could potentially recover against a resort that violated any number of statutes under a negligence per se theory. Mr. Berwyn frames the issue as something akin to loophole in the waiver. I might characterize it instead as something beyond the scope of the waiver entirely. Statutes trump contracts.
The article is worth a read and can be found at:
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