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Huber v. Granby Realty Holdings, LLC

United States District Court, D. Colorado

May 30, 2019

WILLIAM HUBER, as parent and guardian of ASHLEY HUBER and TAYLOR HUBER, individually and as surviving children of KELLY HUBER, deceased, Plaintiffs,


          RAYMOND P. MOORE United States District Judge

         Kelly Huber and her two young daughters, Taylor and Ashley, fell approximately twenty-five feet from a rocking ski chairlift. Kelly died, and the girls sustained injuries. Through the girls' father, the Hubers brought this diversity action against the owner and operator of the ski area Granby Realty Holdings, LLC and Granby Ranch Amenities, LLC (collectively, and referred to singularly as, Granby) and subsequently joined Thompson, who upgraded the chairlift at issue, and Gmuender and Guemender Engineering, LLC (collectively, Guemender), who provided engineering services in relation to that upgrade. All claims sound in state law.

         There are several motions before the Court. Granby moved to dismiss on the grounds that this Court is an improper forum. All Defendants have further argued, in one way or another, that certain claims are not legally cognizable or inapplicable. Finally, the Hubers have moved to certify questions of state law to the Colorado Supreme Court.

         I. BACKGROUND

         A. Factual Allegations [1]

         Defendant Granby owns and operates Granby Ranch, a Colorado resort open to the public for skiing and snowboarding. (Fourth Am. Compl. ¶¶ 40-41, ECF No. 65.) Granby also owns and operates the Quick Draw Express ski lift. (Id. ¶¶ 44, 48.) Sometime in 2016, Granby contacted Defendant Edward Thompson to discuss replacing the control system and electric drive on the lift. (Id. ¶ 65.) Thompson then contacted Defendant Josef Gmuender to provide engineering services for the project. (Id. ¶ 66.) Between November 28 and December 4, 2016, Thompson and Gmuender worked on the Quick Draw Express replacing and tuning the electric drive, interfacing the wiring, and performing routine maintenance and testing. (Id. ¶¶ 69-72.) The lift opened on December 15, 2016. (Id. ¶¶ 75-76.) Over the following weeks, riders experienced and reported unsafe conditions on the lift to Granby management, including “intense, high amplitude swinging and bounce [that] was way out of the ordinary” and significant enough to make it necessary to “hold onto something” to stay in the chairs. (Id. ¶¶ 77-78.)

         Back on October 18, 2016, Kelly Huber[2] bought a “Family of 4 Season Pass 2016/2017” to ski Granby Ranch on the website of third-party vendor (See ECF No. 83-1.) She paid the full price for the season passes online by credit card at that time. (See ECF No. 83-2.) The website stated that “[a]ll purchases through this website are non-refundable and non-transferrable. . . . To redeem your purchase, please print and redeem this itinerary confirmation voucher with a picture ID to Granby Ranch ticket window.” (See ECF No. 83-4.) On December 27, 2016, Kelly arrived at Ski Granby Ranch and presented her vouchers to obtain the season passes. She signed a “Granby Ranch Season Pass Agreement” (Agreement), which set forth language concerning assumption of risk, duties of pass holders in using the pass, a release and indemnification clause, and provisions permitting Granby to call for medical care on behalf of a holder. It also contained the following specific language:

The Undersigned understands that [using the ski area permit area, facilities, and lifts for any purpose] can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. . . . The risks and dangers of the activity include, but are not limited to: falling; . . . lift loading, unloading, and riding[.] . . . [T]his Agreement shall be governed by the laws of the State of Colorado, and the exclusive jurisdiction and venue for any claim shall be located in the state courts located in Grand County, Colorado. . . . I HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND ITS CONTENTS. I AM AWARE THAT I AM RELEASING LEGAL RIGHTS THAT OTHERWISE MAY EXIST.

(ECF No. 83-5 ¶¶ 2, 7 (emphasis in original).) According to Granby, it does not actually sell season passes on, but a third party does on its behalf. Granby further maintains that during the 2016-2017 season, all guests that pre-purchased season passes online would be made to sign the Agreement upon pickup, at which point the passes would be printed and provided to the guest. (ECF No. 86-1 ¶¶ 2-3.)

