United States District Court, D. Colorado
WILLIAM HUBER, as parent and guardian of ASHLEY HUBER and TAYLOR HUBER, individually and as surviving children of KELLY HUBER, deceased, Plaintiffs,
GRANBY REALTY HOLDINGS, LLC d/b/a SKI GRANBY RANCH, GRANBY RANCH AMENITIES, LLC d/b/a SKI GRANBY RANCH, EDWARD J. THOMPSON, d/b/a/ ELECTRAMIC ASSOCIATES, JOSEPH GMUENDER, P.E. and GMUENDER ENGINEERING, LLC, Defendants.
RAYMOND P. MOORE United States District Judge
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.
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.
Factual Allegations 
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.)
October 18, 2016, Kelly Huber bought a “Family of 4
Season Pass 2016/2017” to ski Granby Ranch on the
website of third-party vendor GetSkiTickets.com.
(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
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 GetSkiTickets.com, 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.)
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.
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.)
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.)
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.) 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.
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.)
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.)
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
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 ...