United States District Court, D. Colorado
Linda Schlumbrecht-Muniz, M.D., Plaintiff: Mark P. Martens,
Martens & Associates, P.C., Denver, CO.
Steamboat Ski and Resort Corporation, a Delaware Corporation
doing business as Steamboat, Defendant: Kimberly A.
Viergever, Peter W. Rietz, LEAD ATTORNEYS, Brian Alan
Birenbach, Rietz Law Firm, LLC, Dillon, CO.
AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
S. Krieger, Chief United States District Judge.
MATTER comes before the Court on the Defendant's Motion
for Summary Judgment (#41), the Plaintiff's Response
(#45), and the Defendant's Reply (#47).
Court has reviewed the record and submissions of the parties
and finds the following facts to be undisputed, or if
disputed, resolves them most favorably to the non-movant.
Plaintiff Linda Schlumbrecht-Muniz, M.D., was a member of the
Sarasota, Florida Ski Team. She travelled to Steamboat
Springs Ski Resort with the ski team to participate in NASTAR
ski races. Prior to participating in the ski
races, Dr. Muniz registered with NASTAR by filling out and
signing a registration form that contained an exculpatory
clause and paid a registration fee. She also purchased a lift
ticket from the Defendant, Steamboat Ski and Resort
January 24, 2012, Dr. Muniz was present to participate in the
ski races and to ski recreationally. The race course was set
up on the Bashor Trail, which Dr. Muniz accessed via the
Bashor Lift. After finishing her second race and exiting the
race course, she skied down the Bashor Trail and headed
toward the lift. She had intended to ski past the lift to a
picnic area to meet up with other racers, but on her way Dr.
Muniz collided with a snowmobile that was parked near the
lift. Dr. Muniz sustained serious injuries as a result of the
Muniz asserts two claims against the Defendant, Steamboat:
(1) common-law negligence by the Defendant's employee in
parking the snowmobile in a dangerous, high-traffic
area, and (2) negligence per se
under the Colorado Ski Safety Act (SSA), Colo. Rev. Stat.
§ 33-44-107(7), by failing to mark and pad the
Defendant moves for summary judgment on both claims. It
argues that (1) both claims are barred by the exculpatory
clause contained in the NASTAR participation agreement; (2)
the common-law negligence claim is barred as a matter of law
by Colo. Rev. Stat. § 33-44-112; and (3) the claim of
negligence per se for violation of the SSA fails because the
statute is inapplicable and, if it is applicable, Dr. Muniz
cannot present sufficient evidence for a prima facie claim.
Standard of Review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See
White v. York Intern. Corp., 45 F.3d 357, 360 (10th
Cir. 1995). Summary adjudication is authorized when there is
no genuine dispute as to any material fact and a party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
Substantive law governs which facts are material and what
issues must be determined. It also specifies the elements
that must be proved for a given claim or defense, sets the
standard of proof, and identifies the party with the burden
of proof. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Kaiser-Francis Oil Co. v. Producer's Gas
Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is " genuine" and summary judgment is
precluded if the evidence presented in support of and in
opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When
considering a motion for summary judgment, the Court views
all evidence in the light most favorable to the non-moving
party, thereby favoring the right to a trial. See
Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213
(10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed.R.Civ.P.
56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. SeeBacchus Indus.,
Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.
1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th
Cir. 1999). If there is a genuine dispute as to a material
fact, a trial is ...