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Raup v. Vail Summit Resorts, Inc.

United States District Court, D. Colorado

January 23, 2017

CAROLYN S. RAUP, Plaintiff,
v.
VAIL SUMMIT RESORTS, INC., Defendant.

          ORDER ON SUMMARY JUDGMENT

          Wiley Y. Daniel, Senior United States District Judge.

         I. INTRODUCTION

         This lawsuit involves a claim under Colorado's Premises Liability Act. The case arises from Plaintiff's injury when she was exiting the Colorado SuperChair chairlift at Breckenridge. Plaintiff's negligence claim was previously dismissed by Order of February 1, 2016 (ECF No. 45).

         Defendant Vail Summit Resorts, Inc. [“Vail”] argues in its Motion for Summary Judgment that Plaintiff's remaining premises liability claim fails as a matter of law for two reasons. First, Vail asserts that Plaintiff has not established, and cannot establish, the standard of care for a reasonable ski area operator in Vail's position or that Vail breached the standard of care. Second, it is argued that Plaintiff's claim is barred by the liability waiver she agreed to when she used her lift ticket to ride the Colorado SuperChair. Plaintiff's Cross-Motion for Summary Judgment Re Issue of Waiver asserts that Plaintiff is entitled to judgment as a matter of law in connection with the alleged liability waiver because she asserts that it is not an enforceable contract.

         For the reasons stated below, Defendant's Motion for Summary Judgment is granted. Plaintiff's Cross-Motion for Summary Judgment Re Issue of Waiver is denied.

         II. FACTS

         I have cited only those facts I deem materially relevant to my ruling. I have cited to the record only when the facts were disputed or where I otherwise thought it was necessary. Plaintiff's exhibits are referenced by number, and Defendant's exhibits are referenced by letter.

         At all relevant times, Vail operated the Fun Park at the base of Breckenridge Peak 8, where it offered scenic chairlift rides on the Colorado SuperChair. Vail admits that it is a “landowner” as defined by Colo. Rev. Stat. § 13-21-115(1).

         Plaintiff and her adult daughter, Elizabeth Raup, also referred to as Elizabeth Pyle, visited the Fun Park on vacation in June 2012, a year before the events at issue here.[1] Before boarding and riding the Colorado SuperChair in 2012, Plaintiff and Elizabeth Raup signed a release of liability. Plaintiffs do not dispute that the release of liability Plaintiff signed at that time unambiguously identified the risks associated with participating in Fun Park activities, including the use of chairlifts, and released Vail and its employees from all liability in negligence for any injuries sustained from participating in the activities. Plaintiff asserts, however, that she did not sign a release of liability in 2013 when she rode the chairlift and was injured.

         Vail asserts that Plaintiff was generally aware of the risks associated with riding a chairlift. (Ex. 1, C. Raup Dep. 39:12-17.) While Plaintiff denies this, she testified in response to a question about whether she knew there was some risk involved in riding the lift that “there's risk in everything you do. Getting in a car is a risk.” (Ex. A, C. Raup Dep. 39:12-17). Plaintiff also testified that she was aware that if she were to fall out of the chair she might get seriously injured. (Id. at 39:5-11.)

         On June 25, 2013, Plaintiff again visited the Fun Park with Elizabeth Raup and her husband, Jason Pyle [collectively “the Pyles”]. The Pyles purchased a lift ticket for Plaintiff to ride the Colorado SuperChair that day. A lift ticket was necessary to ride the chairlift. Plaintiff did not sign a release agreement at that time. Indeed, she was not asked to nor did she sign anything.

         Vail asserts that Plaintiff looked at the front of the ticket before she rode the lift. (Id. at 36:6-13.) Plaintiff asserts that this is questionable as the Pyles purchased the lift tickets, not Plaintiff. Nonetheless, Plaintiff did testify that she looked at the front side of the ticket (id.), and her attempt to deny this is not credible.

         The front of the lift ticket stated, in capital letters: “IMPORTANT WARNING ON REVERSE.” (Ex. 4.) Plaintiff states that this was at the very bottom of the lift ticket and is printed in tiny 5 point font, as follows, “Important Warning on Reverse.” The front of the ticket does not reference a “release” or “release agreement”.

         The back of the lift ticket contained the following language:

The Holder of this lift ticket understands and VOLUNTARILY ASSUMES ALL RISKS associated with visiting the Fun Park, including the risks of property damage, personal injury, and death.
The Holder agrees to not bring any claim or lawsuit against the Fun Park or its affiliates that could arise from the negligence of the Holder or others, including the negligence of the Fun Park operator or its employees, or from incidents occurring in connection with the natural environment or reasons outside the Fun Park's or its affiliates' control.
The Holder understands that many activities in the Fun Park are self-directed, and that property damage, injury or death to Holder or others may occur as a result of the Holder's own decisions and actions in these activities.
The Holder agrees to read and follow the directions and warnings on all posted signs, and to follow any verbal or written instructions provided by the Fun Park or its employees.
The Fun Park and its affiliates affirmatively deny all liability for any property damages, injury, or death occurring as a result of or related to the Holder's visit to the Fun Park, and the Holder, by use of this ticket, hereby understands and accepts such denial of liability and agrees to hold harmless and indemnify the Fun Park and its affiliates ...

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