         At 9:07 a.m. on December 29, 2016, a Granby employee noticed that the Quick Draw Express “stopped unusually fast, ” but her computer monitor showed no information about the stop. Mechanics discovered a fault with the electric drive and restarted the lift. (Fourth Am. Compl. ¶ 86.) Thereafter, the Hubers boarded it, with Kelly sitting in the middle and her daughters on either side. (Id. ¶¶ 87-88.)

         The Court does not need to labor over the events that followed. At approximately 9:42 a.m., several chairs on the lift began swinging violently; the Hubers were ejected from their seats and fell twenty-five feet to the nearly flat, hard-packed snow below. (Id. ¶¶ 6, 89-102.) There were a number of witnesses, including guests and Granby employees. (Id. ¶¶ 89-101.) Kelly was pronounced dead at 10:46 a.m. (Id. ¶ 116.) Taylor and Ashley both had broken bones and have suffered emotional distress. (Id. ¶¶ 117-51.)

         The Colorado Public Tramway Safety Board (PTSB) conducted an investigation into the Quick Draw Express malfunction. (Id. ¶ 153.) In subsequent testing, the PTSB was able to replicate the violent swinging reported on the day of the incident and concluded that the Hubers' chair had collided with an adjacent tower, there was no passenger misconduct, weather conditions were not a factor, and the performance of the new electric drive was the cause of the tragedy. (Id. ¶ 155-58.)

         B. Procedural Posture

         The Hubers initiated this case against Granby Realty Holdings, LLC in this Court on December 15, 2017, filing a Complaint and First Amended Complaint the same day. (Compare ECF No. 1 with ECF No. 2.)[3] The pleadings alleged six claims for relief styled as “highest duty of care” and “negligence per se” on behalf of each of the three Hubers. (See ECF No. 2.) On January 19, 2018, Granby accepted service. (ECF No. 14.)[4] In response to the Court's sua sponte order regarding subject-matter jurisdiction, and following conferral with opposing counsel, the Hubers sought leave to file a Second Amended Complaint and did so on January 23, 2018, adding Granby Ranch Amenities, LLC as a Defendant. (ECF Nos. 11, 13, 16, 17, 23-1.)[5]

         On February 1, 2018, the parties participated in a Rule 26(f) conference, during which they agreed to a pleading amendment deadline of July 1, 2018 and discovery deadline of January 15, 2019. (ECF No. 22.) Those deadlines have since been pushed back, and discovery is currently due September 13, 2019. (ECF No. 120.) The proposed scheduling order included a statement of jurisdiction indicating complete diversity, an amount in controversy exceeding $75, 000.00, and that the tortious conduct that gave rise to these claims occurred in Colorado. (Id. at 1.) Granby also pointed to the work performed by Thompson and Gmuender in its statement of defenses. (Id. at 2.) The Court adopted the proposed scheduling order. (ECF No. 28.) Meanwhile, Granby sought an extension of time to answer the Second Amended Complaint through March 20, 2018-based on its earlier waiver of service and the parties' January 19, 2018 agreement- which the Court granted. (See ECF Nos. 23, 23-1, 26.)

         On March 20, 2018, Granby moved to dismiss solely pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the Colorado Premise Liability Act (CPLA) preempted the common law claim for breach of the “highest degree of care” and Colo. Rev. Stat. Ann. § 25-5-716 does not provide a statutory standard of care which is adequate to support the claims for negligence per se. (See ECF No. 34, at 2.)[6] On April 10, the Hubers responded to the motion and simultaneously sought to again amend the complaint to add a count under the CPLA and clarify their original claims. (ECF Nos. 36, 38.) On April 24, the Court granted the motion to amend and denied the pending dismissal motion as moot. (ECF No. 46.) The next day, the Hubers filed the Third Amended Complaint, which was ...

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